Saturday, August 30, 2014

Dashrath Rupsingh Rathod Ruling: can be "ignored"… as Per In Curiam

In limited understand of things, I write…

And, I try to put it simple and straight….

1.      The dishonor of cheque is made a punishable offence by virtue of section 138 of Negotiable Instruments Act, 1881.

2.      The offences are tried under the Criminal Procedure Code of 1973.

3.      Section 179 of said Code reads as –

Offence triable where act is done or consequence ensues: When an act is an offence, due to anything, which has been done, and of a consequence, which has ensued, the offence may be inquired into or tried by a court within whose local jurisdiction such thing has been done or such consequence has ensued.

4.      The plain reading of Section 179 of said Code would suggest that the alleged commission of an offence, may be inquired into or tried by a court within whose local jurisdiction the consequence has ensued.

5.      In dishonor of cheques, unarguably, the consequences ensues at the place of the residence / place of business of the payee.

6.      Therefore, the complaint can be filed in the territorial jurisdiction of those courts where the Payee resides or carries on business. The facts, where the branch of drawer or payee Bank is situated, or the place of issuance of notice, or the "stage of completion of offence”, or the "accrual of cause of action" is wholly immaterial, in this respect.

7.      The reason: The Jurisdiction conferred upon Courts by Legislature cannot be taken away by Courts' rulings; or let the SC say, we can take away the jurisdiction of Courts by our rulings.

8.      Without prejudice to the generality of argument advanced hereinbefore, it is well settled that the Courts cannot confer jurisdiction upon themselves if they don’t have; nor the Courts can refuse to exercise the jurisdiction vested in them.

9.      In the instant case, a curious situation has arisen, wherein the Legislature / Parliament unambiguously says to the Magistrate sitting in the Court at Bombay – Mr. Magistrate you can inquire into or try an offence, if the Complainant, is residing in Bombay or carries on business in Bombay, and alleges that consequence has ensued to him by reason of a crime committed by Mr. X sitting in Delhi. The Apex Court says to the same Magistrate – Mr. Magistrate, you can’t.

The golden rule of construction: In the words of LORD SIMON of GLAISDALE – Parliament is prima facie to be credited with meaning what is said in an act of Parliament; the drafting of Statutes, so important to a People, who hope to live under the rule of law, will never be satisfactory unless Courts seek, whenever possible to apply “the golden rule of construction”, that is to read statutory language, grammatically and terminologically, in the ordinary and primary sense, which it bears in its content, without omission or addition. Of course, Parliament is to be credited with good sense; so that when such an approach produces injustice, absurdity, contradiction, stultification, of statutory objective, the language may be modified sufficiently to avoid such disadvantage, though no further”. The SC approved the said principle – AIR 2002 SC 1351 : (2002) 3 SCC 722; (2007) 2 SCC 265, Para 16 : AIR 2007 SC 1040.


Purported harassment of Accused: This whole controversy arises, for one of the reason / premise that “Accused are purportedly harassed” by the filing of Complaints at places beyond their ordinary place of residence / business. The said supposition is misconceived, for more than one reason.

There is a presumption under the law that all official and judicial acts are duly performed (Illustration (e) to section 114 of Indan Evidence Act, 1872).  

Therefore, it should be presumed that the Judicial Magistrate, at the time of taking cognizance of offence u/s 200 of CrPC, 1973, and before issuing Summons against the Accused u/s 204 of CrPC, 1973, satisfies himself that there are sufficient grounds / material against the Accused, to proceed against him; notwithstanding the reality, that processes / summons u/s 138 proceedings are issued mechanically. Therefore, the problem lies with the “lack of due scrutiny before issuance of summons”.

Where the language of the section clearly expresses the intention of the Legislature, it must be given effect to, regardless of the consequences, and the court cannot consider the fact that such effect causes hardship or inconvenience. Inconvenience is never considered as a decisive factor in interpreting a statute. State v. Ramjivan Kaluram, AIR 1962 Bom 8, 12; State of Punjab v. Ajaib Singh, 1953 SCR 254, 264 (Das J.); Mysore State Electricity Board v. Bangalore Woolen etc mills Ltd AIR 1963 SC 1128. Merely because a law causes hardship, it cannot be interpreted in a manner so as to defeat its object.[ R Balakrishnapillai V St Of Kerala, (2003) 9 SCC 700].

One of the finest judgment (2012) 3 SCC 387 on principles of interpretation of Statutes, I have found –

Para 28: Now, the interpretation of a legal provision and its application to a set of facts are two different exercises requiring different approaches.

28.1: "Interpretation" means the action of explaining the meaning of something. For interpreting a statutory provision, the court is required to have an insight into the provision and unfold its meaning by means of the well-established canons of interpretation, having regard to the object, purpose, historicism of the law and several other well-known factors. But, what is important to bear in mind is that the interpretation of a legal provision is always independent of the facts of any given case.

28.2: "Application" means the practical use or relevance (of something to something); the application of a statutory provision, therefore, is by definition case related and as opposed to interpretation, the application or non-application of a statutory provision would always depend on the exact facts of a given case. Anyone associated with the process of adjudication fully knows that even the slightest difference in the facts of two cases can make a world of difference on the question whether or not a statutory provision can be fairly and reasonably applied to it.

Law of Per In curiam:

1990 (3) SCC 682 (Constitution Bench of Five Judges)

Para 37: Mr Venugopal would submit that the Judgement in Sundara Money case and for that matter the subsequent decisions in the line are per incuriam for two reasons: (i) that they failed to apply the law laid down by the Constitution bench of this Hon ble court in HariprasadShukla case and (ii) for the reason that they have ignored the impact of two of the provisions introduced by the Amendment Act of 1953 along with the definition of "retrenchment" in sec. 2(oo) and sec. 25-F namely, sec. 25-G and 25-H.

Para 43 As regards the judgments of the Supreme court allegedly rendered in ignorance of a relevant constitutional provision or other statutory provisions on the subjects covered by them, it is true that the Supreme court may not be said to "declare the law" (under Art.141) on those subjects if the relevant provisions were not really present to its mind.

2011 (7) SCC 639 (Three Judges Bench)

61 "per incuriam" are those decisions given in ignorance or forgetfulness of some statutory provision or authority binding on the Court concerned, or a statement of law caused by inadvertence or conclusion that has been arrived at without application of mind or proceeded without any reason so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.

(2014) 7 SCC 340

20. In this regard, we may usefully refer to a passage from A.R. Antulay v. R.S. Nayak,  (AIR 1988 SC 1531) (Seven Judges Bench) wherein Sabyasachi Mukharji, J. (as his Lordship then was) observed thus: -


˜Per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong

Sandeep Jalan
Advocate

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.