69. Applicability of limitation Act in Excise matters

Whether Limitation Act is applicable to special Acts, when its application is not expressly excluded, is the subject matter of discussion in this article.
By judgment delivered in Commissioner of Customs, Central Excise, Noida v. Punjab Fibres Ltd., Noida (2008 (3) SCC 73) The Supreme Court held that the High Court has no power to condone delay in seeking reference under Section 35-H (before amendment in 2005)of the Excise Act. Doubting correctness of the view reference was made to larger Bench. By judgment dated 27.3.2009 a three-judge Bench in Commissioner of Customs & Central Excise v. M/s. Hongo India (P) Ltd. & Anr. 2009 (4) SCALE 374 concurred with the view taken by the two-judge Bench in Punjab Fibres case.

S. 35 H (as stood before its deletion in 2005) of Excise Act read as under:
"35H. Application to High Court - (1) The Commissioner of Central Excise or the other party may, within one hundred and eighty days of the date upon which he is served with notice of an order under section 35C passed before the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), by application in the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal."

Except providing a period of 180 days for filing reference application to the High Court, there is no other clause for condoning the delay if reference is made beyond the said prescribed period. As already pointed out that in the case of appeal to the Commissioner, Section 35 provides 60 days time and in addition to the same, Commissioner has power to condone the delay up to 30 days, if sufficient cause is shown. Likewise, Section 35B provides 90 days time for filing appeal to the Appellate Tribunal and sub-section (5) therein enables the Appellate Tribunal to condone the delay irrespective of the number of days, if sufficient cause is shown. Likewise, Section 35EE which provides 90 days time for filing revision by the Central Government and, proviso to the same enables the revisional authority to condone the delay for a further period of 90 days, if sufficient cause is shown, whereas in the case of appeal to the High Court under Section 35G and reference to the High Court under Section 35H of the Act, total period of 180 days has been provided for availing the remedy of appeal and the reference. However, there is no further clause empowering the High Court to condone the delay after the period of 180 days.

Though the Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to Appellate Tribunal. Also an additional period of 90 days in the case of revision by Central Government has been provided. However, in the case of an appeal to the High Court under Section 35G and reference application to the High Court under Section 35H, the Parliament has provided only 180 days and no further period for filing an appeal and making reference to the High Court is mentioned in the Act. In this regard, the Supreme Court in Punjab Fibres Ltd., Noida (supra), while considering the very same question and following Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur and Others, (2008) 3 SCC 70 concluded that "the High Court was justified in holding that there was no power for condonation of delay in filing reference application."

In Commissioner of Customs & Central Excise v. M/s. Hongo India (P) Ltd. & Anr. 2009 (4) SCALE 374, the Supreme Court held that in the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days.

In this case, an argument was raised based on Section 29 of the Limitation Act, which reads as under:
"29. Savings.- (1) Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872 (9 of 1872).

(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law."

It was contended that the words "expressly excluded" would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. The Supreme Court said :
“in this regard, we have to see the scheme of the special law here in this case is Central Excise Act. The nature of the remedy provided therein are such that the legislature intended it to be a complete Code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court. The scheme of the Central Excise Act, 1944 support the conclusion that the time limit prescribed under Section 35H(1) to make a reference to High Court is absolute and unextendable by court under Section 5 of the Limitation Act.”

68. Different standard of evidence at different stages of trial

For summoning an additional accused an order under Section 319 of the Criminal Procedure Code should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction.The courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned.
Mere existence of a prima facie case may not serve the purpose. Different standards are required to be applied at different stages. Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction. But a higher standard is required for the purpose of invoking the jurisdiction under Section 319 of the Code.

67. Art. 161 c.f. Art. 72 in cases of death sentence

Some authorities on Indian Constitutional Law are of the view that in a case of death sentence, the Governor has no power of pardon but he can remit, suspend or commute the death sentence . Some other would say that the Governor has no power at all regarding death sentence. The position is confusing. Art. 161does not specify the offences or sentences to which it is applicable. i.e. death sentence is not excluded from the jurisdiction of Governor. Art. 72 (1) (c) empowers the President to grant pardon etc. in all cases where the sentence is a sentence of death. In my opinion, here the words “all cases” is to be marked. It covers matters under Art. 72 (1)(a) (b) as well as well as Art. 161. It means where death sentence has been awarded for an offence relating to a matter to which executive power of the State extends, the President as well as the Governor both are competent to exercise their powers under Arts. 72 and 161 respectively.

Recently in a PIL, Bani Kanta Das and Anr. v. State of Assam and Ors (WRIT PETITION (CIVIL) NO. 457 OF 2005) decided on 8/5/09 , the supreme court has set aside the commutation order of the Governor on the ground that the order was non speaking. The supreme court has remanded the application to the Governor for reconsideration.

By the said order the Governor of Assam had directed to commute the sentence of death awarded to the accused to that of life imprisonment. The death sentence awarded to the
convict by the trial Court was confirmed by the Guwahati High Court and was upheld by Supreme Court.

In this case, basically two grounds were taken before the Supreme Court 1- that no reason has been indicated to direct such commutation and 2- apparently the order of commutation had its foundation on recommendations made by the National Human Rights Commission .

66. Transparency and accountability in a statute

The Parliament enacted Electricity Act, 2003. In exercise of its jurisdiction conferred by Section 178 of the said Act, the Central Electricity Regulatory Commission (for short, "CERC") made Central Electricity Regulatory Commission (Procedure,Terms and Conditions for Grant of Trading License and other related matters), Regulation 2004 . After analyzing the Act and Regulations in detail, the Supreme Court in Global Energy Ltd. v. Central Electricity Regulatory Commission (civil appeal no 3457- 3458 of 2009) decided on 11th may 2005, declared Clauses (b) and (f) of Regulation 6A ultra vires the Constitution of India as also the Act. The Supreme Court tested the propriety and constitutionality of generic decision-making process encapsulated under the impugned legislation.

The Supreme Court observed that: “The law sometimes can be written in such subjective manner that it affects efficiency and transparent function of the government. If the statute provides for point-less discretion to agency, it is in essence demolishing the accountability strand within the administrative process as the agency is not under obligation from an objective norm, which can enforce accountability in decision-making process. All law making, be it in the context of delegated legislation or primary legislation, have to conform to the fundamental tenets of transparency and openness on one hand and responsiveness and accountability on the other. These are fundamental tenets flowing from Due Process requirement under Article 21, Equal Protection clause embodied in Article 14 and Fundamental Freedoms clause ingrained under Article 19. A modern deliberative democracy can not function without these attributes.

The constitutive understanding of aforementioned guarantees under the Fundamental Rights chapter in the Constitution does not give rise to a mere rhetoric and symbolic value inhered by the polity but has to be reflected in minute functioning of all the three wings of state - executive, legislature and judiciary. When we talk of state action, devil lies in the detail. The approach to writing of laws, rules, notifications etc. has to showcase these concerns.

The image of law which flows from this framework is its neutrality and objectivity: the ability of law to put sphere of general decision-making outside the discretionary power of those wielding governmental power. Law has to provide a basic level of "legal security" by assuring that law is knowable, dependable and shielded from excessive manipulation. In the context of rule making, delegated legislation should establish the structural conditions within which those processes can function effectively. The question which needs to be asked is whether delegated legislation promotes rational and accountable policy implementation.

A subjectively worded normative device also enables the agency to acquire rents. It determines the degree of accountability and responsiveness of officials and of political and judicial control of the bureaucracy. However, when the provision inherently perpetuates injustice in the award of licenses and brings uncertainty and arbitrariness it would be best to stop the government in the tracks. Since the vires of the regulation is under challenge, we took the opportunity to consider the propriety and constitutionality of generic decision-making process encapsulated under the impugned legislation. Amongst others, in this context, we strike down the impugned clause.”

65 Argument beyond pleadings

The Courts should ordinarily insist on the parties being confined to their specific written pleadings and should not be permitted to deviate from them by way of modification or supplementation except through the well-known process of formally applying for amendment। It is not that justice should be available to only those who approach the Court confined in a strait-jacket. But there is a procedure known to the law, and long established by codified practice and good reason, for seeking amendment of the pleadings. Besides this, oral submissions raising new points for the first time tend to do grave injury to a contesting party by depriving it of the opportunity, to which the principles of natural justice hold it entitled, of adequately preparing its response.
(AIR 1981 SC588)

64 State Judicial Service - who is empowered to frame rules?

On a plain reading of Arts. 235 and 309 of the Constitution, it is clear that the power to frame rules regarding seniority of officers in the judicial service of the State is vested in the Governor and not in the High Court. Article 235 itself defines the outer limits of the High Court's power of control over the district Courts and Courts subordinate thereto. In the first place, in the exercise of its control over the district Courts and subordinate courts, it is not open to the High Court to deny to a member of the subordinate judical service of the State the right of appeal given to him by the law which regulates the conditions of his service. Secondly, the High Court cannot, in the exercise of its power of control, deal with such person otherwise than in accordance with the conditions of his service which are prescribed by such law. There is no power in the High Court to pass a law though rules made by the High Court in the exercise of power conferred upon it in that behalf may have the force of law. There is a distinction between the power to pass a law and the power to make rules, which by law, have the force of law. Besides, "law" which the second part of Art. 235 speaks of, is law made by the legislature because, if it were not so, there was no purpose in saying that the High Court's power of control will not be construed as taking away certain rights of certain persons under a law regulating their conditions of service. It could not have been possibly intended to be provided that the High Court's power of control will be subject to the conditions of service prescribed by it. The clear meaning, therefore, of the second part of Article 235 is that the power of control vested in the High Court by the first part will not deprive a judicial officer of the rights conferred upon him by a law made by the legislature regulating his conditions of service.

It is the High Court, not the executive which possesses control over the State judiciary. But, what is important to bear in mind is that the Constitution which has taken the greatest care to preserve the independence of the judiciary did not regard the power of the State legislature to pass laws regulating the recruitment and conditions of service of judicial officers as an infringement of that independence. The mere power to pass such a law is not violative of the control vested in the High Court over the State judiciary. The power exercised by the Governor under the proviso is a power which the legislature is competent to exercise but has in fact not yet exercised. It partakes of the characteristics of the legislative, not executive, power. It is legislative power. That the Governor possesses legislative power under our Constitution is incontrovertible and , therefore, there is nothing unique about the Governor's power under the proviso to Article 309 being in the nature of a legislative power.

It is true that the power conferred by Article 309 is "subject to" the provisions of the Constitution. But it is fallacious for that reason to contend that the Governor cannot frame rules regulating the recruitment and conditions of service of the judicial officers of the State. The power to make law relating to seniority is vested by Article 309 in the legislature, and until it acts, in the Governor. Whether it is the legislature which passes an Act or the Governor who makes rules regulating seniority, the end product is "law" within the meaning of the second part of Art. 235.

Though the legislature or the Governor has the power to regulate seniority of judicial officers by laying
down rules of general application, that power cannot be exercised in a manner which will lead to interference with the control vested in the High Court by the first part of Article 235. In a word, the application of law governing seniority must be left to the High Court. The determination of seniority of each individual judicial officer is a matter which indubitably falls within the area of control of the High Court over the district Courts and the Courts subordinate thereto. For the same reason, though rules of recruitment can provide for a period of probation, the question whether a particular judicial officer has satisfactorily completed his probation or not is a matter which is exclusively in the domain of the High Court to decide.

63 Welfare statutes

Semantic luxuries are misplaced in the interpretation of 'bread and butter' statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions. 'Void ab initio' invalid and inoperative' or call it what you will, the workmen and the employer are primarily concerned with the consequence of striking down the order of termination of the services of, the workmen. Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-a-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums; the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the Court to make appropriate consequential orders. The Court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed own. The Court may deny the relief of award of full back wages where that would place an impossible burden
on the employer. In such and other exceptional cases the Court may mould the relief but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not, comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted.

62 Will - Disinheritance of heirs of equal degree

Although freedom to bequeath
one's own property amongst Hindus is absolute both in extent and person, including rank stranger, yet to have testamentary capacity or a disposable mind what is required of propounder to establish is that the testator at time of disposition knew and understood the property he was disposing and persons who were to be beneficiaries of his disposition.Prudence, however, requires reason for denying benefit to those who too were entitled to bounty of testator as they had similar claims on him. Absence of it may not invalidate a will but it shrouds the disposition with suspicion as it does not give any inkling to the mind of testator to enable the Court to judge if the disposition was voluntary act. Taking active interest by propounder in execution of Will raises another strong suspicion. In H. Venkatachala v. B. N. Thimmajamma AIR1959 SC 443, it was held to render the Will infirm unless the propounder cleared the suspicion with clear and satisfactory evidence. Mere execution of Will, thus, by producing scribe or attesting witness or proving genuineness of testator's thumb impressions by themselves was not sufficient to establish validity of Will unless suspicious circumstances, usual or special, are ruled out and the Courts conscience is satisfied not only on execution but about its authenticity. See Kalyan Singh v.,Smt. Chhoti, (1989) 4 JT 439 (AIR 1990 SC 396).

Even though it cannot be said to be hard and fast rule yet when disinheritance is amongst heirs of equal degree and no reason for exclusion is disclosed, then the standard of scrutiny is not the same and if the Courts below failed to be alive to it as is clear from their orders then their orders cannot be said to be beyond review. see, AIR 1990 SC1742.

61 Option between Ss. 163 – A and 166 of M.V. Act

Section 163-A was inserted in the Act to provide for payment of compensation in motor accident cases in accordance with the Second Schedule providing for the structured formula which may be amended by the Central Govt. from time to time. S. 140 of the Act dealt with interim compensation but by inserting S. 163-A, the Parliament intended to provide for making of an award consisting of a pre-determined sum without insisting on a long drawn trial or without proof of negligence in causing the accident. The submission of learned counsel appearing on behalf of the appellants to the effect that Ss. 140 and 163-A provide for similar scheme cannot be accepted for more than one reason. Payment of the amount in terms of S. 140 of the Act is ad hoc in nature. A claim made thereunder, is in addition to any other claim which may be made under any other law for the time being in force. Section 163-A of the Act does not contain any such provision. S. 163-A does not contain any provision identical to sub-sec. (5) of S. 140 which is also indicative of the fact that whereas in terms of the latter, the liability of the owner of the vehicle to give compensation or relief under any other law for the time being in force continues subject of course to the effect that the amount paid thereunder shall be reduced from the amount of compensation payable under the said Section or Section 163-A. By reason of the S. 163-A, the compensation is required to be determined on the basis of a structured formula whereas in terms of S. 140 only a fixed amount is to be given. A provision of law providing for compensation is presumed to be final in nature unless a contra indication therefor is found to be in the statute either expressly or by necessary implication. While granting compensation, the Tribunal is required to adjudicate upon the disputed questions as regard age and income of the deceased or the victim, as the case may be. Unlike S. 140 of the Act, adjudication on several issues arising between the parties is necessary in a proceeding under S. 163-A of the Act. Apart from the fact that compensation is to be paid by applying multiplier method under the Second Schedule other relevant factors, namely, reduction of one-third in consideration of the expenses which the victim would have incurred towards maintaining himself, general damages in case of death as also in the case of injuries and disabilities as also the disability in non fatal accidents, a notional income for compensation to those who had no income prior to accident are provided for, are required to be considered which is also a clear pointer to the fact that thereby the Parliament intended to provide for a final amount of compensation and not an interim one. The scheme envisaged under S. 163-A, leaves no manner of doubt that by reason thereof the rights and obligations of the parties are to be determined finally. The amount of compensation payable under the aforementioned provisions is not to be altered or varied in any other proceedings. It does not contain any provision providing for set off against a higher compensation unlike S. 140. In terms of the said provision, a distinct and specific class of citizens, namely, persons, whose income per annum is Rs. 40,000/- or less is covered thereunder whereas Ss. 140 and 166 cater to all sections of society.

Having regard to the fact that S. 166 of the Act provides for a complete machinery for laying a claim on fault liability, the question of giving an option to the claimant to pursue their claims either under S. 163-A or S. 166 does not arise. Remedy for payment of compensation both under Ss. 163-A and 166 being final and independent of each other as statutorily provided, a claimant cannot pursue his remedies thereunder simultaneously. One, thus, must opt/elect to go either for a proceeding under S. 163-A or under S. 166 of the Act, but not under both.

(See, Deepal Girishbhai Soni and others, v. United Insurance Co. Ltd., Baroda AIR 2004 SC 2107)

60 Criminal prosecution of Company - Changing judicial views.

The Full Bench of the Delhi High Court in Municipal Corporation of Delhi v. J. B. Bottling Company, (1975) Cri LJ 1148 and the Full Bench of the Allahabad High Court in Oswal Vanaspati and Allied Industries v. State of U.P., (1993) 1 CLJ 172 took the view that where a statute imposes a minimum sentence of imprisonment plus fine, since the Court cannot imprison a juristic person like company, it has the option of imposing fine only.

But , this view was overruled by the supreme court by 2:1 majority in Asst. Commissioner v. M/s Velliappa Textiles AIR 2004 SC 86 where the supreme court held that:

“Corporate criminal liability cannot be imposed without making corresponding legislative changes. For example, the imposition of fine in lieu of imprisonment. Such legislative changes took place in Australia, France (Penal Code of 1992), Netherlands (The Economic Offences Act, 1950 and Article 51 of Criminal Code) and Belgium (in 1934. Cour de Cassation recognized the punishment of a corporate body by making it a subject of Belgian Criminal Statute). Germany practices a sort of administrative sanction to deviant corporations and doesn't recognize criminal liability of Corporations. In United States the punishment of corporate crime is based on the doctrine of 'Respondent Superior', whereby agent's conduct is imputed to the Corporation. This was envisaged in the Model Penal Code (1962) proposed by the American Law Institute and many States subsequently enacted this Model Code. The Canadian Federal Criminal Code was amended as far back as in 1909 whereby a fine could be substituted for a sentence of imprisonment, made the corporate criminal liability possible. Section 718 of the Canadian Criminal Code imposes fine to corporate offenders and Section 720 provides special enforcement procedure for fines on Corporations. The European Council in 1988 made a recommendation to the member states to carry out necessary amendments in their respective criminal statutes to ensure corporate liability. Whereas, the United Kingdom follows the alter ego or identification approach to fix corporate liability in criminal cases.”

Thus the supreme court held that under the present Indian Law it is difficult to impose fine in lieu of imprisonment though the definition of 'person' in the Indian Penal Code includes 'company'. The basis of decision was- “Where the legislature has granted discretion to the Court in the matter of sentencing, it is open to the Court to use its discretion. Where, however, the legislature, for reasons of policy, has done away with this discretion, it is not open to the Court to impose only a part of the sentence prescribed by the legislature, for that would amount re-writing the provisions of the statute.”

Above decision of the supreme court was overruled by 5 JJ bench of supreme court by 3:2 majority in Standard Chartered Bank v. Directorate of Enforcement AIR 2005 SC 2622. This case was related to FERA. The majority held that there is no immunity to the companies from prosecution merely because the prosecution is in respect of offences for which the punishment prescribed is mandatory imprisonment. As the company cannot be sentenced to imprisonment, the Court cannot impose that punishment, but when imprisonment and fine is the prescribed punishment the Court can impose the punishment of fine which could be enforced against the company. Such a discretion is to be read into the Section viz., S. 56 of Foreign Exchange Regulation Act (1973) (FERA) and Ss. 276-C and 278-B of Income-tax Act (1961) so far as the juristic person is concerned. Of course, the Court cannot exercise the same discretion as regards a natural person. As regards company, the Court can always impose a sentence of fine and the sentence of imprisonment can be ignored as it is impossible to be carried out in respect of a company. This appears to be the intention of the Legislature. It cannot be said that, there is a blanket immunity for any company from any prosecution for serious offences merely because the prosecution would ultimately entail a sentence of mandatory imprisonment. The corporate bodies, such as a firm or company undertake series of activities that affect the life, liberty and property of the citizens. Large scale financial irregularities are done by various corporations. The corporate vehicle now occupies such a large portion of the industrial, commercial and sociological sectors that amenability of the corporation to a criminal law is essential to have a peaceful society with stable economy.

Thus, in majority view, because the company cannot be sentenced to imprisonment, the Court has to resort to punishment of imposition of fine which is also a prescribed punishment. As per the scheme of various enactments and also the Indian Penal Code, mandatory custodial sentence is prescribed for graver offences. If the contrary view is accepted, no company or corporate bodies could be prosecuted for the graver offences whereas they could be prosecuted for minor offences as the sentence prescribed therein is custodial sentence or fine. The intention of the Legislature is not to give complete immunity from prosecution to the corporate bodies for these grave offences. Consequently, even for offences under S. 56(1)(i), FERA Act, the company could be prosecuted. It is sheer violence to commonsense that the Legislature intended to punish the corporate bodies for minor and silly offences and extended immunity of prosecution to major and grave economic crimes.

However, the minority view is that It is not open to the Court to read the words "imprisonment and fine" as "imprisonment or fine", such a construction is impermissible. Firstly, it virtually amounts to rewriting of S. 56 of FERA. The Court would be reading the section as applicable to different situations with different meanings. If the offender is a corporate entity, then only fine is imposable; if the offender is a natural person, he shall be visited with both the mandatory term of imprisonment and fine. The exercise would then become one of putting a fluctuating or varying interpretation on the statute depending upon the circumstances. That is not permissible for the Court, either on principle, or on precedent. While it may be permissible for the Court to read the word "and" as "or", or vice versa. Whatever the interpretation, it must be uniformly applied to all situations. If the conjunction "and" is read disjunctively as "or", then the intention of Parliament would definitely be defeated as the mandatory term of imprisonment would not be available even in the case of a natural person. Secondly, when a statute says the Court shall impose a term of "imprisonment and a fine", there is no option left in the Court to say that under certain circumstances it would not impose the mandatory term of imprisonment. It is trite principle that punishment must follow the conviction. Thirdly, if on the words used by the legislature it is impossible to effectuate the intention of the legislation, namely, to punish a company to imprisonment, it is not possible to read the section in any other manner to impose any other punishment on the offender. The Court cannot aid the legislature's defective phrasing of an Act, and cannot add and mend, and, by construction make up deficiencies which are left there". In other words, the language of Acts of Parliament and more especially of the modern Acts, must neither be extended beyond its natural and proper limits, in order to supply omissions or defects, not strained to meet the justice of an individual case. Thus, the definition of any word in a statute must necessarily depend on the context in which the word is used in the statute. If the statute says that the "person" committing the offence shall be mandatorily sent to prison, this principle would suggest that such a section would not apply to a juristic person. Corporate criminal liability cannot be imposed without making corresponding legislative changes such as the imposition of fine in lieu of imprisonment. Where a statute imposes mandatory imprisonment plus fine, such a provision would not enable the punishment of a corporate offender.

In this judgment also there is difference of only one vote between the honourable judges. Let us wait for another occasion for any probable change in judicial view of apex court on this subject !

59 Evidence of defense at the stage of charge

The expression "the record of the case" is used in S. 227 of the Code. Though the word "case" is not defined in the Code but S. 209 throws light on the interpretation to be placed on the word. Section 209 which deals with the commitment of case to Court of Session when offence is triable exclusively by it, inter alia, provides that when it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit "the case" to the Court of Session and send to that Court "the record of the case" and the document and articles, if any, which are to be produced in evidence and notify the Public Prosecutor of the commitment of the case to the Court of Session. It is evident that the record of the case and documents submitted therewith as postulated in S. 227 relate to the case and the documents referred in S. 209. That is the plain meaning of S. 227 read with S. 209 of the Code. No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial. The material as produced by the prosecution alone is to be considered and not the one produced by the accused.

Contention of accused that the procedure which deprives the accused to seek discharge at the initial stage by filing unimpeachable and unassailable material of sterling quality would be illegal and violative of Arts. 21 and 24 of the Constitution cannot be accepted. The reliance on Arts. 14 and 21 is misplaced. At the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge. That would defeat the object of the Code. It is well settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by S. 227 is to be understood. It only means hearing the submission of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression "hearing the submissions of the accused" cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the stage of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police.

Since defense of accused not relevant at this stage therefore, s. 91 cannot be invoked by accused to compel production of document at that stage to show his innocence.

Any document or other thing envisaged under S. 91 can be ordered to be produced on finding that the same is "necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code." The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking S. 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the Court for summoning and production of a document as may be necessary at any of the stages mentioned in the section. Insofar as the accused is concerned, his entitlement to seek order under S. 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it whether police or accused. If under S. 227 what is necessary and relevant is only the record produced in terms of S. 173 of the Code, the accused cannot at that stage invoks S. 91 to seek production of any document to show his innocence. Under S. 91 summons for production of document can be issued by Court and under a written order an officer-in-charge of police station can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof. Jurisdiction under S. 91 of the Code when invoked by accused the necessity and desirability would have to be seen by the Court in the context of the purpose - investigation, inquiry, trial or other proceedings under the Code. It would also have to be borne in mind that law does not permit a roving or fishing inquiry. (See, AIR 2005 SC 359, State of orissa v Devendra padhi

58 Difference between inquiry officer and disciplinary authority

In State Bank of India v. S.S. Kosal 1994 AIR SCW 2901 the supreme court held that where the Disciplinary Authority disagreed with the findings of the Enquiry Officer on some of the charges. No such fresh opportunity is contemplated by the State Bank of India Regulations nor can such a requirement be deduced from the principles of natural justice. The Enquiry Officer's Report is not binding upon the Disciplinary authority and it is open to the disciplinary authority to come to its own conclusion on the charges. It is not in the nature of an appeal from the Enquiry Officer to the Disciplinary Authority. It is one and the same proceeding. It is open to a Disciplinary authority to hold the enquiry himself. It is equally open to him to appoint an Enquiry Officer to conduct the enquiry and place the entire record before him with or without his findings. But in either case, the final decision is to be taken by him on the basis of the material adduced.

Above view was overruled by a larger bench of supreme court in Punjab National Bank v. Kunj Bihari Mishra AIR 1998 SC 2713. in this case the supreme court while dealing with Punjab National Bank Officer Employees (Discipline and Appeal) Regulations (1977), Regn.7(2), observed :

“The disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, inquiry officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. It is necessary for the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the inquiry officer had given an adverse finding, the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the inquiry officer. It will, therefore, not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the inquiry is not completed till the disciplinary authority has recorded its findings. Under Regn. 6 the inquiry proceedings can be conducted either by an inquiry officer or by the disciplinary authority itself.”

The supreme court held that when the inquiry is conducted by the inquiry officer his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the inquiry officer. Where the disciplinary authority itself holds an inquiry an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the inquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the inquiry officer they are deprived of representing to the disciplinary authority before that authority differs with the inquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In any such situation the charged officer must have an opportunity to represent before the Disciplinary Authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of inquiry. The principles of natural justice have, therefore, to be read into Regn. 7(2).

Thus, whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings.

57 Interest under Land Acquisition Act

In order to decide the question whether the provisions of S. 34 of the Act regarding payment of interest would be applicable to a case where possession has been taken over prior to issuance of notification under S. 4(1) of the Act it is necessary to have a look at the Scheme of the Land Acquisition Act. Acquisition means taking not by voluntary agreement but by authority of an Act of Parliament and by virtue of the compulsory powers thereby confirmed. In case of acquisition the property is taken by the State permanently and the title of the property vests in the State. The Land Acquisition Act makes complete provision for acquiring title over the land, taking possession thereof and for payment of compensation to the landowner. The scheme of the Act does not contemplate taking over of possession prior to the issuanceof notification under S. 4(1) of the Act and if possession is taken prior to the said notification it will dehors the Act. It is for this reason that both Ss. 11(1) and 23(1) enjoin the determination of the market value of the land on the date of publication of notification under S. 4(1) of the Act for the purpose of determining the amount of compensation to be awarded for the land acquired under the Act. These provisions show in unmistakable terms that publication of notification under S. 4(1) is the sine qua non for any proceedings under the Act.

The expression "the Collector shall pay the amount awarded with interest thereon at the rate of nine per centum per annum from the time of so taking possession until it shall have been so paid or deposited" occurring in S. 44 should not be read in isolation divorced from its context. The words "such possession" and "so taking possession" are important and have to be given meaning in the light of other provisions of the Act. "Such compensation" would mean the compensation determined in accordance with other provisions of the Act, namely, Ss. 11 and 15 of the Act which by virtue of S. 23(1) mean market value of the land on the date of notification under S. 4(1) and other amounts like statutory sum under sub-sec. (1-A) and solatium under sub-sec. (2) of S. 23. The heading of Part II of the Act is Acquisition and there is a sub-heading "Taking Possession" which contains Ss. 16 and 17 of the Act. The words "so taking possession" would therefore mean taking possession in accordance with Ss. 16 or 17 of the Act. These are the only Sections in the Act which specifically deal with the subject of taking possession of the acquired land. Clearly the stage for taking possession under the aforesaid provisions would be reached only after publication of the notification under Ss. 4(1) and 9(1) of the Act. If possession is taken prior to the issuance of the notification under S. 4(1) it would not be in accordance with S. 16 or 17 and will be without any authority of law and consequently cannot be recognised for the purposes of the Act. For the parity of reasons the words "from the date on which he took possession of the land" occurring in S. 28 of the Act would also mean lawful taking of possession in accordance with S. 16 or 17 of the Act. The words "so taking possession" can under no circumstances mean such dispossession of the owner of the land which has been done prior to publication of notification under S. 4(1) of the Act which is dehors the provisions of the Act.

In a case where the land owner is dispossessed prior to the issuance of preliminary notification under S. 4(1) of the Act the Government merely takes possession of the land but the title thereof continues to best with the land owner. It is fully open for the land owner to recover the possession of his land by taking appropriate legal proceedings. He is therefore only entitled to get rent or damages for use and occupation for the period the Government retains possession of the property. Where possession is taken prior to the issuance of the preliminary Notification. It will be just and equitable that the Collector may also determine the rent or damages for use of the property to which the land owner is entitled while determining the compensation amount payable to the landowner for the acquisition of the property. The provision of S. 48 of the Act land support to such a course of action. For delayed payment of such amount appropriate interest at prevailing bank rate may be awarded.

(See, R. L. Jain (D) by LRs., Appellant v. D. D. A. and others AIR 2004 SC 1904 (FB) wherein Asst. Commr. v. Mathapati,AIR 1995 SC 2492 : 1995 AIR SCW 3668 was overruled and Spl. Tehsildar v. Jubbar, AIR 1995 SC 762 was approved.)

56 Territorial jurisdiction of High Court

1. Partial cause of action : Although in view of S. 141 of the Code of Civil Procedure the provisions thereof would not apply to a writ proceedings, the phraseology used in S. 20(c) of the Code of Civil Procedure and Cl. (2) of Art. 226, being in pari materia, the decisions of Supreme Court rendered on interpretation of S. 20(c) of C.P.C. shall apply to the writ proceedings also. The entire bundle of facts pleaded need not constitute a cause of action as what is necessary to be proved before the petitioner can obtain a decree is the material facts.

The expression material facts is also known as integral facts. Keeping in view the expressions used is Cl. (2) of Art. 226 of the Constitution of India, indisputably even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter. However, even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.

The facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be granted. Those facts which have nothing to do with the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on the Court.

2. Place of appellate authority: When an order, is passed by a Court or Tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable at both the places. In other words as order of the appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority.

3. Situs of legislative authority : Passing of a legislation by itself do not confer any such right to file a writ petition unless a cause of action arises therefor. A distinction between a legislation and executive action should be borne in mind while determining the said question. A Parliamentary legislation when receives the assent of the President of India and published in an Official Gazette, unless specifically excluded, will apply to the entire territory of India. If passing of a legislation gives rise to a cause of action, a writ petition questioning the constitutionality thereof can be filed in any High Court of the country. It is not so done because a cause of action will arise only when the provisions of the Act or some of them which were implemented shall give rise to civil or evil consequences to the petitioner. A writ Court, it is well settled would not determine a constitutional question in vacuum. The Court must have the requisite territorial jurisdiction. An order passed on writ petition questioning the constitutionality of a Parliamentary Act whether interim or final keeping in view the provisions contained in Cl. (2) of Art. 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act.

In fact, a legislation, it is trite, is not confined to a statute enacted by the Parliament or Legislature of a State, which would include delegated legislation and subordinate legislation or an executive order made by the Union of India, State or any other statutory authority. In a case where the field is not covered by any statutory rule, executive instruction issued in this behalf shall also come with within the purview thereof. Situs of office of the Parliament, Legislature of a State or authorities empowered to make subordinate legislation would not by itself constitute any cause of action or cases arising. In other words, framing of a statute, statutory rule or issue of an executive order or instruction would not confer jurisdiction upon a Court only because of the situs of the office of the maker thereof.

(See, M/s. Kusum Ingots and Alloys Ltd., Appellant v. Union of India and another AIR 2004 SC 2321. U. P. Rashtriya Chini Mill Adhikari Parishad v. State, AIR 1995 SC 2148 overruled.)

56 Limitation Act – Art.58 v. Art. 113

Whereas in terms of Art. 58 the period of three years is to be counted from the date when 'the right to sue first accrues'; in terms of Art. 113 thereof, the period of limitation would be counted from the date 'when the right to sue accrues'. The distinction between Art. 58 and Art. 113 is, thus, apparent inasmuch as the right to sue may accrue to a suitor in a given case at different points of time. Whereas in terms of Art. 58 the period of limitation would be reckoned from the date on which the case of action arose first in the latter the period of limitation would be differently computed depending upon the last day when the cause of action therefor arose.

-See, Union of India and others v. West Coast Paper Mills Ltd. and another AIR 2004 SC 1596 (FB)

54 Evidentiary value of certified copy of sale deed

Acceptance of certified copy as evidence is not limited to production of certified copy of sale deed in evidence but also enables party producing it to rely on contents of document without examining vendor/vendee. Such certified copies are to be read in evidence –and their evidentiary value has to be evaluated in the light of other evidence adduced. This verdict was given by the Constitution Bench of 5 JJ of apex court while dealing with Land Acquisition Act (1 of 1894), S.51A in Cement Corporation of India Ltd. etc. v. Purya and others AIR 2004 SC 4830.

The apex court held that primary evidence is an evidence which the law requires to be given first; secondary evidence is evidence which may be given in the absence of that better evidence when a proper explanation of its absence has been given. However, there are exceptions to the aforementioned rule. Section 51-A of Act seeks to make an exception to the aforementioned rule. Under S. 51-A the certified copies of sale deeds which are otherwise secondary evidence may be brought on record evidencing a transaction. Such transactions in terms of the aforementioned provision may be accepted in evidence. Acceptance of an evidence is not a term of art. It has an etymological meaning. It envisages exercise of judicial mind to the materials on record.

Section 51-A of the L.A. Act may be read literally and having regard to the ordinary meaning which can be attributed to the term 'acceptance of evidence' relating to transaction evidenced by a sale deed, its admissibility in evidence would be beyond any question. Only by bringing a documentary evidence in the record it is not automatically brought on the record, for bringing a documentary evidence on the record, the same must not only be admissible but the contents thereof must be proved in accordance with law. But when the statute enables a Court to accept a sale deed on the records evidencing a transaction, nothing further is required to be done. The admissibility of a certified copy of sale deed by itself could not be held to be inadmissible as thereby a secondary evidence has been brought on record without proving the absence of primary evidence. Even the vendor or vendee thereof is not required to examine themselves for proving the contents thereof. This, however, would not mean that contents of the transaction as evidenced by the registered sale deed would automatically be accepted. The legislature advisedly has used the word 'may.' A discretion, therefore, has been conferred upon a Court to be exercised judicially, i.e., upon taking into consideration the relevant factors. It is therefore incorrect to say that the contents of a sale deed should be a conclusive proof as regard the transaction contained therein or the Court must raise a mandatory presumption in relation thereto in terms of S. 51-A of the Act. It is discretionary in nature. A registered document in terms of S. 51-A of the Act may carry therewith a presumption of genuineness. Such a presumption, therefore, is rebuttable. Raising a presumption, therefore, does not amount to proof; it only shifts the burden of proof against whom the presumption operates for disproving it. Only if the presumption is not rebutted by discharging the burden, the Court may act on the basis of such presumption. Even when in terms of the Evidence Act, a provision has been made that the Court shall presume a fact, the same by itself would not be irrebuttable or conclusive. The genuineness of a transaction can always fall for adjudication, if any question is raised in this behalf.

Note : The Constitution Bench overruled a catena of earlier decisions , such as, Special Deputy Collector v. Kurra Sambasiva Rao, AIR 1997 SC 2625 : 1997 AIR SCW 2584; A. P. State Road Transport Corporation, Hyderabad v. P. Venkaiah, AIR 1997 SC 2600 : 1997 AIR SCW 2556; Meharban v. State of U.P., AIR 1997 SC 2664 1997 AIR SCW 2628; Indore Development Authority v. Satyabhama Bai, (1996) 10 SCC 751; Veeraiah v. State of A.P., (1995) 4 SCC 136; P. Ram Reddy v. Land Acquisition Officer, Hyderabad, 1995 AIR SCW 371 and Inder Singh v. Union of India, 1994 AIR SCW 1552.

53 quashing of FIR because of cross cases

In the case of Jagdish Yadav Vs. Ram Nandan Yadav & Ors., 1990 SCC (Crl.) 648, it was observed that simply due to lodging of a cross-case the investigation ought not to have been interfered with by the High Court. As in view of the fact that the two cases related to the same incident it was open to the Magistrate after the two reports came to be placed before him to consider what action according to law is called for.
Likewise the scope of interference with investigation when there were cross cases has been considered in Kari Choudhary Vs. Sita Devi, AIR 2002 SC 441, the Court observed that there cannot be two FIRs against the same accused in respect of the same case. But when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried on under both of them by the same investigating agency.
In Upkar Singh Vs. Ved Prakash, AIR 2004 SC 4320, the Court considered the issue and placing reliance upon its earlier judgment in T.T. Antony Vs. State of Kerala & Ors., (2001) 6 SCC 181, held that the registration of a complaint in the nature of a counter-case from the purview of the Code is not excluded. Any further complaint by the same complainant or others against the same accused, subsequent to the registration of a case, is prohibited under the Code because an investigation in this regard would have already started and further complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint, hence will be prohibited under Section 162 of the Code. This prohibition does not apply to counter-complaint by the accused in the first complaint or on his behalf alleging a different version of the said incident. The Court held as under:-
"Be that as it may, if the law laid down by this Court in T.T. Antony case is to be accepted as holding that a second complaint in regard to the same incident filed as a counter-complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given herein below i.e. if in regard to a crime committed by the real accused he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question, consequently he will be deprived of his legitimated right to bring the real accused to book. This cannot be the purport of the Code."
In view of the above, pendency of cross-cases in respect of the same incident cannot be a sole and exclusive ground for interference with criminal proceedings.

52 Judicial interference in police investigation

The scope of interference at the stage of investigation is no more res integra as it has been considered by the Hon'ble Supreme Court time and again. In Emperor Vs. Khwaja Nazir Ahmad, AIR 1945 PC 18, the Privy Council made the following observations:-

"........So it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry..........it would be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complimentary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function,.........the Court's functions begin when a charge is preferred before it and not until then...." (Emphasis added).
Similarly, in Abhinandan Jha & Ors. Vs. Dinesh Mishra, AIR 1968 SC 117, the Hon'ble Apex Court considered the same provision of Cr.P.C. and held that the field of investigation of any cognizable offence is exclusively within the domain of the investigating agency over which the Courts cannot have control and have no power to stifle or impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the provisions relating to investigation.

In State of Bihar & Anr. Vs. J.A.C. Saldanna & Ors., AIR 1980 SC 326, the Hon'ble Apex Court while dealing with the powers of investigation of a police officer under Cr.P.C. observed that:

"There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively for the Executive through the police department, superintendence over which vests in the State Government. Once it investigates and finds an offence having been committed, it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the Investigating Officer submits report to the Court requesting the Court to take cognizance of the offence under Section 190 of the Code, its duty comes to an end."

Thus, in view of the above, it is evident that generally investigation falls within the exclusive domain of the Executive and scope of judicial review is very limited in exceptional cases.

51 Standard of proof at the stage of summoning order

It is a settled legal position that at the stage of passing order under Section 203 or 204 Cr.P.C., only a prima facie case has to be seen and not whether the evidence as adduced is to result in conviction of the accused persons. In the case of Nirmaljit Singh Hoon v. State of West Bengal and Anr., 1973 (10) ACC 181 (SC), while considering the scheme of Sections 200, 203 Cr.P.C., it has been held by the Hon'ble Apex Court that Section 203 Cr.P.C. does not say that a regular trial for adjudging the truth or otherwise of the accusations made against the accused should take place at that stage. Section 203 consists of two parts. The first part lays down the materials which the Magistrate must consider, and the second part says that if after considering those materials, there is in his judgement no sufficient ground for proceeding, he may dismiss the complaint.

In the case of Chandra Deo Singh Vs. Prakash Chandra Bose, 1964(1) SCR 639, the Hon'ble Apex Court held that at the stage of enquiry under Section 202 Cr.P.C., the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction. Again in the case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi & ors., 1976 (13) ACC 225 (SC), while considering the scope of enquiry under Section 202 Cr.P.C., the Hon'ble Apex Court has held that it is extremely limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint (a) on the basis of the materials placed by the complainant before the Court; (b) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; (c) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. In that case, it has been held by way of illustration that the order of Magistrate issuing process can be quashed where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused.

In the case of S.W. Palanitkar & Ors. V. State of Bihar & Anr. 2002(44) ACC 168, the Hon'ble Apex Court has held that at the stage of passing order under section 203 Cr.P.C., searching sufficient ground to convict is not necessary.

The Hon'ble Apex Court has considered the matter of exercising inherent power for quashing the FIR or complaint in State of A.P. vs. Bajjoori Kanthaiah & another AIR 2009 SC 671. The following observations made in para 7 of the report at page 673 are worth mentioning:-
"When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process. Lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the Section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death."

The following observations made by the Hon'ble Apex Court in State of A.P. vs. Bajjoori Kanthaiah (supra) in para 8 are also worth mentioning:-
"It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/FIR has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the FIR that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/FIR is mala faide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding."

50 Quashing of FIR when dispute is of civil nature

In Trilok Singh & Ors. Vs. Satya Deo Tripathi, AIR 1979 SC 850, the Hon'ble Supreme Court examined the similar case wherein the truck had been taken in possession by the Financer in terms of hire purchase agreement, as there was a default in making the payment of installments. A criminal case had been lodged against the Financier under Sections 395, 468, 465, 471, 12-B/34, I.P.C. This Court refused to exercise its power under Section 482, Cr.P.C. and did not quash the criminal proceedings on the ground that the Financier had committed an offence. However, reversing the said judgment, the Apex Court held that proceedings initiated were clearly an abuse of process of the Court. The dispute involved was purely of civil nature, even if the allegations made by the complainant were substantially correct. Under the hire purchase agreement, the Financer had made the payment of huge money and he was in fact the owner of the vehicle. The terms and conditions incorporated in the agreement gave rise in case of dispute only to civil rights and in such a case, the Civil Court must decide as what was the meaning of those terms and conditions.
In K.A. Mathai alias Babu & Anr. Vs. Kora Bibbikutty & Anr., 1996 (7) SCC 212, the Hon'ble Apex Court had taken a similar view holding that in case of default to make payment of installments, Financier had a right to resume possession even if the hire purchase agreement does not contain a clause of resumption of possession, for the reason that such a condition is to be read in the agreement. In such an eventuality, it cannot be held that the Financer had committed an offence of theft and that too, with the requisite mens rea and requisite dishonest intention. The assertions of rights and obligations accruing to the parties under the hire purchase agreement wipes out any dishonest pretence in that regard from which it cannot be inferred that Financer had resumed the possession of the vehicle with a guilty intention.
In Jagdish Chandra Nijhawan Vs. S.K. Saraf, (1999) 1 SCC 119, the Hon'ble Supreme Court dealt with a case wherein the company had provided an accommodation to its employee and after termination of his services, he did not vacate the said accommodation and a criminal case was lodged against him under Sections 406, 408, 409, I.P.C. also taking the assistance of Section 630 of the Companies Act, 1956. The Hon'ble Apex Court held that as the accused had been granted a rent free accommodation as a part of the conditions of employment, the agreement provided for civil rights and thus, complaint was not maintainable.
In Charanjit Singh Chadha & Ors. Vs. Sudhir Mehra, (2001) 7 SCC 417, again the Hon'ble Apex Court held that recovery of possession of the vehicle by Financer-owner as per terms of the hire purchase agreement, does not amount to a criminal offence. Such an agreement is an executory contract of sale conferring no right in rem on the hirer until the transfer of the property to him has been fulfilled and in case the default is committed by the hirer and possession of the vehicle is resumed by the Financer, it does not constitute any offence for the reason that such a case/dispute is required to be resolved on the basis of terms incorporated in the agreement. The Apex Court elaborately dealt with the nature of the hire purchase agreement observing that in a case of mere contract of hiring, it is a contract of bailment which does not create a title in the bailee.
In Lalmuni Devi (Smt.) Vs. State of Bihar & Ors., (2001) 2 SCC 17, the Hon'ble Supreme Court held that peculiar facts of a case may give rise to a civil claim and also amount to an offence. Merely because a civil claim is maintainable, it does not mean that the criminal complaint cannot be maintained, therefore, held that no law of universal application can be laid down in such matters. The facts and circumstances of each case have to be examined, appreciating the terms and conditions incorporated in the agreement.
In M. Krishnan Vs. Vijay Singh & Anr.,(2001) 8 SCC 645, after considering several authorities on the point it was pointed out that mere filing of a civil suit with respect to the documents gives no ground for quashing criminal proceedings, as the allegations in the complaint need to be independently established. The Court held as under:-
"Accepting such a general proposition would be against the provisions of law inasmuch as in all cases of cheating and fraud, in the whole transaction, there is generally some element of civil nature. However, in this case the allegations were regarding the forging of the documents and acquiring gains on the basis of such forged documents. The proceedings could not be quashed only because the respondents had filed a civil suit with respect to the aforesaid documents. In a criminal court the allegations made in the complaint have to be established independently, notwithstanding the adjudication by a civil Court. Had the complainant failed to prove the allegations made by him the complaint, the respondents were entitled to discharge or acquittal but not otherwise. If mere pendency of a suit is made a ground for quashing the criminal proceedings, the unscrupulous litigants, apprehending criminal action against them, would be encouraged to frustrate the course of justice and law by filing suits with respect to the documents intended to be used against them after the initiation of criminal proceedings or in anticipation of such proceedings. Such a course cannot be the mandate of law. Civil proceedings, as distinguished from the criminal action, have to be adjudicated and concluded by adopting separate yardsticks. The onus of proving the allegations beyond reasonable doubt, in a criminal case, is not applicable in the civil proceedings which can be decided merely on the basis of the probabilities with respect to the acts complained of......Where factual foundations for the offence have been laid down in the complaint, the High Court should not hasten to quash criminal proceedings merely on the premise that one or two ingredients have not been stated with the details or that the facts narrated reveal the existence of commercial or money transaction between the parties."
Similarly, in Rajesh Bajaj (supra), the Hon'ble Supreme Court observed as under:-
"It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions. The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discovering whether there was commission of offence or not."
Similar view has been reiterated in Ram Biraji Devi (supra) observing that where a person cannot be fastened with any criminal liability and no guilty intention can be attributed to him nor there is a possibility of deceiving on his part and the matter relates to only civil liabilities, the Court should interfere and quash the proceedings.
Thus, in view of the above, it becomes clear that in a given case, there may be civil as well as criminal liability and the Court has to examine the facts and circumstances of each case. Nature of the agreement reached between the parties and terms and conditions incorporated therein would be determining factor. However, such a course is permissible where the matter is of such a nature that it can be decided only by a Civil Court and no element of criminal law is involved.

49 Inquest report - Object and scope

The provision for holding of inquest is contained in Section 174 Cr.P.C. Heading of Section is, 'Police to enquire and report on suicide etc.' Sub-Sections (1) and (2) thereof read as under:-
174. Police to enquire and report on suicide, etc. (1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.
(2) The report shall be signed by such police officer and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the District Magistrate or the Sub-divisional Magistrate.

it is not the requirement of law to mention the name of the accused persons and the weapons carried by them in the inquest report. In this regard reference may be made to the case of Radhamohan Singh @ Lal Saheb and others vs. State of U.P. J.T.2006 (1) SC 482, in which the Hon'ble Apex Court has observed that mentioning of the name of accused and witnesses or weapons carried by the accused in the inquest report is not the requirement of law and inquest report is confined to the ascertainment of the apparent cause of death and it need not mention, who assaulted the deceased and who were the witnesses of the assault.


The language of the aforesaid statutory provision is plain and simple and there is no ambiguity therein. is foreign to the ambit and scope of proceedings under Section 174 Cr.PC. An investigation under Section 174 Cr.P.C. is limited in scope and is confined to the ascertainment of the apparent cause of death. It is concerned with discovering whether in a given case the death was accidental, suicidal and homicidal or caused by animal. It is for this limited purpose that persons acquainted with the facts of the case are summoned and examined under Section 175 Cr.P.C. The details of the overt acts are not necessary to be recorded in the inquest report. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted or who are the witnesses of the assault C. Neither in practice nor in law it is necessary for the person holding the inquest to mention all these details.

In Podda Narayana v. State of A.P. AIR 1975 SC 1252, it was held by the Hon'ble Apex Court that the proceedings under Section 174 Cr.P.C. have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under Section 174. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. Their omission is not sufficient to put the prosecution out of Court.

In Shakila Khader v. Nausher Gama AIR 1975 SC 1324, the contention raised that non-mention of a person's name in the inquest report would show that he was not a eye-witness of the incident was repelled on the ground that an inquest under Section 174 Cr.P.C. is concerned with establishing the cause of death and only evidence necessary to establish it need be brought out. The same view was taken in Eqbal Baig v. State of Andhra Pradesh AIR 1987 SC 923 that the non-mention of name of an eye-witness in the inquest report could not be a ground to reject his testimony. Similarly, the absence of the name of the accused in the inquest report cannot lead to an inference that he was not present at the time of commission of the offence, as the inquest report is not the statement of a person wherein all the names (accused and also the eye-witnesses) ought to have been mentioned.

The view taken in Podda Narayana v. State of A.P. (supra) was approved by a three-judge Bench in Khujji @ Surendra Tiwari v. State of Madhya Pradesh AIR 1991 SC 1853 and it was held that the testimony of eye-witnesses could not be discarded on the ground that their names did not figure in the inquest report prepared at the earliest point of time. The nature and purpose of inquest held under Section 174 Cr.P.C. was also explained in the case of Amar Singh V. Balwinder Singh JT 2003(2) SC 1; 2003 (2) S.C.C. 518.

Thus it is well settled by a catena of decisions of the Hon'ble Apex Court that the purpose of holding an inquest is very limited, viz., to ascertain as to whether a person has committed suicide or has been killed by another or by an animal or by machinery or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed an offence. There is absolutely no requirement in law of mentioning the details of the FIR, names of the accused or the names of the eye-witnesses or the gist of their statement nor it is required to be signed by any eyewitnesses.

(see, Crl Appeal No 44/2000, Allahabad High Court )

48. s. 156 (3) CrPC- Prospective accused has no standing

Prospective accused can not challenge the order passed by the Magistrate under section 156(3) Cr.P.C. allowing the application and directing investigation by the police.
This verdict has been passed by hon Vijay Kumar Verma,,J. in Crl. Revision No. 63 of 2002, RamDhani v. State of U.P and others decided on 30/01/2009. his lordship had also occasion to consider this matter in the case of Prof. Ram Naresh Chaudhary and another Vs. State of U.P. and others 2008(60) ACC 476. where he observed that : "At this stage accused does not come into picture at all, nor can he be heard. He has no locus to participate in the proceedings. He can at the most stand and watch the proceedings. It must be remembered that it is pre-cognizance stage. The nature of the order passed by the Magistrate under Section 156(3) Cr.P.C. directing registration and investigation of case is only a peremptory reminder or intimation to the police to exercise its power of investigation under Section 156(1) Cr.P.C, as has been held by Hon'ble Apex Court in the case of Devarappalli Lak-Shaminarayana Reddy and others Vs. V. Narayana Reddy and others (1976 ACC 230). How such a reminder is subject to revisional power of the Court is something which goes beyond comprehension. From the nature of the order itself, it is clear that it is an interlocutory order, not amenable to revisional power of the Court. Section 397(2) Cr.P.C. specifically bars revision filed against interlocutory orders."

In Karan Singh Vs. State (1997 (34) ACC 163), it was observed that:

"Where an order is made under section 156 (3) Cr.P.C. directing the police to register FIR and investigate the same, the Code no where provides that the Magistrate shall hear the accused before issuing such a direction, nor any person can be supposed to be having a right asking the Court of law for issuing a direction that an FIR should not be registered against him. Where a person has no right of hearing at the stage of making an order under section 156(3) or during the stage of investigation until Courts takes cognizance and issues process, he can not be clothed also with a right to challenge the order of the Magistrate by preferring a revision under the Code. He can not be termed as an "aggrieved person" for purpose of section 397 of the Code."

in the case of Gulam Mustafa @ Jabbar Vs. State of U.P. and others 2008 (61) ACC 922. it was held that:

"Thus at the stage of Section 156(3) Cr.P.C. any order made by the Magistrate does not adversely affect the right of any person, since he has got ample remedy to seek relief at the appropriate stage by raising his objections. It is incomprehensible that accused can not challenge the registration of F.I.R. by the police directly, but can challenge the order made by the Magistrate for the registration of the same with the same consequences. The accused does not have any right to be heard before he is summoned by the Court under the Code of Criminal Procedure and that he has got no right to raise any objection till the stage of summoning and resultantly he can not be conferred with a right to challenge the order passed prior to his summoning. Further, if the accused does not have a right to install the investigation, but for the limited grounds available to him under the law, it surpasses all suppositions to comprehend that he possesses a right to resist registration of F.I.R."

Distinguishing Division Bench ruling in the case of Ajay Malviya Vs. State of U.P., 2000(41) ACC 435,the Allahabad High Court in the case of Rakesh Puri and another Vs. State of U.P. and another 2006 (56) ACC 910 held that:

"To sum up the discussions made above, it is clear that the alleged accused has no right to challenge an order passed under section 156(3) Cr.P.C. at pre-cognizance stage by a Magistrate and no revision lay against such an order at the instance of the alleged accused under section 397(1) Cr.P.C. being barred by section 397(2) Cr.P.C. nor at his instance an application under Section 482 Cr.P.C. is maintainable for the simple reason that if cognizable offence is disclosed in an application filed by the aggrieved person, then his such an application must be investigated to bring culprits to books and not to thwart his attempt to get the FIR registered by rejecting such an application which will not amount to securing the ends of justice but will amount to travesty of it.

This matter was considered in detail by this Court in the case of Chandan Vs. State of U.P. and another 2007(57) ACC 508 also in which, it was held that accused does not have any right to challenge an order passed under Section 156(3) Cr.P.C.

Relying upon the decision of the Apex Court in the case of Central Bureau of Investigation Vs. State of Rajasthan (2001 (42) ACC 451), it was held by this Court in the case of Rakesh Puri Vs. State (supra) as follow:-
"It is preposterous even to cogitate that a person has a right to appear before the Magistrate to oppose an application seeking a direction from him for registration and investigation of the offence when he has no right to participate in the said ex-pare proceeding. If permitted this will amount to killing of foetus of investigation in the womb when it was not there at all. Such power has not been conferred under the law on the prospective accused.
When the accused does not have any right to participate in a proceeding, how can he be permitted to challenge an interlocutory order passed in such a proceeding. If an accused cannot stop registration of a complaint under section 190(1)(a) Cr.P.C. howsoever fanciful, mala fide or absurd the allegations may be, he certainly does not possess the power to stall registration of FIR of cognizable offence against him."

In view of the law laid down in the aforesaid cases, it can be concluded that the prospective accused has no right to stop the registration of the FIR by challenging the order passed by the Magistrate under section 156(3) Cr.P.C. allowing the application and directing investigation.