Proclamation and Attachment of Property of Person Absconding : Section 82 and 83 of CrPC

Normally any accused person whose presence is required by Court is to be at first instance called upon by summons. Sub section (1) of Section 204 of the Code of Criminal Procedure (in short CrPC) reads as follows- If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be

(a) a summons case, he shall issue his summons for the attendance of the accused, or 

(b) a warrant case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or ( if he has no jurisdiction himself) some other Magistrate having jurisdiction.

Further sub section (5) of Section 204 CrPC says- Nothing in this section shall be deemed to affect the provisions of section 87. 

     

Section 87 of the Code of Criminal Procedure empowers a Court to issue warrant in lieu of, or in addition to, summons. It can be exercised in two cases

(a) where the Court believes that the person summoned, either before or after the issue of summons, has absconded or will disobey the summons, or 

(b) where he has without reasonable cause failed to appear. The recording of reasons by the Court is a condition precedent to the exercise of the power.

The other processes to compel the appearance of persons before the criminal courts are

(i) Proclamation as absconder, where a warrant fails to take effect; 

(ii) Attachment and sale of property, if the absconder is not forthcoming;

(iii) Taking of bond with or without sureties.

Proclamation for person absconding.- 

Section 82, CrPC provides as to when and how proclamation can be issued for an absconding person. If any court had reason to believe that any person against whom a warrant had been issued by it, had absconded or was concealing himself so that such warrant could not be executed, such Court may publish a written proclamation requiring, him to appear at specified place and at specified time not less than thirty days from date of publishing such proclamation. 

  

Sub section (2) of Section 82, CrPC says – the proclamation shall be published as follows 

(i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides; 

(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village; 

(c) a copy thereof shall be affixed to some conspicuous part of the Court-house;

(ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.

Every person who is not immediately available cannot be characterized as an absconder. The Court has to record its satisfaction that the accused has absconded or is concealing in order to avoid execution of the warrant. The provision of Section 82 requires that the Court must in the instance, issue a warrant and it must put down its reason for believing that the accused is absconding or concealing himself.

Attachment of property of person absconding -

The property of the person against whom a proclamation is issued under Section 82, CrPC can be attached in order to compel his appearance in court. This has been provided by Section 83. 

According to Section 83, CrPC the Court issuing proclamation under section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person:

Provided that where at the time of the issue of the proclamation the Court is satisfied, by affidavit or otherwise, that the person in relation to whom the proclamation is to be issued,-

(a) is about to dispose of the whole or any part of his property, or 

(b) is about to remove the whole or any part of his property from the local jurisdiction of the Court,

 it may order the attachment simultaneously with the issue of the proclamation.

The object of Section 83 CrPC is to penalize a person who seeks to avoid his arrest under warrant and against whom a proclamation is issued under Section 82, for disobedience of the proclamation, he incurs liability to be punished under Section 174 and 174 A of the Indian Penal Code.

The procedure laid down under Section 83 CrPC has to be followed strictly. Jurisdiction to pass an attachment order cannot be assumed unless a proclamation under Section 82 has been issued. The normal rule is to wait until expiry of thirty days to enable the accused to appear in terms of the proclamation which is to be computed from the date of publication of proclamation and the provisions in this respect are mandatory.

Section 88, CrPC empowers the Court to take bond for appearance. When any person for whose appearance or arrest the officer presiding in any court is empowered to issue a summons or warrant, is present in such court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such court, or any other court to which the case may be transferred for trail.


Remedy available to an aggrieved person-

The following four remedies are available to an aggrieved person
(i) Remedy by way of a claim or objection under Section 84, CrPC
(ii) Remedy by way of civil suit to establish a claim (Section 84, CrPC)
(iii) An appeal under Section 86, CrPC
(iv) Under certain circumstance, a revision application under Section 397, CrPC.

Quiz Corner

(i) A proclamation requiring a person to appear must be published giving
(a) not less than 30 days time to the person concerned
(b) not less than 10 days time to the person concerned
(c) not less than 20 days time to the person concerned
(d) not less than 15 days time to the person concerned.

(ii) Attachment of the property of the person absconding
(a) can only be issued after publication of the proclamation under section 82 of crpc
(b) can be issued before publication of the proclamation under section 82 of crpc
(c) can be issued simultaneously with the issue of proclamation under section 82 of crpc
(d) all of the above.

(iii) If the person proclaimed appears within the period specified in the proclamation, the property attached
(a) shall not be released from attachment
(b) shall be released from attachment
(c) shall be forfeited
(d) both (a) & (c).

(iv) If the proclaimed person does not appear within the time specified in the proclamation, the property under attachment

(a) shall not be sold untill expiry of six months from the date of attachment

(b) shall not be sold untill any claim or objection under section 84 of crpc have been disposed of

(c) both (a) & (b)

(d) none of the above.

(v) Period of limitation for filing claims and objections to the attachment of any property attached under section 83 of crpc, by any person other than the proclaimed person, as provided under section 84 of crpc
(a) within three months of attachment
(b) within six months of attachment
(c) within one year of attachment
(d) within two months of attachment.

Disclaimer - All the content are for general use and information. Consult your lawyer before acting upon above information.

Release of Land From Acquisition : Section 48 of the Land Acquisition Act, 1894

Section 48 of the Land Acquisition Act, 1894 empowers the Government to withdraw from the acquisition of the land provided possession has not been taken. The said power is given to the government by a statutory provision and is not restricted by any condition except that such power must be exercised before possession is taken. The statutory provision contained in Section 48 does not provide for any particular procedure for withdrawal from acquisition.

Section 48 in the Land Acquisition Act, 1894 reads as follows: - 48 Completion of acquisition not compulsory, but compensation to be awarded when not completed.

(1) Except in the case provided for in Section 36, the government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.

(2) Whenever the government withdraws from any such acquisition, the collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.

(3) The provision of Part iii of this Act shall apply, so far as may be, to the determination of the compensation payable under this Section.

Further Section 36 of the Land Acquisition Act reads as follows: - 36 Power to enter and take possession, and compensation on restoration. 

(1) On payment of such compensation, or on executing such agreement, or on making a reference under Section 35, the Collector may enter upon and take possession of the land, and use, or permit the use thereof in accordance with the terms of the said notice. 

(2) On the expiration of the term, the Collector shall make or tender to the persons interested compensation for the damage, if any, done to the land and not provided for by the agreement, and shall restore the land to the persons interested therein, provided that, if the land has become permanently unfit to be used for the purpose for which it was used immediately before the commencement of such term, and if the persons interested shall so require the appropriate government shall proceed under this Act to acquire the land as if it was needed permanently for a public purpose or for a company.

A plain reading of the Section 48 of the Land Acquisition Act, 1894 demonstrates that an absolute discretion is vested in the State Government in so far as, the release of land from acquisition is concerned. Moreover, the exercise of discretion vested in government is subject to the condition that the possession of the land in question has not been taken.

The normal mode of taking possession is drafting the Panchanama in the presence of Panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land.

Once the possession of land has been taken no application seeking release of land by the land owner is maintainable ( Swamy Devi Dayal Hospital vs. Union of India, AIR 2014 SC 284 ).

In Mahadeo vs. State of UP, (2013) 4 SCC 524 the Supreme Court held that- once land is acquired and mandatory requirements are complied with i.e. land has been acquired after following due process of law and of which possession has been taken, land vests in state free from all encumbrances, even if some unutilized land remains, it cannot be reconveyed or reassigned to erstwhile owner.

The brief fact of the case is that- the land was acquired for purpose of expansion of city and major portion of land was already utilized by Authority- merely because some land was left vacant at relevant time that does not give any right to Authority to send proposal to government for release of land in favour of land owners.

The impugned orders passed by High Court directing Authority to press resolution dated 17-09-1997 whereunder decision was taken to withdraw acquisition of land except land for which compensation was paid, unsustainable. Hence Mandamus issued to this effect by High Court is quashed by the Apex Court.

It is true that a landowner whose land has been acquired for public purpose by following the prescribed procedure cannot claim as a matter of right for release of his/her land from acquisition but where the State Government exercises its power under Section 48(1) of the Land Acquisition Act for withdrawal from acquisition in respect of a particular land, the landowners who are similarly situated have right of similar treatment by the State Government.

Disclaimer: - All the content is for general use and information. Consult your Lawyer before acting upon these information.   

'Defamation' under Indian Penal Code

‘Defamation’ may be a criminal or civil charge. It encompasses both written statements, known as libel, and spoken statements, called slander.

The criminal law on defamation has been codified under chapter 21 of the Indian Penal Code (in short IPC) and is containing in Sections 499 to 502 of the IPC.

Section 499 of the IPC defines ‘defamation’ whereas Section 500, IPC is the Penal Section for defamation which reads as ‘whoever defames another shall be punished with simple imprisonment for a term which may extend to two years or with fine or with both’. In order to justify a charge under Section 500 of IPC, it is required that the allegations satisfy requirement of Section 499, IPC as also the explanations appended thereto.

The offence of ‘defamation’ as defined by Section 499 of the Indian Penal Code reads as follows: - whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

Essential Ingredients of ‘defamation’: -

There are three main ingredients of the offence of defamation

(i) making or publishing any imputation concerning any person; 

(ii) such imputation must have been made by- 

(a) words, either spoken or intended to be read; or 

(b) signs; or 

(c) visible representations. 

(iii) such imputation must be made with the intention of harming or with the knowledge or with reasons to believe that it will harm the reputation of that person.

It is clear that the means rea to cause harm is the most essential sine qua non for an offence under Section 499 of the Indian Penal Code. To constitute ‘defamation’ under Section 499 of the Code, there must be an imputation and such imputation must have been made with intention of having or knowing or having reason to believe that it will harm the reputation of the person about whom it is made. In essence, the offence of defamation is the harm caused to the reputation of a person. It would be sufficient to show that the accused intended or knew or had reason to believe that the imputation made by him would harm the reputation of the complainant, irrespective of whether the complainant actually suffered directly or indirectly from the imputation alleged.

In respect of the offence of defamation, Section 199 of the Code of Criminal Procedure mandates that the Magistrate can take Cognizance of the offence only upon receiving a complaint by a person who is aggrieved. Section 199 of the Cr PC  laid down an exception to the general rule that a criminal complaint can be filed by anyone irrespective of whether he is an ‘aggrieved person’ or not.

If the facts which are the subject of a complaint fall within the limits of the definition in Section 499, IPC construed as the section ought to be, according to the plain meaning of the words therein used, and if they are not covered by any of the exceptions to be found in the Code, then they amount to defamation.

The burden lay upon the accused to show that the statement he had made fell within one or other of the exceptions to Section 499 of IPC, or that he was protected from prosecution by the proviso to Section 132 of the Indian Evidence Act.

 Disclaimer: - All the content is for general use and information. Consult your lawyer before acting upon above information.  

Dishonour of Cheques : Section 138 of the Negotiable Instrument Act, 1881

What is Cheque?

As per Section 6 of the Negotiable Instrument Act, 1881, a ‘cheque’ is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form.

Definition of Drawer and Payee

As per Section 7 of the Negotiable Instrument Act, maker of a bill of exchange, a promissory note or cheque is called the ‘drawer’ and the person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid, is called the ‘payee’.

Purpose and Object behind the incorporation of Section 138 of the Negotiable Instrument Act.

The offence under Section 138 of the Negotiable Instrument Act is a statutory offence. This Section excludes mens rea by creating strict liability. It does not say that there should be a direct nexus between the person who commits the act and the offence. The purpose behind the incorporation of Section 138 of the Negotiable Instrument Act is to lend credibility for cheque transactions. The object is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments.

Section 138 of the Negotiable Instrument Act reads as follows: - where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both.

Provided that nothing contained in this section shall apply unless - 

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.

Explanation- ‘debt or other liability’ means a legally enforceable debt or other liability.

Ingredients of Section 138

(i) drawing of the cheque;
(ii) presentation of the cheque to the bank;
(iii) returning the cheque unpaid by the drawee bank;
(iv) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount; and
(v) failure of the drawer to make payment within 15 days of the receipt of the notice.

It is incumbent upon the complainant to establish a case under Section 138 of the Negotiable Instrument Act, that the cheque was dishonoured only for want of funds in the account and not for the other reason. If a cheque is returned on account of any structural defect, that is, any defect in its form, want of signature, date has not been properly written, figure of the amount has been over written or erasures in the drawer's name, etc., the same will not amount to an offence punishable under Section 138 of the Act.

But on November 27, 2012, in M/s Laxmi Dyechem vs. State of Gujarat & Ors, the Apex Court held that where the drawer of the cheque changed his signature with a fraudulent intention that such change in signature would result in dishonour of cheque, in such situation mismatch of signature of drawer on cheque with the specimen signatures would constitute dishonour within the meaning of Section 138 of the Act subject to the condition that the drawer fails to make payment within the stipulated time despite receiving statutory notice under Section 138 of the Act.   

Liability of a Company under Section 138

Section 141 of the Negotiable Instrument Act lays down the liability of a company and its officers for an offence under Section 138 of the Act.

Section 141 of the Negotiable Instrument Act reads as follows: - (1) If the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was incharge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of he offence and shall be liable to be proceeded against and punished accordingly.

The proviso of Section 141(1) lays down that no such person can be so held liable if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence.

 The second proviso of Section 141(1) further lays down that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or the State Government, as the case may be, he shall not be held liable.

Sub-Section 2 of Section 141 of the Act provides that where any offence under the Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation- (a) ‘company’ means any body corporate and includes a firm or other association of individuals; and (b) ‘director’, in relation to a firm, means a partner in the firm.

Who can file complaint; how and when?

The complaint for offence under Section 138 read with Section 142 after the dishonouring of the cheque can be filed either by the payee or the holder thereof. Whether the person is holder thereof is a question of fact and has to be pleaded. The complaint can only be filed in writing by the payee or the holder thereof in due course.

The payee is free to present the cheque repeatedly within its validity period but once notice has been issued and payment not received within 15 days of the receipt of the notice, payee has to avail the very cause of action arising thereupon and file the complaint. Complaint has to be filed within one month from the day immediately following the day on which the period of 15 days from the date of receipt of the first notice by the drawer expires.

No form of notice is prescribed in clause (b) of the proviso to section 138, the requirement is that the notice shall be given in writing within 30 days of receipt of information from the bank regarding return of the cheque as unpaid and in the notice a demand for payment of the amount of the cheque has to be made. If no such demand is made, the notice would fall short of its legal requirement.

Further it is not the giving of the notice but its receipt by the drawer which culminates in the cause of action. It is no doubt true that the receipt of the notice has to be proved, but if the notice is refused by the addressee, it may be presumed to have been served. In a case where notice is not claimed even though sent by registered post, with the aid of Section 27 of the General Clauses Act, the drawer of the cheque may be called upon to rebut the presumption which arises in favour of service of notice.

   

Place where complaint is to be filed

For purposes of Section 178(d) of the Code of Criminal Procedure, where an offence consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.

In Nishant Aggarwal vs. Kailash Kumar Sharma, (2013) 10 SCC 72, the Apex Court observed that if the five different acts namely (i) drawing of the cheque; (ii) presentation of the cheque to the bank; (iii) returning the cheque unpaid by the drawee bank; (iv) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount; and (v) failure of the drawer to make payment within 15 days of the receipt of the notice, which are the components of offence under Section 138 of the Negotiable Instrument Act were done in five different localities, any one of the Courts exercising jurisdiction in one of the five local areas can became the place of trail for the offence under Section 138 of the Act and the complainant would be at liberty to file a complaint at any of those places. In other words, the complainant can choose any one of those Courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done.

On 01-08-2014, the Apex Court in Dashrath Rupsingh Rathod vs. State of Maharashtra, (2014) 9 SCC 129 held that the territorial jurisdiction is restricted to Court within whose local jurisdiction offence was committed which is where cheque is dishonoured by bank on which it is drawn and complaint will be maintainable only at place where cheque stands dishonoured. 

But after the Negotiable Instrument (Amendment) Ordinance, 2015 which was published in the Gazette of India on 15th June, 2015 the offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction-

(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or

(b) if the cheque is presented for payment by he payee or holder in due course otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.

Explanation- For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account. 

Offence of dishonour of cheque committed along with other offences in a single transaction- Territorial jurisdiction :-

The relief introduced by Section 138 of the NI Act is in addition to the contemplations in the IPC. It is still open to such a payee recipent of a dishonoured cheque to lodge a First Information Report with the police or file a complaint directly before the concerened Magistrate. All remedies under IPC and CrPC are available to such a payee if he chooses to pursue this course of action, rather than a complaint under Section 138 NI Act. He can also always file a civil suit for recovery wherever the cause of action arises in civil law.

Trail

All offences under the Negotiable Instrument Act are to be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate summarily and the provisions of Sections 262 to 265, both inclusive of the Code of Criminal Procedure shall apply to such trails. The trail Court has to look into the following main features, viz., the date of issuing of the cheque, the date of dishonouring of the cheque by the bank, the date of issuing notice, and the date of filing of the complaint in Court; if these facts are borne out from allegations in the complaint, the Court is entitled to take cognizance of the same.

High Court’s power under Section 482 of the Code of Criminal Procedure

The power of quashing criminal proceedings by the High Court should be exercised very stringently and with circumspection. In the cases where the petitioner is able to show to the Court that there was no existing debt or liability at the time of presentation of the cheque for encashment on the basis of the conduct of the complainant or admissions made by the complainant though that may be in other legal proceedings, then in such cases, the proceeding can be terminated and the accused should not be asked to face the trail till it is concluded. 

Further, a complaint filed in a Court under the territorial jurisdiction of High Court of a State, cannot be quashed by the High Court of another State.

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Partnership under Indian Partnership Act, 1932

A partnership arises from a contract. It is a form of business organization, where two or more persons join together for jointly carrying on some business.

Section 4 of the Indian Partnership Act, 1932 defines partnership as follows: - ‘partnership’ is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all.

Person who have entered into partnership with one another are called individually ‘partner’ and collectively ‘a firm’ and the name under which their business is carried on is called the ‘firm name’.

Essentials of Partnership

(i) there must be an agreement entered into by all the persons concerned; 

(ii) the agreement must be to share the profits of a business; and 

(iii) the business must be carried on by all or any of the persons concerned acting for all i.e. each partner carries on business for himself as principle and also as an agent for the other partners.

Who can be a partner in a firm?
  

In terms of Section 11 of the Indian Contract Act, only such persons as are competent to contract, are of sound mind, major and are not disqualified from contracting by any law in force would be entitled to become partner. This would mean that a lunatic, a minor, a firm or a trust who are not persons competent to contract in the eye of law as such would not be entitled to become partners.

The law however, recognizes partnership firm as a distinct personality only for the purpose of income tax by varieties of specific provision under the Income Tax Act. It is also a separate legal entity under Sales-tax law. Further the agreement by a minor is void but he is capable of accepting benefits. In consonance with this position of law, Section 30(1) of the Indian Partnership Act provides that a minor may not be a partner in a firm but with the consent of all the partners for the time being, he may be admitted to the benefits of partnership.

Since the partnership is ‘agreement’ there must be minimum two partners. The Partnership Act does not put any restrictions on maximum number of partners. However, Section 11 of Companies Act prohibits partnership consisting of more than ten members for banking business and twenty members in other businesses, unless it is registered as company under Companies Act, 1956. In the case of a private company the minimum number is two and the maximum is fifty whereas in the case of a public company the minimum number of members should be seven but there is no limit to the maximum number.

Registration of partnership firm.

The Indian Partnership Act does not make registration of a firm compulsory nor does it impose any penalty for non registration of a firm yet Section 69 of the Partnership Act cut short the capacity of unregistered firm and its partner to sue. This disability is too great compelling force to bring the firm to registration.

The application for registration has to be made in the prescribed form and the same has to be accompanied by the prescribed fee. The application must state the following: -

(i) the firm name;

(ii) the place or principal place of business of the firm;

(iii) the names of any other places where the firm carries on business;

(iv) the date when each partner joined the firm;

(v) the names in full and permanent addresses of the partners; and

(vi) the duration of the firm. However, if no period is fixed in the deed of partnership and no provision is made for its determination the partnership shall be deemed to be a partnership at will.

The statement shall be signed by all the partners, or by their agents specially authorized in this regard. Each person signing the statement shall also verify it in the manner prescribed by Section 58(2) of the Partnership Act.

A firm may be got registered at any time after the creation of partnership. It is not necessary that it should be registered at the time of its formation. Once the registration is made it would continue to be valid in the eyes of law until the same was cancelled. There is no need of fresh registration on the death of a partner or when there is otherwise any change in the constitution of the firm. In such cases, it is sufficient to notify the Registrar about the changes so that he could note the same in the relevant register (Girdharmal vs. Dev Rai, AIR 1963 SC 1587).

The Supreme Court in the judgment in Yasin Khan vs. Shreeram Finance Corporation, AIR 1989 SC 1769, considered a case where there was a change in the partners of the firm and since the corresponding change was not notified to the Registrar and therefore, on the date of suit, the current partners were not shown in the Register of Firms, the Apex Court held that the suit was not maintainable. The relevant test would be whether on the date of the suit, the firm was registered and the names of the partners were shown in the Register of Firms. But in Raptakos Brett & Co. Ltd vs. Ganesh Property, (1998) 7 SCC 184, the Supreme Court has observed that even if the suit is filed by an unregistered partnership firm against a third party and is treated to be incompetent as per Section 69 subsection (2) of the Indian Partnership Act, if pending the suit before a decree is obtained, the plaintiff puts its house in order and gets itself registered, the defect in the earlier filing which even though may result in treating the original suit as still born, would no longer survive if the suit is treated to be deemed to be instituted on the date on which registration is obtained. If such an approach is adopted, no real harm would be caused to either side.  

When a suit has been dismissed on grounds of non-registration, a fresh suit after the registration of the firm is maintainable. The same is not barred as res-judicata as the dismissal of a suit because of non-registration is not a decision of the case on its merits (Malhotra & Co. vs. Ramesh Mistri, AIR 1971 P&H 212).

If a firm is unregistered, a suit by a partner for the rendition of accounts without a prayer for the dissolution of the firm is not maintainable. In Basantlal vs. Chiranjilal, AIR 1968 Pat 96, one partner of an unregistered firm sued the other partner after the dissolution for recovery of money in respect of accounts between them, it was held that such an action was maintainable after the dissolution of the firm.

In Ramesh Kumar Bhalotta vs. Lalit Kumar Bhalotta, AIR 2001 Pat 174, a partner of an unregistered firm filed a suit against the firm claiming declaration of share, proper administration of firm and rendition of the accounts of the firm. The suit was dismissed as barred under Section 69(1) of the Indian Partnership Act.

The same partner subsequently filed another suit praying for the dissolution of the firm, and the accounts of the dissolved firm. It was held that the subsequent suit was maintainable as it was permissible under Section 69(3)(a) and dismissal of the earlier suit was no bar to the present suit. Moreover, the suit was not barred under Order 2, Rule 2 of the CPC; as the cause of action under the two suits was different.

A suit by unregistered firm is not barred by Section 69(2) of the Partnership Act if a Statutory right is being enforced. In M/s Haldiram Bhujiawala vs. M/s Anand Kumar Deepak Kumar, AIR 2000 SC 1287, the Apex Court has observed that a suit for perpetual injunction to restrain the defendant from infringing plaintiff’s trade mark and passing defendant’s goods as those of the plaintiff, and a claim of damages in that regard, is not barred by Section 69(2) of the Act. Such right does not arise out of contract. In such a case there is enforcement of a statutory right arising under the Trade Mark Act.

If the action against a third party is not based on contract but on tort, fraud or any other wrongful act, the same is not hit by Section 69(2) of the Partnership Act and the action for the same is maintainable. Thus when the action relates to wrongful detention of property, the action being founded on tort rather than contract, the same is maintainable. Similarly, a suit for the recovery of the price of goods obtained by fraud is also maintainable as the action in such a case does not arise out of contract.

Disclaimer: - All the contents are for general use and information. Consult your Lawyer before acting upon these information.    

Lease of Immovable Property Under Transfer of Property Act, 1882

Lease can be of a movable or an immovable property. It is a contractual arrangement calling for the lessee (user) to pay the lessor (owner) for use of an asset.

Under the Transfer of Property Act, 1882 (in short T.P.Act) the subject of “Leases of Immovable Property” is dealt with in Chapter 5.

Section 105 of the Transfer of Property Act, 1882 defines a lease of immovable properties as transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.

Definition of lessor, lessee, premium and rent: - The transferor is called the lessor; the transferee is called the lessee; the price is called the premium; and the money, share, service or other thing to be so rendered is called the rent.

Essential elements of lease: - 

(i) immovable property; 

(ii) right to enjoy such immovable property; 

(iii) the ascertainable duration of the lease; 

(iv) the parties that is the transferor and the transferee who are competent to make contract; 

(v) the consideration that is premium or rent.

The lease for more than one year cannot be created unless it is registered.

In Anthony vs. K.C.Ittoop & Sons and Others, (2001) 1. M.L.J, 12, the Supreme Court found that there are three interdictions to claim that an instrument can create a valid lease in law. 

The first inhibition is that it should be in accordance with the provisions of Section 107 of the Transfer of Property Act. That Section reads as under- A lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument.

The second inhibition, as pointed out by the Supreme Court, is Section 17(1)(d) of the Registration Act, which states that where a lease of immovable property from year to year or for any term exceeding one year or reserving an yearly rent, such document should be compulsorily registered.

The third inhibition, as noted by the Supreme Court, is Section 49 of the Registration Act relating to the consequence of non-compliance of Section 17. Section 49(c) contemplates that no document required by Section 17 or by any provision of the Transfer of Property Act to be registered shall be received as evidence of any transaction affecting such property of conferring such power, unless it has been registered.

Nevertheless, the Supreme Court, taking into consideration of the proviso to Section 49 of the Registration Act, found that an unregistered lease deed may be taken as evidence of any collateral transaction not required to be effected by registered instrument.

It is well settled proportion of law that in absence of a registered lease the tenancy at best can be regarded as from month to month. A covenant for renewal contained in a lease does not ipso facto extend the tenure of the lease. If to the renewed lease, the requirements of registration are compulsory, no valid lease would come into existence unless registration is made (Hindustan Petroleum Corporation Ltd. vs. Vummidi Kannan AIR 1992 Mad. 190).

The Delhi High Court in M/s MTZ Industries Ltd vs. Mr. K.C.Khosla, on 6.7.2010 observed that as appellant having become a tenant on a month to month basis after 1.7.1992, the only manner in which he could be evicted from the suit property was by serving upon him a valid legal notice under Section 106 of the Transfer of Property Act. The Court further observed that no particular form is necessary for a notice under Section 106 of the T.P.Act.

If under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease. The Supreme Court in Associated Hotels of India Ltd vs. R.N.Kapoor, 1960 SCR (1) 368 has observed that- the real test is the intention of the parties- whether they intended to create a lease or license. If an interest in the property is created by the deed it is a lease but if the document only permits another person to make use of the property of which the legal possession continues with the owner, it is a license.

The Supreme Court of India in Pradeep Oil Corporation vs. Municipal Corporation of Delhi &… on 6 April, 2011 has observed that the appellant is in possession of the building in question since 1958. They have been permitted to raise huge constructions and the nature of construction is of wide range. An administration block along with tanks for storing petroleum had been constructed. A boundary wall around installations and administrative block had also been constructed. Admittedly, the grantee is in exclusive possession over the lands in question along with construction thereon without any let or hindrance from the Administration. 

Further, the appellant had been continuously carrying on their business without any interference from any quarter whatsoever since 1962. As in the instant case, exclusive possession has been granted, there is a strong presumption in favor of tenancy. That being the case, it is for the appellant to show that despite the right to possess the demised premises exclusive, a right or interest in the property has not been created. 

The Supreme Court also notice the undisputed fact that in the present case the parties have agreed that for the purpose of determination of the agreement three calendar months’ notice had to be given. Undoubtedly, such clause in the document in question has a significant role to play in the matter of construction of document. Clearly, if the parties to the agreement intended that by reason of such agreement merely a license would be created such a term could not have been inserted. It is well settled legal position that a license can be revoked at any time at the pleasure of the licensor.

The brief fact of the instant case is as follows: - The appellant had been granted under the Government Grant Act separate and distinct licenses by the President of India acting through Superintendent of Northern Railway, Delhi for the purpose of maintain depot for storage of petroleum products at a yearly license fee of Rs. 20,640/- and Rs. 31,000/- per annum respectively. Under the aforesaid grant, the appellant had been given the right to erect/construct ‘petroleum installation buildings’ consists of petroleum tanks, buildings and other conveniences for receiving and storing therein petroleum in bulk and consequently possession of land has been given.

Consequent to the said agreement the administration granted ‘exclusive possession’ of the said land to the appellant who entered the land for the purpose and the terms mentioned therein in the aforesaid agreement/grant. Consequently, the appellant submitted layout building plans for the construction of the Oil Depot and the standing committee of the Municipal Corporation of Delhi (in short MCD) approved the layout plan for the construction of 10 Oil Storage tanks of petroleum products. Subsequent to that the appellant raised various constructions comprising of an administration block etc. along with huge petroleum storage tanks for storing petroleum products. A boundary wall around the installations and the administrative block was also constructed.

The respondent MCD vide its order dated 17.08.1984 passed an assessment order with regard to the property tax qua the aforesaid property and confirmed the ratable value proposed by it.

The said assessment order was challenged by the appellant before the appellate Court/MCD Tribunal which vide its order dated 17.07.1985 set aside the assessment order passed by the respondent MCD and held that the appellant is only a licensee in the property and is not a tenant, therefore, no property tax can be levied on the appellate under Section 20(2) of the Delhi Municipal Corporation Act, 1957.

Aggrieved by the aforesaid order of the appellate Court, the respondent MCD filed a writ petition. However the said writ petition was dismissed by the Ld. Single Judge of the Delhi High Court on 5.08.1986-held that the grant in favor of the petitioner was a license and hence the petitioner is not liable for the payment of any property tax in respect of the land or the petroleum storage tanks.

Challenging the aforesaid order of Ld. Single Judge, an LPA was filed and subsequently the same was referred to a Full Bench of High Court.

The Full Bench of the High Court vide its impugned judgment and order dated 17.09.2002 held that the petroleum storage tanks are a building and the petitioner was a lessee and not a licensee in the property in question. 

The Apex Court upheld the findings of the Full Bench of High Court and held that the documents in question constitutes lease in favor of the appellant-grantee; and accordingly liable to pay taxes.     

Section 111 deals with the question of determination of a lease, and in various clauses (a) to (h) methods of determination of a lease of immovable property are provided. In the case of a landlord wishing to evict his tenant under the Rent Acts determination of the lease in accordance with the Transfer of Property Act is unnecessary (V.Dhanapal Chettiar vs. Yesodaiammal, AIR 1979 SC 1745).

Under the Rent Control Act, a tenant can be evicted only on specific grounds enumerated under the specific provisions of the Rent Control Act.

A tenant is not permitted to dispute the title of the landlord. Even if the landlord is himself a trespasser, he can maintain a suit for eviction as against his tenant (Vithalbhai Pvt Ltd vs. Union Bank of India, AIR 1992 Cal 283).

Disclaimer:- All the contents are for general use and information. Consult your Lawyer before acting upon these information.

Res Judicata : Section 11 of the Code of Civil Procedure

Meaning

Res judicata is the Latin term for “a matter already judged”.

Origin

The Principle of res judicata is founded on the ancient Indian principle of prangnyaya (previous judgment). The principle is stated in “Brihaspati Samriti” as “if a person who has been defeated in a suit according to law  files the plaint once again he must be told that he has been defeated already; this is called plea of prang-nyaya”.

Law

Under Code of Civil Procedure  (in short CPC), Section 11 incorporates the principle of res judicata which reads as follows: “No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court”.

Conditions

To constitute a matter as res judicata under Section 11, CPC the following conditions must be satisfied-

(i) The matter must be directly and substantially in issue in the former suit and in the latter suit,

(ii) The prior suit should be between the same parties or persons claiming under them,

(iii) The parties should have litigated under the same title in the earlier suit,

(iv) The Court which determined the earlier suit must be competent to try the later suit (subject to Explanation 8 of Section 11 CPC),

(v) The question directly and substantially in issue in the subsequent suit should have been heard and finally decided in the earlier suit (Alka Gupta vs Narendra Kumar Gupta, AIR 2011 SC 9).

Illustrations

 (i) A file a suit against B for declaration that he is entitled for certain lands as heirs of C. The suit is dismissed. In a subsequent suit he claims the same property on the ground of adverse possession. The rule of res judicata will not apply, because the issue in the two cases is different. The previous case involved the issue of succession whereas the latter case involved the issue relating to the adverse possession.

(ii) A sues B for possession of certain properties on the basis of a sale deed in his favour. B impugns the deed as fictitious. The plea is upheld and suit is dismissed. A subsequent suit for some other properties on the basis of the same sale deed is barred, as the issue about the fictitious nature of the sale deed was actually in issue in the former suit directly and substantially.

(iii) A files an eviction petition against B, the tenant, on the ground of misuse of the tenanted premises. During the eviction proceedings before the Rent Controller A and B enter into a compromise on the understanding that B shall not misuse the premises and A shall withdraw the suit, on the basis of which the Court granted a compromise decree. Subsequently A files another eviction petition against B on the ground of bona fide requirement. The rule of res judicata will not apply, as the issue is different in the two cases.

     

Writ petitions

Writ petition under Article 226 dismissed by High Court after hearing on merits, subsequent petition under Article 32 by the same parties and for same reliefs will be barred by principle of res judicata (Direct Recruitment Class II Engineering Officer Association & Others vs. State of Maharashtra, AIR 1990 SC 1607).

Did you know?

(i) The principle of res judicata is not made applicable to cases of habeas corpus petitions. Therefore, even after the dismissal of one petition of habeas corpus, a second petition is maintainable if fresh, new or additional grounds are available. 

(ii) The general principles of res judicata apply to different stages of the same suit or proceeding.

(iii) If a petitioner withdraws the petition without the leave of the Court to institute a fresh petition on the same subject matter, the fresh petition is not maintainable.

(iv) An adjudication will operate as res judicata between co-defendants if there is a conflict of interest between them and it is necessary to resolve the same by a Court in order to give relief to the plaintiff and similarly an adjudication will operates as res judicata between co-plaintiff if there is a conflict of interest between plaintiffs and it is necessary to resolve the same by a Court in order to give relief to a defendant.

Case Laws

The Supreme Court in Ashok Leyland Ltd vs. State of Tamil Nadu, (2004) 3 SCC 1 has observed that the principle of res judicata is a procedural provision. A jurisdictional question if wrongly decided would not attract the principle of res judicata. When an order is passed without jurisdiction, the same becomes a nullity. When an order is a nullity, it cannot be supported by invoking the procedural principles like, estoppels, waiver or res judicata.

A rule of procedure cannot supersede the law of the land (Mathura Prasad vs. Dossibai, AIR 1971 SC 2355).

In M. Nagabhusana vs. State of Karnataka, AIR 2011 SC 1113, the Apex Court has observed that the doctrine of res judicata is not technical doctrine but a fundamental principle which sustains rule of law in ensuring finality in litigation. The principle of res judicata are of universal application as it is based on two age old principles, namely “interest reipublicae ut sit finis litium” which means that it is in the interest of the state that there should be an end to litigation and the other principle is “nemo debet lis vexari si constat curiae quod sit pro una et eadem causa” meaning thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause.

In Prahlad Singh vs. Col. Sukhdev Singh, AIR 1987 SC 1145, the Supreme Court has held that interlocutory decisions given by a Court at earlier stage is binding on the subsequent stage of the suit.

Interlocutory judgments which have the force of a decree must be distinguished from other interlocutory judgments which are a step towards the decisions of the dispute between parties by way of a decree or a final order.

An interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken could be challenged in an appeal from the final decree or order.

Disclaimer: All the contents are for general use and information. Consult your Lawyer before acting.

Trail of Warrant Cases by Magistrate : Sections 238 to 250 CrPC

What is trail?

Trail has not been defined in the Code of Criminal Procedure (in short CrPC). Framing of charge is the nascent stage of the trail. Virtually, trail begins from the stage of framing of charge.

If any crime takes place then its first stage would be investigation, in which a police officer either by himself or under order of a Magistrate investigates into a case, and he sends up the case to a Magistrate.

Then begins second stage, which is an inquiry into the case by Magistrate. If no prima facie case is made out, the Magistrate dismisses the complaint or discharges the accused. If he is of a contrary opinion, he frames a charge. At the initial stage of framing of a charge, the Court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trail, could prove him guilty. All that the Court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. All proceedings before Magistrate, before framing the charge can be termed as inquiry. 

Now the third and final stage is reached when the charge is framed and the trails begins, and it is the third stage i.e. trail where the Magistrate or Sessions Judge decides the accused either convict or acquit him. Trail includes all the steps, which a Criminal Court adopts subsequent to the framing of charge and until the pronouncement of judgment. If in a proceeding the Court has no power to convict or acquit, it is no trail.

For trail of warrant cases by Magistrate two procedures are prescribed: - one is adopted by Magistrate in cases instituted on police report (Sections 238 to 243 and 248, CrPC) and other is for cases instituted otherwise than on police report (Sections 244 to 250, CrPC).

  

The essential difference of procedure in the trail of warrant case on the basis of a police report and that instituted otherwise than on the police report, is particularly marked in Sections 238 and 239 CrPC on one side and Sections 244 and 245 CrPC, on the other. 

Under Section 238 CrPC, when in a warrant case, instituted on a police report, the accused appear or is brought before the Magistrate, the Magistrate has to satisfy himself that he has been supplied the necessary documents like police report, FIR, statements recorded under sub-section (3) of Section 161 CrPC of all the witnesses proposed to be examined by the prosecution, as also the confessions and statements recorded under Section 164 CrPC and any other documents, which have been forwarded by the prosecuting agency to the Court. After that, comes the stage of discharge, for which it is provided in Section 239 CrPC that the Magistrate has to consider the police report and the documents sent with it under Section 173 CrPC and if necessary, has to examine the accused and has to hear the prosecution of the accused, and if on such examination and hearing, the Magistrate considers the charge to be groundless, he would discharge the accused and record his reason for so doing. The prosecution at that stage is not required to lead evidence. If, on examination of aforementioned documents, he comes to the prima facie conclusion that there is a ground for proceeding with the trail, he proceeds to frame the charge. For framing the charge, he does not have to pass a separate order. After framing a charge under Section 240 CrPC, the Magistrate has to proceed under Section 242 CrPC and under sub-section (3) of that Section the Magistrate is bound to proceed to take all such evidence as may be produced in support of the prosecution. This provision and the provisions in sub-section (1) and (2) of the Section 243, CrPC are mandatory. It is only after due compliance of the provisions in Sections 242 and 243 that an order of conviction or acquittal can be passed under Section 248, CrPC. Thus, in such trail prosecution has only one opportunity to lead evidence and that too comes only after the charge is framed.

However, in a warrant trail instituted otherwise than on a police report, when the accused appears or is brought before the Magistrate under Section 244(1) CrPC, the Magistrate has to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. In this, the Magistrate may issue summons to the witnesses also under Section 244(2), CrPC on the application by prosecution. All these evidence is evidence before charge. It is after all this, evidence is taken, and then the Magistrate has to consider under Section 245(1) CrPC, whether any case against the accused is made out, which, if unrebutted, would warrant his conviction, and if the Magistrate comes to the conclusion that there is no such case made out against the accused, the Magistrate proceeds to discharge him. On the other hand, if he is satisfied about the prima facie case against the accused, the Magistrate would frame a charge under Section 246(1) CrPC. The complainant then gets the second opportunity to lead evidence in support of the charge unlike a warrant trail on police report, where there is only one opportunity. Thereafter, under Section 247 CrPC, the accused shall be called upon to enter upon his defence and to produce his evidence. In the warrant trail instituted otherwise than the police report, the complainant gets two opportunities to lead evidence, firstly, before the charge is framed and secondly, after the charge.

Case laws

In Harinarayan G. Bajaj vs. State of Maharashtra, (2010) 11 SCC 520, the Supreme Court held that the right of an accused to cross-examine witnesses produced by the prosecution before framing of a charge against him was a valuable right. It was only through cross-examination that the accused could show to the Court that there was no need for a trail against him and that the denial of the right of cross-examination under Section 244, CrPC would amount to denial of an opportunity to the accused to show to the Magistrate that the allegations made against him were groundless and that there was no reason for framing a charge against him.

In State of Kerala vs. Sebastain, 1983 Cr LJ 416, the Kerala High Court held that once the charge has been framed, the Magistrate is bound to proceed further with the trail and then he cannot discharge the accused. Framing of charge against the accused is an order affecting the interest of the accused and the Magistrate cannot review his own order. Subordinate Courts have no inherent powers and cannot reverse their own orders. After framing the charge the Magistrate cannot dismiss the complaint nor can discharge the accused.

In Sunil Mehta vs. State of Gujarat, (2013) 9 SCC 209, the issue before the Supreme Court was whether depositions of the complainant and his witnesses recorded under chapter 15 of the Code of Criminal Procedure before cognizance is taken by the Magistrate would constitute evidence for the Magistrate to frame charges against the accused under part B of chapter 19 of the said Code. The Supreme Court has observed – chapter 15 deals with the filing of complaints, examination of the complainant and the witnesses and taking of cognizance on the basis thereof with or without investigation and inquiry, whereas chapter 19 parts B deals with trail of warrant cases instituted otherwise than on a police report. There is nothing either in the provisions of Sections 244, 245 and 246 or any other provision of the Code to even remotely suggest that evidence which the Magistrate may have recorded at the stage of taking of cognizance and issuing of process against the accused under chapter 15 tantamount to evidence that can be used by the Magistrate for purposes of framing of charges against the accused persons under Section246 thereof without the same being produced under Section 244 of the Code. Under Section 244, CrPC the accused has a right to cross-examine the witnesses and in the matter of Section 319, CrPC when a new accused is summoned, he would have similar right to cross-examine the witness examined during the inquiry afresh. The power to frame charges in terms of Section 246 has to be exercised on the basis of the evidence recorded under Section 244, CrPC.

Disclaimer : All the contents are for general use and information. Consult your Lawyer before acting.

Complaint Case : Sections 200 to 204 of Cr PC

What is criminal complaint?

Section 2 (d) of the Code of Criminal Procedure (in short Cr PC) defines the term ‘complaint’ as any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

Explanation: - A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.

Every day experience of the Courts shows that many complaints are ill founded, and it is necessary therefore that they should at the very start be carefully considered and those which are not on their face convincing should be subjected to further scrutiny so that only in substantial cases should the Court summon the accused person. An order summoning a person to appear in a court of law to answer a criminal charge entails serious consequences. Therefore, Sections 200 to 203, Cr PC have been enacted for weeding out false, frivolous and vexatious complaints aimed at harassing the accused person. However, these sections are exclusively applicable in cases where the cognizance is taken on a complaint under Section 190 (1)(a), Cr PC. Such special procedure is not needed in cases where cognizance has been taken on a police report under Section 190 (1) (b) of Cr PC.

On receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Section 200, Cr PC.  Thereafter if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Section 203, Cr PC. If in his opinion there is sufficient ground for proceeding he may issue process under Section 204, Cr PC. However, if he thinks fit, he may postpone the issue of process and either inquire into the case himself or direct an investigation to be made by a police officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding(Section 202, Cr PC). He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding.

On the other hand, in the first instant, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under Section 156(3), Cr PC. The police will then investigate and submit a report under Section 173(1), Cr PC. On receiving the police report the Magistrate may take cognizance of the offence under Section 190 (1) (b) and straightaway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The police report under Section 173 will contain the facts discovered or unearth by the police and the conclusion drawn by the police therefrom. The Magistrate is not bound by the conclusion drawn by the police and he may decide to issue process even if the police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Section 200, Cr PC and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he has earlier ordered an investigation under Section 156(3), Cr PC and received a report under Section 173, Cr PC will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204 of the Cr PC.

Thus, a Magistrate who on receipt of a complaint, orders an investigation under Section 156(3) and receives a police report under Section 173(1), may, thereafter, do one of three things:

(i) He may decide that there is no sufficient ground for proceeding further and drop action;

(ii) He may take cognizance of the offence under Section 190 (1) (b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; 

(iii) He may take cognizance of the offence under Section 190 (1) (a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202, Cr PC if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.

Case Law

Francis Savio vs. Kerala 1998 Cr LJ 4735

In drafting a criminal complaint, there is no specific provision either in the Criminal Procedure Code or in the rules framed there under as to how a criminal complaint has to be drafted. What we should see in the criminal complaint is whether the entire substance of the complaint prima facie, makes out an offence said to have been committed, or whether there is a ground to presume on the entire reading of the substance of the complaint that the offence is likely to have been committed.

M/s. Nova Electricals, Jalgaon vs. State of Maharashtra and Anr. 2007 Cr LJ 535

The Bombay High Court has observed that the verification of the complainant as required under Section 200 of the Cr PC is not a mere formality and the Magistrate has to ascertain thereby whether the complaint is genuine or frivolous. It is further held that for omission by the Court to record verification, the complainant cannot be penalized for it and on that ground the complaint cannot be quashed. Omission by Court to record verification and/or examining the complainant on oath, at the most can be said to be an irregularity and the same can be cured subsequently.

Manharibhai Muljibhai Kakadia vs. Shaileshbhai Mohanbhai Pale (2012) 10 SCC 517

The Apex Court has observed: - where complaint has been dismissed by the Magistrate under Section 203 of the Cr PC, upon challenge to the legality of the said order being laid by the complainant in a revision petition before the High Court or the Session Judge, the person who are arraigned as accused in the complaint have a right to be heard in such revision petition. If the Revisional Court overturns the order of the Magistrate dismissing the complaint and the complaint is restored to the file of the Magistrate and it is sent back for fresh consideration, the person who are alleged in the complaint to have committed crime, have, however, no right to participate in the proceedings nor they are entitled to any hearing of any sort what so ever by the Magistrate until the consideration of the matter by the Magistrate for issuance of process.

Santokh Singh vs. Geetanjali Wollen Pvt. Ltd. 1993 Cr LJ 3744 (P&H)

An order of dismissal under Section 203 of Cr PC is no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances.

Mahesh Chand vs. Janardhan Reddy, AIR 2003 SC 702

The Supreme Court has observed that the second complaint on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced.

Abdul Hamid Khan vs. State 1989 Cr LJ 468

The Gujarat High Court has held that merely because the Magistrate has not examined all the witnesses named in complaint as prosecution witness at the time of holding enquiry under Section 202 of Cr PC in a case exclusively triable by Session Court, the order of issuing process against accused cannot be said to be void or illegal.

If process is issued on a complaint under Section 204 of Cr PC even if wrongly and no offence is made out the Court which passed the order, cannot entertain any application for recalling its own order. Neither provisions of Section 203 nor 245(2) of Cr PC provides. Appropriate remedy would be revision or quashing under Section 482 Cr PC. 

Whether the Special Judge/Magistrate is justified in referring a private complaint made under Section 200, Cr PC for investigation in exercise of powers conferred under Section 156(3) Cr PC without the production of a valid sanction order under Section 19 of the Prevention of Corruption Act, 1988.

The Supreme Court of India in Anil Kumar vs. M K Aiyappa on 1 Oct 2013 has observed that:- A Special Judge referring the case for investigation under Section 156(3) Cr PC is at pre-cognizance stage and if the law requires sanction, and the Court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio.

Disclaimer : - All the contents are for general use and information. Consult your Lawyer before acting.