Procedure

  • Procedural laws provide a statutory framework with the aid of which the substantive rights are being enforced.

  • The Procedural laws in essence seeks to ensure that all parties get fair and equal opportunity in presenting their cases; and further seeks to ensure that no party is put to any prejudice, unless proper opportunity is afforded to it to present its version of the case.

  • It is not suffice to know one’s rights, but it is equally very important to know the procedure prescribed under the law to claim and enforce that right; and whilst one may religiously follow the procedure prescribed under the law, but it is equally important to understand why such procedure is so prescribed, the very purpose of it.

  • Some important observations of the Apex Court in respect of procedural laws –

  • In a case before it, the Apex Court reiterated the importance of adhering to the procedure prescribed under the law and it said – Para 34:There is yet an uncontroverted legal principle that when the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. In other words, where a statute requires to do a certain thing in a certain way, the thing must be done in that way and not contrary to it at all. Other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal proposition is based on a legal maxim "Expressio unius est exclusio alterius", meaning thereby that if a statute provides for a thing to be done in a particular way, then it has to be done in that manner and in no other manner and following any other course is not permissible. (2014) 2 SCC 401

  • In State of Uttar Pradesh V/s. Singhara Singh & Ors., AIR 1964 SC 358, the Apex Court said – Para 8: The rule adopted in Taylor V/s. Taylor (1876) 1 Ch D 426 is well recognized and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted."

  • In a case before it, the Apex Court reiterated the importance of adhering to the procedure prescribed under the law in criminal proceedings, and said – Para 55: That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. AIR 1999 SC 2378

  • In a case before it, the Apex Court formulated “test of prejudice”, and said – Para 26: In our considered opinion, there lies a distinction between non- service of notice and a notice though served but with some kind of procedural irregularities in serving. In the case of former category of cases, all consequential action, if taken would be rendered bad in law once the fact of non-service is proved whereas in the case of later category of cases, the consequential action, if taken would be sustained. It is for the reason that in the case of former, since the notice was not served on the person concerned he was completely unaware of the proceedings which were held behind his back thereby rendering the action "illegal" whereas in the case of later, he was otherwise aware of the proceedings having received the notice though with procedural irregularity committed in making service of such notice on him. If a person has a knowledge of the action proposed in the notice, then the action taken thereon cannot be held as being bad in law by finding fault in the manner of effecting service unless he is able to show substantial prejudice caused to him due to procedural lapse in making service on him. It, however, depends upon individual case to case to find out the nature of procedural lapse complained of and the resultant prejudice caused. The case in hand falls in former category of case. (2015) 3 SCC 605

  • In the case of Raghubir Saran versus State of Bihar, the Apex Court remarked – “The Courts exist not only for securing obedience to law of the land but also for securing ends of justice in its widest sense. All Courts, including the High Courts can exercise such powers as the law of the land confers upon them as well as such inherent powers to do justice as are preserved expressly or are not taken away by a Statute. AIR 1964 SC 1.

  • In the case of Rajendra Prasad Gupta Versus Prakash Chandra Mishra (AIR 2011 SC 1137), the Apex Court had the occasion to make a very significant observation, wherein in Para 4 it said –

  • “We do not agree. Rules of procedure are handmaids of justice. Section 151 of the Code of Civil Procedure gives inherent powers to the court to do justice. That provision has to be interpreted to mean that every procedure is permitted to the court for doing justice unless expressly prohibited, and not that every procedure is prohibited unless expressly permitted. There is no express bar in filing an application for withdrawal of the withdrawal application.

  • The Court in Para 5 observed to say that – In Narsingh Das V/s. Mangal Dubey, ILR 5 All 163 (FB) (1882), Mr. Justice Mahmood, the celebrated Judge of the Allahabad High Court, observed: “Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle prohibition cannot be presumed.”

  • Civil Suit
  • Summary Suit
  • Criminal trial
  • Writs