Miscellaneous Part 3

Summary of Question-    Maintainability of Writ petition against private body / person

 Question –  Whether a writ petition would generally be maintainable against a private body or person.  

Answer-  No.  A writ petition is maintainable  if the opposite party is   “State” or “Authority” or an “Instrumentality” or “Agency” of the State   within the meaning of  Article  12 of the Constitution of IndiaA private body or a person is, ordinarily, NOT amenable to writ jurisdiction. There are certain exceptional circumstances in which such a writ petition  may be maintainable e.g., where it may become necessary to compel such body or association to enforce any  obligation of public nature casting positive obligation upon it.

 

Rationale:

 

 1. The test propounded in Ramana Dayaram Setty vs. International Airport authority of India [1979 (3) SCC 489] for determining as to when the Corporation would  be said to be an instrumentality or agency of the Government for maintainability of Writ Petition has been followed in Pradeep Kumar Biswas’s (2002) 5 SCC 111  Case at para 31. The test given in Ramana’s case at para 14 to 16 are  summarized as under:

 “One thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government”(vide para14 of Ramana’s case)

 

    “Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character” (vide para 15 of Ramana’s case).

 

 “It may also be a relevant factor . whether the corporation enjoys monopoly status which is State-conferred or State-protected”( vide para 15 of Ramana’s case)

 

 “If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government.”( vide para 16 of Ramana’s case)

 

2. The decision in General Manager, Kisan Sahkar Chini Mills Limited, Sultanpur, UP vs. Satrughan Nishad and Ors.  (2003) 8 SCC 639 is also relevant. In this case  the appellant  was engaged in the manufacture of sugar. The respondents were the workers of the appellant and they filed  writ petitions contending that they had to be treated as permanent workmen. Short fact of the case was  that the appellant  was  Co-operative Society   and Uttar Pradesh Co-operative Sugar Factories Federation Limited, which is the apex body of cooperative sugar mills in the State and whose  function being  advisory in order to safeguard operational and financial interest of the sugar mills, on 22nd November, 1999, Chairman-cum-Managing Director of the Federation, who was also Secretary to the Government of Uttar Pradesh in the Department of Sugar Industry and Cane Development, had sent a letter to General Manager of the Mill in which it was mentioned that during the course of discussion the Managing Director had with the General Manager and other officers of the Mill, it transpired that out of 708 workmen working in the Mill, 401 were surplus whose services were required to be dispensed with in view of the deteriorating financial condition of the Mill. By the said letter the Mill was advised to consider the desirability of dispensing with services of its surplus workmen. Thereupon, services of surplus workmen were dispensed with without giving any notice and paying retrenchment compensation as required under Section 6N of Uttar Pradesh Industrial Disputes Act, 1947. The Hon’ble  Single Judge of the High Court held that the Mill was State within the meaning of Article 12 of the Constitution as it was instrumentality of the State. The Division Bench of the Hon’ble High Court affirmed by the decision. The Apex Court observed and held at para 8 as quoted below:

“ From the decisions referred to above, it would be clear that the form in which the body is constituted namely, whether it is a society or co-operative society or a company, is not decisive. The real status of the body with respect to the control of government would have to be looked into. The various tests, as indicated above, would have to be applied and considered cumulatively. There can be no hard and fast formula and in different facts/situations, different factors may be found to be overwhelming and indicating that the body is an authority under Article 12 of the Constitution. In this context, Bye Laws of the Mill would have to be seen. In the instant case, in one of the writ applications filed before the High Court, it was asserted that the Government of Uttar Pradesh held 50% shares in the Mill which fact was denied in the counter affidavit filed on behalf of the State and it was averred that majority of the shares were held by cane growers. Of course, it was not said that the Government of Uttar Pradesh did not hold any share. Before this Court, it was stated on behalf of the contesting respondents in the counter affidavit that the Government of Uttar Pradesh held 50% shares in the Mill which was not denied on behalf of the Mill. Therefore, even if it is taken to be admitted due to non traverse, the share of the State Government would be only 50% and not entire. Thus, the first test laid down is not fulfilled by the Mill. It has been stated on behalf of the contesting respondents that the Mill used to receive some financial assistance from the Government. According to the Mill, the Government had advanced some loans to the Mill. It has no where been stated that the State used to meet any expenditure of the Mill much less almost the entire one, but, as a matter of fact, it operates on the basis of self generated finances. There is nothing to show that the Mill enjoys monopoly status in the matter of production of sugar. A perusal of Bye-Laws of the Mill would show that its membership is open to cane growers, other societies, Gram Sabha, State Government, etc. and under Bye-Law 52, a committee of management consisting of 15 members is constituted, out of whom, 5 members are required to be elected by the representatives of individual members, 3 out of co-operative society and other institutions and 2 representatives of financial institutions besides 5 members who are required to be nominated by the State Government which shall be inclusive of the Chairman and Administrator. Thus, the ratio of the nominees of State Government in the committee is only 1/3rd and the management of the committee is dominated by 2/3rd non-government members. Under the Bye-Laws, the State Government can neither issue any direction to the Mill nor determine its policy as it is an autonomous body. The State has no control at all in the functioning of the Mill much less deep and pervasive one. The role of the Federation, which is the apex body and whose ex-officio Chairman-cum-Managing Director is Secretary, Department of Sugar Industry and Cane, Government of Uttar Pradesh, is only advisory and to guide its members. The letter sent by Managing Director of the Federation on 22nd November, 1999 was merely by way of an advice and was in the nature of a suggestion to the Mill in view of its deteriorating financial condition. From the said letter, which is in the advisory capacity, it cannot be inferred that the State had any deep and pervasive control over the Mill. Thus, we find none of the indicia exists in the case of Mill, as such the same being neither instrumentality nor agency of government cannot be said to be an authority and, therefore, it is not State within the meaning of Article 12 of the Constitution.”

 

                                                                                                                                        [Underlining Supplied]

2.1. Therefore, merely because a company is  Govt. Company it is not  state within the meaning  of Article 12 of the Constitution of India and not amenable to writ jurisdiction under Article 226 of the  Constitution of India. The authority of the Hon’ble e supreme court in (2003) 8 SCC 639 at para 8   is  quoted below :

“   …….  From the decisions referred to above, it would be clear that the form in which the body is constituted namely, whether it is a society or co-operative society or a company, is not decisive. The real status of the body with respect to the control of government would have to be looked into…………….”

 

 

3. In  VST Industries Limited vs. VST Industries Workers' Union and Anr.(2001) 1 SCC 298, the appellant-company was engaged in the manufacture and sale of cigarettes. A petition was filed by the first respondent under Article 226 of the Constitution seeking a writ of mandamus to treat the members of the respondent Union, who were employees working in the canteen of the appellant's factory, as employees of the appellant and for grant of monetary and other consequential benefits. The canteen was provided in the factory premises of the appellant pursuant to Section 46 of the Factories Act, which obliges a factory employing more than 250 workmen to provide such a canteen. The respondent contended that the appellant had been managing the canteen up to the year 1982 and thereafter introduced the contract system for maintaining the canteen so established. As  such, the respondent  contended  that in running a canteen under Section 46 of the Act, the appellant was discharging a public duty and, therefore, a writ of mandamus would lie against it. Speaking for the Bench, Hon’ble Mr. Justice Rajendra Babu,  (as he then was), observed and held as follows:

    "7. In de Smith, Woolf and Jowell's Judicial Review of Administrative Action, 5th Edn., it is noticed that not all the activities of the private bodies are subject to private law, e.g., the activities by private bodies may be governed by the standards of public when its decisions are subject to duties conferred by statute or when by virtue of the function it is performing or possible its dominant position in the market, it is under an implied duty to act in the public interest. By way of illustration, it is noticed that a private company selected to run a prison although motivated by commercial profit should be regarded, at least in relation to some of its activities, as subject to public law because of the nature of the function it is performing. This is because the prisoners, for whose custody and care it is responsible, are in the prison in consequence of an order of the court, and the purpose and nature of their detention is a matter of public concern and interest. After detailed discussion, the learned authors have summarized the position with the following propositions:

(1) The test of a whether a body is performing a public function, and is hence amenable to judicial review, may not depend upon the source of its power or whether the body is ostensibly a "public" or a "private body".

(2) The principles of judicial review prima facie govern the activities of bodies performing public functions.

(3) However, not all decisions taken by bodies in the course of their public functions are the subject matter of judicial review. In the following two situations judicial review will not normally be appropriate even though the body may be performing a public function

(a) Where some other branch of the law more appropriately governs the dispute between the parties. In such a case, that branch of the law and its remedies should and normally will be applied; and

(b) Where there is a contract between the litigants. In such a case the express or implied terms of the agreement should normally govern the matter. This reflects the normal approach of English law, namely, that the terms of a contract will normally govern the transaction, or other relationship between the parties, rather than the general law. Thus, where a special method of resolving disputes (such as arbitration or resolution by private or domestic tribunals) has been agreed upon by the parties (expressly or by necessary implication), that regime, and not judicial review, will normally govern the dispute.”

                                                                         

3.1. Applying the above principles, the Apex Court held  the  writ petition  as not maintainable. 

 

 

Summary of Question- Article 226 in contractual matters

Question – Whether Article 226 of the Constitution of India is fit to be invoked in contractual matters.

Answer- Ordinarily,  Not. But High court does not lack jurisdiction under Article 226 against any state action which is Arbitrary , unreasonable or falls foul of the Constitution of India.    

Rationale-


1. The Hon’ble Supreme Court in the case reported in Karnataka State Forest Industries (2009) 1 SCC 150 observed and held :

"Although ordinarily a superior court in exercise of its writ jurisdiction would not enforce the terms of a contract qua contract, it is trite that when an action of the State is arbitrary or discriminatory and, thus, violative of Article 14 of the Constitution of India, a writ petition would be maintainable."

" There cannot be any doubt whatsoever that a writ of mandamus can be issued only when there exists a legal right in the Writ Petition and a corresponding legal duty on the part of the State, but then if any action on the part of the State is wholly unfair or arbitrary, the superior courts are not powerless."

 

2. In CIVIL APPEAL NO. 2610 OF 2019 (M/S SURYA CONSTRUCTIONS vs. THE STATE OF UTTAR PRADESH), decided on 8th . March 2019, observed and held :


“It is clear, therefore, from the aforesaid order dated 22.03.2014 that there is no dispute as to the amount that has to be paid to the appellant. Despite this, when the appellant knocked at the doors of the High Court in a writ petition being Writ Civil No 25216/2014, the impugned judgment dated 02.05.2014 dismissed the writ petition stating that disputed questions of fact arise and that the amount due arises out of a contract. We are afraid the High Court was wholly incorrect inasmuch as there was no disputed question of fact. On the contrary, the amount payable to the appellant is wholly undisputed. Equally, it is well settled that where the State behaves arbitrarily, even in the realm of contract, the High Court could interfere under Article 226 of the Constitution of India [ABL International Ltd. and Another v. Export Credit Guarantee Corporation of India Ltd. and Others’ (2004 (3) SCC 553)].”

 

 

Summary of Question- Application of Article 226 when civil / criminal remedy  available
 

Question – Whether  Article 226 can be available for deciding a dispute for which civil / criminal remedies are vailable.
 

Answer- Ordinarily , Not.    
 

Rationale-
 

The Hon’ble supreme Court in CIVIL APPEAL NO.11759 of 2018 decided on 3rd. December 2018 observed and held :

"It has been consistently held by this Court    that a regular suit is the appropriate  remedy  for settlement of the disputes relating to  property rights between   the   private  persons. The remedy under Article 226 of the Constitution shall not be available except where violation of some  statutory duty on the part of statutory authority is alleged. In such  cases, the   Court   has   jurisdiction   to   issue appropriate directions to the authority  concerned. It is held that the   High   Court   cannot   allow   its   constitutional jurisdiction  to   be  used  for deciding  disputes,  for which   remedies   under   the   general   law,   civil   or criminal are available. This Court has  held that it is not intended to replace the  ordinary remedies by way of a civil suit or application available to an aggrieved person. The  jurisdiction under Article 226 of the  Constitution being special and  extraordinary, it   should   not   be  exercised  casually   or  lightly  on mere asking by the litigant…….” 

 


Summary of Question- Adjudication of facts under  Article 226

Question – Whether High Court sits as a court of  Appeal under Article 226  to adjudicate disputed questions of fact.

Answer- No.  Hon'ble  High Court does not adjudicate, upon affidavits, disputed questions of fact nor sit as a Court of Appeal over the findings recorded by a competent administrative authority ; only in the rarest of cases, error is rectifiable by the Court itself ; the appropriate course of action would be to give the opportunity to the authority concerned to rectify the error.

Rationale-

The Hon’ble Supreme Court in CIVIL APPEAL Nos. 11857-11859 of  2018 decided on 5th. December  2018 , observed and held:
 

"It is well settled that in proceedings under Article 226 of the Constitution of India the High Court does not adjudicate, upon affidavits, disputed questions of fact."
 

"It is well settled that proceedings under Article 226 of the Constitution of India, the High Court cannot   reappreciate evidence for itself to correct the error of fact, that does not go to the root of jurisdiction. The High Court does not ordinarily interfere with the findings of fact based on evidence and substitute its own findings, which the High Court has done in this case. Even assuming that there had been any error in the computation of marks in respect of fixed and movable assets, the High Court could, at best, have remitted the case of respondent Prakash Chandra Chaudhary to the concerned authorities for reconsideration."

" In exercise of discretionary power of judicial review under Article 226 of the Constitution, the High Court might interfere with administrative matters only if the decision is violative of fundamental or basic principles of justice and fair play or suffers from any patent or flagrant error. It is true that the High Court might rectify, in exercise of its power of judicial review, an error of law or even an error of fact, for sufficient reasons, if the error breaches fundamental or basic principles of justice or fair play or if the error is patent and/or flagrant, but not otherwise. However, even in cases where the High Court finds an apparent factual error which goes to the root of the decision, the appropriate course of action would be to give the opportunity to the authority concerned to rectify the error. It is only in the rarest of cases, where the factual error is so obvious that it is rectifiable by the Court itself, that the Court might, to prevent delay and consequential denial and/or miscarriage of justice, rectify the error."

 

 

Summary of Question-  Article 226 and Judicial Order 

Question – Whether Judicial Order passed by a subordinate Court can be examined by High Court under Article 226 of the Constitution of India.
 

Answer-  No. Judicial Order passed by a subordinate Court cannot be examined by High Court under Article 226 of the Constitution of India. But it can be done under Article 227.

Rationale-

1. A three Judge Bench of the Hon’ble Supreme Court in CIVIL APPEAL NO. 2548 OF 2009 , decided on 15th. April 2009, observed and held

"Under Article 227 of the Constitution, the High Court does not issue a writ of certiorari. Article 227 of the Constitution vests the High Courts with a power of superintendence which is to be very sparingly exercised to keep tribunals and Courts within the bounds of their authority. Under Article 227, orders of both Civil and Criminal Courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power,however, is not to be exercised to correct a mistake of fact and of law.The essential distinctions in the exercise of power between Article 226 and 227 are well known and pointed out in Surya Dev Rai (supra) and with that we have no disagreement."

" But we are unable to agree with the legal proposition laid down in Surya Dev Rai* (supra) that judicial orders passed by a Civil Court can be examined and then corrected/reversed by the writ Court underArticle 226 in exercise of its power under a writ of certiorari."
*2003 (6) SCC 675

2.The Hon'ble Supreme Court in the CIVIL APPEAL NO. 21 OF 2019 , decided on 03.1.2019, reiterated  the legal  position which was settled by the said three Judge bench of the Hon’ble Supreme Court.

 

 

Summary of Question-    ‘Dispose of the Representation’ mantra

 Question –  Whether Hon’ble High Courts / Tribunals should dispose of an application with just direction to the  applicant to make representation to the opposite party  and direction to the   opposite party to dispose of the representation.

Answer-  No.  The Hon’bler Supreme Court does not favour that High Courts / Tribunals should  use “Dispose of the representation” mantra.

Rationale:


In CIVIL APPEAL NO.2425 of 2019 (THE GOVT. OF INDIA  Vs. P. VENKATESH), decided on 1st.March 2019, a case related to compassionate appointment, the Hon’ble Supreme Court observed :

"The Tribunal, unfortunately, passed a succession of orders calling upon the appellants to consider and then re-consider the representations for compassionate appointment. After the Union Ministry of Information and Broadcasting rejected the representation on 13 November 2007, it was only in 2010 that the Tribunal was moved again, with the same result. These successive orders of Tribunal for re-consideration of the representation cannot obliterate the effect of the initial delay in moving the Tribunal for compassionate appointment over a decade after the death of the deceased employee. This ‘dispose of the representation’ mantra is increasingly permeating the judicial process in the High Courts and the Tribunals. Such orders may make for a quick or easy disposal of cases in overburdened adjudicatory institutions. But, they do no service to the cause of justice. The litigant is back again before the Court, as this case shows, having incurred attendant costs and suffered delays of the legal process. This would have been obviated by calling for a counter in the first instance, thereby resulting in finality to the dispute. By the time, the High Court issued its direction on 9 August 2016, nearly twenty one years had elapsed since the date of the death of the employee."

                                                                                                                                                      [Emphasis Supplied]

 

 

Summary of Question- Second Appeal under CPC ; No re-appreciation of  evidence.

Question –  Whether Evidence can be re-appreciated in Second Appeal.

Answer-  No.  In Second Appeal under section 100 CPC,  High Court cannot re-appreciate evidence like First  Appeal under section 96 CPC.
 

 Rationale-


In CIVIL APPEAL NO.6567 OF 2014,  decided on 13th March 2019, the Hon’ble Supreme Court observed and held :

 

“….However, in Second Appeal under Section 100 of the CPC, the High Court, by  impugned judgment and order has interfered with the Judgment and Decree passed by  the First Appellate Court. While interfering with  the judgment and order passed by the first Appellate Court, it  appears that while upsetting the judgment and decree passed by the  First Appellate Court, the High   Court   has   again   appreciated the   entire evidence on record, which in exercise of   powers  under Section 100 CPC is not permissible. While passing the impugnd judgment and order, it appears that High Cout has  not at all appreciated the fact   that   the   High   Court  was   deciding  the   Second   Appeal under  Section  100  of   the   CPC and not first appeal under Section 96 of the CPC. As per the law  laid down by this Court in  a catena  of decisions,  the jurisdiction of High Court to entertain second appeal under  Section 100 CPC after the 1976 Amendment, is confined only when the second appeal  involves a substantial question of law.  The existence of ‘a substantial question  of   law’  is  a sine  qua  non for  the exercise of the jurisdiction under Section 100 of the    CPC."

 

“Before parting with the present judgment, we  remind the High Courts that the  jurisdiction of the High Court, in an Appeal under Section  100 of the CPC, is strictly confined to the case involving   substantial   question   of  law and while deciding the  second appeal under  Section 100 of  the CPC, it is not permissible for the High Court to re- appreciate the evidence on record and interfere with the  findings recorded by the Courts below and/or the First Appellate Court and if the First   Appellate Court has exercised its discretion in a judicial  manner, its decision cannot be   recorded   as   suffering   from   an   error   either   of   law   or   of procedure   requiring   interference   in   Second   Appeal. We   have noticed and even as repeatedly observed by  this Court and even in the case of Narayanan Rajendran v. Lekshmy Sarojini,  (2009) 5 SCC 264, despite the catena of decisions of this Court and even the mandate under  Section 100 of the CPC, the High Courts under Section 100 CPC are disturbing  the concurrent findings of facts and/or even  the findings recorded by the First Appellate Court, either without formulating the  substantial question of law or on framing erroneous substantial  question of law.

 

 Therefore,  we  are constrained to observe as above and remind the High Courts the limitations under Section 100 of the CPC  and again hope that High Courts would keep in mind the legal position before  interfering in  Second Appeal under Section 100 of the Code of Civil Procedure."

 

 

Summary of Question-    Deferment of cross examination in a Criminal Trial

 Question –  Whether Cross-examination in a criminal Trial can be deferred .  

Answer-  Yes.   Section 231 Cr. P.C (which is applicable in case of trial before court of sessions) and   section 242 Cr. P.C (which applies to trial by Magistrate in warrant cases instituted on a Police report) are relevant in the context, under which the trial Judge is given judicial discretion  to defer the cross- examination of any witness until any  other  witness   or   witnesses   have   been   examined,   or   recall   any   witness   for further cross-examination. But this deferment  cannot be claimed as  a matter of right by the party seeking deferral. The Hon’ble Supreme  Court has laid down certain points to be taken into consideration in the matter of deferment.

Rationale:

 

1. At first , I quote below  Sections 231 and 242 of CrPC :

 

Section 231:

" Evidence for prosecution.

(1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution.

(2) The Judge may, in his discretion, permit the cross- examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross- examination"

 

 Section 242:

"Evidence for prosecution.

(1) If the accused refuses to plead or does not plead, or claims to be tried or the Magistrate does not convict the accused under section 241, the Magistrate shall fix a date for the examination of witnesses.

(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.

(3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution: Provided that the Magistrate may permit the cross- examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross- examination."

 

2. The  Hon'ble Supreme Court in CRIMINAL APPEAL No. 1321 OF 2018 in the case of State of Kerala vs. Rasheed, decided on October 30, 2018, observed and held:

 

"The   statutory   framework   governing   the   order   of   production   and examination of witnesses is contained      inter alia in Sections 135 and 138 of the Indian Evidence Act, 1872. A conjoint    reading of Sections 135  and 138 would indicate that the usual practice  in any trial, be it civil or criminal, is for the examination-in-chief of a witness to be carried out first; followed by his cross-examination (if so desired by the adverse party), and then re-examination (if so  desired by the party calling the witness)." 

 

"Section 231 of the Cr.P.C. indicates  that the Judge is given the discretion to   defer   cross-examination   of   a   witness,   until   any   other   witness   or witnesses have been examined." 

 

"The   phraseology   of   Section   231(2)   mirrors   Section   242(3)  of   the Cr.P.C. which provides for a similar discretion  to a Magistrate in the trial of a Warrant Case under Chapter XIX of the  Cr.P.C." 

 

"What follows from the discussion is  that the norm in any criminal trial is  for the examination -in -chief of  witnesses to be carried out first,  followed by cross- examination, and re- examination if required, in accordance with Section 138 of the Indian Evidence Act, 1872. Section 231(2) of the Cr.P.C., however, confers a discretion on the  Judge to defer the cross- examination of any witness until any  other  witness   or   witnesses   have   been   examined,   or   recall   any   witness   for further cross-examination, in  appropriate cases. Judicial discretion  has to be exercised in consonance with the statutory framework and context  while being aware of reasonably  foreseeable consequences." 

  

" The party seeking deferral under Section 231(2) of the  Cr.P.C. must give sufficient reasons to invoke the exercise of  discretion by the Judge, and deferral  cannot be asserted as a matter of right" 

 

"Several   High   Courts   have   held   that   the   discretion   under   Section  231(2)   of   the   Cr.P.C.   should   be   exercised   only   in   “exceptional circumstances” ,  or   when   “a   very   strong   case”   has   been   made   out. However, while it is for the parties to  decide the order of production and examination of witnesses in  accordance with the statutory scheme, a Judge has the latitude to exercise  discretion under Section 231(2) of the Cr.P.C. if sufficient reasons are made  out for deviating from the norm."

 

"While deciding an Application under  Section 231(2) of the Cr.P.C., a balance must  be struck  between the  rights of  the  accused, and  the prerogative of the prosecution to lead  evidence. The following factors must be kept in  consideration: 

possibility of undue influence on  witness(es);

possibility of threats to witness(es);

possibility that non-deferral would  enable subsequent witnesses giving   evidence   on   similar   facts   to   tailor   their   testimony   to circumvent the defence strategy;

possibility of loss of memory of the witness (es) whose examination-in-chief has been completed; 

occurrence   of   delay   in   the   trial,   and   the   non-availability   of witnesses, if deferral is allowed, in view of Section 309(1) of the Cr.P.C.

These factors are illustrative for  guiding the exercise of discretion by a Judge under Section 231(2) of the  Cr.P.C." 

 

 

Summary of Question-   Plea of Maintainability

 Question –  Whether a plea of maintainability can be allowed for the First time in Appeal/ Revision/ Writ proceeding.

Answer-  No.  A  plea of maintainability cannot be allowed for the first time in Appeal / Revision or  Writ petition under Article 227 if such plea is not just a pure Jurisdictional Legal issue rather  a mixed question of fact and law, and such plea of mixed question of fact and law as to maintainability has not been raised in the pleadings.

Rationale:

  The Hon'ble Supreme Court in CIVIL    APPEAL  No.  15371538  of   2019 (Deepak Tandon  vs. Rajesh  Kumar  Gupta), decided on the 7th Feb 2019, observed and held :

"21....... it  is  a  settled  law  that  if  the  plea  is  not taken  in  the  pleadings  by  the  parties  and  no  issue on  such  plea  was,  therefore,  framed  and  no  finding was  recorded  either  way  by  the  Trial  Court  or  the First  Appellate  Court,  such  plea  cannot  be  allowed to  be  raised  by  the  party  for  the  first  time  in  third Court  whether  in  appeal,  revision  or  writ,  as  the case  may  be,  for  want  of  any  factual  foundation  and finding.
22. ..... it  is  more  so  when  such  plea  is  founded on  factual  pleadings  and  requires  evidence  to  prove, i.e.,  it  is  a  mixed  question  of  law  and  fact  and  not pure  jurisdictional  legal  issue  requiring  no  facts  to probe. "

 

 

Summary of Question-   Power of Magistrate under section 173 Cr.P.C

 Question –  Whether a  Magistrate, under section 173(2) Cr.P.C,  is  empowered to order the Police to file charge sheet if the Police has submitted Final Report, and whether a Magistrate can  suo moto order  further investigation  after the order of discharge.

Answer-  No.    A Magistrate under section 173(2) Cr.P.C is not empowered to order the Police to file charge sheet if the Police has submitted Final Report ; the Magistrate is empowered to do the followings only :

(a) The Magistrate may accept the Final report report in which case the proceedings would stand closed.
(b) He may not accept the report and may take cognizance in  the matter on the basis of such final report.
(c) If he is not satisfied by the investigation undertaken by the police, he may direct further investigation in the matter.

  Further , once  a  Magistrate, on the basis of the Police report and the materials placed along with the report, discharges the accused, the Magistrate cannot  suo moto order  further investigation ; after the order of discharge is passed,  the Magistrate has no jurisdiction to suo moto direct the investigating officer for further investigation. The power of Magistrate to order further investigation is available at pre cognizance stage under section 173(2) Cr. P. C;  the Magistrate cannot exercise this power at the  post ­cognizance stage, more particularly,   when   the   accused   is   discharged .  Section 173(8) of the CrPC, however, confers power upon the officer ­in­ charge of the police station to further investigate and submit evidence, oral or documentary, after forwarding the report under sub­section (2) of Section 173 of the CrPC ; it is  open for the investigating officer to apply for further investigation, even after forwarding the report under sub­section (2) of Section 173 and even after the discharge of the accused but the Magistrate has no jurisdiction to suo moto pass an   order   for   further   investigation/reinvestigation  Section 173(8) of the CrPC  after   he discharges the accused.  


Rationale:

 

1. The Hon'ble Supreme Court in CRIMINAL APPEAL NO.614 of  2019, decided on the 8th April 2019, observed and held :


"The law is well-settled that in case a final report is filed under Section 173(2) Cr.P.C. stating that no offence is made out against the accused, any of the following courses can be adopted by the Magistrate:
(a) He may accept the report which was filed by the police in which case the proceedings would stand closed.
(b) He may not accept the report and may take cognizance in  the matter on the basis of such final report which was  presented by the police.
(c) If he is not satisfied by the investigation so undertaken by the police, he may direct further investigation in the matter.

The law is further well-settled that the judicial discretion to be used by the Magistrate at such stage has to fall in either of the three aforesaid categories.

In the present matter, the magistrate has issued directions directing the police to file charge-sheet under Section 326 and 294 IPC and also the provision of Section 3(1) and 10 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Such a direction is wholly unsustainable."

2.  The Hon'ble Supreme Court in CRIMINAL  APPEAL NO. 687 OF 2019  , decided on the 16th. April 2019, observed and held:

“6. Heard learned counsel appearing on behalf of the respective parties at length.  At the outset, it is required to be noted that the challenge in the present appeal is to the order passed by the High Court, confirming the order passed by the learned Magistrate of further investigation passed at the time/after the accused was discharged by the learned Magistrate.   It is required to be noted that, in the present case, the investigating officer after concluding the investigation, submitted the report/charge­sheet before the learned Magistrate.   Thereafter, the matter before the learned Magistrate was at the stage of framing of the charge, as provided under Sections 227 and 228 of the CrPC.    After considering the material on record submitted along with the charge­sheet, the learned Magistrate at the first instance discharged the accused. However, simultaneously, while discharging the accused, learned Magistrate  also  passed an order for further investigation and directed   the   investigating   officer   to   further   investigate   in   the matter and submit the report.  That part of the order, by which the learned Magistrate ordered further investigation is the subject matter of dispute.  Therefore, the short question which is posed for consideration   by   this   Court   is   whether   once   the   learned Magistrate passes an order of discharge of the accused, whether thereafter is it permissible for the Magistrate to order further investigation and direct the investigating officer to submit the report? 

6.1. While   considering   the   aforesaid   issue/question,   few decisions of this Court on the procedure to be followed by the learned   Magistrate   when   the investigating   officer   submits   the report under Section 173(2) of the CrPC and what are the powers of the learned Magistrate and/or what are the options available to the learned Magistrate at a time when the investigating officer after   concluding   the   investigation   submits   the report/challan/charge­sheet before the learned Magistrate, are required to be referred to and considered.

7. Considering the law laid down by this Court in the aforesaid decisions and even considering the relevant provisions of the CrPC, namely Sections 167(2), 173, 227 and 228 of the CrPC, what is emerging is that after the investigation is concluded and the report is forwarded by the police to the Magistrate under Section 173(2)(i) of the CrPC, the learned Magistrate may either
(1) accept the report and take cognizance of the offence and issue process,   or   (2)   may   disagree   with   the   report   and   drop   the proceedings, or (3) may direct further investigation under Section 156(3) and require the police to make a further report.   If the Magistrate disagrees with the report and drops the proceedings, the informant is required to be given an opportunity to submit the protest application and thereafter, after giving an opportunity to the informant, the Magistrate may take a further decision whether to drop the proceedings against the accused or not.  If the learned Magistrate accepts the objections, in that case, he may issue process and/or even frame the charges against the accused.   As observed hereinabove, having not satisfied with the investigation on considering the report forwarded by the police under Section 173(2)(i) of the CrPC, the Magistrate may, at that stage, direct further investigation and require the police to make a further report.   However, it is required to be noted that all the aforesaid is required to  be done  at the pre­cognizance stage. Once   the   learned   Magistrate   takes   the   cognizance   and, considering the materials on record submitted along with the report   forwarded   by   the   police   under   Section   173(2)(i)   of   the CrPC, learned Magistrate in exercise of the powers under Section 227 of the CrPC discharges the accused, thereafter, it will not be open for the Magistrate to suo moto order for further investigation and direct the investigating officer to submit the report.   Such an order after discharging the accused can be said to be made at the post­ cognizance stage.   There is a distinction and/or difference between the pre­cognizance stage and post­cognizance stage and the   powers   to   be   exercised   by   the   Magistrate   for   further investigation   at   the   pre­cognizance   stage   and   post­ cognizance stage.   The power to order further investigation which may be available to the Magistrate at the pre­ cognizance stage may not be available to the Magistrate at the post ­cognizance stage, more particularly,   when   the   accused   is   discharged   by   him.   As observed hereinabove, if the Magistrate was not satisfied with the investigation   carried   out   by   the   investigating   officer   and   the report submitted by the investigating officer under Section 173(2) (i) of the CrPC, as observed by this Court in catena of decisions and as observed hereinabove, it was always open/permissible for the   Magistrate   to   direct   the investigating   agency   for   further  investigation and may postpone even the framing of the charge and/or taking any final decision on the report at that stage. However, once the learned Magistrate, on the basis of the report and the materials placed along with the report, discharges the accused, we are afraid that thereafter the Magistrate can  suo moto order the further investigation by the investigating agency. Once the order of discharge is passed, thereafter the Magistrate has no jurisdiction to suo moto direct the investigating officer for further investigation and submit the report.  In such a situation, only two remedies are available: (i) a revision application can be filed against the discharge or (ii) the Court has to wait till the stage of Section 319 of the CrPC.   However, at the same time, considering the provisions of Section 173(8) of the CrPC, it is always open for the investigating agency to file an application for further investigation and thereafter to submit the fresh report and   the   Court   may,   on   the   application   submitted   by   the investigating agency, permit further investigation and permit the investigating officer to file a fresh report and the same may be considered by the learned Magistrate thereafter in accordance with law.   The Magistrate cannot  suo  moto  direct for further investigation under Section 173(8) of the CrPC or direct the re- investigation   into   a   case   at   the   post­cognizance   stage,   more particularly when, in exercise of powers under Section 227 of the CrPC, the Magistrate discharges the accused.   However, Section 173(8) of the CrPC confers power upon the officer ­in­ charge of the police station to further investigate and submit evidence, oral or documentary, after forwarding the report under sub­section (2) of Section 173 of the CrPC.   Therefore, it is always open for the investigating officer to apply for further investigation, even after forwarding the report under sub­section (2) of Section 173 and even after the discharge of the accused.  However, the aforesaid shall be at the instance of the investigating officer/police officer- in­charge and the Magistrate has no jurisdiction to suo moto pass an   order   for   further investigation/reinvestigation   after   he discharges the accused.  

7.1. In the instant case, the investigating authority did not apply for further investigation and that the learned Magistrate   suo moto  passed an order for further investigation and directed the investigating officer to further investigate and submit the report, which is impermissible under the law.  Such a course of action is beyond   the   jurisdictional competence   of   the   Magistrate…”