nature of grievance

  • 1. Dishonoured Cheques
  • 2. Money Debt Recovery
  • 3. Enforcement Of Contracts / Agreements
    • 1. Suit/Arbitration for specific movable property
      • (i) Where a person, who is entitled to the possession of any specific movable property, by reason of being owner of such specific movable property or by reason of having a special or temporary right to possess such specific movable property, and who is unlawfully refused / denied to the possession of such specific movable property, may by aid of section 7 of the Specific Relief Act, 1963, recover the said specific movable property, by filing a Suit / Arbitration proceedings. [Movable property will include all kinds of goods, things - valuable and invaluable]

        In contractual disputes relating to commercial transactions, Suits may be filed before the Commercial Courts / Division. In order to ensure speedy disposal of disputes which arises from commercial transactions involving high value, the Parliament of India has come out with a unique legislation namely, THE COMMERCIAL COURTS, COMMERCIAL DIVISION AND COMMERCIAL APPELLATE DIVISION OF HIGH COURTS ACT, 2015; wherein Commercial Courts / Divisions are to be constituted in the existing district Courts and in High Courts; and wherein disputes arising from specified commercial dealings involving claim of Rs.1.00 Crore or above would be adjudicated by these newly constituted commercial Courts / Divisions.

        And accordingly, the Code of Civil Procedure, 1908, is substantially amended, wherein new Order XIII-A (Provides for Summary Judgment) and XV-A (Provides for Case Management Hearing) are inserted, apart from new Order XI, Sections 35 for costs, Verification of Pleadings as contained in Order VI Rule 15A, Order VIII which prescribes the time limit within which the Written Statement must be filed, failing which the Defendant loses his right to file his Defense.

        Among other things, the outstanding feature of adjudication by these newly constituted Commercial Courts / Division is that, the powers of these Courts to adjudicate commercial disputes before them in a Summary fashion, without formal leading of evidences, and also provides for the time bound disposal of these cases.

        The other outstanding feature of this new law is, the manner in which the pleadings are to be filed by both the litigating parties; and thereby Order VI Rule 15A of CPC, 1908, inter alia, provides the strict manner in which the Verification of pleading is to be done by both the litigating parties. The profound object of Verification of Pleading is to prevent or cease frivolous claims and meritless defenses, and thus this newly inserted Order VI Rule 15A makes a solid ground to discourage frivolous claims and meritless defenses.

        Further, these newly constituted Commercial Courts / Division would also have the jurisdiction to adjudicate upon Arbitration Applications which arises in the backdrop of Arbitration proceedings, but of course the Arbitration proceedings must be relating to commercial dispute and involves a claim of Rs.1.00 Crore or above.

    • 2. Suit/Arbitration for Accounts, etc
    • 3. Suit for goods
    • 4. Suit/Arbitration for Specific Performance of contract
      • (iv) Where a party to the Contract is evading in performing his part of the Contract, thereby seriously prejudicing the other contracting party, the said other contracting party, may file a Suit / Arbitration proceedings for Specific performance of the Contract, and -

        (a) cause the said defaulting party to perform his part of the contract; and

        (b) may also seek damages in addition to Specific performance; or

        (c) may seek damages in lieu of Specific performance; and

        (d) can also seek additional damages for breach of Contract.

        (e) The party enforcing specific performance of the contract, by virtue of section 29 of the Specific Relief Act, in the alternative of specific performance, may seek rescission (cancellation) of the contract in case specific performance is refused by the court, and jurisdiction of Commercial Courts / Divisions may be invoked in appropriate cases.

    • 5. Suit/Arbitration for Rectification of contract
      • (v) Where the contracting parties find, that, either due to mutual mistake or due to fraud of one of the party, the contract entered into between them, in effect and in scope, does not convey the true purport it was intended and the contract is very different from what they had really agreed to, then, either of the contracting parties, by virtue of section 26 of the Specific Relief Act, may institute a Suit / Arbitration proceedings for rectification of said defective instrument / contract, or the parties may in any existing Suit pray for such rectification.

        The court may in its discretion, direct the rectification of the instrument so as to express that intention, so far as this rectification can be done without prejudice to the rights acquired by third party in good faith and for value. Once the instrument is duly rectified by the Order of the Court, then, the said instrument may be specifically enforced by any of the contracting party, and jurisdiction of Commercial Courts / Divisions may be invoked in appropriate cases.

    • 6. Suit/Arbitration for Rescission of Contract
      • (vi) Where consent to an agreement is alleged to have been obtained by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so obtained; and where both the parties to an agreement are under a mistake of fact essential to the agreement, the agreement is void. In such situation the defrauded party, by virtue of section 27(1), subject to section 27(2) of the Specific Relief Act, by filing a Suit, has three remedies open to him, namely -

        - He may rescind the contract absolutely and sue to recover the consideration parted with upon the fraudulent contract; or

        - He may bring an action to rescind the contract and in that action have full relief; or

        - He may retain what he has received and bring an action to recover the damages sustained.

        The rescission of contract can also be sought of unlawful and terminable contracts.

        And jurisdiction of Commercial Courts / Divisions may be invoked in appropriate cases.

    • 7. Suit/Arbitration to cancel deed/ instrument
      • Where written instruments / contracts, partially or wholly, originally valid, becomes inefficacious by subsequent events, such as, by satisfaction or payment, or other causes; and its existence casts either a cloud upon the title of the party or subject him to the danger of some future litigation; under such and like circumstances, the said party, by virtue of section 31 and 32 of the Specific Relief Act, may file a Suit to declare the said whole or partial of the Written Instrument / contract, as void or voidable and get it cancelled, and jurisdiction of Commercial Courts / Divisions may be invoked in appropriate cases.

    • 8. Suit for declaration
      • (viii) Where a person is entitled to any right as to any property, and any person is denying or interested to deny such entitlement, then, by virtue of section 34 of the Specific Relief Act, the said aggrieved person may file a Suit for declaration by the Court that he is entitled for said legal character or is entitled to that property.

    • 9. Suit for Injunction
      • (ix) Where a person who has invaded or is threatening to invade the rights, legal or equitable, of another, the aggrieved person, by virtue of section 36, 37, and 38 and subject to section 41, of the Specific Relief Act, may file a Suit for permanent and / or mandatory injunction. By virtue of section 40 of the Specific Relief Act, 1963, the aggrieved person, in addition to or in lieu of aforesaid injunction, may seek damages. Injunction is a form of relief given, to prevent a party from doing which he is under an obligation not to do; and mandatory injunction is where he is called upon to do certain acts, which he is under an obligation to do.

    • 10. Criminal Complaint – S.405
      • (x) Where under the contract, any of the parties therein, being in any manner entrusted with any property, or entrusted with any control over the property, dishonestly misappropriates or converts to his own use that property; or dishonestly uses or disposes of that property in violation of any direction of law, or of any legal contract, express or implied, or if he wilfully suffers any other person so to do, commits the offence of criminal breach of trust u/s 405 of IPC, for which FIR, or Application u/s 156(3) or Complaint u/s 200 of CrPC, 1973, may be preferred.

    • 11. Criminal Complaint – S.403
      • (xi) When a person dishonestly misappropriates a property or illegally makes use of a property to which he is not entitled to do it, is said to commit the offence u/s 403 of IPC of criminal misappropriation of that property. Here the property means every property except immovable property. When money is paid to a person by mistake and such person either at the time of receipt of that money or at any time subsequently comes to know that money is by mistake given to him, and still misappropriates that money, commits offence under this section. The offence is non-cognizable and therefore NC complaint may be recorded with the concerned Police station and thereafter Application u/s 155(2) may be preferred before the competent Magistrates Court, for the Investigation of the offence; or a private complaint may be preferred u/s 200 read with section 190(1) of CrPC, before the competent Magistrates Court.

    • 12. Criminal Complaint
    • 13. Interpleader Suit
      • (xiii) Where, Parties are interested in the decision of any question of fact or of law, they, by entering into an agreement, may refer their dispute, for the opinion / decision of the Court. For details, please refer section 90 and Order 36 of CPC, 1908.

    • 14. Debt Recovery
      • (xiv) Issues relating to recovery of money are dealt in Money / Debt recovery legal options.
    • 15. Assignment of Rights under contract
      • (xv) Rights under the Agreement / contract are actionable claims; and they are transferable like any other property in return for a valuable consideration, or may be for no consideration; and may be transferred / assigned in accordance with sections 130, 131, 132, 133 of Transfer of Property Act, 1882. The transferee then is stepped into the shoes of transferor, and he has all the rights, subject to other equities and liabilities, which the transferor has had against the other party; and jurisdiction of Commercial Courts / Divisions may be invoked in appropriate cases.

    • 16. Suit/Arbitration for damages
    • 17. Suit/Arbitration for specific movable property
      • (xvii) Where any specific movable property is lost or stolen, and afterwards it was learnt that any person is in the possession of the said specific movable property, but where the said person unlawfully refuses to deliver the said property, or where the concerned person dishonestly misappropriate or converts the said property – A Suit may be filed for the possession of said specific movable property, within 3 years from the date when the person entitled to the possession of the said property, for the first time learnt that in whose possession the concerned property is, under Article 68 of the Indian Limitation Act, 1963; A Suit may be filed for the compensation, within 3 years from the date when the person entitled to the possession of the said property, for the time learnt that in whose possession the concerned property is, under Article 91(a) of the Indian Limitation Act, 1963.

    • 18. Suit/Arbitration for movable property
      • (xviii) Where any person, unlawfully, detains any specific movable property, or unlawfully causes injury to a specific movable property, or unlawfully takes any specific movable property - A Suit may be filed for compensation, within 3 years from the date, when the property concerned was unlawfully taken or injured or when the possession of the detainer becomes unlawful, under Article 91(b) of the Indian Limitation Act, 1963.

    • 19. Suit/Arbitration for movable property
    • 20. Suit/Arbitration for damages
      • (xx) Where a person who is having a right to use a property for specific purposes, but perverts the use of the said property, i.e. a distortion or misapplication of said property - materially impairing the value of a property - rendering it substantially unfit for its natural use - A Suit / Arbitration proceedings may be filed for - Within two years from the date when the alleged perversion of the property first becomes known to the person injured thereby, under Article 84 of the Indian Limitation Act, 1963.

    • 21. Suit/Arbitration against carrier of goods (Disputes arising)
    • 22. Suit/Arbitration against carrier of goods
    • 23. Suit for declaration of forgery of Instrument
      • (xxiii) Where any instrument / document which is issued or which is Registered, and which is alleged to have been forged, a Suit may be filed for the declaration, that the said document / instrument which is issued or Registered, is forged, within 3 years from the date, when the issuance or Registration of the concerned forged document / instrument becomes known to the person concerned, under Article 56 of the Indian Limitation Act, 1963.

    • 24. Suit/Arbitration to cancel deed / instrument
      • (xxiv) Where any instrument / document which is issued or which is Registered, and which is alleged to have been forged, a Suit may be filed for the declaration, that the said document / instrument which is issued or Registered, is forged, within 3 years from the date, when the issuance or Registration of the concerned forged document / instrument becomes known to the person concerned, under Article 56 of the Indian Limitation Act, 1963.

    • 25. Suit/Arbitration by Principal (Principal & Agent)
      • (xxv) Where the “Principal” demands Accounts from the “Factor” and is refused, either during the continuance of the Agency, or after the termination of the Agency – a Suit / Arbitration proceedings may be filed for the rendition of Accounts, within 3 years from the date, when the account is demanded and refused (in respect of the continuance of the agency); or from the date when the agency terminates, under Article 2 of the Indian Limitation Act, 1963.

    • 26. Suit/Arbitration by Principal
    • 27. Suit/Arbitration for damages breach of promise
    • 28. Suit/Arbitration for damages breach of promise
    • 29. Suit for damages for unlawful Injunction
      • (xxix) Where a party to the proceedings before the Court of law, misleads the Court on any factual or legal submission, and thereby obtains any interim injunction in the said proceedings – the aggrieved person may file a Suit for compensation for injury caused by an injunction wrongfully obtained, within three years from the date when the injunction ceases, under Article 90 of the Indian Limitation Act, 1963.

  • 4. Grievances Against Companies, Business Entities Etc.
    • 1. Arbitration Proceeding
      • (i) So far as may be permissible under the law, and if there exist any Arbitration clause in the Contract or in the absence of Arbitration clause, by consent of the other side, one may adopt Arbitration proceedings for the resolution of the dispute.

    • 2. Complaint before SEBI
      • (ii) Complaint to SEBI may be made u/s 11 of the SEBI Act, 1992. For all these below stated issues, complaint can be made online to SEBI, at prescribed format therein provided in SEBI website.

        1. Against Listed Companies - like - Refund / Allotment / Dividend / Transfer / Bonus / Rights/ Redemption / Interest;

        - Pre-listing / Offer Document

        - De-listing of Shares / Securities

        - Buy-Back of Shares / Securities

        - Takeover and Restructuring

        - Corporate Governance / Listing Conditions

        Against, and in respect of -

        2. Registrar and Transfer Agents

        3.Stock Brokers

        4.Sub Brokers

        5.Portfolio Managers

        6.Stock Exchanges

        7.Depository

        8.Mutual Fund Companies

        9.Collective Investment Schemes

        10. Merchant Bankers

        11. Debenture Trustees

        12. Bankers to an issue

        13. Credit Rating Agencies

        14. Custodian of Securities

        15. Foreign Institutional Investors

        16. Underwriters

        17. Venture Capital Funds

        18. Price / Market manipulations

        19. Insider Trading

        And where SEBI fails to take appropriate / desired action against the Company / Stock Broker / Stock Exchange, then Appeal may be preferred u/s 15T of SEBI Act, 1992 or under section 23L of the Securities Contract (Regulations) Act, 1956, before Securities Appellate Tribunal (SAT); or Writ Petition may be filed in the respective High Court against SEBI for its alleged inaction.

    • 3. Application before NCLT
      • (iii) An Application before National Company Law Tribunal may be made u/ss 241 and 242 of the Companies Act, 2013, for Oppression of minority shareholders or Mismanagement of the Company; disputes relating to non-transfer of Shares by Companies, non-refund of Public deposits by Companies.

    • 4. Civil Suit
      • (iv) On subjects where National Company Law Tribunal has no jurisdiction, Civil Suit for Injunction / Declaration before District Court / City Civil Court may be preferred.

    • 5. Serious Fraud: Application before NCLT
      • (v) Where it is alleged that -

        a) A Company has, in any manner, committed / committing a big / serious financial fraud of massive proportions, upon the Shareholders of the Company, or

        b) the Company is indulging into serious illegalities which grossly prejudices the interest of the Shareholders, or prejudices the interest of the Society at large; or

        c) that the affairs of any company are not being managed in accordance with sound business principles or prudent commercial practices; or

        d) that any company is being managed in a manner likely to cause serious injury or damage to the interests of the trade, industry or business to which it pertains; or

        e) that the financial position of any company is such as to endanger its solvency;

        the aggrieved person may make a complaint to concerned Registrar of Companies; or too concerned Regional Directors appointed under the Companies Act, 2013; or to Dept of Company Affairs, estd. under the Ministry of Corporate Affairs, u/ss 206, 209, 210, 211 of the Companies Act, 2013. Further, the Registrar of Companies, on perusing any document which a company is required to submit to him under this Act, may call for information or explanation from the Company.

        The SFIO is a multi-disciplinary organization under Ministry of Corporate Affairs, consisting of experts in the field of accountancy, forensic auditing, law, information technology, investigation, company law, capital market and taxation for detecting and prosecuting or recommending for prosecution white-collar crimes/frauds. The SFIO will normally take up for investigation only such cases, which are characterized by -

        - complexity and having inter-departmental and multi-disciplinary ramifications;

        - substantial involvement of public interest to be judged by size, either in terms of monetary misappropriation or in terms of persons affected, and;

        - the possibility of investigation leading to or contributing towards a clear improvement in systems, laws or procedures.

        The SFIO shall investigate serious cases of fraud, as may be recommended by the Central Govt u/ss 210 and 212 of the Companies Act, 2013.

    • 6. Criminal Complaint
    • 7. Complaint before Authorities
      • (vii) A complaint to respective governmental Regulatory body of said defaulting company / organization can be made alleging the nature of grievance one has against the said company / organization; and in the event the said governmental regulatory body ignores / refuses to take any action against the said company / organization, then, a Writ Petition can be filed against that governmental regulatory body, in the respective High Court, seeking relief from HC, directing the said governmental regulatory body to take appropriate action against that company / organization.

    • 8. Criminal Complaint involving Properties
      • (viii) Where the Directors of the Company, or any other principal officer of the Company, being in any manner entrusted with any property, or entrusted with any control over the property, dishonestly misappropriates or converts to his own use that property; or dishonestly uses or disposes of that property in violation of any direction of law, or of any legal contract, express or implied, or if he wilfully suffers any other person so to do, commits the offence of criminal breach of trust u/s 405 of IPC, for which FIR, or Application u/s 156(3) or Complaint u/s 200 of CrPC, 1973, may be preferred

    • 9. Criminal Complaint cheating, etc
      • (ix) Where any Company / any other business entity, by deceiving any person, fraudulently or dishonestly induces the person so deceived, to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to commit the offence of cheating u/s 415 /420 of IPC, for which FIR, or Application u/s 156(3) or Complaint u/s 200 of CrPC, 1973, may be preferred. It may be suggested that fraudulent and misleading advertisements comes within the purview of section 415 of IPC, 1860.

    • 10. Complaint before Competition Commission
      • (x) Where any Company is indulging in such practice wherein it is abusing and misusing its dominant position in respect of any goods or services, resulting in the exploitation / harassment of the consumer, a complaint may be preferred before the Competition Commission of India u/s 19 read with sections 18 and 4 of the Competition Act, 2002; or a Complaint may be made before Ministry of Consumer Affairs, requesting them to make a Reference to Competition Commission of India. The Central Government / State Government or a statutory authority is empowered u/s 19 of Competition Commission Act, 2002, to make a Reference to the Competition Commission to make an Inquiry into certain agreements and dominant position of any business entity.

  • 5. Apprehending Danger To Life Or Property
  • 6. Disputes Of Immovable Properties
    • Introduction
      • DISPUTES RELATING TO IMMOVABLE PROPERTIES

        Under the law, broadly, three distinct actions lie in respect of an immovable property, namely – (a) When a cloud is raised over a person’s title and he does not have a possession, a Suit for declaration and possession, with or without a consequential injunction is the remedy; (b) Where a person claims title or interest, but he is out of possession, he has to sue for possession and consequential injunction, may be alongwith declaration to his title or interest; (c) Where there is merely an interference with a person’s lawful possession or where there is a threat of dispossession, or where there is a frustration or interference in the free and full enjoyment of the property, it is sufficient to sue for an injunction simpliciter.

        A Suit for possession of immovable property may be based on title or any other interest; or on the strength merely of previous possession, in the case of a wrongful ouster, i.e. dispossession without following the due process of law, of a person in lawful possession, without his consent.

    • 1. Complaint before Consumer Court
      • (i) Where the Builder / Developer fails to give possession of the flat / immovable property within the agreed time, a Complaint before Consumer Forum / State Commission / National Commission may be filed alleging “deficiency of services”.

    • 2. Complaint before Authorities
      • (ii) Where the Builder / Developer makes any changes in the sanctioned layout / plan of the Building without permission from the buyer, or commits any other illegality in respect of the construction of the Building / flat, a complaint may be made to Local Municipal authority stating therein the illegalities committed by the Developer (if any), and asking the Local Municipal authority to take action against the erring / defaulting Developer; and where Municipal authorities do not take required action against the defaulting Developer, then, a Writ Petition in the respective High court or a Civil Suit for Perpetual and Mandatory Injunction may be preferred against the said Local Municipal authority.

    • 3. Arbitration Proceeding
      • (iii) Where the Builder / Developer or any other Seller of an immovable property, fails to give possession of the flat / immovable property within the agreed time, and if there is Arbitration clause in the Contract between the Builder / Developer / Seller and the property buyer, then, Arbitration proceedings may be adopted for the resolution of particular dispute.

    • 4. Criminal Complaint – Ss.405, 420, etc
      • (iv) Where the Builder / Developer fails to give possession of the flat / immovable property within the agreed time, and apparently abandons the project or where his project fails to start, a criminal complaint / FIR before Police u/s 154 of CrPC, 1973, or an application u/s 156(3) or complaint u/s 200, before Judicial Magistrate / Metropolitan Magistrate, may be filed, alleging cheating / criminal breach of trust or any other applicable offence depending upon the facts of each case.

    • 5. Suit/Arbitration for Specific performance of contract
      • (v) Where the Builder / Developer or any other Seller of any immovable property is evading in performing his part of the Contract, thereby seriously prejudicing the interests of the Purchaser, the Purchaser, may by filing a Suit / Arbitration, seeks the Specific performance of the Contract, and

        (a) cause the said defaulting Builder / Developer to perform his part of the contract; and (b) may also seek damages in addition to Specific performance; or (c) may seek damages in lieu of Specific performance; and (d) can also seek additional damages for breach of Contract. (e) The party enforcing specific performance of the contract, by virtue of section 29 of the Specific Relief Act, in the alternative of specific performance, may seek rescission (cancellation) of the contract, in case the specific performance is refused by the court.

        Where despite a decree for specific performance, the purchaser fails to pay the purchase money, or any other sum which the court has ordered him to pay, the Builder / Developer, by aid of section 28 of the Specific Relief Act, may apply in the same Suit to declare the contract rescinded / cancelled.

        In cases where the dispute relating to immovable properties has attributes of commercial transaction, then, the Suit of Specific performance stated hereinbefore, or any other Suit, may be filed before the Commercial Courts / Division. In order to ensure speedy disposal of disputes which arises from commercial transactions involving high value, the Parliament of India has come out with a unique legislation namely, The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015; wherein Commercial Courts / Divisions are to be constituted in the existing district Courts and in High Courts; and wherein disputes arising from specified commercial dealings involving claim of Rs.1.00 Crore or above would be adjudicated by these newly constituted commercial Courts / Divisions.

        And accordingly, the Code of Civil Procedure, 1908, is substantially amended, wherein new Order XIII-A (Provides for Summary Judgment) and XV-A (Provides for Case Management Hearing) are inserted, apart from new Order XI, Sections 35 for costs, Verification of Pleadings as contained in Order VI Rule 15A, Order VIII which prescribes the time limit within which the Written Statement must be filed, failing which the Defendant loses his right to file his Defense.

        Among other things, the outstanding feature of adjudication by these newly constituted Commercial Courts / Division is that, the powers of these Courts to adjudicate commercial disputes before them in a Summary fashion, without formal leading of evidences, and also provides for the time bound disposal of these cases.

        The other outstanding feature of this new law is, the manner in which the pleadings are to be filed by both the litigating parties; and thereby Order VI Rule 15A of CPC, 1908, inter alia, provides the strict manner in which the Verification of pleading is to be done by both the litigating parties. The profound object of Verification of Pleading is to prevent or cease frivolous claims and meritless defenses, and thus this newly inserted Order VI Rule 15A makes a solid ground to discourage frivolous claims and meritless defenses.

        It is expressly provided in the definition of Commercial dispute u/s 2(1)(c) of the said Act, that a commercial dispute (a) involving the recovery of immovable property; or (b) involving the realization of Monies out of immovable property which were given as security; or (c) involving any other relief pertaining to immovable property, may still be considered as a “commercial dispute”, and may be adjudicated under this special jurisdiction.

        Further, these newly constituted Commercial Courts / Division would also have the jurisdiction to adjudicate upon Arbitration Applications which arises in the backdrop of Arbitration proceedings, but of course the Arbitration proceedings must be relating to commercial dispute and involves a claim of Rs.1.00 Crore or above.

    • 6. Suit / Arbitration for Recovery of purchase money
      • (vi) Where money is paid under an Agreement for the purchase of any immovable property, whether from Builder / developer or otherwise, a Suit / Arbitration may be filed / initiated for the recovery of the said purchase money alongwith interest, within twelve years from the date, when the money which is sued for, becomes due, under Article 62 of the Indian Limitation Act, 1963, and Suit may be filed before Commercial Courts / Divisions, as stated hereinbefore. However, if Summary Suit (under Order XXXVII of Civil Procedure Code, 1908) is filed, then Commercial Courts / Divisions would not have the jurisdiction.

    • 7. Criminal Complaint – Ss.145, 146 CrPC
      • (vii) Where a person is forcibly / unlawfully dispossessed from his possession, or where a person apprehending forcible dispossession, then subject to existence of certain conditions, a complaint may be filed before Executive Magistrate (Commissioner of Police / Superintendent of Police) or Judicial Magistrate / Metropolitan Magistrate praying therein for the Magistrate to exercise their powers conferred upon him u/ss 145 and 146 of CrPC, 1973, to prevent dispossession or to restore the possession to the person unlawfully dispossessed of.

    • 8. Suit for restoration of possession
    • 9. Criminal Complaint - Trespass
    • 10. Suit for Injunction
      • (x) Where a person is in lawful possession of any immovable property and apprehending forcible / unlawful dispossession, may file a Civil Suit for permanent injunction restraining the person from dispossession and may apply for interim relief of temporary injunction from being dispossessed.

        Protection of Possession in Agreement to Sell: In cases where the buyer / transferee of an immovable property is put into possession under an Agreement to Sell, but thereafter the Seller / transferor somehow or the other does not complete the transaction by executing a registered deed in favour of the transferee, and tries to get back the possession of the property, or further Sells the same property to another buyer, by virtue of Section 53-A of Transfer of Property Act, 1882, the possession of such buyer / transferee is protected, provided certain conditions contemplated by Section 53-A are fulfilled.

        The essential conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Act have been culled out by Apex Court in the case of Shrimant Shamrao Suryavanshi & Anr. Vs. Pralhad Bhalroba Suryavanshi, AIR 2002 SC 960, and they are :(1) There must be a contract to transfer for consideration of any immovable property; (2) the contract must be in writing, signed by the transferor, or by someone on his behalf; (3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained; (4) the transferee must in part performance of the contract take possession of the property, or of any part thereof; (5) the transferee must have done some act in furtherance of the contract; and (6) the transferee must have performed or be willing to perform his part of the contract."

        lf these conditions are fulfilled, then in a given case there is an equity in favour of the transferee who can protect his possession against the transferor, or against any person claiming through transferor, even though a registered deed conveying the title is not executed by the transferor. In such a situation equitable doctrine of part performance provided under Section 53-A comes into play and provides that "the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him, any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract, subject

        However, the law protects the rights of the subsequent transferee who has no notice of the earlier contract and possession thereof, and the subsequent contract was for valuable consideration. In this backdrop, the mandate of Explanation II appended to definition “a person is said to have a notice” in Section 3 Interpretation Clause of Transfer of Property Act, 1882, becomes very relevant, which states that – Any person acquiring any immoveable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.

        Where there is frustration or interference in the free and full enjoyment of the property by reason of any kind of nuisance being created by any person, a Suit for Injunction simpliciter may be filed against the said person.

    • 11. Criminal Complaint – S.150 CrPC
      • (xi) Where a person is in lawful possession of any immovable property and apprehending forcible / unlawful dispossession, may prefer a A criminal complaint before Police u/s 150 of CrPC, 1973, or an Application u/s 156(3), may be filed, seeking Police protection and alleging that Criminal trespass, as defined u/s 441 of Indian Penal Code, is likely be committed by some persons.

    • 12. Suit for registration of document
      • (xii) An Agreement for transfer of property implies a contract not only to execute the deed of transfer but also to appear before the Registering Officer and to admit execution thereby facilitating the registration of the document wherever it is compulsory, and refusal by any of the parties to the contract, may compel the other by filing a Suit for Permanent and Mandatory Injunction.

    • 13. Suit to cancel agreement, etc.
      • (xiii) Where a person, who has purchased property, from a person who has no title or has imperfect title to the said property, the said purchaser, by virtue of section 13 of Specific Relief Act, 1963, has a right and he -

        (i) if the vendor or lessor has subsequently to the contract, acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest;

        (ii) where the concurrence of other persons is necessary for validating the title, and they are bound to concur at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such concurrence, and when a conveyance by other persons is necessary to validate the title and they are bound to convey at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such conveyance;

        (iii) where the vendor professes to sell unencumbered property, but the property is mortgaged for an amount not exceeding the purchase money and the vendor has in fact only a right to redeem it, the purchaser may compel him to redeem the mortgage and to obtain a valid discharge, and, where necessary, also a conveyance from the mortgagee;

        (iv) where the vendor or lessor sues for specific performance of the contract and the suit is dismissed on the ground of his want of title or imperfect title, the defendant has a right to a return of his deposit, if any, with interest thereon, to his costs of the suit, and to a lien for such deposit, interest and costs on the interest, if any, of the vendor or lessor in the property which is the subject-matter of the contract. (Section 13 of Specific Relief Act, 1963).

    • 14. Suit for Rescission of contract, etc.
      • (xiv) Where consent to an agreement is obtained by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so obtained; and where both the parties to an agreement are under a mistake of fact essential to the agreement, the agreement is void. In such situation the defrauded party has three remedies are open to him, namely -

        - He may rescind the contract absolutely and sue to recover the consideration parted with upon the fraudulent contract; or

        - He may bring an action to rescind the contract and in that action have full relief; or

        He may retain what he has received and bring an action to recover the damages sustained.

    • 15. Suit to cancel agreement, etc.
      • (xv) Where written instruments / contracts, partially or wholly, originally valid, becomes inefficacious by subsequent events, such as, by satisfaction or payment, or other causes; and its existence casts either a cloud upon the title of the party or subject him to the danger of some future litigation; under such and like circumstances, the said party, by virtue of section 31 and 32 of the Specific Relief Act, may file a Suit to declare the said whole or partial of the Written Instrument / contract, as void or voidable and get it cancelled.

    • 16.  Suit for declaration
      • (xvi) Where a person who is in possession of the immovable property and is also entitled to such immovable property, and where if any person is denying or interested to deny the such entitlement, then, by virtue of section 34 of the Specific Relief Act, the said aggrieved person may file a Suit for declaration by the Court that he is entitled for said immovable property.

    • 17. Assignment of Rights under contract
      • (xvii) Rights under the Agreement / contract are actionable claims; and they are transferable like any other property for a valuable consideration, or may be for no consideration; and may be transferred / assigned in accordance with sections 130, 131, 132, 133 of Transfer of Property Act, 1882. The transferee then is stepped into the shoes of transferor, and he has all the rights, subject to other equities and liabilities, which the transferor has had against the vendor.

    • 18. Disputes relating to Mortgaged Property
      • (xviii) (i) Where a Property is Mortgaged, the Mortgagor may –

        (a) Redeem or recover possession of immovable property mortgaged, within thirty years from the date, when the right to redeem or to recover possession accrues, under Article 61(a) of the Indian Limitation Act, 1963.

        (b) Recover possession of immovable property mortgaged, where afterwards the Mortgaged property is transferred by the mortgagee for a valuable consideration, within twelve years, from the date when the said transfer becomes known to the Mortgagor, under Article 61(b) of the Indian Limitation Act, 1963.

        (c) Recover surplus collection received by the mortgagee after the mortgage has been satisfied, within three years from the date when the mortgagor re-enters upon the mortgaged property, under Article 61(c) of the Indian Limitation Act, 1963.

        (ii) For the recovery of money which is secured by a Mortgage or which is secured by a charge upon an immovable property – A Suit may be filed for the said money, within twelve years from the date, when the money which is sued for, becomes due, under Article 62 of the Indian Limitation Act, 1963.

        (iii) Where under a Mortgage, the Mortgagor fails to pay the money which is secured under the Mortgage – A Suit may be filed by the Mortgagee, for the sale of the Mortgaged property, within thirty years, from the date when the money which is secured under the Mortgage, is due, under Article 63(a) of the Indian Limitation Act, 1963. Or A Suit may be filed by the Mortgagee, for the possession of the Mortgaged property, within twelve years, from the date when the Mortgagee becomes entitled to the possession under the Mortgage, under Article 63(b) of the Indian Limitation Act, 1963.

    • 19. Suit for Legacy
      • (xix) Where a person is entitled to any immovable property, by virtue of being a legatee or beneficiary under a Will or having a share in the estate of a deceased person died intestate (without making a Will), and where the said Person is deprived of the possession of said immovable property, a Suit may be filed for the said legacy or for the aforesaid share, against the executor or the administrator or some other person who is legally charged with the duty of distributing the estate of the deceased, within 12 years from the date, when the legacy or share becomes payable or deliverable, under Article 106 of the Indian Limitation Act, 1963.

    • 20. Suit for damages for unlawful injunction
      • (xx) Where a party to the proceedings before the Court of law, misleads the Court on any factual or legal submission, and thereby obtains any interim injunction in the said proceedings – the aggrieved person may file a Suit for compensation for injury caused by an injunction wrongfully obtained, within three years from the date when the injunction ceases, under Article 90 of the Indian Limitation Act, 1963.

    • 21. Suit pervert use of property
      • (xxii) Where a person who is having a right to use a property for specific purposes, but perverts the use of the said property, i.e. a distortion or misapplication of said property – materially impairing the value of a property - rendering it substantially unfit for its natural use – A Suit may be filed for Removal of the perversion, Compensation; Injunction; ejection, within two years from the date when the alleged perversion of the property first becomes known to the person injured thereby, under Article 84 of the Indian Limitation Act, 1963.

    • 22. Suit for damages for trespass
      • (xxii) Where a person has committed a trespass upon an immovable property – A Suit may be filed for the compensation, within three years from the date of the trespass, under Article 87 of the Indian Limitation Act, 1963. As long as the person remains in the unlawful occupation of the property, a fresh cause of action arises every day on his said unlawful occupation. The period of three years, which is contemplated herein, starts when the trespass actually ceases, by the operation of law or otherwise. Of course a Suit for possession of said immovable property, whether u/ss 5, 6 or 6(4) of Specific Relief Act, 1963, has to be filed, before filing Suit for compensation for trespass.

    • 23. Suit for possession based on joint title
      • (xxiii) Immovable property in the joint names: Where any immovable property exist in the joint name of two or more persons, and the dispute arises between those joint holders as to their respective share in the said immovable property, section 45 of Transfer of property Act, 1882 furnishes the answer to this dispute. The said section says that in cases where the money was paid for the purchase of said immovable property out of a common fund belonging to those joint holders, the joint holders are respectively entitled to interests in such immovable property identical, as nearly as may be, with the interests to which they were respectively entitled in their common fund, unless there exist any terms of the contract otherwise specifying the nature of interest of said joint holders;

        And, where the money was paid for the purchase of said immovable property out of separate funds belonging to joint holders individually, they are respectively entitled to interests in such proportion they have contributed to the total purchase money paid, unless there exist any terms of the contract otherwise specifying the nature of interest of said joint holders;

        And, in cases where there is no evidence as to the interests in the fund to which the joint holders were respectively entitled to, or as to the money which they respectively advanced, such joint holders shall be presumed to have share in equal proportion.

        And having regard to mandate of Section 45 stated hereinbefore, the nature of relief for any of the joint holder would depend upon whether the concerned joint holder is in the possession of the immovable property or not. If the said joint holder is not in possession, a Suit for declaration and possession, with or without a consequential injunction is the remedy; If the said joint holder is in possession, he has to sue for declaration and injunction.

        Further, there may be a situation where a person although contributed towards the payment of the price of the immovable property, and yet the said immovable property is not Registered in his name. In such situation, the said person has to file a Suit for declaration and possession, with a consequential injunction; and if the said person is in possession, he has to sue for declaration and injunction.

    • 24. Miscellaneous
      • (i) Interpleader Suit - Where, Parties are interested in the decision of any question of fact or of law, they, by entering into an agreement, may refer their dispute, for the opinion / decision of the Court. For details, please refer Section 90 and Order 36 of CPC, 1908.

        (ii) Lok Adalat - By virtue of section 20(2) read with Section 19(5)(ii) of the Legal Services Authorities Act, 1987), an Application, in the prescribed format, may be made to concerned State Legal Services Authority / concerned High Court Legal Services Committee, to refer “dispute” before the “Lok Adalat”, that may be constituted and held in coming future. The address of the concerned Legal Services Authority may be obtained from the website of the National Legal Services Authority of India.

        (iii) Settlement before Court - After filing of the Suit or any other proceeding, and at the first hearing of the Suit / proceeding, if it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations. After receiving the observations of the parties, the Court may, if necessary, reformulate the terms of a possible settlement and having regard to the nature of dispute between the parties, shall refer the same for (a) arbitration; (b) conciliation; (c) judicial settlement including settlement through LokAdalat; or (d) mediation.

        (iv) Lok Adalat during Court proceeding - After filing of the Suit or any other proceeding, and at the first hearing of the Suit / proceeding, if it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations. After receiving the observations of the parties, the Court may, if necessary, reformulate the terms of a possible settlement and having regard to the nature of dispute between the parties, shall refer the same for (a) arbitration; (b) conciliation; (c) judicial settlement including settlement through LokAdalat; or (d) mediation.

        Note: In every case where Application u/s 156(3) or Criminal Complaint u/s 200 of CrPC, 1973, may be preferred, the said Application or Complaint may also be preferred “Orally”, instead of in writing, before the competent Magistrate Court. [Section 2(d) of CrPC, 1973]

        Important principles regulating the nature of interest / title and other aspects in an Immovabllanke property

    • 25. Adverse possession
      • (xxv) A person who is in the settled possession of an immovable property, although does not have any crystallized right, title or interest in the said property, by virtue of mandate of Section 27 of the Limitation Act, 1963, may protect his possession against the whole world including against the lawful owner, provided that his possession is for 12 years, and his possession for 12 years should be such where the lawful owner although was fully aware of the unlawful occupation, yet did not took any legal recourse to claim possession. The person in possession is not required to file any Suit to protect his possession; and he can defend his possession in any Suit which is filed by the lawful owner, after the period of 12 years.

    • 26. Complaint before RERA Authorities
      • (xxvi) Where the Builder / Developer fails to give possession of the property, then a Complaint before RERA Authorities u/s 4(2)(1)(C) of The Real Estate Regulations and Development Act, 2016, may be filed for the possession of the concerned property; or an Application u/s 18 of the aforesaid Act may be filed before RERA for the refund of the purchase money paid alongwith damages, if any claimed.

  • 7. Defective goods / Deficient Services etc.
    • 1. Complaint before Consumer Courts
      • (i) Where one is alleged to have been supplied defective goods or allege to have been rendered deficient services, or where any person is alleged to have been indulging in unfair trade practices etc. and if the aggrieved person is a “consumer”, then, depending upon the amount of compensation claimed, a Consumer complaint may be filed against the supplier of defective goods / deficient services, before the appropriate Consumer District Forum/ State Commission or before the National Commission.

        The goods includes all kinds of goods (Sale of Goods Act) and Services includes–Banking, Financial, Transport/Cargo, Courier, Housing (Builder / Developer and Housing Societies), Cellular, Internet, Insurance, credit card, Medical, Educational etc.

    • 2. Banking Ombudsman
      • (ii) For deficiency in respect of banking services, Banking Ombudsman may first be approached. Please visit RBI website to find out the office of respective Ombudsman.

    • 3. Criminal Complaint – S.415
    • 4. Complaint before Authorities
      • (iv) In cases of Unfair Trade practices, a complaint to respective governmental regulatory body of said defaulting company can be made alleging that the said company is indulging in unfair trade practices; and in the event the said governmental regulatory body ignores / refuses to take any action against the said defaulting entity, then, a Writ Petition can be filed against that governmental regulatory body, in the respective High Court, seeking relief from HC, directing the said governmental regulatory body to take appropriate action against that entity who is indulging in unfair trade practices. What amounts to unfair trade practice is defined in the Consumer Protection Act, 1986.

    • 5. Unfair trade Practices
      • (v) With respect to “Unfair Trade Practices” a complaint may be preferred before the Consumer courts like the District Forum / State Commissions / National Commissions.

    • 6. Complaint before Competition Commission
      • (vi) Where any business entity or any other organization is indulging in such practice wherein it is abusing and misusing its dominant position in respect of any consumer goods or services, resulting in the exploitation / harassment of the consumer, a complaint may be preferred before the Competition Commission of India u/s 19 read with sections 18 and 4 of the Competition Act, 2002; or a Complaint may be made before Ministry of Consumer Affairs, requesting them to make a Reference to Competition Commission of India. The Central Government / State Government or a statutory authority is empowered u/s 19 of Competition Commission Act, 2002, to make a Reference to the Competition Commission to make an Inquiry into certain agreements and dominant position of any business entity.

    • 7. Complaint before Company Authorities
      • (vii) Where it is alleged that any business entity is, in any manner, has committed / is committing a huge / serious financial fraud of massive proportions, upon the Shareholders of the Company, or the entity is indulging into serious illegalities which grossly prejudices the interest of the Shareholders, or prejudices the interest of the Society at large, the aggrieved person may make a complaint to SEBI or to Ministry of Consumer Affairs; or to the Registrar of Companies; or to Regional Directors appointed under the Companies Act, 2013; or to Dept of Company Affairs, estd. under the Ministry of Corporate Affairs; or the Members (Shareholders) of the Company may an Application before Company Law Board, for an an order that the affairs of a company ought to be investigated by the Serious Fraud Investigation Office (SFIO), constituted under the Companies Act, 1956. Companies Act, 2013 has come into force, and once the National Company Law Tribunals, to be constituted u/s 408 of the said Act, would be constituted, the jurisdiction of the (CLB) would be transferred to said Tribunal and the Petitions would be filed u/ss 241 and 242 of the said Act.]

  • 8. Greviences Against Government etc.
  • 9. Police Not Registering F.I.R
    • Introduction
      • (i) A CRIMINAL MACHINERY MAY BE SET INTO MOTION

        1. By registering an FIR before Police Station u/s 154 of CrPC, 1973;

        2. The Police officer, suspecting the commission of an cognizable offence, by virtue of sections 157(1) and 156(1), may on its own, begin investigation into the alleged commission of offence;

        3. An Application may be made to Magistrates Court u/s 156(3) for giving direction to Police register FIR and carry out Investigation and submit Report.

        4. A Complaint in writing or even in oral may be made to the Magistrate u/s 200.

        5. The Magistrate, by virtue of section 190(c), upon his own knowledge that any offence has committed, may either direct the police to carry out the investigation or may himself conduct inquiry;

        6. The Magistrate u/s 155(2) may direct the Police to investigate cases of non-cognizable offences;

        7. A Petition may be made before the concerned HC or before Apex Court under Article 226 / 32, considering the seriousness and gravity of offence committed, to direct an investigation by independent agency like CBI.

        (ii)What if Police refuse to Register FIR –

        FIR (First Information Report) may be registered at the nearest Police station, where the offence is alleged to have been committed; or where the victim of offence, is residing or carries on business. FIR may be registered orally to the concerned Police officer in the Police station, or complaint may be made in writing, which is then reduced to writing in the form of FIR. The concerned Police officer, after recording the FIR in the prescribed form, will explain the contents of the said FIR, and the complainant than has to sign over in the said recorded FIR. The Police are obliged to give copy of FIR to the complainant. It may be noted that FIR may even be registered by a person who may be alleged to have committed a crime. Like for an example, the driver of the car, who has caused the accident, may register an FIR.

    • 1. Complaint before SP / CP
      • (i) If Police officer concerned (SHO), refuses to Register complaint / FIR, than by virtue of section 154(3), a written Complaint may be send by Post to the Superintendent of Police or the Commissioner of Police (in Metropolitan areas). If Superintendent of Police or the Commissioner of Police (in Metropolitan areas) is satisfied that the Complaint discloses cognizable offence, he may himself investigate the case or cause the investigation of the case by any Police officer subordinate to him.

    • 2. Complaint before Magistrate
      • (ii) A written Complaint in the form of a Letter may be made to the concerned Judicial / Metropolitan Magistrate, and the Magistrate is empowered to take cognizance of the said letter complaint by virtue of section 190(c) of CrPC, 1973. However, the Magistrate concerned is at discretion to act or not to act on the said Letter Complaint.

    • 3. Application u/s 156(3) before Magistrates Court
    • 4. Criminal Complaint
    • 5. Writ Petition
      • (v) A Writ Petition in the respective High Court may be filed for the issuance of Writ of Mandamus against the defaulting Police officers, inter alia, praying for Registration of FIR; and further direction to the concerned Police officer to show cause (a) why disciplinary proceedings for "Misconduct" should not be initiated against him for dereliction of duty; (c) why he should not be suspended from Police service for interfering in the administration of justice and shielding the accused person.

    • 6. Application u/s 156(3) before Magistrates Court
    • 7. Contempt Petition
      • (vii) A Contempt Petition (Civil) can be filed before High Court concerned against Police officer who has refused to register FIR. In the Constitution Bench Judgment of the Apex Court in the Lalita Kumari case, it has been held that the Police must register FIR where the complaint discloses a cognizable offence. The Contempt proceedings are held only in High Courts and in Supreme Court. Also, refusing to register an FIR amounts to Criminal contempt of the court. If criminal contempt is preferred, then permission of the Advocate General of the respective State Govt must be obtained before filing Criminal Contempt Petition, or in the alternative, after filing of Criminal Contempt Petition, the concerned High Court may be requested to take Su Moto Cognizance of the alleged criminal contempt of the Court.

    • 8. Complaint before High Court
      • (viii) A Letter Petition may be recorded to the Chief Justice of the concerned High Court / Chief Justice of India, Supreme Court, requesting them to take Su Moto Cognizance of the alleged contempt of the Court, and the copy of said letter may be sent to the concerned Police officer. RTI application may be made to the said concerned High Court / Supreme Court, to know if the said Court has taken Su Moto cognizance of the said Letter Petition.

    • 9. Criminal NC Complaint
      • (ix) As aforesaid, an application u/s 155(2) or complaint u/s 200, to Judicial Magistrate /Metropolitan Magistrate, can be made where if the alleged offence is defined as Non Cognizable (NC) offence in the IPC, for Magistrate to direct the Police to investigate the offence, or the Magistrate may issue the Summons to the accused person.

    • 10. Writ for damages
      • (x) A Writ Petition may be filed in respective High Court for seeking damages / compensation, if the “inaction” of the Police on the complaint / non registration of FIR, has resulted in frustration / deprivation of “life and liberty” of any person, guaranteed under Article 21 of Constitution of India.

    • 11. Suit for damages
    • 12. Complaint for Disciplinary proceeding
    • 13. Criminal Complaint – S.166A(c)
      • (xiii) Section 166A(c) now, expressly makes a punishable offence if the Public servant concerned fails to record any information given to him under sub-section (1) of section 154 of the Code of Criminal Procedure, 1973, in relation to cognizable offence punishable under section 326A, section 326B, section 354, section 354B, section 370, section 370A, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code.

    • 14. Criminal Complaint – abetment of offence
      • (xiv) Where it is alleged or a Complaint is made to a Public Servant / official, that a Person may commit or is committing an offence; and the said Public Servant / official deliberately fails or refuses to take any action on the said Complaint, then the said Public Servant / official may be alleged to have abetted the commission of the offence, which is alleged to have been committed by the Person against whom the complaint was made; or he may be accused of having committed an offence u/s 119 of IPC

    • 15. Criminal Complaint – abetment of offence
  • 10. Police Unlawful Summons
    • Introduction
      • WHEN POLICE UNLAWFULLY SUMMONS WITNESSES / ACCUSED FOR INTERROGATION

        The position of law as it stands is –

        1. Section 160 of CrPC provides for Investigation of offences – Summoning the “witnesses” – A person is not bound to appear before Police officer investigating a case, without an order in writing by such officer. Disobedience of mere verbal order is not punishable.

        2. Further, section 160 provides that the person who is to be summoned must reside within the limits of the police station of the police officer making the investigation. If the person being summoned does not reside within the limits aforesaid, such police officer cannot enforce his attendance even though the person may be acquainted with the facts and circumstances of the case. A citizen would only be put to harassment if he is being summoned to far off place just to meet whims of the officer.

        3. Section 162 of CrPC expressly stipulates that statements made by any person to any police officer during the course of any investigation should not be signed; Statements recorded during the investigation are not a substantive piece of evidence.

        4. A male person below the age of 15 years and women cannot be called upon to attend any Police station and they can only be interrogated at places where they resides.

    • 1. Complaint before Police; Writ Petition
    • 2. Complaint before SP/CP
    • 3. Police Complaints Authority
      • (iii) Complaints against police officials of and up to the rank of Deputy Superintendent of Police, may be made to “Police Complaints Authority”. The said authority may be situated at the Office of the Superintendent of Police of the concerned district or Commissioner of Police of the concerned metropolitan city. The said authority is constituted pursuant to Order of the Supreme Court in the famous Prakash Singh’s case, in the year 2006.

    • 4. Criminal Complaint – S.166A(a)
  • 11. Police Unlawful Arrest / Detention
    • Introduction
      • WHEN POLICE ILLEGALLY ARREST

        First of all it must be stated that powers for effecting arrest are ordinarily conferred upon Police officers only (except in exceptional cases, arrest may be effected by Magistrate / Private persons), that is to say, those Police officers who have powers to investigate the case and powers to file the Police Report including Chargesheet u/s 173 of CrPC, 1973.

        The procedure for effecting arrest has been set out in section 41B of CrPC, 1973. The said section is reproduced below. .Section 41B: Procedure of arrest and duties of officer making arrest:

        Every police officer while making an arrest shall

        (a) bear an accurate, visible and clear identification of his name which will facilitate easy identification;

        (b) prepare a memorandum of arrest which shall be

        (i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;

        (ii) countersigned by the person arrested; and

        (c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.

    • 1. Bail Application before Police
      • Whenever Police intends to arrests any person, it is also obligatory upon police, among other things (a) to clearly inform him about the offence he is alleged to have committed – section 50 of CrPC 1973; (b) the Police are obliged to immediately inform to any of the friend or relative of the arrested person about the arrest of that person and the place of his custody – section 50-A (c) if the offence / offences alleged is/are defined as bailable offences, then, Police must inform the accused person about his right of immediate release on furnishing of Bail (Surety) (section 50-A) or by executing a Bond (Section 441 of CrPC, 1973) in lieu of Bail. The Police may also release a person on deposit of certain sum of money for accused person to arrange for the surety.

    • 2. Letter to Police station
      • The arrested person or his relative / friend may record a Letter to the concerned Police station, stating therein about the position of law as regards to restrictions in powers of arrests, and that the Police officer effecting arrest is not following the mandate of law as set out in sections 157(1), 41(1)(b)(i)(ii), 41(2), 41A r/w section 60-A of CrPC, 1973) and also knowingly disregarding the guidelines framed by SC in the case of Joginder Kumar versus State of U.P., 1994 and Arnesh Kumar case, for effecting arrests, and thereby advising the Police to release the arrested person forthwith. Also, it is within the powers of Police u/s 169 r/w 59 or section 437(2) of CrPC, 1973, to release the person who is arrested, on the execution of Bail Bond by the said person.

    • 3. Complaint before Magistrate
      • An oral / written complaint may be made before local Magistrates court within whose jurisdiction the person is arrested, thereby requesting to take immediate cognizance of the complaint, and alleging that the Police has wrongfully detained/arrested the person and the Police has thereby committed the offence of (a) contempt of the Supreme Court in willful disobedience to guidelines framed in respect of effecting arrest; (b) sections 220 and 342 of IPC, 1860; and praying the Magistrate to issue search warrant for the arrested person and be produced before him immediately. Section 97 of CrPC, 1973, empowers the Magistrates court to issue search warrant for persons wrongfully confined.

    • 4. SC binding guidelines
      • The SC binding guidelines, before making any arrest, is provided in the case of Joginder Kumar versus State of U.P.1994; and in Arnesh Kumar case 2014.

    • 5. Writ Petition / Bail Application after Police Remand
      • The relative / friend of the arrested person may file a Writ Petition of Habeas Corpus before respective High Court for the alleged illegal arrest and seek immediate release of the person illegally arrested. This Writ may only be filed when the arrested person is in the custody of Police. If the arrested person is transferred to judicial custody, then, Writ of Habeas is not maintainable. Then Bail Application before concerned Magistrates Court may be preferred.

    • 6. Bail Application before Police Remand
      • Any person who is arrested must be produced before the nearest Judicial Magistrates court within 24 hours of his arrest (Section 57 of CrPC, 1973). When the arrested person is produced before the Judicial Magistrates, the arrested person or his relative / friend may present a simple Bail Application, before concerned Magistrates Court and inform the Magistrate, among other things, that the said arrest is patently illegal, for being effected without following the due process of law and in wilful disregard / defiance of guidelines framed by SC in the case of Joginder Kumar versus State of U.P., 1994, and Arnesh Kumar versus State of Bihar [2014] and may pray for immediate release, on Bail on furnishing of Surety or execution of Personal Release Bond; and where court insists for surety, then, some reasonable time may be sought for furnishing of surety and release may be sought on depositing of reasonable amount of cash in lieu of furnishing surety thereof.

    • 7. Torture: Police Complaints Authority
      • Where it is alleged that Police has inflicted violence, beaten / tortured the accused person in the Police custody, than the same must be informed to the Magistrate before whom the accused is produced and Magistrate should be requested to register offence u/s 330, 331 of the IPC and section 29 of the Indian Police Act 1861 against the respective Police officer for causing violence / beating / torture; and also requesting the said Magistrate Court to make a reference to the High Court concerned that the said Police officer must be hauled up for Contempt of the Court, i.e. Contempt of the SC strictest guidelines given in DK Basu Vs State Of West Bengal case.

        Section 330 and 331 of IPC provide for punishment for voluntarily causing hurt and section 29 of Indian Police Act 1861 provides for imprisonment for offences including unwarranted personal violence to any person in his custody.

        In the light of section 176 of CrPC 1973, Magistrate is bound to investigate every death in Custody. Even it is mandatory for police to inform State Human Rights Commission or National Human Rights Commission about every custodial death.

        Failure to implement strictest of guidelines on law of arrests and on Tortures as laid down by the SC in DK BasuVs State of West Bengal will render any Policeman to be hauled for Contempt of Court in any High Court of the Country.

    • 8. Bail Application after Police Remand
    • 9. Writ Petition / Complaint before Magistrate
      • However, where the arrested person is not produced before the Magistrates court within 24 hours of his arrest, then such confinement becomes illegal beyond 24 hours, and, an oral / written Application may be made u/s 97 of CrPC, before any magistrate court and requesting / praying the Magistrate to issue search warrant for the said person unlawfully confined, or Writ of Habeas Corpus may be preferred before the concerned High Court.

    • 10. Complaint before High Courts / Human Rights Commission
      • If the relatives of the detainee cannot go to High Court for Writ Petition of Habeas Corpus, then they may (a) approach or make an Application to State Human Rights Commission, (b) National Human Rights Commission; (iii) make an Application to the Registry of the Supreme Court; (iv) to respective High Court, stating therein about the said illegal arrest effected, in willful disregard of the directions given by the SC in Joginder Kumar case, seeking their intervention for the release; followed by an RTI Application to the aforesaid four authorities, on steps taken by them in pursuance to said RTI Application. Life and Liberty clause under RTI may be invoked to obtain information within 48 hours.

    • 11. Writ Petition for damages
      • Writ of Mandamus may be preferred before respective High court seeking exemplary Damages / Compensation from respective State Government, but only after the High Court in the Writ of Habeas Corpus, or the concerned Magistrates Court had released the accused, and recorded in its / his Order that the said arrests was illegal, or the concerned Human Rights Commission comes to the conclusion that the said arrest was illegal.

    • 12. Contempt Petition
      • A Contempt Petition (Civil) before respective High court can be filed alleging therein that the Police illegally arrested the Petitioner in willful disobedience / defiance to SC guidelines framed in aforesaid Joginder Kumar case and Arnesh Kumar case.

    • 13. Contempt Letter
    • 14. Criminal Complaint – Ss.220,342
    • 15. Suit for damages
      • A Civil Suit for exemplary damages can be filed for the Irregular exercise of powers / acts and omissions of Public authorities / Public officials, allegedly in the pretence / pretext / colour of provisions of an enactment. (Pls see Article 72 of the Limitation Act, 1963).

    • 16. Complaint for Disciplinary proceeding
    • 17. Personal Release (PR) Bond
      • Arrests during Public protests – Ordinarily, all the detainees are released on their execution of Personal Release (PR) Bond in the Police station. No money is required to be deposited while executing the saidPR Bond.

    • 18. Police Raids at Parties
      • There could be indiscriminate / mindless arrests by Police during such raids at parties. However, the procedure for arrests remains the same as stated hereinbefore. The persons present at such “Party” should enforce the concerned Police officer to adhere to laws of the land before effecting any arrest or detention.

    • 19. Police Complaints Authority
      • Complaints against police officers of and up to the rank of Deputy Superintendent of Police, may be made to “Police Complaints Authority”. The said authority may be situated at the Office of the Superintendent of Police of the concerned district or Commissioner of Police of the concerned metropolitan city. The said authority is constituted pursuant to Order of the Supreme Court in the famous Prakash Singh’s case, in the year 2006.

    • 20. Police Complaints Authority
      • Complaints against Superintendent of Police or Commissioner of Police may be made to “Police Complaints Authority”. The said authority may be situated at the Office of the Director General of Police of the concerned State. The said authority is constituted pursuant to Order of the Supreme Court in the famous Prakash Singh’s case, in the year 2006.

  • 12. Police Flawed Investigation
  • 13. False F.I.R
    • 1. Letter to Police station
      • When false FIR is registered, or where a false FIR is anticipated to have been registered, and pursuant to said FIR, the arrest is anticipated, then, a Letter may be recorded to the concerned Police station where the false FIR is registered, with a copy to Superintendent of Police or Commissioner of Police, stating therein that a false complaint is filed against “me” and advising the Police authority that in case the Police intends to arrest the Person named in the allegedly false FIR, then they should scrupulously / strictly follow the due process of law as contained u/ss 157(1), 41(1)(b)(i)(ii), 41(2), 41A r/w section 60-A of CrPC, 1973; and also strictly adhere to the guidelines framed by SC in the recent Arnesh Kumar case 2014 and in the Joginder Kumar case 1994. The Apex Court in Joginder Kumar case have expressly directed DGP of all States to bring those guidelines to the knowledge of all Police stations for its due obedience. Rules in respect of arrest of women are contained in section 46 of CrPC, 1973.

    • 2. Anticipatory Bail
      • Obtain Anticipatory Bail from Sessions court or High Court u/s 438 of CrPC, 1973; and it is advisable to seek alternative prayer in the Anticipatory Bail Application (that in case the Anticipatory Bail is refused by the Sessions / High Court) that in case the Police intends to arrest the person/s named in the FIR, the Police shall scrupulously / strictly follow the due process of law as contained u/ss 157(1), 41(1)(b)(i)(ii), 41(2), 41A r/w section 60-A of CrPC, 1973; and also strictly adhere to the guidelines framed by SC in the Joginder Kumar case and Arnesh Kumar case.

    • 3. Writ Petition
      • In lieu of Application for Anticipatory Bail or where Anticipatory Bail is refused, a Writ Petition in the respective High Court under Article 226 of Constitution of India may be filed, seeking a Writ of Mandamus, that, in the light of Article 21 of the Constitution of India, which guarantees that No person shall be deprived of his life and “personal liberty”, except according to the procedure established by law, and thereby praying before the HC to direct the Police authorities, not to mechanically arrest on mere filing of FIR and Police to scrupulously follow the due process of law as contained in sections 157(1), 41(1)(b)(i)(ii), 41(2), 41A r/w section 60-A of CrPC, 1973 and strictly adhere to the guidelines framed by SC in the Joginder Kumar case and Arnesh Kumar case, in case the Police intends to arrest the Petitioner (the person named in the FIR).

    • 4. Criminal Complaint – Ss.218,220,342
      • An application u/s 156(3) or complaint u/s 200, to Judicial Magistrate / Metropolitan Magistrate, against those Police officers if they have “knowingly” registered false FIR / or have falsely arrested / or if are falsely prosecuting the case, alleging therein your complaint that said Police officer have committed the offence defined u/ss 218 and 220 or 342 of IPC, 1860, as the case may be. Nevertheless, a regular FIR can also be lodged against the said Police officers u/s 154.

    • 5. Application u/s 482 for quashing F.I.R.
      • An Application u/s 482 of CrPC, 1973 may be preferred, before respective High Court, for High Court in the exercise of their inherent powers, to quash the said false FIR.

    • 6. Application u/s 482 for quashing Summons
      • Where, during the pendency of section 482 Application in the High court, if the charge sheet is filed by the Police before the competent Magistrates court, the concerned person, may either seek the quashing of charge sheet, or, may file a discharge Application (in warrant cases only) before the concerned Magistrates court u/ss 239, 245(2) of CrPC, 1973. Where the case is committed to Sessions Court, then the discharge Application can be filed before the Sessions Court u/s 227 of CrPC.

    • 7. False complaint / accusation
      • It is criminal offence u/s 182 of IPC, 1860 to knowingly make and register a false complaint against any person, before any Public officer or before Police. Further, it is a criminal offence u/s 211 of IPC, 1860, to knowingly making a false accusation of offence, in a Court of law. In such cases the innocent person cannot register FIR or make complaint to Magistrates court against those persons who have filed false Complaint, or who have filed false accusation of offence case in the Court of law.

        In such cases, in so far as offence u/s 182 is concerned before any Public Servant other than Police, a complaint can be made to the Public officer to whom false complaint has been made, or complaint may be made to an authority higher to the concerned Public officer, and the concerned Public or the higher authority, is empowered to file the case in the Magistrates Court against the person who has made false complaint to the said Public officer. However, before entertaining any complaint under this Section, the relevant Public officer or the higher authority must have reached the conclusion that the complaint so filed was frivolous and meritless.

        In cases of Complaint before Police, whereas the Police are obliged to file Police Report in every F.I.R., u/s 173 of CrPC, 1973, before the competent Magistrates Court, if the Police files the Report that no such offence was committed; or where the F.I.R. was quashed by the concerned High Court, then the aggrieved person may prefer a Complaint u/s 182 before the concerned Police officer, or before the higher in Rank, the concerned Authority.

        In cases of false accusation of offences before Court of law, then, an Application u/s 340 read with section 195 of CrPC 1973, may be preferred before the concerned Court of law, against those persons, praying therein before the said Court, to refer the said offence of false accusation to the appropriate / competent Magistrate Court of jurisdiction. Nevertheless, any such Application u/s 340 read with 195, can only be entertained only after the trial Court has discharged the Accused or has acquitted the Accused, preferably be with findings that Complainant has knowingly made false accusation; or that the Complaint was frivolous and baseless. Further, Applications invoking sections 182 and/or 211 should be invoked keeping in mind the limitation period provided u/ss 467 to 473 of CrPC, 1973.

    • 8. Compensation u/s 250
      • where the Trial Court acquits the person against whom false FIR / Complaint is made, Compensation may be sought u/s 250 of CrPC, 1973, from that Trial court, against the persons who have knowingly filed false FIR / complaint.

    • 9. Complaint for Disciplinary proceeding
      • A Complaint may be made to Commissioner of Police / Superintendent of Police against the concerned Police Officer of the concerned Police Station, seeking disciplinary proceedings for "Misconduct" / Malicious prosecution.[Union Of India Versus K.K. Dhawan 1993 SC]

    • 10. Suit for damages
  • 14. Legal Options For Innocent Accused
    • 1. Application u/s 482 for quashing F.I.R. / Summons
      • If false, frivolous and baseless FIR is registered, then a Petition / Application u/s 482, may be filed before the concerned High Court, for the quashing of said FIR, on the ground that (a) “acts” and “omission” attributed towards the accused person in the FIR does not constitute any offence; or (b) No incidence of offence as alleged in the FIR has happened; or (c) the FIR contains “bare allegation” without attributing “acts or omission” on the part of the accused person, towards the commission of the offences; (d) There are unimpeachable evidence to show that the offence could not have been committed by the accused person as alleged.

    • 2. Revision Application u/s 397
      • If false, frivolous and baseless Complaint is filed u/s 200 before the Magistrates Court, then, the aggrieved person, on the similar grounds as stated hereinabove, may prefer –

        (a) a Revision Application u/s 397 before Sessions Court, thereby challenging and quashing of the said Summons / Warrant issued in pursuant to said Complaint; or

        (b) a Revision Application u/s 401 before High Court, thereby challenging and quashing of the said Summons / Warrant; or

        (c) an Application u/s 482 before High Court, thereby challenging and quashing of the said Summons / Warrant, in the exercise of inherent powers of the High Court. (Note 1)

        Ordinarily, High Courts insists that aggrieved person, before invoking the Revisional or 482 jurisdiction of the HC, in the first instance, should invoke the Revisional jurisdiction of Sessions Court.

    • 3. Criminal Application u/s 313
      • (iv) Section 313 of CrPC, 1973, appears to be most salutary provision to protect innocent persons who are falsely charged / accused as having committed an offence.

        The said section enables the accused person to move an Application or make a formal request, before the concerned Magistrates Court, to allow him to make due representation before the Court, for to present to the Court any credible evidence he has to show his innocence, or for to impeach the credibility of evidence appearing against him in the Complaint or Chargesheet, and seeking immediate acquittal.

        The said Application or formal request may be made at any stage of the trial or may be made even at the stage of Inquiry contemplated u/s 202 of CrPC, 1973.

        If the Magistrate is satisfied, he may acquit the accused person, without any trial, of course, after giving an opportunity of hearing to the Complainant / State prosecution. The Magistrate may also impose heavy cost u/s 250 of CrPC, 1973, upon the Complainant / State prosecution, for making false complaint or for suppressing material facts / documents.

        Fortunately, there is a recent Apex Court ruling on section 313. In the said ruling, although the issue before the Court was not the examination of accused before evidences are led, yet the Hon'ble Court have unambiguously stated that the said powers may be exercised at any stage of the inquiry or trial. [Nar Singh versus State of Haryana 2015]. There is ruling of Bombay High Court in this regard, wherein Justice R C Chavan, in his 187 page judgment (Unreported), extensively dealt with the issue of false complaints, speedy justice, extensive use of many of the provision of Criminal Procedure Code to reduce the length of litigation, when inherent powers of the High Court may be invoked u/s 482, etc., and held that Section 313 of CrPC, 1973 may be invoked by accused before formal evidence are led by Prosecution. [Judg dated 22nd March, 2012] [Paras 88 to 90]

    • 4. Discharge Application u/s 227
      • (iv) If the Chargesheet is filed and the case is committed to Sessions Court, for the trial of offence charged with, then, before the framing of charges (Note 2) by the Sessions Judge, the accused person may file a “Discharge Application” u/s 227, thereby seeking his discharge of the offence charged with, on the ground that (a) “there is no prima facie evidence or there is no any incriminating material” against the accused is found in the charge-sheet with respect to the offence charged with; or (b) “material / evidences” on record are “grossly insufficient” to proceed to trial against the accused and on the basis of said evidences, the conviction of the accused cannot be secured by the Prosecution (c) the evidences are “inadmissible” and / or are “Irrelevant” within the meaning of Indian Evidence Act, for convicting the accused.
    • 5. Discharge Application u/s 239,245(2)
      • (v) If the Chargesheet is filed in the Magistrates Court, for the trial of “Warrant cases”, or in a private Complaint u/s 200 of CrPC, 1973, the accused person may file a “Discharge Application” u/ss 239, 245(2), thereby seeking his discharge of the offence charged with, on the same grounds as stated hereinbefore.

        However, where the person has filed a Petition before HC for quashing of FIR, as stated hereinbefore, and during the pendency of said Petition, the Police files Chargesheet, then, the prayers of the said Petition, with the leave of the HC, may be amended, and quashing of the Chargesheet, on the grounds stated hereinbefore, may be sought in the said Petition. However, where, the HC decides on “merit” and rejects the Petition, then, the said accused person cannot file “Discharge Application” as provided u/ss 227, 239, 245(2), as the case may be.

    • 6. Application u/s 482 quashing trial
      • (vi) An Application u/s 482 can be maintained (i) even after the filing of Chargesheet by the Police; (ii) even after the commencement of trial and during the trial, provided the ingredients of section 482 must be substantially satisfied so as to claim relief u/s 482. (Note 3)

    • 7. Application u/s 258
      • (vii) In a trial before Magistrates Court, in Summons cases, when the Magistrate proceeds to take evidences of prosecution witnesses, thereafter at the conclusion of their evidence, Application may be made u/s 258 for the acquittal / discharge of the accused, on the grounds of “no offence is made out” against the accused.

    • 8. Application u/s 321
      • (viii) At any time before judgment is pronounced, by virtue of section 321, the Public Prosecutor, with the consent of the trial Court, may withdraw the prosecution. Therefore, a formal request may be made to the Public Prosecutor to withdraw the prosecution, in the light of the fact that “no offence is made out against the accused person”.

    • 9. Compounding of the offence
      • (ix) To put an end to the agony of the trial and accusation, the Complainant and the innocent accused person, at any time during the trial and even at the stage of Appeal, may “compound certain offences” as provided u/s 320 and such compounding of offences has the effect of acquittal of the accused person..

    • 10. Writ Petition for adherence to procedure established under Law
      • (x) Article 21 of the Constitution of India commands that “No person shall be deprived of his life and liberty” except according to the procedure established by law. In Criminal jurisprudence, the only safeguard available to an innocent person is the “scrupulous and strict adherence” to the procedure prescribed in concluding the “guilt of the accused person”. Thus, whenever, any of the “prescribed procedure” is not “duly followed and complied with”, and where such non compliance, expressly or by necessary implication, frustrate or weaken the case of the accused person, the accused person may prefer a Writ Petition in the High Court or even in the Supreme Court, thereby challenging such “act of omission” alleging that his “liberty is jeopardized” due to “non compliance to the procedure established by law”.

    • 11. Section 464
      • (xi) By virtue of Parliamentary command enshrined in section 464, the Sessions Court or the High Court, in the Appeal or in Revision, if comes to the “finding” that due to “omission to frame, or absence of, or error in framing Charges”, “failure of justice” has in fact occasioned, the Sessions Court or the High Court, may direct the retrial of the accused person; or where the Sessions Court or the High Court comes to the “finding” that no valid charge could be preferred against the accused in respect of the facts proved, the Court “shall” quash the conviction.

    • 12. Section 465
      • (xii) By virtue of Parliamentary command enshrined in section 465, any error, omission Or irregularity in respect of (a) complaint, (b) summons, (c) warrant, (d) proclamation, (e) order, (f) judgment or (g) other proceedings before or during trial or in any inquiry or other proceedings under this Code, prejudices the accused person “seriously” due to such error, omission or irregularity , the Sessions Court or the High Court, in Appeal or in Revision, may reverse the sentence which is passed against the accused person.

    • 13. Appeal / Revision
      • (xiii) Where, the innocent is convicted, the “innocent convicted person”, may prefer an Appeal u/s 374 of CrPC, 1973, to higher Court, i.e. either Sessions Court / High Court, as the case may be; OR may prefer Revision Application u/s 397 / 401 of CrPC, 1973, before Sessions Court / High Court.

    • 14. Section 432 Application
      • (xiv) Where, the innocent is convicted, the convicted person, depending on the offence convicted of, may make an Application to the State Govt / Central Govt, for the suspension or reduction of sentence of punishment and the said appropriate Govt, by virtue of section 432, may suspend or reduce the sentence.

    • 15. Criminal Complaint – Ss.218,220
      • (xv) Any person who is victim of false FIR / Complaint / Malicious prosecution, may make an application u/s 156(3) or complaint u/s 200, to Judicial Magistrate / Metropolitan Magistrate, against those Police officers who have “knowingly” registered false FIR / or have falsely arrested / or if are falsely prosecuting the case, alleging therein your complaint that said Police officer have committed the offence defined u/s 218 and 220 of IPC, 1860.

    • 16. False complaint / accusation
      • It is criminal offence u/s 182 of IPC, 1860 to knowingly make and register a false complaint against any person, before any Public officer or before Police. Further, it is a criminal offence u/s 211 of IPC, 1860, to knowingly making a false accusation of offence, in a Court of law. In such cases the innocent person cannot register FIR or make complaint to Magistrates court against those persons who have filed false Complaint, or who have filed false accusation of offence case in the Court of law.

        In such cases, in so far as offence u/s 182 is concerned before any Public Servant other than Police, a complaint can be made to the Public officer to whom false complaint has been made, or complaint may be made to an authority higher to the concerned Public officer, and the concerned Public or the higher authority, is empowered to file the case in the Magistrates Court against the person who has made false complaint to the said Public officer. However, before entertaining any complaint under this Section, the relevant Public officer or the higher authority must have reached the conclusion that the complaint so filed was frivolous and meritless.

        In cases of Complaint before Police, whereas the Police are obliged to file Police Report in every F.I.R., u/s 173 of CrPC, 1973, before the competent Magistrates Court, if the Police files the Report that no such offence was committed; or where the F.I.R. was quashed by the concerned High Court, then the aggrieved person may prefer a Complaint u/s 182 before the concerned Police officer, or before the higher in Rank, the concerned Authority.

        In cases of false accusation of offences before Court of law, then, an Application u/s 340 read with section 195 of CrPC 1973, may be preferred before the concerned Court of law, against those persons, praying therein before the said Court, to refer the said offence of false accusation to the appropriate / competent Magistrate Court of jurisdiction. Nevertheless, any such Application u/s 340 read with 195, can only be entertained only after the trial Court has discharged the Accused or has acquitted the Accused, preferably be with findings that Complainant has knowingly made false accusation; or that the Complaint was frivolous and baseless. Further, Applications invoking sections 182 and/or 211 should be invoked keeping in mind the limitation period provided u/ss 467 to 473 of CrPC, 1973.

    • 17. Compensation u/s 250
      • (xvii) Where the Magistrates Court acquits the person against whom false FIR / Complaint is made, Compensation may be sought u/s 250 of CrPC, 1973, from that Magistrates court, against the persons who have knowingly filed false FIR / complaint.

    • 18. Writ Petition for damages
    • 19. Suit for damages
    • 20. Notes 1, 2 3, 4 and 5
      • (xx) Note 1: In Complaints filed u/s 200 before the Magistrates Court, the accused persons named in the Complaint has no right of representation before the Magistrates Court; and only when the said Magistrate takes cognizance of the offence and issue Summons / Warrant against the persons named in the said Complaint, the right accrues in favour of the accused person to file Revision etc.

        However, the accused person named in such Complaints, if he comes to know that a complaint against him is filed in the court of law, may consider, approaching the Advocate / Counsel of the Complainant, with formal request, apprising them with the true facts of the case and telling them to present the true facts of the case before the Court and tell them that the Advocate / Counsel should not mislead the Court merely on the instructions of his Client.

        In our law books, it is said that the Advocates / Counsels are “Officers of the Court” though they may be representing and advocating the cause of their Client but they have “ultimate duty towards Court” to present the true facts of the case before the Court.

        Note 2: “Framing of Charges” in Warrant cases, by the Court is a very critical stage of the trial which reflects the, meticulous or weak, case of the prosecution and the “relevant and admissible” evidences, if any, exists against each of the accused persons and thus the scrupulous framing of charges will directly reflect the involvement or absence of involvement of the accused person. Therefore, accused persons should press for “strict” adherence to sections 211, 212, 213 and 214 while framing of charges by the Trial Court.

        As a matter of fact, in my view, where “Charges cannot be framed” with sufficient clarity as contemplated u/s 211, 212, 213 and 214, the accused is entitled for “Discharge”.

        I also feel that a scrupulous framing of charges gives a proper direction to the trial, for, it will help the Prosecution to know what is required to be proved and in fact will greatly assist the defence in dislodging the “story” of the prosecution.

        Note 3: In Som Mittal v. Govt. of Karnataka [2008], the Supreme Court, among other things, said, when it is brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal. In other words, the inherent power of the Court u/s 482 of the Code of Criminal Procedure can be invoked by the High Court either to prevent abuse of process of any Court or otherwise to secure the ends of justice.

        In R.P. Kapur v. State of Punjab [1960] the Apex Court summarized some of the categories of cases where inherent power should be exercised to quash a criminal proceeding against the accused, stating: (SCR p. 393)

        (i) Where it manifestly appears that there is a legal bar against the institution or continuance e.g. Want of sanction;

        (ii) Where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;

        (iii) Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

        Gajendragadkar, J. who spoke for the Court in Kapur's case observes in his judgment that it was not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of the High Court's inherent jurisdiction. The three instances cited in the judgment as to when the High Court would be justified in exercising its inherent jurisdiction are only illustrative and can in the very nature of things not be regarded as exhaustive. Considerations justifying the exercise of inherent powers for securing the ends of justice naturally vary from case to case and a jurisdiction as wholesome as the one conferred by section 482 ought not to be encased within the strait-jacket of a rigid formula.

        ♣ A three Judge Bench of the Supreme Court in the case of State of Karnataka vs. L. Muniswamy and others, (1977) clearly stated the principle that in exercise of its wholesome power, the High Court was entitled to quash a proceeding as this power is to ensure a salutary public purpose that Court proceedings ought not to be permitted to degenerate into a weapon of harassment or persecution.

        ♣ The HC has powers to stay criminal proceedings in any subordinate court and such power can be exercised even in cases in which motion for stay had not been first made to the trial court. Shaikh Davud versus Yusuf.

        ♣ No doubt the Magistrate can discharge the accused at any stage of the trial, if he considers the charge to be groundless. But that does not mean that the accused cannot approach the HC u/s 482 of CrPC or under Article 227 of the COI to have the proceedings quashed against him and still he must go the agony of criminal trial. Pepsi Foods Ltd versus Special Judicial Magistrate (1998).

        ♣ That the trial would be an exercise in futility, an innocent person would not be allowed to be subjected to the hardship and humiliation of full dress trial, even though on any reckoning, it would never succeed. The expression “ends of justice” and “to prevent the abuse of the process of the court”, used in this section, are intended to work both ways, either when an innocent person is unjustifiably subjected to an undeserving prosecution or if an ex-facie well merited prosecution is throttled at the threshold, without allowing the material in support of it to see the light of the day. PNB Finance versus Gita Kriplani, ITO New Delhi (1985).

        ♣ In the case of Inder Mohan Goswami and another v. State of Uttaranchal and others, (2008) while referring to the law, both on scope and ambit of court's power u/s 482 and the principles governing for quashing of the criminal proceedings, the court said that every High Court has inherent power to act 'ex debitojustitiae' to do real and substantial justice for the administration of which alone it exists, or to prevent abuse of the process of the court. Authority of the court exists for the advancement of justice and if any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute. In that case, the Supreme Court had quashed the proceedings taken out u/ss 420, 120-B and 467 of the Indian Penal Code against the accused.

        ♣ This section was enacted to emphasize the fact that the HC has the widest jurisdiction to pass orders to secure the ends of justice and therefore if the HC feels that ends of justice require that an order should be made in an application then HC will entertain the Application and make the necessary orders even though the application is not one contemplated by the code. State of Bombay versus Nilkanth Shripad Bhave (1954).

        ♣ HC can revoke, review, recall or alter its own earlier decision in a criminal revision and rehear the same by virtue of its inherent powers reserved under this section. Raj Narain (1959)

        ♣ The inherent powers of the HC is a wide and wholesome power. If the court has to examine and determine whether the continuation of criminal proceedings would be just or would be improper, there is no reason why there should be any limitation on the powers of the court to look into all the materials available on record. There is nothing in law to place any such limitation on the powers of the HC. Surendra Kumar Yadav versus State of Bihar – 1989.

        ♣ In Municipal Corporation of Delhi v. R.K. Rohtagi [1983], it is reiterated: "It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or substracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under S. 482 of the present Code."

        ♣ In the case of State of Bihar vs. Muradali Khan and others (1989) held as under: In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers u/s 482 of the Code. It is not, however, necessary that- there should be meticulous analysis of the case before the trial to- find out whether the case would end in conviction or acquittal. The complaint/FIR has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant , or disclosed in the FIR that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/FIR is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the .accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceeding.

        ♣ Only in cases where the HC finds that there has been failure of justice or misuse of judicial mechanism or an order was not correct, the HC may be justified in exercising jurisdiction u/s 482. Ved Prakash versus State of UP (2003).

        ♣ Nagawwa versus Veeranna – (1976) SC – principle laid down as circumstances under which process issued by the Magistrate could be set aside or quashed u/s 482 of CrPC.

        Note 4: Warrant cases are those cases where the punishment prescribed for the offence is more than two years.

        Note 5: All sections referred here pertain to Criminal Procedure Code, 1973.

  • 15. Magistrates Court Orders On False / Genuine Complaints
    • 1. Revision / Section 482 Application
      • (i) Where a false complaint has been filed in the Magistrates Court and the Magistrate has issued Summons; or where a genuine complaint filed before Magistrates Court is dismissed, the Person against whom Summons have been issued pursuant to a false complaint; or the person whose genuine complaint is dismissed, may prefer a Revision Application u/s 397 of CrPC, 1973, before Sessions Court / High Court, or prefer Application u/s 482 of CrPC, 1973, before the respective HC, thereby challenging the said Order of the Magistrates court. Ordinarily, High Courts insist that before invoking their Section 482 Jurisdiction, the aggrieved person must invoke the jurisdiction of the Sessions Court u/s 397.

    • 2. False complaint / accusation
      • (ii) It is criminal offence u/s 182 of IPC, 1860 to knowingly make and register a false complaint against any person, before any Public officer or before Police. Further, it is a criminal offence u/s 211 of IPC, 1860, to knowingly making a false accusation of offence, in a Court of law. In such cases the innocent person cannot register FIR or make complaint to Magistrates court against those persons who have filed false Complaint, or who have filed false accusation of offence case in the Court of law. In such cases, in so far as offence u/s 182 is concerned before any Public Servant other than Police, a complaint can be made to the Public officer to whom false complaint has been made, or complaint may be made to an authority higher to the concerned Public officer, and the concerned Public or the higher authority, is empowered to file the case in the Magistrates Court against the person who has made false complaint to the said Public officer. However, before entertaining any complaint under this Section, the relevant Public officer or the higher authority must have reached the conclusion that the complaint so filed was frivolous and meritless.

        In cases of Complaint before Police, whereas the Police are obliged to file Police Report in every F.I.R., u/s 173 of CrPC, 1973, before the competent Magistrates Court, if the Police files the Report that no such offence was committed; or where the F.I.R. was quashed by the concerned High Court, then the aggrieved person may prefer a Complaint u/s 182 before the concerned Police officer, or before the higher in Rank, the concerned Authority.

        In cases of false accusation of offences before Court of law, then, an Application u/s 340 read with section 195 of CrPC 1973, may be preferred before the concerned Court of law, against those persons, praying therein before the said Court, to refer the said offence of false accusation to the appropriate / competent Magistrate Court of jurisdiction. Nevertheless, any such Application u/s 340 read with 195, can only be entertained only after the trial Court has discharged the Accused or has acquitted the Accused, preferably be with findings that Complainant has knowingly made false accusation; or that the Complaint was frivolous and baseless. Further, Applications invoking sections 182 and/or 211 should be invoked keeping in mind the limitation period provided u/ss 467 to 473 of CrPC, 1973.

    • 3. Suit for damages – Malicious Prosecution
    • 4. Application u/s 313
      • (iv) Section 313 of CrPC, 1973, appears to be most salutary provision to protect innocent persons who are falsely charged / accused as having committed an offence.

        The said section enables the accused person to move an Application or make a formal request, before the concerned Magistrates Court, to allow him to make due representation before the Court, for to present to the Court any credible evidence he has to show his innocence, or for to impeach the credibility of evidence appearing against him in the Complaint or Chargesheet, and seeking immediate acquittal.

        The said Application or formal request may be made at any stage of the trial or may be made even at the stage of Inquiry contemplated u/s 202 of CrPC, 1973.

        If the Magistrate is satisfied, he may acquit the accused person, without any trial, of course, after giving an opportunity of hearing to the Complainant / State prosecution. The Magistrate may also impose heavy cost u/s 250 of CrPC, 1973, upon the Complainant / State prosecution, for making false complaint or for suppressing material facts / documents.

        Fortunately, there is a recent Apex Court ruling on section 313. In the said ruling, although the issue before the Court was not the examination of accused before evidences are led, yet the Hon’ble Court have unambiguously stated that the said powers may be exercised at any stage of the inquiry or trial [[Nar Singh versus State of Haryana 2015, Para 10]. There is ruling of Bombay High Court in this regard, wherein Justice R C Chavan, in his 187 page judgment (Unreported), extensively dealt with the issue of false complaints, speedy justice, extensive use of many of the provision of Criminal Procedure Code to reduce the length of litigation, when inherent powers of the High Court may be invoked u/s 482, etc., and held that Section 313 of CrPC, 1973 may be invoked by accused before formal evidence are led by Prosecution. [Judg dated 22nd March, 2012] [Paras 88 to 90]

    • 5. Perjury Application, etc.
      • (v) Where false Complaint before Magistrates Court is alleged to have been based on false evidence, false statements / declarations, suppression of material facts, filing of forged documents, then, it is a criminal offence u/ss 181, 191, 196 and 199 of IPC, 1860, to make false statements / false declarations in one's pleadings or filing false Affidavit or knowingly giving false evidence (OFFENCES OF PERJURY) or filing of forged documents in the evidence before the Court of law, as contained in sections 463, 464, 467, 468, 469, 470, 471, 472 etc. of IPC.

        In such cases, criminal proceedings may be initiated against such persons by making an Application u/s 340 read with section 195 of CrPC 1973, before the concerned trial Court(civil or criminal), praying therein before trial court to refer the above stated offences, to the competent Magistrates Court of jurisdiction, against those persons who have allegedly made false statements / false declarations in one’s pleadings or have allegedly filed false Affidavit or have allegedly knowingly given false evidence.

        As regards alleged filing of forged document is concerned, as per an Apex Court ruling, an FIR, or Application u/s 156(3) or `complaint u/s 200 may be made, and bar created u/s 195 does not come into play. This ruling is based on the premise of the interpretation of the said section 195, wherein the Apex Court have held that bar created u/s 195 would come into play only when the forgery is alleged to have been committed when the concerned document was in the custody of the Court; and in cases where the forgery is alleged to have taken place before the case was filed, there is no bar to register FIR etc. Iqbal Singh Marwah & Anr vs Meenakshi Marwah & Anr [2005].

        Further, making of false statements / false declarations in one's pleadings and filing of false Affidavit or filing of forged documents or suppression of material facts in the pleadings, amounts to criminal Contempt of the Court and Application may be filed before the trial Court to refer the matter to the concerned High Court for initiation of Contempt proceedings against the person alleged of making of false statements / false declarations and filing of false Affidavit or filing of forged documents or suppression of material facts in the pleadings; or Contempt Petition may be filed by obtaining sanction from the Advocate General of the State or Petition may be filed directly before the concerned High Court praying for Su motu cognizance by the High Court.

  • 16. False Claim In Court
    • 1. Criminal Complaint; High Court Jurisdiction
      • (i) False claim means knowingly seeking reliefs from Court, which the one is not entitled to. It is a criminal offence to make false claim against any person in the court of law and is punishable u/s 209 or 210 of Indian Penal Code, 1860. However, FIR or private complaint to Magistrates court is not permissible for registering of above offences. In such cases, criminal proceedings may be initiated against those person by making an Application u/s 340 read with section 195 of CrPC 1973, before the concerned trial Court, praying therein before trial court to refer the said offence of “false claim”, to the competent Magistrate Court of jurisdiction. Such Application may also be made before concerned High Court under Article 227 of the Constitution of India.

        Nevertheless, any such Application u/s 340 read with 195, can only be entertained only after the trial Court has passed the final Judgment; or where the Suit or any other proceeding is dismissed by the trial Court or by higher Court, under any of the applicable provisions of law; and preferably be with findings that a false claim was made; or that the Claim was frivolous.

    • 2. Perjury Proceedings; Contempt
      • (ii) The making of false claim may also entails making of false statements / false declarations in one’s pleadings and filing of false Affidavit or filing of forged documents. It is a criminal offence u/ss 181, 191, 196 and 199 of IPC, 1860, to make false statements / false declarations in one’s pleadings or filing false Affidavit or knowingly giving false evidence (OFFENCES OF PERJURY) or filing of forged documents as contained in section 463 of IPC.

        Where aforesaid offences are committed in any proceedings before Court, than FIR or private complaint to Magistrates court is not maintainable. In such cases, criminal proceedings may be initiated against those persons by making an Application u/s 340 read with section 195 of CrPC 1973, before the concerned trial Court (civil or criminal), praying therein before trial court to refer the above stated offences, to the competent Magistrates Court of jurisdiction, against those persons who have allegedly made false statements / false declarations in one’s pleadings or have allegedly filed false Affidavit or have allegedly knowingly given false evidence.

        As regards alleged filing of forged document is concerned, as per an Apex Court ruling, an FIR, or Application u/s 156(3) or `complaint u/s 200 may be made, and bar created u/s 195 does not come into play. This ruling is based on the premise of the interpretation of the said section 195, wherein the Apex Court have held that bar created u/s 195 would come into play only when the alleged forgery have been committed whilst the document was in the custody of the Court; and in cases where the forgery is alleged to have taken place before the case was filed in the court of law, there is no bar to register FIR etc. Iqbal Singh Marwah & Anr vs Meenakshi Marwah & Anr [2005]

        Also, making of false statements / false declarations in one’s pleadings and filing of false Affidavit or filing of forged documents or suppression of material facts in the pleadings, amounts to criminal Contempt of the Court and Application may be filed before the trial Court to refer the matter to the High Court concerned for initiation of Contempt proceedings against the person alleged of making of false statements / false declarations and filing of false Affidavit or filing of forged documents or suppression of material facts in the pleadings; or Contempt Petition may be filed by obtaining sanction from the Advocate General of the State or Petition may be filed directly before the High Court concerned praying for Su motu cognizance by the High Court.

    • 3. Suit for damages for Malicious Prosecution
      • (iii) Civil Suit for damages for “malicious prosecution” may be filed in the District Court / City Civil Court / High Courts of original jurisdiction.

    • 4. Applications for expeditious disposal of Suit
      • (iv) If a Civil Suit making false claim is filed or if frivolous defense / claim is made in the written statement, then, depending upon the facts of the case, following provisions of CPC, 1908 may be invoked for expeditious disposal of the Suit. a) Order VII Rule 11(a) – The Plaint fails to disclose cause of action;

        b) Order XII Rule 6: Judgment on Admission

        c) Order VI Rule 16 r/w definition of “Facts in Issue” contained in section 3 of Evidence Act, 1872, r/w section 101 of Evidence Act r/w mandate of “cause of action”: To strike out / delete any factual proposition of fact in the Plaint / Written Statement which is unnecessary, scandalous, frivolous or vexatious, followed by Application under Order XII Rule 6, stated hereinbefore.

        d) Order IX Rule 6 or Order VIII Rule 10: For Ex-parte decree or for failure to file Written Statement

        e) Order XIV Rule 1,2, 6 – determination of Suit on issue of law or on issue agreed upon;

        f) Applying for Summary Judgment in Commercial Suits, under O.XIII-A of the CPC, 1908, (a) including for part of a claim; (b) any particular question on which the claim (whether in whole or in part) depends; or (c) a counterclaim, as the case may be; primarily on the grounds that (a) the plaintiff has no real prospect of succeeding on the claim or the defendant has no real prospect of successfully defending the claim, as the case may be; and (b) there is no other compelling reason why the claim should not be disposed of before recording of oral evidence.

  • 17. False Evidences, Pleadings, Declaration In Court Proceedings
    • 1. Perjury Proceedings; High Court Jurisdiction
      • (i) It is a criminal offence u/ss 181, 191, 196 and 199 of IPC, 1860, to make false statements / false declarations in one’s pleadings or filing false Affidavit or knowingly giving false evidence (OFFENCES OF PERJURY) or filing of forged documents in the evidence before the Court of law, as contained in sections 463, 464, 467, 468, 469, 470, 471, 472 etc. of IPC.

        Where aforesaid offences are alleged to have been committed during any proceedings before Court, than FIR or private complaint before Magistrates court is not maintainable. In such cases, criminal proceedings may be initiated against such persons by making an Application u/s 340 read with section 195 of CrPC 1973, before the concerned trial Court (civil or criminal), praying therein, for trial court to refer the above stated offences, to the competent Magistrates Court of jurisdiction, against those persons who have allegedly made false statements / false declarations in one’s pleadings or have allegedly filed false Affidavit or have allegedly knowingly given false evidence. Application may also be made before concerned High Court under Article 227 of Constitution r/w Section 195(1) of CrPC.

        As regards alleged filing of forged document is concerned, as per an Apex Court ruling, an FIR, or Application u/s 156(3) or `complaint u/s 200 may be made, and bar created u/s 195 does not come into play. This ruling is based on the premise of the interpretation of the said section 195, wherein the Apex Court have held that bar created u/s 195 would come into play only when the alleged forgery have been committed when the forgery is alleged to have been committed when the concerned document was in the custody of the Court; and in cases where the forgery is alleged to have taken place before the case was filed, there is no bar to register FIR etc. Iqbal Singh Marwah & Anr vs Meenakshi Marwah & Anr [2005]

        Where, false statements / false declaration / false evidence / forged document were given in any quasi judicial or administrative proceedings, then, a private complaint before competent Magistrates Court u/s 200 can be filed directly. Section 195 of CrPC doesn’t come as a bar in this situation. However, where the false statements / false declaration / false evidence were given before any Tribunal, and if such tribunal is declared as “Court” in the Statute for the purposes of the section 195 of CrPC, 1973, then, application has to be made in accordance with section 340 r/w 195 of CrPC, 1973.

    • 2. Contempt Petition
      • (ii) Further, making of false statements / false declarations in one’s pleadings and filing of false Affidavit or filing of forged documents MAY amount to criminal Contempt of the Court and Application may be filed before the trial Court to refer the matter to the concerned High Court for initiation of Contempt proceedings against the person alleged of making of false statements / false declarations and filing of false Affidavit or filing of forged documents; or Contempt Petition may be filed by obtaining sanction from the Advocate General of the State or Petition may be filed directly before the concerned High Court praying for Su motu cognizance by the High Court.

  • 18. Grievances Against Judges etc.
    • 1. Complaint before High Court
      • (i) Where grievance is against the Judge or the presiding officer of any Tribunal or against any person acting judicially, then, by virtue of Articles 227 and 235 of the Constitution of India, complaint against Judges of Subordinate / lower courts / Magistrates / Members of the Tribunals may be made before the office of the Chief Justice of the High Court concerned, seeking inquiry into the alleged Misconduct of the concerned Judge / Magistrate. RTI application may be preferred to know the status of the complaint / inquiry, if any initiated pursuant to Complaint.

    • 2. Contempt Petition
      • (ii) Where it is alleged that any of the of Subordinate / lower courts / Magistrates / Member of the Tribunals has knowingly and intentionally, not followed the law laid down by the Supreme Court / High Court concerned, the said of Subordinate / lower courts / Magistrates / Members of the Tribunals, by reason of section 16 of the Contempt of Courts Act, 1971, may be held guilty of Contempt of the Court and appropriate Contempt proceedings may be adopted before the High Court concerned against the concerned of Subordinate / lower courts / Magistrates / Member of the Tribunals.

    • 3. Etc.
      • (iii) Where the act alleged to have been committed, but not in the discharge of duties, or the nature of act is such which cannot be said to be have done in the discharge of duties, like for example, possessing disproportionate assets, criminal conspiracy, taking bribes, fabricating false records; misappropriating public funds; forging signatures; etc. than, the said Judge / Magistrates / Members of the Tribunal would be treated liken any private individual and would be subject to ordinary law of the land, as apply to every person.

  • 19. Illegal Or Perverse Orders Of Courts Etc.
    • Orders are passed by Civil Courts, Criminal Courts, various Statutory Tribunals, and Special Courts, Quasi judicial and Administrative bodies, etc.

      The Civil Courts are regulated by Civil Procedure Code, 1908; the Criminal Courts are regulated by Criminal Procedure Code, 1973, Special Courts and Tribunals are regulated by respective Statutes under which they are constituted; and the Administrative Orders are passed by Public officials under different Statutes / Laws.

      The Orders which are passed have wide-ranging facets / dimensions, and the legal remedy to challenge any such Order, would depend upon –

      a) Whether the Impugned Order [Order under challenge] is passed by Civil Courts, Criminal Courts, Statutory Tribunals, Specially constituted Civil Courts, Specially constituted Criminal Courts, Revenue Courts; and

      b) Whether the Impugned Order is Interim or Final.

      Let us broadly look at the legal Remedies which are available under the law to challenge any Order, passed by any Court / Tribunal / Quasi judicial / Administrative body –

      1. Review

      2. Recall

      3. Setting aside Ex-parte Orders in Suit proceedings

      4. Appealable Orders (AO)

      5. Civil Revision Application

      6. First Appeal

      7. Second Appeal

      8. Special Leave Petition (SLP)

      9. Writ Jurisdiction

      10. Article 227 Application

      11. Criminal Revision Application

      12. Section 482 Criminal Application

      13. Criminal Appeal

      14. Restoration of proceedings for dismissal for default

      15. Vacating Ad-Interim / Interim Orders passed by High Courts under Writ jurisdiction of Article 226

      16. Suit under Article 59 of Limitation Act, 1963, to set aside a decree of the Court.

      The aforesaid list is only an illustrative list, and there could be many other legal remedies available under the law.

      It must be bear in mind that whilst exercising jurisdiction by Appellate Court / Tribunal or Authority, under any of the aforesaid legal remedy, the concerned “Appellate” Court / Forum has defined and limited scope as –

      (a) to entertain the grounds of challenge to the Order complained of;

      (b) to the extent of powers, the Court can exercise or to say, to what extent the Court may enter into the merits or the depth of the case; and

      (c) to what extent the Appellate Court / Tribunal / Authority grant the nature of reliefs.

      The grounds, broadly, which are available to challenge any Order, are –

      Jurisdictional errors

      Want of jurisdiction: That the Court / Tribunal / Quasi judicial body / administrative authority passing the impugned Order had no jurisdiction to entertain the subject matter of the dispute; or that the Court / Tribunal / Quasi judicial body / administrative authority wrongly assumed the jurisdiction; or that the Court / Tribunal / Quasi judicial body / administrative authority usurped the jurisdiction of _____ Court / Tribunal / Quasi judicial body / administrative authority; or

      Mistake of jurisdiction: That the condition precedents, for the exercise of jurisdiction, were not complied with; or

      Excess of jurisdiction: That the impugned Order contains such directions / reliefs which the Court / Tribunal / Quasi judicial body / Administrative authority whilst passing it, were incompetent to pass / grant;

      Failure of jurisdiction: That the Court / Tribunal / Quasi judicial body / administrative authority did not exercised the powers vested in it.

      The want of jurisdiction may arise from the nature of the subject matter of the proceeding or from the absence of some preliminary proceedings or the court itself may not be legally constituted or suffer from certain disability by reason of extraneous circumstances. When the jurisdiction of the courts depends upon the existence of some collateral fact, it is well settled that the court cannot by a wrong decision of the fact give it jurisdiction which it would not otherwise possess. Basappa versus Nagappa [SC 1954].

      Procedural lapses / Breach of principles of natural justice:

      1. Impugned Order in breach of procedure: That the impugned Order was passed without following the procedure / or in breach of the procedure established under the law.

      2. Impugned Order without hearing: That the impugned Order was passed without affording opportunity of hearing, or opportunity of hearing contemplated under the law.

      Perverse findings / No findings / findings without reasons / Breach of principles of natural justice, etc:

      1. Findings ignoring vital evidence: That the impugned Order is based on a finding which is recorded without considering the vital relevant facts / evidences, placed on record, which is akin to frustration of principles of natural justice;

      2. Misunderstanding as to nature of controversy: That there is complete misreading / misunderstanding as to material proposition of facts advanced;

      3. Absence of Finding: That the impugned Order is passed without recording a finding on material fact, which has direct nexus with the controversy at hand, which is akin to frustration of principles of natural justice;

      4. Finding based on consideration of irrelevant facts / evidence: That the impugned Order is based on a finding which is recorded whilst taking into consideration irrelevant facts / evidences;

      5. Impugned Order contrary to findings: That the impugned Order is contrary to findings recorded by the Court;

      6. Finding based on no evidence: That there is no evidence on record to support the finding which is recorded in the impugned Order;

      7. Findings without reasons: That the impugned Order is based on a finding which is recorded without assigning any appreciable / cogent reason;

      8. Findings on irrelevant reasons: That the reasons employed to arrive at a finding, in the impugned Order are vague / irrelevant / irrational / unheard in law.

      Illegality

      1. Breach of provision of law: That the impugned Order was passed in disregard of substantive and specific provision of law, which has immediate bearing on the controversy at hand;

      2. Misreading of provision of law / Misreading of ratio of judgments of HC / SC: That there is complete misreading / misunderstanding of the express mandate of law / law declared in HC / SC Ruling;

      3. Ignoring the very relevant judgments of HC / SC cited: That, judgments of the Apex Court / High Court, referred and relied upon, were not considered whilst recording findings, and it amounts to contravention of the fundamental policy of Indian law, as observed by Apex Court in the cases of [Renusagar Power Co. Ltd. V/s. General Electronic Co., 1994; Associate Builders Versus Delhi Development Authority 2015 ].

      Evidentiary misgivings:

      1. Misplaced burden of proof: That the issues were not correctly framed due to which / or otherwise, the burden of proof in respect of proving of a fact was placed upon the wrong party;

      2. False evidence / Falsity / incorrectness of facts / false certificate / forged document: That the finding of a material fact is recorded on the strength of False evidence / Falsity of facts / incorrect facts / false certificate / forged document;

      3. Inadmissible evidence: That the finding of a material fact is recorded on the strength of inadmissible evidence, like evidence of irrelevant facts or privileged communication, or of the unregistered documents of immovable property, etc.

      4. Documents not proved: That the finding of a material fact is recorded on the strength of documents which have not been duly proved, as required under the law, that is to say, either originals were not produced without any explanation; or the secondary evidence was not duly led to prove the document; or to say that execution of the document as required u/s 67 of the Evidence Act was not proved.

      5. Breach of principle of exclusion of oral evidence: The finding of a material fact in the impugned Order is based on a oral evidence, in breach of express mandate of sections 91 and 92 of Evidence Act, 1872;

      6. Findings based on hearsay evidence: That the findings to a material fact was recorded on the premise of a hearsay evidence, that is to say, the evidence of the witness does not satisfy the mandate of section 60 of Evidence Act, 1872;

      Fraud upon Courts / Tribunal / Administrative Authority: Where any party had played deception upon the Courts / Tribunal / Administrative Authority Court, wherein he had brazenly misled the Courts / Tribunal / Administrative Authority as to material facts of the case, by agitating incorrect / false facts or by suppressing material facts; and obtained Order of the Courts / Tribunal / Administrative Authority.

      Infirmities in the impugned Order which are peculiar to Criminal proceedings only

      1. That the allegations in the FIR / Complaint are speculative in nature, wanting in specific allegations of acts and omissions on the part of the Petitioner herein, who is accused an offence of ……..;

      2. That the allegations made in the FIR / Complaint does not constitute the offence alleged of;

      3. That there are no grounds (No evidence, oral or documentary) to proceed against the Accused, which is the condition precedent u/s 204 of CrPC, 1973, for initiating criminal prosecution against the accused person.

      Orders passed by Specially constituted Criminal Courts / Statutory Tribunals

      The procedure to be followed before the concerned Special Court or Tribunal would be provided under the concerned statute under which the said Courts / Tribunals are constituted, and ordinarily, the provisions of CPC or CrPC, as the case may be, are made applicable to these specially constituted courts / tribunals, to the extent they are not inconsistent with the express provision of the statute governing the said court / tribunal, and further to the extent, the subject matters for which the concerned statute is silent.

      Whilst challenging Interim Orders passed by Statutory Tribunals / Courts, whereas they ordinarily are not possessed of powers of Review of their own orders, the remedy of Recall may be preferred. The Statute may provide a Revision to a higher forum or like nature remedy to challenge such Interim Orders. Further, Writ jurisdiction of High Court under Article 226 may be invoked in cases of Orders passed by Tribunals or by Administrative Authorities, if the nature of error is jurisdictional.

      As regards Final Orders, the Statute would ordinarily provide Appeal mechanism. In the absence of such mechanism, or to challenge the Orders passed by Appellate Forum, Writ jurisdiction of High Court under Article 226, and [Application under Article 227 (in cases of criminal proceedings)] or Civil Revision Application provided u/s 115 of CPC, 1908, before concerned High Court, may be preferred.

      There had always been confusion amongst the lawyers as whether Writ jurisdiction is to be invoked under Article 226 or Supervisory jurisdiction of High Court under Article 227 is to be invoked whilst challenging the Orders passed by Civil Courts, Criminal Courts, Tribunals and quasi Judicial bodies. The judgment of Apex court in the case of Radhey Shyam Versus Chhabi Nath [2015] appears to have settled this controversy. The essence of the judgment is, all Orders passed by Civil and Criminal Courts may only be challenged under Art.227 of our Constitution and not under Article 226. And, all Orders passed by Tribunals or by any other Quasi judicial bodies / Administrative bodies discharging judicial functions, may be challenged under Article 226.

      Miscellaneous instances

      1. If where the Case was dismissed by the Court on technical shortcoming of any nature, the aggrieved party may argue before the Court / Tribunal that –

      (a) A Party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Rules of Procedure are intended to be a handmaid to the Administration of Justice and they must therefore be construed liberally and in such manner as to render the enforcement of substantive rights effective. . [Ram Manohar Lal Vs NBM Supply]

      (b) Every defect or error not going to the root of the matter cannot be allowed to defeat justice or afford an excuse to the Govt or a public officer to deny just claim. [Jones V Nicholls, (1844) 13 M & W 361.]

      (c) Parties win or lose on substantial questions, not on technical tortures and Courts cannot be "abettors".[ Noronha V Prem Kumari, 1980.]

      (d) We cannot be oblivious of facts of life, namely the parties in Courts are mostly ignorant and illiterate, unversed in Law. Sometimes there Counsels are also inexperienced and not properly equipped, and the Court should endeavor to ascertain the truth to do justice to the parties. [ Pahali Raut V Khulana Bewa, 1985.]

      (e) The court should realize that the rules of the procedure of which pleadings form but a part, are matters of mere machinery for rendering justice. Courts approach should be pragmatic and not highly technical. Prakash Chandra versus Commissioner & Secretary, GOI – 1986 SC;

      2. Where one is aggrieved by the Order of the Court, due to Collusive litigation between two parties, the said person may prefer an Application u/s 340 read with 195 of CrPC, 1973, before the Court which has passed the order in the said alleged Collusive litigation, praying that the person who has suffered under the Collusive litigation may be charged with section 208 of IPC, 1860.

      3. Where a person fraudulently obtains a decree or order against any person for a sum not due or for a larger sum than is due, or for any property or interest in property to which he is not entitled, or fraudulently causes a decree or order to be executed against any person after it has been satisfied or for anything in respect of which it has been satisfied, or fraudulently suffers or permits any such act to be done in his name, may be charged u/s 210 of IPC, and for this, Application u/s 340 read with 195 of CrPC, 1973, may be preferred in the Court which has passed such decree, to initiate proceeding for offence u/s 210.

      Attributes of any Order passed by any Court / Tribunal / Quasi judicial body

      1. First of all, the Court / Tribunal / Quasi judicial authority, must have jurisdiction to entertain the nature of dispute presented to it.

      2. The second and equally foremost is the principle that in every determination whether by a court or other authority that affects the rights of a citizen or leads to any civil consequences, the court or authority concerned is bound to adopt what is in legal parlance called a "judicial approach" in the matter.

      3. Judicial approach ensures that the authority acts bona fide and deals with the subject in a fair, reasonable and objective manner and that its decision is not actuated by any extraneous consideration.

      4. Equally important and indeed fundamental to the policy of Indian law is the celebrated principle of audi alteram partem, i.e. principle that a court and so also a quasi-judicial authority must, while determining the rights and obligations of parties before it, do so in accordance with the principles of natural justice.

      5. Besides the celebrated audi alteram partem rule, one of the facets of the principles of natural justice is that the court/authority deciding the matter must apply its mind to the attendant facts and circumstances while taking a view one way or the other. Non-application of mind is a defect that is fatal to any adjudication. Application of mind is best demonstrated by disclosure of the mind and disclosure of mind is best done by recording reasons in support of the decision which the court or authority is taking. The requirement that an adjudicatory authority must apply its mind is, in that view, so deeply embedded in our jurisprudence that it can be described as a fundamental policy of Indian law.

      6. Judicial decisions must in principle be reasoned and the quality of a judicial decision depends principally on the quality of its reasoning. Proper reasoning is an imperative necessity which should not be sacrificed for expediency. The statement of reasons not only makes the decision easier for the parties to understand and many a times such decisions would be accepted with respect. The requirement of providing reasons obliges the judge to respond to the parties' submissions and to specify the points that justify the decision and make it lawful and it enables the society to understand the functioning of the judicial system and it also enhances the faith and confidence of the people in the judicial system.

      7. Judicial decision are perceived by the parties and by the society at large, as being the result of a correct and proper application of legal rules, proper evaluation of the evidence adduced and application of legal procedure. The parties should be convinced that their case has been properly considered and decided.

      8. No less important is the principle now recognized as a salutary juristic fundamental in administrative law that a decision which is perverse or so irrational that no reasonable person would have arrived at the same, will not be sustained in a court of law. Perversity or irrationality of decisions is tested on the touchstone of Wednesbury principle. Decisions that fall short of the standards of reasonableness are open to challenge in a court of law often in writ jurisdiction of the superior courts but also in statutory processes wherever the same are available.

      9. It is settled law that where a finding is based on no evidence, or where the Court / tribunal takes into account something irrelevant to the decision which it arrives at; or ignores vital evidence in arriving at its decision, such decision would necessarily be perverse. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law.

      10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."

      11. Reasoned Orders are inescapable in the entire scheme of administration of Justice. And explained decisions breathe life into court order. Reasons disclose how the mind is applied to the subject matter and reveal a rational nexus between the facts considered and conclusions reached. Recording of reasons is also an assurance that the authority concerned has applied its mind to the facts on record. The reasons employed not only be intelligible but which will also deal with the substantial points which have been raised. The giving of satisfactory reasons is required by the ordinary man’s sense of justice. Reasoned decisions are vital for the purpose of showing that he is receiving justice. An unreasoned Order presupposes the non consideration of submissions on record made by the Party therein and the opportunity of affording due hearing would be rendered meaningless and empty formality and thus in essence occasion the breach of principles of natural justice.

      Having said all this, and to say that reasons must be given for Orders, what we really expect from the court or authorities, by saying so. Let me try to search.

      Reasons are appreciation of such facts and evidences which are on record, and from which the Courts are entitled to draw inferences and results.

      Then, I may address what is appreciation of facts and evidences.

      Appreciation of facts and evidences is, drawing natural and logical inferences, drawing natural and logical results, which necessarily flow from those facts and evidences [the facts would mean those facts which are self evident or are admitted, or facts which are reasonably proved, disproved or not proved].

      Appreciation of facts and evidence is an exercise wherein the existence of certain facts, provokes or persuades the decision maker to reach a certain conclusion.

      And to put it further straight, Reasons are those statements, whereby the decision maker will tell you, why your submissions to claim certain reliefs, OR why your submissions to deny certain reliefs, are meritorious or if are meritless; or to say, the decision maker will tell you, why you are entitled to the reliefs or why you are not entitled to the reliefs, claimed or prayed for.

      12. And whereas the decisions of the Courts / Tribunals are subject to Appeal / judicial review, the Appellate Court / Writ Court in judicial Review jurisdiction cannot exercise their powers of reviewing the impugned Order, unless they are duly informed of the consideration reflected in the impugned Order.

      13. A Judgment/ Order must be a self contained document from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the Court.

      14. The process of reasoning by which Court came to a particular conclusion and decreed or dismissed the suit should clearly be reflected in the Judgment/Order.

      15. The judgment / decision should be on the basis of evidence on record and in accordance with law.

      16. Having all said and done, the principles cherished hereinabove are flouted with impunity and sometimes with ignorance, to the serious prejudice of the litigants, and the advocates face the agony and annoyance of their Client

      How to “take away” whims & fancies / arbitrariness, etc. from the decisions of the Court http://commonlaw-sandeep.blogspot.in/2016/08/how-to-take-away-whims-fancies.html

  • 20. Non Compliance to Orders Decrees Etc.
    • 1. Contempt Petition; Criminal Complaints
      • (i) A person who wilfully does not comply to decree / orders / Judgments of the Courts / Tribunals or Precedents of High Courts and Supreme Court may be held guilty of Contempt of the Court, and Contempt proceedings may be initiated against the said person, either by making reference before the Court concerned, or directly before the High Court concerned.

        Not all Tribunals established under various Statutes are considered as “Courts”. And therefore, it must be secure that the Tribunal must have attributes of Court before invoking Contempt jurisdiction for wilful disregard of its Order.

        In cases where it is found that the Tribunal does not have the attributes of a Court and its Orders are disregarded, then, said wilful disregard of the Order may amount to an offence u/s 188 of IPC, 1860, however, for which FIR or private complaint are not maintainable before Police / Magistrates Court in the backdrop of Section 195 of CrPC, 1973; and for this, a Complaint may be recorded before the concerned Tribunal or before such Authority to whom the concerned Tribunal is administratively subordinate, and praying the Tribunal / Authority to lodge a complaint u/s 188 of IPC, 1860, against the concerned person, before the competent Magistrates Court.

    • 2. Insolvency Proceeding
      • (ii) Where the decree passed is for money against the Individual, Proprietor, Partnership firm, than, if the money is not paid, Insolvency Proceedings may be initiated against the said Individual, Proprietor, Partnership firm.

    • 3. Insolvency Resolution Application
      • (iii) Where the decree passed is for money against the Pvt / Public Limited Company, than, if the money is not paid, a Statutory Notice under Rule 5 of the Insolvency and Bankruptcy Rules, 2016, followed by Insolvency Resolution Application u/s 8 of the Insolvency and Bankruptcy Code, 2016 can be filed before the concerned National Company Law Tribunal. The Insolvency and Bankruptcy Code, 2016, have replaced the jurisdiction of the High Courts to entertain Winding up Petitions.

    • 4. Execution of decree
      • (iv) The decree may be executed in accordance with the provisions of sections 36 to 74, Order 21 of CPC, 1908.

    • 5. Execution of Award
      • (v) The Award passed under Arbitration proceedings may be executed in the same manner like a decree of the Court.

    • 6. Assignment of decree
      • (vi) Decree of the Court is an actionable claim; and they are transferable like any other property for a valuable consideration, or may be for no consideration; and may be transferred / assigned in accordance with sections 130, 131, 132, 133 of Transfer of Property Act, 1882. The transferee then may proceed to execute the same. The transferee then is stepped into the shoes of transferor, and he has all the rights, subject to other equities and liabilities, which the transferor has had against the judgment debtor.

    • 7. Compliance to Precedents