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.

  

Criminal Revision : Sections 397 to 401 of Cr PC.

In  cases where no appeal has been provided by law or in cases where the remedy of appeal has for any reason failed to secure fair justice the criminal procedure code ( in short Cr PC ) provides for another kind of review procedure, viz. revision. Revision lies both in pending and decided cases and it can be filed before a High Court or a Court of Session. Very wide discretionary powers have been conferred on the Sessions Court and the High Court.

The object of the revision is to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions of apparent harshness of treatment which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand in some undeserved hardship to individuals.

The purpose of revision is to enable the revision court to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of the inferior criminal court.

The revisional  jurisdiction is derived from three sources :-

(1) Section 397 to 401 of the Cr PC; 

(2) Article 227 of the Constitution of India; 

(3) The power to issue the writ of certiorari.

Under Section 397(1) of the Cr PC, the High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, Sentence or order, recorded or passed, and as to the regularity of any Proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any Sentence order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Under Section 398 Cr PC, the revision Court may make an order for further inquiry. Further inquiry entails supplemental inquiry upon fresh evidence. The power under Section 398, Cr PC is not co-extensive with Section 397, Cr PC but extends far wider as the record can ‘otherwise’ be examined by the revision Court without recourse to Section 397, Cr PC.

Section 399, Cr PC deals with Sessions Judge’s power of revision. Under sub section (1), the Sessions Judge, in the case of any proceeding the record of which has been called for by himself under Section 397(1), may exercise all or any of the powers which are exercisable by the High Court under Section 401(1) of the Code of Criminal Procedure.

Section 401(1) of the Cr PC reads as follows: - In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392.

The Allahabad High Court in Om Pratap Singh vs. State 1995 Cr LJ 3887 has observed: - the revisional power of this Court under Sections 397 and 401, Cr PC is a kind of supervisory jurisdiction in order to prevent miscarriage of justice arising from the mis-conception of law or irregularity of procedure committed by the subordinate Courts. These two Sections do not confer unfettered jurisdiction on this Court for reappraisal of evidence. In fact, the revisional power of this Court is to see that justice is done in accordance with the recognized rules of criminal jurisprudence and the subordinate Courts do not exceed their jurisdiction or abuse their powers vested in them under the Code of Criminal Procedure.

High Court in a revision is empowered to interfere with an order of acquittal and direct fresh trail. While High Court sitting in appeal under Section 386 of the code, can convert finding of acquittal into one conviction, Section 401, subsection (3) debars conversion of acquittal into conviction. High Court, however, would not disturb a finding of fact unless it appears that trail court shut out any evidence, or overlooked any material evidence or admitted inadmissible evidence or where there has been manifest error on a point of fact.

Circumstances in which retrial may be ordered, without being exhaustive are 

(i) where trail court has no jurisdiction to try a case; 

(ii) where trail court has wrongly shut out evidence which prosecution sought to produce; 

(iii) where material evidence has been overlooked; 

(iv) where acquittal is based on a compounding of the offence which is invalid under law; 

(v) where the appellate court has wrongly held evidence admitted by trail court as inadmissible.

In State of Maharashtra vs. Jagmohan Singh Kuldip Singh and Others, 2004 (7) SCC 659, the Supreme Court has held: - ‘in exercise of revisional power High Court cannot undertake in-depth and minute re-examination of entire evidence and upset concurrent findings of trail court and appellate court.'

Where accused was acquitted without considering material evidence with inconsistent and faulty reasoning and probative value of FIR was also ignored, High Court was justified in directing retrial (Ayodhya Dube vs. Ram Sumer Singh, AIR 1981 SC 1415). 

          

Who can invoke the revisional jurisdiction?

Section 397(1) of the Cr PC does not say on whose motion Court may call for the records of the lower Court, but subsection (3) indicates that an aggrieved party may make an application. So far as High Court is concerned, Section 401(1) expressly authorizes the court to exercise power of revision suo motu apart from the application from a party. The complainant is entitled to move a revision even if state does not. When there was acquittal of the accused that was charged on a police report and the state did not file an appeal against it, the informant, since he had no right of appeal against the order, was held to be competent to apply for a revision.

   

The revisional jurisdiction when involved by a private complainant against an order of acquittal ought not to be exercised lightly and that it could be exercised only in exceptional case where the interest of public justice require interference for the correction of a manifest illegality or the prevention of a gross miscarriage of justice (Kaptan Singh vs. State of Madhya Pradesh (1997) 4 supreme 211).

However there are two limitations: - 

(1) Section 399(3) of Cr PC provides that in a case where any application for revision is made by or on behalf of any person before the Sessions Judge, no further proceeding by way of revision at the instance of such person shall be entertained by the High Court. 

Suppose a proceeding under Section 145 Cr PC between X and Y terminated before the magistrate in favor of X. The criminal revision of Y before the Sessions Judge was dismissed. A criminal revision before the High Court at the instance of Y shall not be entertained. In the same illustration if Y’s criminal revision before the Sessions Judge was allowed, a criminal revision to the High Court against the order of the Sessions Judge at the instance of X is maintainable.

(2) In a case where under the Code of Criminal Procedure an appeal lies but no appeal is brought, then according to Sub-section (4) of Section 401, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. 

While Courts might have expressed different view on the scope of the bar under Sub-section (4) of Section 401, there can be no dispute that suo motu power of the court is not at all affected by the bar in sub-section (4) of Section 401.

Whether where a power is exercised under Section 397 of Cr PC, the High Court could exercise those very powers under Section 482, Cr PC.

Inherent power of the Court can be exercised when there is no remedy provided in the Code of Criminal Procedure for redressal of the grievance. It is true that Section 397(2) clearly bars the jurisdiction of the Court in respect of interlocutory orders passed in appeal, inquiry or other proceedings. The matter is however, no longer res integra as the entire controversy has been set at rest by a decision of the Apex Court in Madhu Limaye vs. State of Maharashtra (1978) 1 SCR, 749, where Apex Court pointed out that Section482 of the Cr PC had a different parameter and was a provision independent of Section 397(2).

In the case of Raj Kapoor vs. State (1980) 1 SCC 43, Justice Krishna Iyer, while distinguishing the power of the High Court under Section 397 vis-a-vis Section 482 of Cr PC observed that Section 397 or any of the provisions of Cr PC will not affect the amplitude of the inherent power preserved in Section 482.

The Apex Court in Mohit vs. State of UP (2013) 7 SCC, 789, observed that any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order. Orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trail cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court. 

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

Arrest how made and rights of arrested person

What is ‘arrest’?

The term ‘arrest’ is not defined either in the Procedural Acts or in the various Substantive Acts, though Section 46, Cr.P.C., lays down the mode of arrest to be effected.

The word ‘arrest’ is derived from the French ‘Arreter’ meaning ‘to stop or stay’ and signifies a restraint of the person.

Stroud's Judicial Dictionary, 4^th Edition, volume 1, at page 184, defines the word as follows:  ‘arrest’, is when one is taken and restrained from his liberty.

Black’s Law Dictionary gives the following definition- ‘arrest’: to deprive a person of his liberty by legal authority. Taking, under real or assumed authority, custody of another for the purpose of holding or detaining him to answer a criminal charge or civil demand.

According to the text book ‘The Criminal Prosecution in England’ by Patrick Devlin- The police have no power to detain any one unless they charge him with a specified crime and arrest him accordingly. Arrest and imprisonment are in law the same thing. Any form of physical restraint is an arrest and imprisonment is only a continuing arrest. If an arrest is unjustified, it is wrongful in law and is known as false imprisonment.

Winn, L.J., in R vs. Palfrey; R vs. Sadler (1970) 2 All ER 12, when delivering the judgment of Court of which Lord Parker, C.J., was a member, said, in explaining the term ‘arrest’ : ‘It is not a question whether or not certain conditions precedent have been satisfied. The question is merely whether or not he is a person who is under arrest; whether he is under arrest or not depends on whether he is free to go as he pleases, or has been told that he is in a state of custody’.

Mode of Arrest

The modality of arrest as contemplated under Section 46 of CrPC is that while making an arrest a police officer or other person making the same

(1) should actually touch the body of the person to be arrested or
(2) should actually confine the body of the person to be arrested.

These kinds of modality of arrest are not necessary in case the person intended to be arrested submits, either by words or by action, to the authority of the arrester.    

The arrest should not only be legal and justified but it should be effected strictly according to the procedure established by law. Article 21 of the Indian Constitution provides- No person shall be deprived of his life or personal liberty except according to procedure established by law. The procedure contemplated by this Article must be ‘right, just and fair’ and not arbitrary, fanciful or oppressive.

The Criminal Procedure Code contains various provisions by and under which various authorities and private persons are empowered to arrest. An analysis of the provisions under the Code shows that a person may be arrested by 

(1) A police officer without a warrant under Sections 41(1) and 151; under a warrant under Sections 72 and 74; under the written order of an officer in charge of a police station under Sections 55 and 157; under the orders of Magistrate under Section 44 and in non-cognizable offence under Section 42;

(2) A superior police officer under Section 36; 

(3) An officer in charge of a police station under Sections 41(2) and 157; 

(4) A Magistrate under Section 44; 

(5) A military officer under Sections 130 and 131; and 

(6) A private person without warrant under Section 43; under a warrant under Sections 72 and 73; under the orders of the police officer under Section 37; and under the orders of a Magistrate under Sections 37 and 44.

Rights of Arrested person

Under the Cr.P.C., the police has been given various powers for facilitating the making of arrest, but these powers are subject to certain restraints. The imposition of the restraints can be considered, to an extent, as the recognition of the rights of the arrested person. The various rights of the arrested person are as follows:

(1) Right to know the grounds of arrest 

According to Section 50(1) Cr.P.C., every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. 

Section 50(2) of Cr.P.C. provides that in case of bailable offences, the arrested person shall be informed by the police officer, that he is entitled to be released on bail. This is also a constitutional right guaranteed under Article 22(1) of the Indian constitution- No person who is arrested shall be detained in custody without being informed as soon as may be, of the grounds for such arrest. 

It may be noted that if the arrest is made by a Magistrate without a warrant under Section 44, the case is covered neither by any of the Sections 50, 55 and 75 nor by any other provisions in the code requiring the Magistrate to communicate the grounds of arrest to the arrestee. However, in practice, the Magistrate would still be bond to state the grounds under Article 22(1) of the Constitution.

(2) Right to be taken before a magistrate without delay. 

The person making the arrest must bring the arrested person before a judicial officer without necessary delay. It is also provided that the arrested person should not be confined in any place other than a police station before he is taken to the Magistrate (Section 56 Cr.P.C.). 

(3) Right of not being detained for more than 24 hours without judicial scrutiny. 

An arrested person has the right to be brought before a Magistrate within a period of not more than 24 hours of arrest (Section 57 Cr.P.C.; Article 22(2) of the Constitution).

(4) Right to consult a legal practitioner/Legal Aid. 

The Constitution as well as the Code of Criminal Procedure recognizes the right of every arrested person to consult a legal practitioner of his choice (Article 22(1) of the Constitution; Section 303 of the Cr.P.C.).

(5) Right to be examined by a Medical Practitioner. Section 54, Cr.P.C., gives the accused the right to have him medically examined to enable him to defend and protect himself.

The Apex Court in D.K. Basu vs. State of West Bengal AIR 1997 SC 610 laid down certain basic requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as a measure to prevent custodial violence. These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of arrestee. Some of the directions are as follows : 

(1) the police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. 

(2) The police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. 

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock-up shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

  

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

Review : Section 114, Order 47 CPC

What is Review?

Review literally and even judicially means re-examination or re-consideration of its own decision by the very same court. Basic philosophy inherent in it is the universal acceptance of human fallibility. An application for review may be necessitated by way of invoking the doctrine ‘actus curiae neminem gravabit’ which means an act of the court shall prejudice no man. The other maxim is, ‘lex non cogit ad impossibillia’ which means the law does not compel a man to do that what he cannot possibly perform.

Section 114 of the Code of Civil Procedure (in short CPC) provides for a substantive power of review by a civil court and consequently by the appellate courts. Section 114 of the code although does not prescribe any limitation on the power of the court but such limitations have been provided for in Order 47, Rule 1 of the CPC.

The grounds on which review can be sought are enumerated in Order 47, Rule 1 CPC, which reads as under:

Application for review of judgment 

(1)   Any person considering himself aggrieved

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, 

(b) by a decree or order from which no appeal is allowed, or 

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order.

So the circumstances when review lies are

(a) cases in which appeal lies but not preferred, 

(b) cases in which no appeal lies, 

(c) decisions on reference from Court of Small Causes; and

the grounds are

(i) discovery of new and important matter or evidence, or 

(ii) mistake or error apparent on the face of the record, or 

(iii) any other sufficient reason.

Scope of an application for review is much more restricted than that of an appeal.  The Supreme Court in Lily Thomas vs. Union of India, AIR 2000 SC 1650 held that the power of review can only be exercised for correction of a mistake and not to substitute a view and that the power of review could only be exercised within the limits of the statute dealing with the exercise of such power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained.

For review an application has to be made by the aggrieved party. Where an appeal has been preferred a review application does not lie. But an appeal may be filed after an application for review. In such event the hearing of the appeal will have to be stayed. If the review succeeds the appeal becomes infructuous.

After the amendment in Section 141 of the Code of Civil Procedure and insertion of Explanation to that Section it is clear that the provisions of Order 47 of the code do not apply to writ petitions filed in a High Court under Article 226 of the Constitution.  However, there are definitive limits to the exercise of the power of review by the High Courts.

The legal propositions set out by the Apex Court in Gujarat University vs. Sonal P. Shah, AIR 1982 Guj 58, are as follows:-

(1) The provisions of the Civil Procedure Code in Order 47 are not applicable to the High Court’s power of review in proceedings under Article 226 of the Constitution,

(2) The said powers are to be exercised by the High Court only to prevent miscarriage of justice or to correct grave and palpable errors. (The epithet ‘palpable’ means that which can be felt by a simple touch of the order and not which could be dugout after a long drawn out process of argumentation and ratiocination).

 (3) The inherent powers, though ex facie plenary, are not to be treated as unlimited or unabridged, but they are to be invoked on the grounds analogous to the grounds mentioned in Order 47, Rule 1; namely:

(i) discovery of new evidence, 

(ii) existence of some mistake/error, 

(iii) analogous ground.

These are the very three grounds referred to in Order 47, Rule 1 CPC and by declaration of law at the hands of the Supreme Court in the above case they are the hedges or limitations of the High Court’s power.

Review by the Supreme Court:

The provisions of Order 47 apply to orders passed under the Code of Civil Procedure. Article 137 of the Constitution confers power on the Supreme Court to review its judgments subject to the provisions of any law made by Parliament or the Rules made under clause (c) of Article 145. The power of the Supreme Court, therefore, cannot be curtailed by the Code of Civil Procedure.

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