Sandeep Jalan Legal Ref

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A UNIQUE LEGAL REFERENCER
INDEX Page Nos.
3-5 INTRODUCTION

Subject

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WHEN A CHEQUE IS DISHONOURED

7 - 10

WHEN ONE IS TO RECOVER SPECIFIED DEBT / MONEY, i.e. TO SAY RECOVERY OF LOAN, MONEY DUE UNDER COMMERCIAL TRANSACTIONS; MONEY DUE UNDER ANY CONTRACT / AGREEMENT; MONEY TO BE RECOVERED BY VIRTUE OF ANY LEGAL RIGHT / UNDER STATUTE, WHETHER FROM A PRIVATE PERSON / INDIVIDUAL OR FROM ANY PUBLIC AUTHORITY

11 - 15

DISPUTES ARISING IN THE REGULAR COURSE OF ANY BUSINESS ACTIVITY / TRADE RELATIONSHIP; IN THE PERFORMANCE / EXECUTION OF CONTRACTS / AGREEMENTS / OTHER BUSINESS OBLIGATIONS

16 - 17

WHEN YOU ARE HOLDING SHARES IN A PUBLIC LIMITED COMPANY OR IF YOU HAVE GRIEVANCE AGAINST A COMPANY OR YOU HAVE A GRIEVANCE AGAINST THE STOCK BROKER OR YOU HAVE A GRIEVANCE AGAINST THE STOCK EXCHANGE

18 - 19

WHEN THERE IS DANGER TO THE DEPRIVATION OF LIFE AND PROPERTY OF A PERSON

20 - 24

DISPUTES RELATING TO IMMOVABLE PROPERTIES

25

WHERE ONE HAS ALLEGED TO HAVE BEEN SUPPLIED / PROVIDED DEFECTIVE GOODS OR ONE HAS ALLEGED TO HAVE RENDERED DEFICIENT SERVICES, OR WHERE ANY PERSON IS ALLEGED TO HAVE BEEN INDULGING IN UNFAIR TRADE PRACTICES

26 - 31

WHEN GRIEVANCE IS AGAINST ANY GOVT / STATUTORY / MUNICIPAL AUTHORITY / ANY PUBLIC AUTHORITY / PUBLIC OFFICER / TO ENFORCE THEIR LEGAL OBLIGATIONS

32 - 40

WHEN FACING ILLEGALITIES OF ILLEGALITIES HAVE BEEN IDENTIFIED

POLICE

HERE

FIVE

KINDS

OF

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1) What if Police refuse to Register FIR
2) WHEN POLICE UNLAWFULLY SUMMONS WITNESSES / ACCUSED FOR INTERROGATION 3) WHEN POLICE ILLEGALLY ARREST 4) WHEN POLICE NEGLECTS TO INVESTIGATING THE CASE 5) WHEN FALSE FIR IS REGISTERED; OR WHEN FALSE FIR IS ANTICIPATED TO BE FILED BY ANY PERSON; AND WHERE PURSUANT TO SAID FALSE FIR, ARREST IS ANTICIPATED – THEN DEPENDING UPON THE PECULIAR FACTS OF EACH CASE, FOLLOWING STEPS MAY BE TAKEN
41 – 48

Wills, Nominations and Intestate Succession
LEGAL OPTIONS FOR AN ―INNOCENT PERSON‖ WHO IS ACCUSED OF HAVING COMMITTED A CRIMINAL OFFENCE

49 - 60

61 - 62

WHERE A FALSE COMPLAINT HAS BEEN FILED IN THE MAGISTRATES COURT AND THE MAGISTRATE HAS ISSUED SUMMONS / OR WHERE A GENUINE COMPLAINT HAS BEEN FILED BUT THE MAGISTRATE HAS DISMISSED THE SAID COMPLAINT

63 - 64

WHEN SOMEONE HAS FILED A CASE IN THE COURT OF LAW, MAKING FALSE CLAIM THEREIN

65

WHEN A PERSON MAKES A FALSE STATEMENT / FALSE DECLARATIONS IN HIS PLEADINGS OR FILES A FALSE AFFIDAVIT BEFORE THE COURT OF LAW OR KNOWINGLY GIVES A FALSE EVIDENCE TO THE COURT

66

WHEN GRIEVANCE IS AGAINST THE JUDGE OR THE PRESIDING OFFICER OF ANY TRIBUNAL OR AGAINST ANY PERSON ACTING ―JUDICIALLY‖

67 - 69

OBJECTIVE APPROACH TO THE CASE / POTENTIAL LITIGATION AT HAND

70 - 75 76 – 80

FRAMING / DRAFTING OF SUITS / PLAINT

INSTITUTION OF PETITIONS / COMPLAINTS / APPEALS / OTHER PLEADINGS (OTHER THAN SUITS) DRAFTING / INSTITUTION OF CRIMINAL COMPLAINT

81 - 85

86 - 88

PREPARING ONESELF FOR FEARLESS ARGUMENTS BEFORE JUDGES / MAGISTRATES

89 - 92

SUBMISSION OF WRITTEN ARGUMENTS / REJOINDER

93 - 96

WHERE ONE IS AGGRIEVED BY THE ILLEGAL / PERVERSE ORDER (INTERIM OR FINAL) OF THE COURT / TRIBUNAL

97 - 99

NON COMPLIANCE TO DECREES / ORDERS / PROCESSES / SUMMONS OF THE COURT

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100

JUDGMENTS ON IMPOSITION OF HEAVY COSTS ON LITIGANTS FILING FALSE CASES / TAKING FALSE DEFENSE / PLEAS

INTRODUCTION Our Life security and progress are sought to be secured through enacted Laws and its enforcement, and I felt the need to throw some more light on laws of the land which are enacted to secure our life and property, and the enforcement machinery available, to enforce said laws of the land. This is a Legal Referencer wherein the pressing and common issues of our society have been identified, with all probable legal remedies which may be pursued to redress the issue, is suggested herein in this Referencer. Before I begin with, it may be useful to trace the roots of historical relationship between State & Citizens, and it may be essential to understand and to trace the evolution and development of law, the emergence of concept of democracy, and to trace the origin of today's concept of ―Citizens‖ & the ―State‖. ―State‖ in legal parlance implies the Nation; and the Constitution of India in Article 12 defines the ―State‖ as every Public Authority / State Govts / Central Govts / Local Bodies / any other instrumentality of aforesaid Govts / Statutory Corporations, including private entities discharging functions of keen public importance. At the advent of Human Civilization, ‗Men‘ were Sovereign in their own, in the sense that, they were free and were Ruled by their own conscience and were free to inflict violence at their will & strength, i.e. Might is right was the rule. An action not emanating from reason and the freedom to do as one pleases. Great Philosopher Thomas Hobbes (15881671) says that prior to concept of Statehood, the man lived in chaotic conditions of constant fear. The life was solitary, poor, nasty, brutish and short. For getting self-protection and avoiding misery and pain, man voluntarily entered into a contract and surrendered their part of freedom to some might authority, who could

protect their lives and property, which emerged later on as the ruler and which ultimately culminated into the shape of the State. With the great passage of time and centuries together, codified laws evolved and were introduced in human life. Men came together, they voluntarily surrendered their individual sovereignty to State sovereignty, and opted to subject themselves to codified laws; and in return, they were promised the governance by those codified laws, ordinarily termed as ―rule of law‖. The governance by codified laws sought to promise the safety of their life & their property and also sought to guarantee the general dignity inherent in every human person alongwith the guarantee that he will not be discriminated. This is how the ancient Social contract between Men & State came into being. Main thrust of the legal brains emphasizing on codification of laws has been firstly, as a means of attainment of human perfection and secondly to secure liberty to individuals in the society. They all considered liberty as the first pre-requisite for the development of human personality. In their view, a State is like a family to which the interests of its members are always dear at heart, like a family which would not be happy if its members are in difficulty, want or trouble, like a family which would not interfere unnecessarily with the free choice of its members. And therefore, in the backdrop of ancient social contract, every Society & every Individual Citizen has certain basic assumptions to take it for granted from the State – (i) That – his Life, Property and Liberty will be protected; (ii) That – he can appropriate for his own use the wealth which he has created by his own labour, and which he has acquired under the existing laws of the land; (iii) That – others will behave with due care and will not cast upon him an unreasonable risk of injury; (iv) That – others will not commit any intentional aggression upon him;

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(v) That – people with whom he contracts will carry out their undertakings; (vi) That – he will have security as a job holder; (vii) That – State will bear the risk of unforeseen calamities, natural and man-made; (viii) That – State will bear the burden of supporting him when he becomes aged; (ix) And that – complaints, if any made to ―State‖ in respect of any of the issues stated hereinabove, will be attended with due care and attention. Among various definitions of ―State‖ given by Scholars of law and by Philosophers, this appears to be more satisfactory and convincing. It is by professor Goodhart. He defines State in terms of its purpose. He states that the purpose of society which we call a State is to maintain peace and order within a demarcated territory. THE MINIMUM AND ESSENTIAL PURPOSE OF THE STATE IS TO MAKE LIFE POSSIBLE. Hugo Grotius (1583-1645) is regarded as the father of philosophical jurisprudence. He saidit is the first duty of the Sovereign State to safeguard the citizen because State was given power only for that purpose. Good governance signifies the way ―State‖ ameliorates the standard of living of the members of its society by creating, and making available, the basic amenities of life; providing its Citizens security and the opportunity to better their lot; instills hope in their hearts for a promising future; providing, on an equal & equitable basis, access to opportunities for personal growth; affording participation and capacity to influence, in the decision-making in public affairs; sustaining a responsive judicial system which dispenses justice on merits in a fair, unbiased and meaningful manner; and maintaining accountability and honesty in each wing or functionary of the ―State‖. In a democracy, forms and degree of accountability may vary but the basic idea remains the same that the holders of Public Office must be publicly able to justify their exercise of powers and their acts not only as

legally valid but also socially wise just and reasonable, chiefly designed to add something more to the quality of life of its Citizens. Contrary to above, the experience is that the holders of public offices treat the authority in their hands, as one bestowing upon them, the status of a ruler rather than one in public service. The Public Servants / Officials, in the usual spirit of lawlessness, were often heard saying, (one may also call it various forms of passionate corruption) in the words of Legal learned - Professor Upendra Baxi-(i) As an Authority of Public Power, I have this and that power. I exercise it in this or that manner because I so wish. The only good reason which I exercise my power this or that manner is that I wish to exercise it in this or that manner; (ii) As an Authority of Public Power- I may so act as to favour some and disfavour others; (iii) As an Authority of Public Power- I may so act as to give an impression that I am acting within my powers but in reality I may be acting outside it; (iv) As an Authority of Public Power- I may decide by myself what your rights and liabilities are without giving you any chance to be heard, Or I may make your opportunity to be heard a meaningless ritual; (v) As an Authority of Public Power- I may decide but declines to let you know the reasons or grounds of my decisions or provide reasons without being reasonable; (vi) As an Authority of Public Power- I may use my power to help you only if I am gratified in cash or in kind; (vii) As an Authority of Public Power- I may choose to use my power only after a good deal of delay and inconvenience to people; (viii) As an Authority of Public Power- I may just refuse to exercise the powers I have regardless of my legal obligation to act and regardless of social impact of my inaction. In modern democracies, wide powers vest with the Legislators, the Judges, with Govt, and with the Bureaucrats. Each group, if it so wishes, may act quite fancy, in any or all the ways thus far specified hereinabove.

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In many respects, we now live in a society that is only formally democratic, as the great mass of citizens has minimal say on the major public issues of the day, and such issues are scarcely debated at all in any meaningful sense in the electoral arena and where critical decisions are taken in closed chambers of Ministers & Bureaucrats. Yet, whereas it is commonly argued that, in our country called India, i.e. Bharat, laws and rights exists only on paper, to great extent it is the reality. But then, in a Society governed by laws, Citizens have hardly any credible choices. Nani Palkhiwala, with whom an institution is recognized, has once said, AN
AGGRIEVED'S ACT OF SEEKING ―COURTS' INTERVENTION‖, IN FACT, IS AN APPEL TO THE JUDICIAL CONSCIENCE OF THE SITTING JUDGE, TO DO THAT WHICH ALL PRUDENT MAN WOULD DO, IN THE FACTS OF THE CASE.

respectively; and whoever will make any such charge / claim or institutes criminal proceedings against the Author herein, shall be deemed to have committed the offence contemplated under aforesaid section 209 or 211 of IPC, 1860. A person may also be subject to damages for instituting false claim in the Court of law. It is also requested that if a reader finds any discrepancy, or has any suggestion to improve upon this, may please kindly mail me at [email protected]

SUBJECT TO EXCLUSIVE / ONLY MUMBAI JURISDICTION. Thanks. Sandeep Jalan, Advocate, Mumbai. India The Referencer is updated at http://thepracticeoflawjalan.blogspot.in/2012/ 04/legal-options.html

SENTENCE OF CAUTION Though due care has been observed, yet some discrepancies may have certainly entered in. The Referencer is framed with the limited understanding of the author. There is every likelihood that the suggestions made by author and legal views contained therein, may turn out to be inappropriate / incorrect. The Referencer will be regularly updated with the development of law and better understanding of the author. http://thepracticeoflawjalan.blogspot.in/2012/ 04/legal-options.html In the circumstances, it is expressly agreed between the Readers and this author that this author incurs no liability of whatsoever nature, if a reader claims to have incurred any loss of any nature, while using this Referencer. The readers are clearly and strongly advised to obtain guidance of Legal experts or of any other person as they think fit, before they act upon the suggestions made in this write up. It is a criminal offence for making false charge / false claim against any person or to institute false criminal proceedings, in the court of law and is punishable u/s 209 and 211 of Indian Penal Code (IPC), 1860,

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WHEN A CHEQUE IS DISHONOURED depending upon the nature of one‘s case, the likely Remedies may be – (i) If there exist any Arbitration clause in the Contract / Agreement / Invoice or in the absence of Arbitration clause, by consent of the other side, one may adopt Arbitration proceedings for the settlement of dispute and recovery of cheque amount. The Orders passed by Arbitrators are enforceable like a decree of the Court. (ii) If there is no Arbitration clause in the Contract / Invoice, then a Summary Suit (under Order XXXVII of Civil Procedure Code, 1908) / Regular Suit, in the City Civil Courts / concerned High Court of Original jurisdiction / District Court can be filed for the recovery of that specified ascertained cheque amount. (iii) Issuing statutory Notice, within 30 days from the date of intimation of dishonour by the Bank, u/s 138 of Negotiable Instrument Act 1881, followed by filing Criminal Complaint to the Judicial Magistrate / Metropolitan Magistrate u/s 200 of CrPC. (iv) In case, the dishonoured cheque was given by an individual or by a proprietorship firm or by a Partnership firm, an Insolvency Petition in the High Court or in the District Court, can be filed against that individual / proprietor / partners. (v) In case, the dishonoured cheque was given by a Private or Public Limited Company, a Statutory Notice u/s 433 / 434 / 439 of the Companies Act, 1956, followed by Winding up Petition can be filed in the concerned High Court against that Company. [In the immediate future new Companies Act, 2013 will come into force, and jurisdiction of High Courts would be taken over by the Tribunal known as National Company Law Tribunal, constituted u/s 408 of the new Act] (vi) FIR u/s 154 of CrPC, 1973; or an application u/s 156(3) of CrPC, 1973, or complaint u/s 200 of CrPC, 1973, to the

Judicial Magistrate / Metropolitan Magistrate, may be filed, for the offence of cheating against the said individual / proprietor / partners / Company / Officials of the Company. (vii) 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.

For more details; and contents are updated at http://thepracticeoflawjalan.blogspot.in/2012/ 04/when-cheque-is-dishonoured.html

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WHEN ONE IS TO RECOVER SPECIFIED DEBT / MONEY, i.e. TO SAY RECOVERY OF LOAN, MONEY DUE UNDER COMMERCIAL TRANSACTIONS; MONEY DUE UNDER ANY CONTRACT / AGREEMENT; MONEY TO BE RECOVERED BY VIRTUE OF ANY LEGAL RIGHT / UNDER STATUTE, WHETHER FROM A PRIVATE PERSON / INDIVIDUAL OR FROM ANY PUBLIC AUTHORITY –

and jurisdiction of High Courts would be taken over by the Tribunal known as National Company Law Tribunal, constituted u/s 408 of the new Act] (v) FIR u/s 154 of CrPC, 1973; or an application u/s 156(3) of CrPC, 1973, or complaint u/s 200 of CrPC, 1973, to the Judicial Magistrate / Metropolitan Magistrate, may be filed, depending upon the facts of the case, for the offence of Criminal breach of trust / Cheating / against the said individual / proprietor / partners / Company / Officials of the Company. (vi) Where the person, from whom the money is to be recovered, dishonestly or fraudulently, (a) transfer any property without adequate consideration so as to prevent lawful distribution among creditors; or (b) Executes deed of transfer containing false statement of consideration; or (c) Releases his right / claim to any property, may be dealt with and punished u/ss 421 to 424 of IPC, 1860. The offences are non-cognizable and therefore, a private complaint u/s 200 or an Application u/s 156(3) will require to be made before competent Magistrates Court; and when the aforesaid transfer of property is during the course of any Court proceeding, the said person may be charged u/s 206 of IPC, and for this, Application u/s 340 read with 195 of CrPC, 1973, may be preferred in the said Court, to initiate proceeding for offence u/s 206. (vii) When money (including by way of any kind of taxes, duty etc) is paid under mistake or coercion, then, by aid of section 72 of Indian Contract Act, 1872, the same may be recovered by filing Suit / Arbitration proceedings / Writ Petition. (viii) 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.

depending upon the nature of one‘s case, the likely Remedies may be – (i) If there exist any Arbitration clause in the Contract / Invoice or in the absence of Arbitration clause, by consent of the other side, one may adopt Arbitration proceedings for the resolution of the dispute and recovery of money. The Orders passed by Arbitrators are enforceable like a decree of the Court. (ii) If there is no Arbitration clause in the Contract / Invoice, then a Summary Suit (under Order XXXVII of Civil Procedure Code, 1908) / Regular Suit, in the City Civil Courts / concerned High Court of Original jurisdiction / in the District Court can be filed for the recovery of that specified ascertained debt / amount. (iii) In case, the specified ascertained debt / amount is to be recovered from an individual or from a proprietorship firm or from a Partnership firm, then, depending upon the acts and omissions of the defaulter, an Insolvency Petition in the High Court or the District Court, can be filed against that individual / proprietor / partners. section 2(8) of the Sale of Goods Act, 1930 says that a person is said to be ―insolvent‖ who has ceased to pay his debts in the ordinary course of business, or cannot pay his debts when they become due, whether he has committed an act of insolvency or not. (iv) In case, the specified ascertained debt / amount is to be recovered from a Private or Public Limited Company, a Statutory Notice u/s 433 / 434 / 439 of the Companies Act, 1956, followed by Winding up Petition can be filed in the High Court against that Company. [In the immediate future new Companies Act, 2013 will come into force,

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Illustrations of cause of action 1. Where under the terms of the contract, money was paid, but thereafter, where the contract fails for any reason – A Suit may be filed for the recovery of said money, within three years from the date when the contract fails, under Article 47 of the Indian Limitation Act, 1963, for the recovery of that specified as certained debt / amount. 2. Where money was paid as advance in payment of goods to be delivered, and where the other party fails to deliver the goods in the time agreed, if any – A Suit may be filed for the recovery of said money, within three years from the date when the delivery of the goods ought to have been made, under Article 13 of the Indian Limitation Act, 1963. 3. Where certain goods were sold and delivered; and where no fixed period of credit was agreed upon, and when the party concerned failed to make payment – A Suit may be filed for the recovery of the price of the goods sold and delivered, within three years from the date of the delivery of the goods, under Article 14 of the Indian Limitation Act, 1963. 4. To recover the price of lodging in a Hotel / Lodging House – A Suit may be filed for the recovery of price of lodging, within three years from the date when the price becomes payable, under Article 9 of the Indian Limitation Act, 1963. 5. Where a person, under a contract or otherwise, receives any money, for and on behalf of another person, under an obligation to use the said money for that another person‘s direction or to forward the said money to the said another person, but refuses or neglects to do so – A Suit may be filed for the recovery of said money, within three years from the date when the said

money was received, under Article 24 of the Indian Limitation Act, 1963. 6. Where a person A, pays debt of another person B, to the person C – A Suit may be filed for the recovery of said money from B, within 3 years from the date when the said money was paid to C, under Article 23 of the Indian Limitation Act, 1963. 7. Where at the request of the person A, a person B renders any service to person A, or performs / execute any work for the person A, and where no time has been fixed for the payment of service rendered or work done – A Suit may be filed for the recovery of money for the said work done or service rendered, within 3 years from the date when the said work or service was done, under Article 18 of the Indian Limitation Act, 1963. 8. Where a loan is given – A Suit may be filed for the recovery of money lend, within 3 years from the date when the money was lend, under Article 19 of the Indian Limitation Act, 1963. 9. Where money is lent by way of cheque – A Suit may be filed for the recovery of money lent, within 3 years from the date when the cheque was paid, under Article 20 of the Indian Limitation Act, 1963.

10. Where money is lend under an agreement that it shall be payable on demand – A Suit may be filed for the recovery of said money, within 3 years from the date when the money was lent, under Article 21 of the Indian Limitation Act, 1963. 11. Where there is default in the payment of interest which is payable upon money / debt due – A Suit may be filed for the recovery of interest payable, within 3 years from the date when the interest becomes due and

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payable, under Article 25 of the Indian Limitation Act, 1963. 12. Where a person A becomes a guarantor for the debts of B and thereafter pays to the creditor – A Suit may be filed for the recovery of said money against B, within 3 years from the date when the debts were discharged by the person A, under Article 42 of the Indian Limitation Act, 1963. 13. Where a person has wrongfully / illegally received any profits arising out of an immovable property, which were lawfully due to any other person – the said other person, may file a Suit for the said profits of immovable property, under Article 51 of the Limitation Act, 1963, within three years from the date when the profits are received by the said person. 14. A Suit may be filed to recover the arrears of Rent, under Article 52 of the Limitation Act, 1963, within three years from the date when the arrears becomes due. 15. For the recovery of unpaid / accrued Salaries / Wages – A Suit may be filed for the recovery of lawful dues of Salaries / Wages, within three years from the date when the accrued Salary or the Wage is due, under Article 7 of the Indian Limitation Act, 1963. 16. Where the price / payment due under the sale and delivery of goods is not paid even after the expiry of credit period – A Suit may be filed for the recovery of said dues, within three years from the date at which the credit period expires, under Article 15 of the Indian Limitation Act, 1963. 17. For the recovery of money due on the basis of accounts stated between the parties – A Suit may be filed for the recovery of said money, within three years, from the date when the accounts are stated, in writing, which

is signed by the opposite party or his agent duly Authorised in this behalf; or where the debt is agreed to be paid at a future time, by a simultaneous agreement in writing signed by the opposite party or his agent duly Authorised in that behalf, and when that time arrives, under Article 26 of the Indian Limitation Act, 1963. ―Accounts stated‖ may take the form of mere acknowledgment in a letter by the opposite party. 18. For the recovery of money based on Bill of exchange or promissory-note, payable at a fixed time after date – A Suit may be filed for the recovery of money, within three years from the date, when the bill or note falls due, under Article 31 of the Indian Limitation Act, 1963. 19. For the recovery of money based on a bill of exchange payable at sight, or after sight but not at a fixed time – A Suit may be filed for the recovery of money, within three years from the date, when the Bill is presented, under Article 32 of the Indian Limitation Act, 1963. 20. For the recovery of money based on a bill of exchange accepted which is payable at a particular place – A Suit may be filed for the recovery of money, within three years from the date, when the bill is presented at that place, under Article 33 of the Indian Limitation Act, 1963. 21. For the recovery of money based on a bill of exchange or promissory-note which is payable at a fixed time after sight or after demand – A Suit may be filed for the recovery of money, within three years from the date, when the fixed time after sight or demand expires, under Article 34 of the Indian Limitation Act, 1963. 22. For the recovery of money based on a bill of exchange or promissory note payable on demand and not

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accompanied by any writing restraining or postponing the right to sue – A Suit may be filed for the recovery of money, within three years from the date of the bill or note, under Article 35 of the Indian Limitation Act, 1963. 23. For the recovery of money by creditors and other claimants, against the estate of the deceased person – A Suit may be filed under the Indian Succession Act,1925, section 360 of Sec. 361, to compel a refund by a person to whom an executor or administrator has paid a legacy or distributed assets, within three years, from the date of the payment or distribution of assets, under Article 46 of the Indian Limitation Act, 1963. 24. 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.

For more details; and contents are updated at http://thepracticeoflawjalan.blogspot.in/2012/ 04/when-one-is-to-recover-specifieddebt.html

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DISPUTES ARISING IN THE REGULAR COURSE OF ANY BUSINESS ACTIVITY / TRADE RELATIONSHIP; IN THE PERFORMANCE / EXECUTION OF CONTRACTS / AGREEMENTS / OTHER BUSINESS OBLIGATIONS

(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(*). [Movable property will include all kinds of goods, things – valuable and invaluable] (ii) The Principal may compel the Agent to deliver any movable property, which is held by the Agent on behalf of the Principal; or a person who is holding any movable property as a trustee of another, by aid of section 8 of the Specific Relief Act, may be compelled by that another to deliver that movable property, by filing a Suit(*) in this regard. (iii) Where any movable property is wrongly transferred to some other person, the same may be recovered, by aid of section 8 of the Specific Relief Act, by filing a Suit(*). (iv) Where a person against whom a Suit is filed, is making frivolous defences / defences untenable in law, he may be stopped / precluded from taking any such defences, by aid of section 9 of the Specific Relief Act, 1963. (v) 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, by aid of sections 10, 12, 14(3), 15, 19, 21, 22, 23, 37, 38, 39, 40, 42 and subject to sections 14, 16, 17, 18, 19(b), 20(2), 24, 41 may file a Suit (*) for Specific performance, 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. (vi) Where a person, who has contracted to purchase an immovable property or has obtained possession of an immovable property under the said contract, from a person who has no title or has imperfect title to the said property, the said person, by virtue of section 13 of Specific Relief Act, 1963, has a right and he – (a) May compel the said other person to make good the title where in future the said other person acquired the title to such immovable property; (b) May compel the said other person to procure the concurrence of a person whose concurrence will validate the title of the purchaser; (c) Where in a case, the Seller had filed the Suit for Specific performance of the contract, and his said Suit is dismissed for want of title or imperfect title, the purchaser in the said Suit, (a) can claim the refund of his amount paid over said immovable property and (b) can also recover interest on the said amount paid including costs of the Suit. (vii) 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(*) 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

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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. (viii) 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, 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. (ix) 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. (x) Where a person is entitled to a legal character (for example Director of a Company) or 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. (xi) 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 temporary and permanent 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, or called upon to do a certain act, which he is under an obligation to do. (xii) Where, to prevent the immediate and imminent breach of an obligation, the obligation whether arising from contract or Statute, and where it is necessary to compel the performance of certain acts, which the court is capable of enforcing its performance, then, by virtue of section 39 of the Specific Relief Act but subject to section 41 of the said Act, a Suit for Mandatory injunction may be filed for the issuance of said injunction. (xiii) Depending upon the nature of one‘s case, FIR before Police u/s 154 of CrPC, 1973,; or an application u/s 156(3) or complaint u/s 200 of CrPC, 1973, to Judicial Magistrate/ Metropolitan Magistrate can be preferred. (xiv) 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. (*) Arbitration proceedings where there is an Arbitration Agreement. Illustrations of Cause of action

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Specific Performance of Contracts

1. Where under the Contract, any party refuses or neglects to perform his part of the contract – A Suit may be filed for the specific performance of the contract, within 3 years from the date fixed for the performance of such contract, or, if no such date is fixed, when the aggrieved person has notice that performance is refused, under Article 54 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 first time learnt that in whose possession the concerned property is, under Article 91(a) of the Indian Limitation Act, 1963.

2. Where a party to the contract commits breach of the material terms of the contract – A Suit may be filed for compensation, within 3 years from the date when the breach is committed; or when there are successive breaches, 3 years to be calculated from the date of the concerned breach; or where the breach is continuing, three years are to be calculated when the breach ceases, under Article 55 of the Indian Limitation Act, 1963.

2. 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. 3. Where a specific movable property is unlawfully taken by any person – A Suit may be filed for the said specific movable property, within 3 years from the date, when the property concerned was unlawfully taken, under Article 69 of the Indian Limitation Act, 1963. 4. 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 – (1896) ILR 24 Cal 160; (1898) ILR 20 All 519; Compensation – (1921) 62 IC 779; Injunction – AIR 1924 All 814; Ejectment – AIR 1948 Nag 20. Relief can be sought for these aforesaid – (1899) ILR 26 Cal 564 (FB)

Recovery of any movable property or compensation in lieu thereof 1. 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 delivery 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.

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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. Disputes arising with Carrier of Goods 1. Where the Carrier of the goods causes injury or loses the goods consigned – A Suit may be filed for compensation, within 3 years from the date, when the loss or injury to the goods occasion goods, under Article 10 of the Indian Limitation Act, 1963.

entitled to set aside a decree of the Court, or is entitled for the revocation of the contract – A Suit may be filed for the cancellation of the concerned instrument, or for setting aside of the decree of the Court, or for the revocation of the contract, within 3 years from the date, when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract being revoked, first becomes known to the person concerned, under Article 59 of the Indian Limitation Act, 1963.

2. Where the Carrier of the goods refuses to give delivery of goods consigned or delay in the delivery of the goods consigned – A Suit may be filed for compensation, within 3 years from the date, when the goods ought to have been delivered, under Article 11 of the Indian Limitation Act, 1963.

Disputes between Principal & Agent 1. 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 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. 2. Where the ―Principal‖ demands Account for unaccounted movable property from the ―Agent‖, and the Agent refuses, either during the continuance of the Agency, or after the termination of the Agency – A Suit 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 3 of the Indian Limitation Act, 1963.

Disputes pertaining to forged instruments / Agreements / Deeds 1. 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.

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2. Where any person who is entitled to have cancelled any instrument, or is

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3. Where an ―Agent‖ misconducts or neglects in his duties towards the ―Principal‖ – A Suit may be filed for the rendition of Accounts, within 3 years from the date, when the principal becomes aware of the alleged misconduct or neglect of the ―Agent‖, under Article 4 of the Indian Limitation Act, 1963.

That certain Mutation entries are Null and Void. 4. 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. 5. Where any property, movable or immovable is unlawfully sold, under a sale by a civil or revenue court or a sale for arrears of Government revenue or for any demand recoverable as such arrears, A Suit may be filed to set aside such Sale, within one year from the date when the sale is confirmed or would otherwise have become final and conclusive had no such suit been brought, under Article 99 of the Indian Limitation Act, 1963. For more details; and contents are updated at http://thepracticeoflawjalan.blogspot.in/2012/ 04/disputes-arising-in-regular-course-of.html

Miscellaneous 1. Where a party to the contract commits breach of the material terms of the contract – A Suit may be filed for compensation, within 3 years from the date when the breach is committed; or when there are successive breaches, 3 years to be calculated from the date of the concerned breach; or where the breach is continuing, three years are to be calculated when the breach ceases, under Article 55 of the Indian Limitation Act, 1963. 2. Where in a Contract, one of the parties fails to perform his part of promise at a specified time; or fails to perform his promise upon the happening of a specified event – A Suit may be filed for the compensation for such breach of promise, within three years from the date, of specified time or date of happening of specified event, under Article 27 of the Indian Limitation Act, 1963.

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3. Suits for Declaration may be filed within three years from the date when the right to move the court of law, first accrues, in the following cases – That certain properties are the properties of the person concerned; alongwith the relief of permanent injunction, from interfering with the possession. That Agreement is Void.

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WHEN YOU ARE HOLDING SHARES IN A PUBLIC LIMITED COMPANY OR IF YOU HAVE GRIEVANCE AGAINST A COMPANY OR YOU HAVE A GRIEVANCE AGAINST THE STOCK BROKER OR YOU HAVE A GRIEVANCE AGAINST THE STOCK EXCHANGE

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, before Securities Appellate Tribunal; or Writ Petition may be filed in the respective High Court against SEBI for its alleged inaction. (iii) A Petition to Company Law Board (CLB) u/s 397 / 398 of the Companies Act, 1956, with the aid of sections 538 to 545 of the Companies Act, 1956, may be made 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. [In the immediate future new Companies Act, 2013 will come into force, and jurisdiction of CLB would be taken over by the Tribunal known as National Company Law Tribunal, constituted u/s 408 of the new Act] (iv) On subjects where Company Law Board has no jurisdiction, Civil Suit for Injunction / Declaration before District Court / City Civil Court may be preferred. (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 to concerned Regional Directors appointed under the Companies Act, 1956; or to Dept of

depending upon the nature of one‘s case, the likely Remedies may be – (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. (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 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. Registrar and Transfer Agents Stock Brokers Sub Brokers Portfolio Managers Stock Exchanges Depository Mutual Fund Companies Collective Investment Schemes Merchant Bankers Debenture Trustees Bankers to an issue Credit Rating Agencies Custodian of Securities Foreign Institutional Investors Underwriters Venture Capital Funds Price / Market manipulations Insider Trading

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Company Affairs, estd. under the Ministry of Corporate Affairs, u/ss 233A, 234, 234A, 235, 237 of the Companies Act, as may be applicable to the facts of the case. 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 Members (Shareholders) of the Company may make an Application before Company Law Board, for 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. 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 interdepartmental 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 received from Department of company Affairs. (vi) Depending upon the nature of one‘s case, a Winding up Petition to the respective High Court may be preferred by a Creditor / Shareholder of the Company, with the aid of sections 433(f), 477, 538 to 545 of the Companies Act, 1956. (vii) Depending upon the nature of one‘s case, an FIR u/s 154 of CrPC, 1973, before Police; or application u/s 156(3) of CrPC,

1973 or complaint u/s 200 of CrPC, 1973, to Judicial Magistrate / Metropolitan Magistrate can be filed against the acting Directors and /or principal officers of the defaulting Company. (viii) 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. [In the immediate future new Companies Act, 2013 will come into force and remedies provided under the old Act would be replaced by more effective remedy under the new Act]

For more details; and contents are updated at http://thepracticeoflawjalan.blogspot.in/2012/ 04/when-you-are-holding-shares-inpublic.html

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WHEN THERE IS DANGER TO THE DEPRIVATION OF LIFE AND PROPERTY OF A PERSON

The word property connotes everything which is the subject matter of ownership; corporeal or incorporeal; tangible or intangible; visible or invisible; real or personal; everything that has an exchangeable value or which goes to make up wealth or status. Property, therefore, within the constitutional framework, denotes group of rights, inhering citizens‘ relations to physical things as right to possess, use and dispose of, in accordance with law. The term property has a more extensive signification and consists in free use, enjoyment and disposition of a person of all its acquisitions, without any control or diminution, save only by laws of the land. (i) Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, may be charged with the offence u/s 336 of IPC, 1860, for which FIR, or Application u/s 156(3) or Complaint u/s 200 of CrPC, 1973, may be preferred. (ii) Whoever threatens a person with any injury to his person, reputation or property, or threatens injury to person, reputation or property to any other person in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to cause the person to omit to do any act which that person is legally entitled to do, commits the offence u/s 503 of IPC of criminal intimidation. The offence is noncognizable 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. (iii) Whoever intentionally puts any person in fear of any injury to that person; or put a

person in fear of death or grievous hurt; or give the threat of accusation of an offence punishable with death or imprisonment for life, etc; and thereby dishonestly induces the person so put in fear, to deliver to any person any property or valuable security, commits the offence of extortion as defined u/s 384, 385, 386, 388 of IPC, for which FIR, or Application u/s 156(3) or Complaint u/s 200 of CrPC, 1973, may be preferred. (iv) 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. (v) Whoever, 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. (vi) Whoever, 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

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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. The concerned person may also approach the respective High Court for appropriate reliefs.

For more details; and contents are updated at http://thepracticeoflawjalan.blogspot.in/2012/ 08/when-there-is-danger-to-deprivationof.html

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DISPUTES RELATING PROPERTIES

TO

IMMOVABLE

The obligations of Seller and the buyer of immovable property are set out in section 55 of the Transfer of Property Act, 1888. section 6 of the Transfer of property Act enumerates what cannot be transferred. Under the law, three distinct actions could be brought for the recovery of specific immovable property, namely – 1. A Suit based on title by Ownership; 2. A Suit based on possessory title; 3. A Suit based on the strength merely of previous possession, in the case of a wrongful ouster, i.e. without following the due process of law, of a person without his consent. 1. 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; 2. Where a person‘s title is not in dispute but he is out of possession, he has to sue for possession and consequential injunction; 3. Where there is merely an interference with a person‘s lawful possession or where there is a threat of dispossession, it is sufficient to sue for an injunction simpliciter. AIR 2008 SC 2033. The following broad categories of disputes have been identified –
(1) WHEN THE BUILDER / DEVELOPER FAILS TO GIVE POSSESSION OF FLAT WITHIN AGREED TIME; OR THE BUILDER FAILS TO PROVIDE THE AMENITIES AGREED IN THE AGREEMENT; OR THE BUILDER VIOLATE ANY PROVISION OF LAW WITH RESPECT TO CONCERNED BUILDING / STRUCTURE, THEREBY VIOLATING THE CONTRACT SO ENTERED INTO BETWEEN THE BUILDER / DEVELOPER AND THE FLAT BUYER.

(ii) Depending upon the facts of the case, 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 may be preferred against the said Local Municipal authority. (iii) If there is Arbitration clause in the Contract between the Builder / Developer / Seller and the property buyer, then, Arbitration proceedings should be adopted for the resolution of particular dispute. (iv) A criminal complaint / FIR before Police u/s 154 of CrPC, 1973, or an application u/s 156(3) or complaint u/s 200, to 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. May please to refer points (v) and (vi) at page 17 of this Referencer. (v) Where the Builder / Developer is evading in performing his part of the Contract, thereby seriously prejudicing the interests of the Purchaser, the Purchaser, by virtue of sections 10(b), Explanation to 10(i), 14(3)(c), 19, 21, 22, 23, 37, 38, 39, 40, 42 and subject to sections 14, 16, 17, 18, 19(b), 20(2), 24, 41 of the Specific Relief Act, 1963, may by filing a Suit (*) seeks the for 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

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(i) A Complaint before Consumer Forum / State Commission / National Commission may be filed for ―deficiency of services‖.

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(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.

possession and may apply for interim relief of temporary injunction from being dispossessed; (ii) A Civil Suit u/s 39 of Specific Relief Act, 1963 may be filed for Mandatory Injunction against the person who intends to unlawfully dispossess, and may apply for interim relief of temporary injunction from being dispossessed. (iii) Subject to existence of certain conditions, a complaint to concerned Police station u/s 145 of CrPC, 1973, may be made for preventing forceful unlawful dispossession / preventing trespass, as the case may be. (iv) 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.

(2) WHERE ONE IS FORCIBLY / UNLAWFULLY DISPOSSESSED FROM HIS LAWFUL POSSESSION; OR IS NOT IN POSSESSION OF THE PROPERTY ALTHOUGH ENTITLED TO IT

(i) A complaint, may be filed before Judicial Magistrate / Metropolitan Magistrate praying therein for the Magistrate to exercise his powers conferred upon him u/s 145 and 146 of CrPC, 1973, to restore the possession to the person unlawfully dispossessed of. (ii) A civil suit u/s 6 of Specific Relief Act, 1963, may be filed before the District Court/City Civil Court / High Court, for immediate restoration of possession to the person who was in lawful possession; or a Suit u/s 5 of the Specific Relief Act, 1963, may be filed for the possession of the property on the basis of having a title to it. A recent Landmark judgment may be looked into – AIR 2012 SCW 2112. (iii) A criminal complaint / FIR before Police u/s 154 of CrPC, 1973, or an application u/s 156(3) or complaint u/s 200, to Judicial Magistrate / Metropolitan Magistrate, may be filed, alleging Criminal trespass, as defined u/s 441 and punishable u/s 447 of Indian Penal Code.

(4) WHERE THE LICENSEE REFUSE TO VACATE THE PREMISES EVEN AFTER THE TERMINATION OF THE CONTRACT; AND DISPUTES BETWEEN LANDLORD AND TENANT

(i) If the property is situated within Maharashtra, and where the dispute is between Landlord & Tenant OR between Licensor and Licensee, and where the License was given for commercial purposes, than, a Suit for eviction to be filed before Small Causes Court; and where the License was given for residential purposes, an Application may be preferred before competent authority constituted u/s 40 of Maharashtra Rent control Act, 1999. (ii) Small Causes Courts, constituted under the Provincial Small Causes Courts Act 1881 / Presidency Small Causes Courts Act, 1881, have exclusive jurisdiction over certain disputes between Landlord & Tenant and between Licensor and Licensee. (iii) Application u/s 156(3) / Complaint u/s 200, of CrPC, 1973, of the offence of

(3) WHERE ONE IS ANTICIPATING FORCIBLE / UNLAWFUL DISPOSSESSION FROM HIS LAWFUL POSSESSION / OR TO PREVENT TRESSPASS OF IMMOVABLE PROPERTY

(i) A Civil Suit u/s 35 of the Specific Relief Act, 1963 may be filed thereby seeking declaration to the effect that the person in possession is entitled to the present

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Criminal trespass, as stated hereinbefore, may be registered against the said Licensee.

(5) IN AN AGREEMENT FOR SALE / PURCHASE OF IMMOVABLE PROPERTY, WHERE ANY PARTY REFUSE TO PERFORM HIS PART OF PROMISE SO MADE IN THE AGREEMENT / CONTRACT

(i) Where the Seller is evading in performing his part of the Contract, thereby seriously prejudicing the interests of the Purchaser, the Purchaser, by virtue of sections 10(b), Explanation to 10(i), 14(3)(c), 19, 21, 22, 23, 37, 38, 39, 40, 42 and subject to sections 14, 16, 17, 18, 19(b), 20(2), 24, 41 of the Specific Relief Act, 1963, may by filing a Suit(*) for Specific performance, cause the said Seller to perform his part of the contract and may also seek damages in addition to Specific performance, or may seek damages in lieu of Specific performance; and can also seek additional damages for breach of Contract. May please refer point No. (v) at page 19 of this Referencer. 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 Seller, by virtue of section 28 of the Specific Relief Act, may apply in the same Suit to declare the contract rescinded. The Purchaser 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 of the contract in case specific performance is refused by the court. (ii) A Suit comprehensive, Suit for the Registration of the Sale Deed and for recovery of possession, is not barred on the ground that a statutory alternative remedy of registration is available u/s 77 of the Registration Act. 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. AIR 1999 SC 2958.

(iii) 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 – (a) May compel the said other person to make good the title where in future the said other person acquired the title to such property; (b) May compel the said other person to procure the concurrence of a person whose concurrence will validate the title of the purchaser; (c) Where a mortgaged property is sold as a unencumbered property, the purchaser may compel the Seller to redeem the mortgage and obtain a valid discharge, and if necessary, a conveyance from the mortgagee; (d) Where in a case, the Seller had filed the Suit for Specific performance of the contract, and his said Suit is dismissed for want of title or imperfect title, the purchaser in the said Suit, can claim the refund of his amount paid over said goods / movable property and can also recover interest on the said amount paid including costs of the Suit.

(iv) 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. (v) 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

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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. (vi) 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. (vii) Where to prevent the immediate and imminent breach of an obligation, the obligation whether arising from contract or Statute, and where it is necessary to compel the performance of certain acts, which the court is capable of enforcing its performance, then, by virtue of section 39 of the Specific Relief Act, a Suit(*) for Mandatory injunction may be filed for the issuance of said injunction. (viii) A criminal complaint / FIR before Police or an application u/s 156(3) or complaint u/s 200, to 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. May please to refer points (v) and (vi) at page 17 of this Referencer.

/ Presidency Small Causes Courts Act, 1881, have exclusive jurisdiction over certain disputes between Landlord & Tenant and between Licensor and Licensee. (iii) An FIR before Police or as aforesaid, an application u/s 156(3) or complaint u/s 200, to Judicial Magistrate / Metropolitan Magistrate, may be filed, alleging Criminal trespass or any other applicable offence depending upon the facts of each case. May please to refer points (v) and (vi) at page 17 of this Referencer. (*) Arbitration proceedings where there is an Arbitration Agreement (7) Disputes Property relating to Mortgaged

(6) WHERE A PERSON WAS GIVEN POSSESSION (LICENSE) OF IMMOVABLE PROPERTY ON GRATUITOUS BASIS AND THE SAID PERSON REFUSE TO VACATE THE PREMISES

(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

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(i) If the property is situated within Maharashtra, the dispute may be referred before competent authority constituted under Maharashtra Rent control Act, 1999.

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. (8) Miscellaneous cases: (i) 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. (ii) Where any property, movable or immovable is unlawfully sold, under a sale by a civil or revenue court or a sale for arrears of Government revenue or for any demand recoverable as such arrears, A Suit may be filed to set aside such Sale, within one year from the date when the sale is confirmed or would otherwise have become final and conclusive had no such suit been brought, under Article 99 of the Indian Limitation Act, 1963. (iii) Suits for Declaration may be filed within three years from the date when the right to move the court of law, first accrues, in the following cases – That certain properties are the properties of the person concerned; alongwith the relief of permanent injunction, from interfering with the possession. That Agreement is Void. That certain Mutation entries are Null and Void. That the Sale Deed is Null and Void. That the Will is fraudulent.

(iv) Where under a Contract of lease or License, the lessee or licencee commits any breach of the condition of the lease or License – the Lessor / Licensor may recover the possession / occupation of immovable property, within twelve years from the date when the forfeiture is incurred or the condition is broken, under Article 66 of the Indian Limitation Act, 1963. (v) 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 – (1896) ILR 24 Cal 160; (1898) ILR 20 All 519; Compensation – (1921) 62 IC 779; Injunction – AIR 1924 All 814; Ejectment – AIR 1948 Nag 20. Relief can be sought for these aforesaid – (1899) ILR 26 Cal 564 (FB) 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. (vi) 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.

For more details; and contents are updated at http://thepracticeoflawjalan.blogspot.in/2012/ 04/disputes-relating-to-immovable_22.html

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WHERE ONE IS ALLEGED TO HAVE BEEN SUPPLIED / PROVIDED DEFECTIVE GOODS OR ONE HAS ALLEGED TO HAVE RENDERED DEFICIENT SERVICES, OR WHERE ANY PERSON IS ALLEGED TO HAVE BEEN INDULGING IN UNFAIR TRADE PRACTICES –

depending upon the nature of one‘s case, the likely Remedies may be (i) If the aggrieved person is a ―consumer‖, then, depending upon the amount of compensation claimed, a Consumer complaint may be filed against the supplier / provider of defective goods / deficient services, before the appropriate District Forum / State Commission or before the National Commission. (ii) For deficiency in respect of Banking services, Banking Ombudsman may first be approached. Please visit RBI website to find out the office of Ombudsman. (iii) Depending upon the nature of one‘s case, FIR before Police u/s 154 of CrPC, 1973; or an Application u/s 156(3) or complaint u/s 200 of CrPC, 1973, to Judicial Magistrate / Metropolitan Magistrate can be preferred. (iv) 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, and also in Competition Act, 2002. (v) With respect to ―Unfair Trade Practices‖ a complaint may be preferred before the Competition Commission of India or before the Consumer courts like the District Forum / State Commissions / National Commissions.

(vi) Where it is alleged that any business entity is, in any manner, committed / committing a big / 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 Ministry of Consumer Affairs; or to the Registrar of Companies; or to Regional Directors appointed under the Companies Act, 1956; 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. The goods of Goods Banking, Courier, Insurance, etc. includes all kinds of goods (Sale Act) and Services includes – Financial, Transport / Cargo, Housing, Cellular, Internet, credit card, Medical, Educational

For more details; and contents are updated at http://thepracticeoflawjalan.blogspot.in/2012/ 04/where-one-has-alleged-to-have-been.html

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WHEN GRIEVANCE IS AGAINST ANY GOVT / STATUTORY / MUNICIPAL AUTHORITY / ANY PUBLIC AUTHORITY / PUBLIC OFFICER / TO ENFORCE THEIR LEGAL OBLIGATIONS

depending upon the nature of one‘s case, the likely Remedies may be – (i) Subject to the availability of statutory remedy provided under any law, a Complaint / Notice may be recorded to the concerned Public authority OR to its Regulating Authority / to the ―State‖, followed by filing a Writ Petition in the concerned High Court. Issuance of Notice is not mandatory for filing of Writ Petition and in urgent situations, notice may not be given. (ii) In the alternative of pursuing aforesaid Writ remedy, or those who have not immediate access to High Court, may file a Civil Suit before the District Court / City Civil Court, for the relief of Perpetual / Mandatory Injunction, as defined u/ss 36, 37, 38 or 39, read with section 2(a) of the Specific Relief Act, 1963; or Suit for Declaration as contemplated u/s 34 of the Specific Relief Act, 1963, seeking necessary reliefs. But before filing Civil Suit against any Public authority / officer, one is obliged to give Notice u/s 80 of CPC, 1908 or under applicable statute, to the concerned Public authority / officer. However, in urgent situation, one can file the Suit without issuing the said notice, specifying therein the reasons for urgency in filing the Suit. (iii) Where it is alleged that a Public Officer is occupying a Public Office although he/she does not satisfy the qualifications prescribed for holding that Public office, then a Writ of Quo Warranto may be filed in the concerned High Court against the said Officer, for the removal of said Public Officer. (iv) When money (including by way of any kind of taxes, duty etc) is paid under mistake or coercion to any Public authority, then, by aid of section 72 of Indian Contract Act, 1872, the same may be recovered by filing Writ Petition or adopting the remedy as may be provided under the respective Statute.

(v) A complaint may be recorded to Anticorruption agencies like CBI, ACB, CVC, followed by a Writ Petition in the concerned High Court if these aforesaid Agencies doesn‘t act on the Complaint. [The much awaited Lokpal Act will soon be come into force, and henceforth the mechanism provided therein may be followed] (vi) A complaint may be recorded to the State / National Human Rights Commission, followed by a Writ Petition in the respective High Court if the concerned Human Rights Commission doesn‘t act on the Complaint. (vii) Where grievance is against a particular Public servant, then depending upon the nature of alleged illegal acts and omission of said Public Servant, an FIR to the Police may be made, alleging the offence committed u/s 119, 166, 167, 213, 217, 218, 219, 409 or under any other section of IPC 1860; or offence u/s 7, 8, 9, 10, 11, 13, 14 of Prevention of Corruption Act, 1988; or an Application u/s 156(3) to the Magistrates Court. (vii) Also, every act of seeking bribe by any Public Servant may be deemed as offence of ―Extortion‖ as defined u/s 383 to 389 of Indian Penal Code, 1860, for which FIR, or an Application u/s 156(3) to the Magistrates Court or a Complaint may be made before competent Magistrates Court u/s 200 of CrPC, 1973. (viii) Where the grievance is in particularly relating to ―Public Nuisance‖, then a complaint may be recorded to District Magistrate (Collectorate of the District) / Commissioner of Police (in Metropolitan areas), u/s 133 of CrPC, 1973. May Refer Landmark SC Judgment - Ratlam Municipality versus Vardichand, year 1980. (ix) An RTI application may be made, thereby seeking information as what action has been taken on the complaint made, so as to compel Public authorities to perform their duties.

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(x) The concerned MP, MLA, Local Corporator / Councilor / Media (Print and Electronic) may be approached. (xi) A complaint may be recorded online at Public Grievance Cell of Govt of India. The status of the complaint may be tracked at the same portal. http://pgportal.gov.in/ (xii) Depending upon the gravity of the illegality of the Public Authority / Public Servant concerned, a letter may be recorded to the Office of the Chief Justice of the concerned High Court; or to the Office of the Chief Justice of India at Supreme Court of India; or to the Office of the Chief Minister of the State; or to the Office of the Prime Minister of India, thereby requesting them to take notice of said letter complaint and take due action as required under the law. (xiii) A Writ Petition may be filed before the concerned High Court for seeking damages / compensation, if the alleged ―action / inaction‖ of the public authority / public officer has resulted in frustration / deprivation of ―life and liberty‖ of any person, as guaranteed under Article 21 of Constitution of India. (xiv) A civil suit for seeking damages / compensation may be filed in the District Court / City Civil Court/ High court, if the alleged ―action / inaction‖ of the public authority / public officer has directly resulted in manifest loss of property or reputation of the aggrieved citizen. (xv) A Civil Suit for exemplary damages can also be filed for the Irregular / colourable 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) http://thepracticeoflawjalan.blogspot.in/2012/ 04/kinds-of-suits-that-can-be-filed-list.html (xvi) A Civil Suit can also be filed for compensation for Suits for wrongful seizure of movable property under legal process / seizure of goods without legal process by any

of the Public authority. (Pls see Article 79 / 80 / 91 of the Limitation Act, 1963) (xvii) When grievance is against a Particular "Public Servant / Officer", then, a Complaint may be made to an Authority Higher in Rank to the concerned "Public Servant /Officer", for dereliction of duty of the concerned Public servant / Officer, seeking disciplinary proceedings for "Misconduct". http://thepracticeoflawjalan.blogspot.in/2012/ 11/public-service-jurisprudence.html

(xviii) Where a private entity blatantly violate the laws of the land and the law enforcing agency, either merely issues a Notice or merely files a case against the said Private entity (without any genuine intention to prosecute with the said Notice or prosecute the said case in the Court of law; or the said Private entity on receipt of Notice, approaches the Court of law and if (by misleading the Court) obtain interim injunction against the said law enforcing agency, and the said law enforcing agency does not object to said (unlawful) interim injunction by the said Court, the aggrieved person may – (a) Make a Complaint to the Law officer of the said Law enforcing agency, stating among other things, therein, that the said private entity has apparently / prima facie obtained interim injunction by misleading the Court, and requesting / urging the said Law officer to bring to the notice true state of facts before the concerned court and causing the said Court to vacate the said interim injunction; and where the said Law officer fails to take desired lawful course of action, a Complain may be recorded against the said Law officer, to the Higher authority in Rank to the said concerned Law officer, alleging ―Misconduct‖, ―breach of duty‖, ―Professional misconduct‖ by the said concerned Law officer; (b) The said order of the subordinate court may be challenged before the Court which is immediately superior to that subordinate

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court or a Writ of Certiorari or Application under Article 227 may be preferred before the concerned High Court, thereby challenging the said Order of interim injunction, on the grounds of patent and gross illegality in the said Order; (c) Where the concerned Subordinate Court is alleged to have granted interim injunction in plain disregard of any High Court or Apex Court ruling, the ruling which has been expressly brought to the said Court‘s knowledge, a Contempt (Civil) Petition may be preferred against the concerned Judge, through the Registrar of the concerned subordinate Court; (d) Where the unlawful acts of said private entity has resulted in the manifest loss of property of the aggrieved person, the said aggrieved person may file a Suit for exemplary damages against the said Private entity and also against the concerned Law enforcing agency, who has failed to check the illegalities of the said Private entity. (for breach of duty) (e) Where the illegalities of the said Private entity was the result of dereliction of duty of Particular class of "Public Servant / Officer", then, a Complaint may be made to an Authority Higher in Rank to the concerned "Public Servant /Officer", for dereliction of duty of the concerned Public servant / Officer, seeking disciplinary proceedings for "Misconduct". (xix) Where – (a) arbitrary / unreasonable / discriminatory / ambiguous Law / Rule / Notification / Circular, is alleged to have been enacted / issued by the Parliament / State Legislature / State Govt / Central Govt / any other Authority, or (b) where there have been ―undefined‖ ―discretionary powers‖ have been delegated / conferred upon any State Govt / Central Govt / or upon any Authority, the said Law / Rule / Notification / Circular / undefined discretionary power, can be challenged before High Court concerned

under Article 226 of the Constitution of India; or before Supreme Court under Article 32 of the Constitution of India, alleging that said Law / Rule / Notification / Circular / undefined discretionary power, is violative Article 14, 19, 21 (as applicable to the facts of the case) of the Constitution of India. http://thepracticeoflawjalan.blogspot.in/2013/ 01/transformation-of-indian-landscapepost.html

(xx) Where the Public authority is discharging quasi-judicial function or if one is aggrieved by the illegal notice / order passed by any Public authority; or is aggrieved by the fact that a Public authority has not given proper hearing / opportunity of presenting his case and thereby violated the principles of natural justice; or if the said authority is acting illegally in any manner, then, Subject to availability of other remedies – (a) a Writ of Mandamus / Certiorari under Article 226 or under Article 227 (Article 227 contemplates the jurisdiction of High Courts, of Superintendence over all subordinate courts and tribunals), may be filed before respective High Court, challenging said illegal Order, alleging breach of principles of natural justice and the breach of Article 14 of the Constitution of India; or (b) may file a Civil Suit before the District Court / City Civil Court, for the relief of Perpetual / Mandatory Injunction, as defined u/ss 36, 37, 38 or 39 read with section 2(a) of the Specific Relief Act, 1963, or Declaratory Suit as contemplated u/s 34 of the Specific Relief Act, 1963, seeking necessary Reliefs. This Relief of mandatory injunction or declaratory relief cannot be obtained where the Public Authority is discharging ―quasijudicial function‖. And, as stated hereinbefore, and also stated hereinafter, before filing Civil Suit against any Public authority / officer, one is obliged to give notice u/s 80 of CPC, 1908, to the concerned Public authority / officer. However, in urgent situation, one can file the Suit without issuing the said notice,

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specifying therein the reasons for urgency in filing the Suit. In a landmark judgment given by Hon‘ble SC in the case of in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, wherein the Hon‘ble Court, among other things observed and directed as – The Governments, government departments or statutory authorities are defendants in a large number of Cases pending in various courts in the country. Judicial notice can be taken of the fact that in a large number of cases either the notice is not replied to or in the few cases where a reply is sent, it is generally vague and evasive. It not only gives rise to avoidable litigation but also results in heavy expenses and costs to the exchequer as well. A proper reply can result in reduction of litigation between the State and the citizens. In case a proper reply is sent, either the claim in the notice may be admitted or the area of controversy curtailed, or the citizen may be satisfied on knowing the stand of the State. Having regard to the existing state of affairs, we direct all Governments, Central or State or other authorities concerned, whenever any statute requires service of notice as a condition precedent for filing of suit or other proceedings against it, to nominate, within a period of three months, an officer who shall be made responsible to ensure that replies to notices u/s 80 or similar provisions are sent within the period stipulated in a particular legislation. The replies shall be sent after due application of mind. Despite, if 1the court finds that either the notice has not been replied to or the reply is evasive and vague and has been sent without proper application of mind, the court shall ordinarily award heavy costs against the Government and direct it to take appropriate action against the officer concerned including recovery of costs from him.”. The said judgment can also be used in Notices issued before filing of Writ

Petition, and Public authorities cannot be heard to say that ―Public authorities are not bound to give reasons in Notice under Writ. In the case of Legrand (India) Private Limited Versus Union Of India [2008 (2) BCR 387 : 2007 (6) MhLj 146], the Bombay High Court have held that the Public authorities / persons may be held guilty of contempt of the Court, if, in the regular discharge of their duties, they knowingly disregard the law laid down by the said Court. By virtue of this judgment, a private individual / private entity may also be compelled to adhere to the law laid down by the High courts / Apex court. It is a case where, despite being specifically brought to the knowledge of the law being laid down by the Bombay High Court, the Public officer acted in breach of the law laid down; and the High Court, in the Writ jurisdiction, initiated Contempt proceedings against the said officer. The Court held that – (a) It is immaterial that in a previous litigation the particular petitioner before the Court was or was not a party, but if a law on a particular point has been laid down by the High Court, it must be followed by all authorities and tribunals in the State; (b) The law laid down by the High Court must be followed by all authorities and subordinate tribunals when it has been declared by the highest Court in the State and they cannot ignore it either in initiating proceedings or deciding on the rights involved in such a proceeding; (c) If inspite of the earlier exposition of law by the High Court having been pointed out and attention being pointedly drawn to that legal position, in utter disregard of that position, proceedings are initiated, it must be held to be a wilful disregard of the law laid down by the High Court and would amount to civil contempt as defined in S. 2 (b) of the Contempt of Courts Act, 1971. a. Therefore, whenever there is any grievance against any Public authority / official, a Notice u/s 80 of CPC,

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1908, may be recorded to the concerned Public authority / official. b. Further, where the nature of the Notice / complaint is based on a prima facie breach of any provision of the law, and if there is any Apex Court or High court ruling on the said provision of law, and where the said ruling is unambiguous and categorical, the contempt proceeding may also be initiated against the concerned authority / official, for acting in the willful disregard / breach of the order of the Apex court / High court, as the case may be. Every High Court too has Su Moto contempt powers, as Apex court has. c. And where public authority / official don‘t reply or reply in interplay of words, than, a simple letter may be made to the concerned High Court / Apex court, requesting it to take Su Moto cognizance (action on its own) of the contempt of the order of the court, being committed by the concerned authority / official; and the copy of said letter may also be sent to the concerned authority / official; and thereafter, after sometime, say about, expiry of about 30 days, an RTI may be filed with the concerned High court / Apex court, requesting it to furnish the details of action taken by it, on your said letter. The draft of said letter to the High court / Apex court and draft of RTI Application is annexed herewith. The Apex court and every High court have prescribed the form in which RTI Application can be made to it. d. Further, the complainant may also file a Writ Petition before concerned High court under Article 226 of the Constitution of India, against the concerned public authority / official, and praying the court to direct the concerned public authority / official to make a ―Reasoned reply‖ to the Petitioner‘s complaint / Notice; and the reply shall be made in accordance

with the law laid down by the Apex court in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India [(2005) 6 SCC 344]; with a further prayer that reasonable and deterrent cost must also be imposed on the concerned authority / official, for his / its willful failure in making a due reply; e. It may further be prayed that reply of public authority / official to deal with the substantial points which has been raised therein in the said complaint / Notice and cover other relevant points; and eschew irrelevancies and reply shall demonstrate that the authority has given due consideration to the points in controversy and that decisions of the public authority / official on the issue raised in the said complaint / Notice have been reached according to law. f. And where the Complaint / Notice to the Public authority / official is based on settled position of law declared by Apex court / High court, and yet Public authority / officials, despite being brought to their knowledge of the said ruling, acting contrary to the law so settled, then, in the said Writ Petition, the court may be prayed to initiate contempt proceedings against the concerned Public official, as laid down in Bombay High Court ruling stated hereinabove. g. If Writ is filed for this limited purpose, than it may be disposed of in two to three hearings; and, if any such order is passed, than that public authority / official is bound to make a reasoned and proper reply, in a time bound manner. h. However, all persons, aggrieved by the acts and omissions of public authorities / officials, may not have easy access to the High Court. Therefore, a Civil Suit for mandatory Injunction u/s 39 of Specific Relief Act, 1963, may be filed before the

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District Court / City Civil Court, seeking necessary reliefs. i. The law declared by Apex court, by virtue of Article 141 and 144 of the Constitution of India, is binding on all public authorities / judicial authorities, and directions so given by Apex court becomes the law of the land. And therefore, the City Civil courts, District courts, shall also have the jurisdiction to direct the public authority / official to give proper and reasoned reply to the Notice issued to it; with a further relief praying that ―A Reference shall be made to the High Court concerned to initiate contempt proceedings against the concerned Public authority / official‖. However, while filing this Suit, the mandatory Notice provided u/s 80 may not be given, for, the relief in the Suit is claimed on the premise that concerned public authority / official is not making a reply to the Notice, sent to it u/s 80.

For more details; and contents are updated at http://thepracticeoflawjalan.blogspot.in/2012/ 04/when-grievance-is-against-any-govt.html

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REGISTERING FIR

A CRIMINAL MACHINERY MAY BE SET INTO MOTION

1. By registering an FIR before Police Station u/s 154; 2. The Police officer, suspecting the commission of an cognizable offence, by virtue of section 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 will 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. 8. A Letter Petition may be addressed to the Magistrate containing an allegation that an offence has been committed and ending with prayer that the culprit be suitable dealt with, followed by an RTI to know if the concerned Magistarte has taken cognizance of the complaint made to him. Mohd Yusuf versus Afaq Jahan – (2006) 1 SCC 627.
WHAT IF POLICE REFUSE TO REGISTER FIR –

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. (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); and the copy of said Complaint may also be sent to the office of the Chief Justice of the concerned High Court of the State. 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. (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 of CrPC, 1973. However, the Magistrate concerned is at discretion to act or not to act on the said Letter Complaint. (iii) An Application can be made u/s 156(3) read with section 190 of CrPC, 1973, before the Judicial Magistrate / Metropolitan Magistrate, thereby praying that Police to register the FIR, Investigate the case and file the Report / Chargesheet before him. (iv) If the complainant has substantial evidence against the accused person, and if he is prepared to handle the prosecution of the accused person, then, he may prefer an oral / written Complaint before Judicial Magistrate / Metropolitan Magistrate u/s 200 of CrPC, 1973; and the Magistrate after examining the

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Complainant and his witnesses, may issue Summons / Warrant u/s 204 of CrPC, 1973, against persons made accused in the complaint. The Magistrate in his discretion, before issuance of Summons / Warrant, u/s 202 of CrPC, 1973, may conduct an inquiry by himself or cause an inquiry to be conducted by a Police Officer. (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, to Register the FIR and directing him to show cause (a) why he has not registered the FIR; (b) 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. (vi) An Application u/s 156(3) as stated hereinabove, or a complaint u/s 200 as aforesaid, may be filed against those Police officers who have refused to register FIR, before Judicial Magistrate / Metropolitan Magistrate, for having committed offence u/s 217 of IPC, 1860. (vii) A Contempt Petition (Civil) can be filed before High Court concerned against Police officer who has refused to register FIR. In the latest 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. (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. (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 Act, for Magistrate to direct the Police to investigate the offence, or the Magistrate may issue the Summons to the accused person. (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. (xi) A civil suit for seeking exemplary damages may be filed in the District Court / City Civil Court / High court, if the ―inaction‖ of the Police on FIR / Complaint has directly resulted in manifest loss of life / liberty or property. http://thepracticeoflawjalan.blogspot.in/2012/ 04/kinds-of-suits-that-can-be-filed-list.html (xii) A Complaint may be made to Commissioner of Police / Superintendent of Police against the SHO (Station House Officer) of the concerned Police Station for dereliction of duty, seeking disciplinary proceedings for "Misconduct". http://thepracticeoflawjalan.blogspot.in/2012/ 11/public-service-jurisprudence.html (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,

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section 376C, section 376D, section 376E or section 509 of the Indian Penal Code. For more details; and contents are updated at http://thepracticeoflawjalan.blogspot.in/2012/ 04/when-facing-illegalities-of-policehere.html

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. 1970 SCD 449 (456); AIR 1978 SC 1025. (i) Where the law as it stands is not followed by the Police Officers, than, Complaint may be recorded before the State Govt or before the higher authorities in the Police or before the concerned Judicial Magistrate or before the State Human Rights Commission or before the Chief Justice of the High Court concerned; and copy of the complaint be sent to the concerned defaulting Police officer; or Writ Petition may be filed in the High Court concerned, thereby restraining the Police from acting contrary to law. (ii) It is commonly seen that Police officers summon the Witnesses / accused persons in the Police station in the name of investigation and constrain them to remain in the Police station for the whole of the day /night. It may amount to Wrongful restraint and Wrongful confinement of the person within the meaning of section 339 and 340 of IPC, 1860, and the said person, may in the Police station itself record an FIR against the said Police officers, or Application can be made u/s 156(3) or complaint u/s 200 of CrPC, 1973, before the Judicial Magistrate / Metropolitan Magistrate may be preferred. However, by virtue of section 41A of CrPC, 1973, where the arrest of the person was not required u/s 41(1), the Police officer may issue Notice to the person against whom FIR has been registered, to appear before him on the date and time so specified in the said Notice. (iii) A Civil Suit for exemplary damages can also be filed for the Irregular exercise of powers / acts and omissions of Police officials, allegedly in the pretence / pretext / colour of provisions of an enactment. (Pls see Article 72 of the Limitation Act, 1963) http://thepracticeoflawjalan.blogspot.in/2012/ 04/kinds-of-suits-that-can-be-filed-list.html (iv) A Complaint may be made to Commissioner of Police / Superintendent of Police against the concerned Police Officer of the concerned Police Station,

WHEN POLICE UNLAWFULLY SUMMONS WITNESSES / ACCUSED FOR INTERROGATION

The position of law as it stands is – 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. 1954 CrLJ 1060; AIR 1940 Nag 186 (189); AIR 1918 Nag 137; 1999 (2) All Cri LR 646 (647) (P & H); 1999 (2) Chand LR (Civ & Cri) 73 (75); 1999 Cri LT 279 (280) (P & H) 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. Pusma Investment Pvt Ltd versus State of Meghalaya 2010 CrLJ 56 at pages 58-59 (Gau). A citizen would only be put to harassment if he is being summoned to far off place just to meet whims of the officer. (1992) 2 Crimes 394 (396) (P & H). 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 – AIR 1959 SC 1012.

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seeking disciplinary proceedings for "Misconduct". http://thepracticeoflawjalan.blogspot.in/2012/ 11/public-service-jurisprudence.html (v) 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. (vi) 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. (vii) Section 166A(a) now, expressly makes a punishable offence if any of the Public servant calls for the attendance of any person which is prohibited under the law for him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter. For more details; and contents are updated at http://thepracticeoflawjalan.blogspot.in/2013/ 02/when-police-unlawfully-summons.html

(i) The procedure of 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. (ii) 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. (iii) 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) r/w section 60-A of CrPC, 1973) and also knowingly disregarding the guidelines framed by SC in the case of

WHEN POLICE ILLEGALLY ARREST

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

Joginder Kumar versus State of U.P., 1994, 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. (iv) 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 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. (v) The SC binding guidelines, before making any arrest, is provided in the case of Joginder Kumar versus State of U.P. 1994 (4) SCC 260 : AIR 1994 SC 1349. (vi) 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. (vii) 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 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. (viii) 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 Basu Vs State of West Bengal will render any Policeman to be hauled for Contempt of Court in any High Court of the Country. (ix) Where the Bail is refused by the Magistrate, thereby committing the accused to either Police custody or to Judicial custody (Jail), then, immediately, a fresh Bail Application may be filed before Sessions Court or before High Court u/s 439 of CrPC.

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(x) 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. (xi) If one cannot go to High Court for Writ Petition of Habeas Corpus, then, one can (a) personally 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. (xii) 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. (xiii) 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. (xiv) 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. (xv) An FIR to Police, or complaint before Magistrates Court u/s 156(3) or u/s 200 of CrPC, 1973, may be preferred against the concerned Police officer who have illegally arrested and has thereby have committed the offence defined u/ss 220 and 342 of IPC 1860. (xvi) 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). http://thepracticeoflawjalan.blogspot.in/2012/ 04/kinds-of-suits-that-can-be-filed-list.html (xvii) 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". http://thepracticeoflawjalan.blogspot.in/2012/ 11/public-service-jurisprudence.html (xviii) Arrests during Public protests – Ordinarily, all the detainees are released on their execution of Bail Bond in the Police station. No money is required to be deposited while executing the Bail Bond. (xix) 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. (xx) 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

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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. (xxi) 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. For more details; and contents are updated at http://thepracticeoflawjalan.blogspot.in/2013/ 02/when-police-illegally-arrest.html

compensation, if the ―inaction‖ of the Police in investigating the case has resulted in frustration of ―life and liberty‖ of a person, guaranteed under Article 21 of Constitution of India. (v) A civil suit for seeking damages may be filed in the District Court / High court, if the ―inaction‖ of the Police has directly resulted in manifest loss of any property. (vi) A Civil Suit for exemplary damages can also 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) http://thepracticeoflawjalan.blogspot.in/2012/ 04/kinds-of-suits-that-can-be-filed-list.html (vii) A Complaint may be made to Commissioner of Police / Superintendent of Police against the concerned Police Officer of the concerned Police Station for dereliction of duty, seeking disciplinary proceedings for "Misconduct". http://thepracticeoflawjalan.blogspot.in/2012/ 11/public-service-jurisprudence.html (viii) 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. (ix) 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.

WHEN POLICE NEGLECTS INVESTIGATING THE CASE

TO

(i) Writ Petition under Article 226 of Constitution of India, may be made to the respective High Court, thereby HC directing the Police to make thorough investigation, or directing the State Govt to refer the case to an independent agency like CBI or CID for thorough investigation. (ii) An Application u/s 156(3) as aforesaid, before the Judicial Magistrate / Metropolitan Magistrate, for directing the Police to carry out proper investigation and file Report; or complaint u/s 200 before Judicial Magistrate / Metropolitan, for Hon‘ble Magistrate to cause an Inquiry u/s 202 into the case himself or may direct an Investigation by a particular Police officer as the Magistrate thinks fit. (iii) An FIR u/s 154 or complaint u/s u/s 200 of CrPC, 1973, can be made before Judicial Magistrate / Metropolitan Magistrate against those Police officers u/s 213, 214, 217, 221 of IPC, 1860, who have deliberately and dishonestly neglected to investigate the case. (iv) A Writ Petition may be filed in respective High Court for seeking damages /

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(x) Section 166A(b) now, expressly makes a punishable offence if the public servant concerned knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation. For more details; and contents are updated at http://thepracticeoflawjalan.blogspot.in/2013/ 02/when-police-neglects-toinvestigating.html

guidelines framed by SC in the Joginder Kumar case (iii) 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 the HC directing 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) r/w section 60-A of CrPC, 1973 and strictly adhere to the guidelines framed by SC in the Joginder Kumar case, in case the Police intends to arrest the Petitioner (the person named in the FIR). (iv) 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. (v) 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. (vi) Where, during the pendency of section 482 Application in the High court, if the chargesheet is filed by the Police before the competent Magistrates court, the concerned person, may either seek the quashing of chargesheet, or, may file a discharge Application (in warrant cases only) before the concerned Magistrates court u/s 239 or 245 of CrPC, 1973. Where the case is committed to Sessions Court, then the discharge

WHEN FALSE FIR IS REGISTERED; OR WHEN FALSE FIR IS ANTICIPATED TO BE FILED BY ANY PERSON; AND WHERE PURSUANT TO SAID FALSE FIR, ARREST IS ANTICIPATED – THEN DEPENDING UPON THE PECULIAR FACTS OF EACH CASE, FOLLOWING STEPS MAY BE TAKEN

(i) A letter may be recorded to the concerned Police station where the false FIR is filed, with a copy to Superintendent of Police or Commissioner of Police, stating therein that a false FIR 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) r/w section 60-A of CrPC, 1973; and also strictly adhere to the guidelines framed by SC in the Joginder Kumar case. The said SC guidelines were thus issued by all DGP of each State to all the Police stations in the State, on the specific directions of the Supreme Court in the said Joginder Kumar case in 1994. Rules in respect of arrest of women are contained in section 46 of CrPC, 1973. (ii) Obtaining 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 (in case 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) r/w section 60-A of CrPC, 1973; and also strictly adhere to the

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Application can be filed before the Sessions Court u/s 227 of CrPC. (vii) It is a criminal offence u/s 182 and 211 of IPC, 1860 to knowingly make a false complaint / accusation and register a false complaint against any person. In such cases the innocent person cannot register FIR or make complaint to Magistrates court against those persons who have filed false Complaint. In such cases, as far as offence u/s 182 is concerned, a complaint can be made to the Police officer to whom false complaint has been made, or complaint can be made to a higher authority, about the filing of said false complaint, and the concerned Police officer or the higher authority, is empowered to file the case in the Magistrates Court against the person who has made false complaint to the Police. Where the offence is alleged to have committed u/s 211 of IPC, but the matter did not reached the Court of law for trial and proceedings / investigation terminated, then, a direct Complaint u/s 200 or Application u/s 156(3) of CrPC, 1973, can be made before the Magistrates court concerned against those persons who have made false charge of offence. Where, in pursuance to said false complaint, criminal proceedings before the Magistrates Court / Sessions Court have been initiated, then, an Application u/s 340 read with section 195 of CrPC 1973, may be preferred before the said Magistrate / Sessions court, against those persons, praying therein for Magistrates / Sessions court to refer the said offence of false accusation to the appropriate / competent Magistrate Court of jurisdiction. (IPC section 182: False information, with intent to cause public servant to use his lawful power to the injury of another person. IPC section 211: False charge of offence made with intent to injure.) However, aforesaid two section 182 and 211 preferably be invoked only after (a) where the Police before / after registering FIR, has terminated the investigation on the ground of falsity of complaint, or (b) where FIR is

quashed by the HC, or (c) where if the trial Court has discharged the Accused or has acquitted the Accused, and no Appeal is preferred against the acquittal. However, Application invoking sections 182 and/or 211 should be invoked keeping in mind the limitation period provided u/ss 467 to 473 of CrPC, 1973. (viii) 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. (ix) 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". http://thepracticeoflawjalan.blogspot.in/2012/ 11/public-service-jurisprudence.html (x) 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. (xi) 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.

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For more details; and contents are updated at http://thepracticeoflawjalan.blogspot.in/2013/ 02/when-false-fir-is-registered.html

Wills, Nominations Succession

and

Intestate

Law of Wills in India is governed by Indian Succession Act, 1925. The application of provisions of testamentary succession, i.e. in respect of Wills and Codicils, in Indian Succession Act, are broadly divided into three classes – (a) geographical, i.e. (i) Local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay; (ii) Areas beyond the Local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay; (b) religion based, i.e. (i) Hindu, Buddhist, Sikh or Jaina; (ii) Religions other than Hindu, Buddhist, Sikh or Jaina. Therefore….. (c) Movable and Immovable Properties. The provisions of testamentary succession in Part VI of Indian Succession Act, 1925 is applicable, as far as religions are concerned – (a) to all Wills made by Hindu, Buddhist, Sikh or Jaina; (b) to all Wills made by any other person who are (i) residing beyond the Local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay and (ii) possessing any immovable property beyond such Local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay; Section 57. Application of certain provisions of Part to a class of wills made by Hindus, etc. -The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply-(a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and (b) to all such wills and codicils made outside those territories and limits so far as relates to

immoveable property situate within those territories or limits; and (c) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b):] Provided that marriage shall not revoke any such will or codicil. Section 57(a) says that provisions of Wills and codicils as mentioned in the Indian Succession Act, 1925 are applicable to all Wills made by any Hindu, Buddhist, Sikh or Jaina residing within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay; Section 57(b) says that provisions of Wills and codicils as mentioned in the Indian Succession Act, 1925 are applicable to all Will made by any person residing beyond the jurisdiction of the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay and where such person is having immovable property in those territories; Section 57(c) says that provisions of Wills and codicils as mentioned in the Indian Succession Act, 1925 are applicable to all Wills made by any Hindu, Buddhist, Sikh or Jaina, the Will which is made after 01.01.1927 and where such Hindu, Buddhist, Sikh or Jaina is residing beyond the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such person is having either movable or immovable property.

Execution of Will Who can make a Will – Every person of sound mind not being a minor may dispose of his property by will. (Section 59) A bequest should always be specific to the person and specific to the property, i.e. to say, full name of the person and his / her relationship with the maker of the Will should be stated; and sufficient description of property must be mentioned, so as to identify

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it and distinguish it from all other parts of the property. (Section 142) Needless to say, a bequest can only be made of such properties to which the testator is entitled to, or has any ―interest‖ in the property which can be transferred.

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Details required at hand for preparing a Will – a) Full name of the person making the Will b) Age c) Residence address d) His present profession, occupation, if any, or if Retired e) Details of his /her immediate family members, that is to say, name of his wife / husband, names of his / her sons / daughters, if any. f) Details of specific movable and immovable property which is owned by the person which he / she wants to give under the Will; g) Full Name of the person to whom each of the specified movable and immovable property, he / she wants to give in Will. Name of alternate person, if the first named person, pre-deceased the author of the Will. h) Name of the person who will take control of the property of the person so as to secure that the person to whom properties are given in the Will are duly handed over. The person so appointed must be a most trustworthy person. He / she may be a family member / legal heir or may be a close friend. Also, the said person may be a beneficiary under the Will. He is called the Executor under the Will. i) If the person has any desire that after his death, his any of the body organ like Eyes or any other transplantable organ be donated; or he be cremated with plainness and his / her ashes be immersed in the sacred waters of ___________.

j) Full Name of person / persons who will get all the property – movable and immovable, which are not specifically given to any person in the Will; any / all properties which are acquired or left out in the execution of the Will. The said person is called residuary legatee. k) Full name and residential address of two or more persons who will ―witness‖ the execution of the Will. The witnesses attesting the execution of the Will must also a person of sound mind and not being a minor. Mode of Execution of Will Every testator shall execute his Will according to the following rules :(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.  The testator should, preferably, sign at the bottom end of each page of the Will. Alteration, corrections, if any, in the Will can be made by the signature of the testator and the subscription of the witnesses in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end



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of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will. (Section 71)  Will can be made in any language which the maker of the wish is comfortable in expressing his desire in the disposition of property to certain persons / class of persons. Will can be made on a plain paper, even with Pencil, although, pencil be not used, for, it would then be vulnerable to manipulation. The witnesses who are attesting the execution of the Will are not concerned with the contents of the Will, and they merely witness the execution of the Will by the concerned person. The person executing the Will is not obliged to share the contents of the Will with the attesting witnesses. Preferable, on the date of execution of the Will, a doctor must examine and certify to the effect that the person making the Will, is in a sound physical and mental health. Preferably, the Execution / signing of the Will by the person and signing by two attesting witnesses, may be videorecorded / photographed.







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A Will may provide for the following – a) A father, whatever his age may be, may by / under the Will, appoint a guardian or guardians for his child during minority of the child. (Section 60) b) A bequest to the property may be made in alternative, i.e. to say, a property may be bequeathed to a person with a bequest in the alternative to another person. (Section 96) c) A bequest may be made to one person for the benefit of another. (Section 110)

d) A bequest may impose obligations upon the beneficiary under the Will and the legatee cannot obtain the benefits of the Will unless he accept the obligations also. (Section 122) e) No impossible / immoral / illegal conditions can be imposed upon the beneficiary in the Will; and if any such condition is imposed, the bequest becomes nullity. (Section 126, 127) f) A bequest may be made with the condition superadded that the bequest shall cease to have effect in case a specified uncertain event shall happen, or in case a specified uncertain event shall not happen. (Section 134) g) A testator may bequeath a certain sum of money, or a certain quantity of any other commodity, to be paid out of specified property. It is called demonstrative legacy. (Section 150) h) A bequest may be made of something described in general terms; and the Executor must purchase for the legatee what may reasonably be considered to answer the description. (Section 171) i) A man may dispose, by gift made in contemplation of death, of any moveable property which he could dispose of by will. A gift is said to be made in contemplation of death where a man, who is ill and expects to die shortly of his illness, delivers, to another the possession of any moveable property to keep as a gift in case the donor shall die of that illness. Such a gift may be resumed by the giver; and shall not take effect if he recovers from the illness during which it was made; nor if he survives the person to whom it was made. (Section 191) j) Shares and Securities of Companies, ordinarily, cannot be bequeathed by way of Will. The holder of such securities should

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nominate, in the prescribed manner, a person to whom his shares in, or debentures of, the company shall vest in the event of his death (Section 109A of the Companies Act, 1956). Further, Articles of Association of a Company, inter alia, stipulates / provides for the nature of relationship between a Shareholder and the Company, and who will entitle to the Shares in case of death of one of joint Shareholders. Therefore, it may be desirable to refer Articles of Association of the Company concerned, before making nomination; or before providing for said Shares / Securities in the Will. An article of Association of a Company is a Public Document and can be obtained directly from the website http://www.mca.gov.in/M CA21/ by paying applicable prescribed charges. Yet the process of obtaining document is cumbersome and one may need the help of his C.A. to obtain said document from the said Website. (Section 109A of the Companies Act, 1956) k) Similarly, the deposits lying in the Bank Account, cannot be bequeathed by way of Will. The holder of such Bank Account should nominate, in the prescribed manner, a person to whom the moneys shall go in the event of his death. (Section 45ZA of the Banking Regulations Act, 1949) l) In cases of Life insurance Policies, the Policy holder, may when effecting the policy or at any time before the policy matures for payment, nominate the person or persons to whom the money secured by the policy shall be paid in the event of his death. The maker of the Will may also name the beneficiary / legacy for Life Insurance Policy, provided, then, he must accordingly cancel

such nomination with the concerned Insurance Company. (Section 39 of Insurance Act 1938) m) It is also a settled law that nomination in flat of a Coop Hsg Society (Maharashtra Coop Societies Act, 1960) does not confers any title upon the nominee and the nominee is a mere trustee of the property, for the legal heirs or beneficiaries under the Will, of the deceased member of the Society. Therefore, a Will must provide for the disposition of a flat property etc. Other characteristics of Will – a) A Will may be revoked or altered at any time during the life time of the person making the Will, when the maker is competent to dispose of his property by will, that is to say, the person making the Will may sell or gift or deal with his any of the property, during his lifetime, irrespective of bequeathing said property in the Will. (Section 62) b) Any addition in the Will may be made by executing additional Will, which is called Codicils, and such codicils forms part and parcel of the earlier Will. Such Codicils should give reference to making of earlier Will and shall state that this is in continuation of earlier Will. c) Registration of Will is not compulsory. Non registration of Will does not loses its efficacy, nor the registered Will can be said to have higher efficacy than non registered Will. However, Registration of Will, at least, gives a certainty that in fact, a Will was executed at that point of time, by the concerned person The Will may be registered before the Registering Authority who ordinarily registers immovable property agreements / instruments, at the place where the testator ordinarily resides.

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d) Will may be registered even after the death of the testator, so as to protect the Will from being destroyed or stolen. e) It is desirable to appoint a person in the Will to be an Executor of the Will, who shall take the responsibility of discharging the legacies mentioned in the Will. More than one Executor can also be appointed. The Executors may also be beneficiary under the Will. The consent of the appointed Executor is not required at the time of execution of the Will. f) WILL obtained by fraud, coercion etc is void. (Section 61) g) A Will must provide for a Residual Legatee, i.e. to say, all properties for which bequest is not made, or properties which were acquired after the Will is executed, would go to a person named as residual legatee. If it is not provided, said properties would go to such persons as may be prescribed under the applicable succession law, depending upon the religion followed by the deceased person. h) Documents specifically referred in the WILL, forms part and parcel of the Will. (Section 64) One of the biggest advantage of making of a Will is that the beneficiary under the Will gets a ―vested interest‖ in the property so bequeathed, unless otherwise provided in the Will. section 104 of the Indian Succession provides that if a legacy is given in general terms, without specifying the time when it is to be paid, the legatee has a vested interest in it from the day of the death of the testator, and, if he dies without having received it, it shall pass to his representatives. The word vest is normally used where an immediate fixed right in present or future enjoyment in respect of a property is created. With long usage, the word ―vest‖ has also acquired a meaning as an absolute or indefeasible right. Howrah Municipal

Corporation versus Ganges Rope Co. Ltd, (2004) 1 SCC 663. An interest is said to be ―vested interest‖ when there is immediate right of present enjoyment or a present right for future enjoyment. Usha Subbarao versus B.E. Vishveswaraiah, (1996) 5 SCC 206, Para 8. Is it necessary to obtain Probate of a Will ? http://commonlawsandeep.blogspot.in/2012/08/is-it-necessaryto-obtain-probate-of.html

Provisions as to Registration of Will contained in Indian Registration Act, 1908. Section 40: Persons entitled to prevent wills and authorities to adopt (1) The testator, or after his death any person claiming as executor or otherwise under a will, may present it to any Registrar or SubRegistrar for registration. (2) The donor, or after his death the done, of any authority to adopt, or the adoptive son, may present it to any Registrar or SubRegistrar for registration.

Section 41: Registration of wills and authorities to adopt (1) A will or an authority to adopt, presented for registration by the testator or donor, may be registered in the same manner as any other document. (2) A will or authority to adopt presented for registration by any other person entitled to present it shall be registered if the registering officer is satisfied(a) that the will or authority was executed by the testator or donor, as the case may be; (b) that the testator or donor is dead; and (c) that the person presenting the will or authority is, u/s 40 , entitled to present the same.

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Section 42: Deposit of wills Any testator may, either personally or by duly authorized agent, deposit with any Registrar his will in a sealed cover superscribed with the name of the testator and that of his agent

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(if any), and with a statement of the nature of the document.

Section 43: Procedure on deposit of wills (1) On receiving such cover, the Registrar, if satisfied that the person presenting the same for deposit is the testator or his agent, shall transcribe in his Register-book No.5 the superscription aforesaid, and shall note in the same book and on the said cover the year, month, day and hour of such presentation and receipt, and the names of any persons who may testify to the identity of the testator or his agent, and any legible inscription which may be on the seal of the cover. (2) The Registrar shall then place and retain the sealed cover in his fire-proof box.

power of any Court by order to compel the production of any will. (2) When any such order is made, the Registrar shall, unless the will has been already copied u/s 45 , open the cover and cause the will to be copied into his Book No.3 and make a note on such copy that the original has been removed into Court in pursuance of the order aforesaid.

Intestate Succession (Succession property in the absence of Will)

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Section 44: Withdrawal of sealed cover deposited u/s 42 If the testator who has deposited such cover wishes to withdraw it, he may apply, either personally or by duly authorized agent, to the Registrar who holds it in deposit, and such Registrar, if satisfied that the applicant is actually the testator or his agent, shall deliver the cover accordingly.

Section 45: Proceedings on death of depositor (1) If, on the death of a testator who has deposited a sealed cover u/s 42, application be made to the Registrar who holds it in deposit to open the same, and if the Registrar is satisfied that the testator is dead, he shall, in the applicant's presence, open the cover, and, at the applicant's expense. cause the contents thereof to be copied into his Book No.3 (2) When such copy has been made, the Registrar shall re-deposit the original will.

A male Hindu dying intestate (without making a Will) – the property of the said Hindu goes according to the provisions made in Hindu Succession Act, 1956 – to – Son; daughter; widow; mother; son of a predeceased son; daughter of a predeceased son; son of a predeceased daughter; daughter of a deceased daughter; widow of a predeceased son; son of a predeceased son of a predeceased son; daughter of a predeceased son of a predeceased son; widow of a predeceased son of a predeceased son [ "son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a predeceased daughter; daughter of a predeceased daughter of a pre-deceased son". They all get equal share. A female Hindu dying intestate (without making a Will) – the property of the said Hindu goes according to the provisions made in Hindu Succession Act, 1956 – as (a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother. Provided that – (a) any property inherited by a female Hindu from her father or mother, shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the

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Section 46: Saving of certain enactments and powers of Courts (1) Nothing hereinbefore contained shall affect the provisions of section 259 of the Indian Succession Act, 1865 (10 of 1865) , or of section 81 of the Probate and Administration Act, 1881 (5 of 1881) , or the

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other heirs referred hereinbefore, but upon the heirs of the father; and (b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred hereinbefore, but upon the heirs of the husband. It is also very important to understand the concept of ―Tenant in Common‖ and ―Joint Tenancy‖. These concepts, however, has nothing to do with ―Tenancy‖. They suggest the nature of ownership of the property which is held by an individual. In India, ―Tenancy in Common‖ is followed, whereas in England ―Joint Tenancy‖ is followed. The said concept is covered u/s 45 of the Transfer of Property Act, 1882. Tenancy in common implies, where any property is jointly held by two or more persons, every such person is absolute owner of the property (subject to the provisions of section 45 of Transfer of Property Act, 1882), in equal share, unless there is an express or implied contract to suggest the percentage of holding. Joint tenancy is situation where any property is jointly held by two or more persons, every such person is (not absolute) owner of the property, in equal share, unless there is an express or implied contract to suggest the percentage of holding. Like for example, if a property is owned by two persons A and B jointly, than, subject to provisions of section 45 of the Transfer of Property Act, 1882, or unless there is any contract to suggest otherwise, both A and B will have 50% share in the property; and in the event of death of A, in case of ―Tenancy in common‖, the 50% share of A will go to the heirs of A, and B will continue to have his 50%; whereas in case of ―Joint tenancy‖, if A dies, B becomes the 100% owner of the property, that is to say, the share of A devolves upon B. Similarly, in case of "Tenancy in Common" both A and B are

entitled to dispose of their 50% share by way of Will. As told me by very learned senior colleague Shri Sakharam Gokhale, there is only one Statute (Indian Companies Act, 1956) in our country, which gives both the option to hold the property, either on ―Tenancy in common‖ or ―Joint tenancy‖. The Companies in their Articles of Association may provide that the Shares would be held by the members on the basis of ―Joint Tenancy‖. Some Cause of action in Succession cases 1. Where a person is entitled to any property, movable or immovable, by virtue of legatee or beneficiary under a Will or having a share in the estate of a intestate deceased person – 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. 2. Where some wrong acts have been committed against a deceased person – A Suit may be filed by the executors, administrators or representatives under the Legal Representatives Suits Act, 1855, for damages / compensation, within one year from the date of the death of the person who was wronged, under Article 81 of the Indian Limitation Act, 1963. 3. For the recovery of money by creditors and other claimants, against the estate of the deceased person – A Suit may be filed under the Indian Succession Act,1925, section 360 of Sec. 361, to compel a refund by a person to whom an executor or administrator has paid a legacy or distributed assets, within three years, from the date of the payment or

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distribution of assets, under Article 46 of the Indian Limitation Act, 1963. 4. Where a person was killed in a Fatal accident – A Suit may be filed by the executors, administrators or representatives under the Fatal Accidents Act, 1855, for damages / compensation, within two year from the date of the death of the person who was killed, under Article 82 of the Indian Limitation Act, 1973. 5. Where any wrong is alleged to have been committed by executors, administrators or representatives of the deceased person – A Suit may be filed under the Legal Representative Suits Act, 1855, against the concerned executor, administrator or any other representative, within two years from the date when the wrong complained of is committed, under Article 83 of the Indian Limitation Act, 1963. 6. Suits for Declaration may be filed within three years from the date when the right to move the court of law, first accrues under Article 58 of the Indian Limitation Act, 1963, in the following cases – That the Will is fraudulent.

For more details; and contents are updated at http://thepracticeoflawjalan.blogspot.in/2013/ 01/making-of-will-nominations-and-lawof.html

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LEGAL OPTIONS FOR AN ―INNOCENT PERSON‖ WHO IS ACCUSED OF HAVING COMMITTED A CRIMINAL OFFENCE

Ordinarily, in Criminal law, there are two ways by which the machinery of law is set into motion against any person – (1) By registering FIR before Police u/s 154 or by making Application u/s 156(3) to the Magistrate, thereby Magistrate directing the Police to register the FIR, investigate the offence and file Police Report in a time bound manner; (2) By making Complaint before concerned Magistrates Court u/s 200. the

h) Plea of ―being a child under seven years; or a child below twelve years, being unable to appreciate the consequence of the illegal acts done‖; (Sections 82 and 83, IPC) i) Plea of ―Accident‖ and ―Misfortune‖; (Sections 80 and 81, IPC) j) Plea of ―acts judicially sanctioned‖; (Sections 77 and 78, IPC) k) Plea of ―acting in good faith in the mistake of fact‖ (Sections 76 and 79, IPC) (i) 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. (ii) 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

COMING TO LEGAL OPTIONS: There are certain general defenses which are available to an accused person to claim innocence, and they are – a) Plea of acts done for Self defence; and plea of self defence extends to action protecting other persons also; (Sections 96, 97, 98, 99, 100, 101, 102, 106, IPC) b) Plea of acts done to protect one‘s own property; (Sections 97(2), 99, 103, 104, 105, IPC) c) Plea of act caused ―trivial harm‖; (Section 95, IPC) d) Plea of ―acts done with consent‖; (Sections 87 to 93, IPC) e) Plea of ―acts done under death threat‖; (Section 94, IPC) f) Plea of ―acts done under involuntary intoxication‖; (Sections 85 and 86, IPC) g) Plea of ―acts done while being insane or suffering from mental abnormality‖; (Section 84, IPC)

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jurisdiction of the HC, in the first instance, should invoke the Revisional jurisdiction of Sessions Court. (iii) 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 personally 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. The representation should be personally by accused person and not through Advocate. 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. Unfortunately, there is no Apex Court ruling on this point. Fortunately, 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. [Judg dated 22nd March, 2012] [Paras 88 to 90] (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 chargesheet 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. (v) If the Chargesheet / Complaint is filed in the Magistrates Court, for the trial of ―Warrant cases‖, then, before the framing of charges (Note 2) by the Magistrate, the accused person may file a ―Discharge Application‖ u/s 239 / 245, 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 and 245. (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) (vii) In a trial before Sessions Court, when the Sessions Judge rejects the ―Discharge Application‖, and proceeds to frame charges against the accused person and take evidences of prosecution witnesses, thereafter Application may be made u/s 232 for the

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acquittal of the accused, on the grounds of ―no offence is made out‖ against the accused. (viii) 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. (ix) In a trial before Magistrates Court, in Summons cases, at any time before judgment is pronounced, the Complainant may be persuaded to withdraw his ―false, frivolous, vexatious, baseless, dishonest‖ Complaint u/s 257. (x) 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‖. (xi) 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. (xii) 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‖. Scrupulous adherence to process of law –(2007) 2 SCC 258, Para 12. (xiii) 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. (xiv) 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. (xv) Where, the innocent is however convicted, the ―innocent convicted person‖, may invoke the Inherent powers of the High Court u/s 482 for the quashing of such conviction. The necessary ―ingredients‖ of section 482 however must be substantially shown to the High Court for exercising such extra-ordinary powers. (xvi) Similarly, where, the innocent is however convicted, the ―innocent convicted person‖, may prefer an Appeal under Article 134 before the Supreme Court and the Supreme Court, having regard to the facts of the case and the injustice that has occasioned, in the exercise of its plenary powers under Article 142 of the Constitution of India, for doing ―complete justice‖, may quash the conviction. An SLP before SC of India under Article 136 of the Constitution of India may

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be filed where the High Court has refused the relief u/s 482, as aforesaid. (xvii) Where, the innocent is however convicted, the ―innocent 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. 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, investigation made by the Police and the ―relevant and admissible‖ evidences, if any, collected by the Police 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) 3 SCC 574], 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 [AIR 1960 SC 866] this 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.

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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. The Hon‘ble Bombay High Court, in the case of Abasaheb Homname versus State of Maharashtra, CRIMINAL APPLICATION NO. 766 OF 2007, in their Full Bench Judgment, in Para 5.2 observed as – the power of the court to annul or overthrow, which is an exception to let the normal procedure of law specified in the Code be followed, should be exercised sparingly and subject to the satisfaction of the condition precedents to exercise of such power. The doctrine of inherent power is the basic support for exercise of such power. The court inherently would be couched with such power to do justice and to ensure that basic rule of law is not frustrated. Wherever the court has to implement orders, to prevent the abuse of process of law and to meet the ends of justice, it is entitled to take recourse to its inherent powers including that of quashing. Power of the court to quash, thus, is an inbuilt power to do justice and in fact, is a power of great substance which categorically finds its place in the provisions of section 482 of the Code. Power to quash is one of the powers where the court would be empowered to quash the FIR or even a criminal proceeding in furtherance thereto; In Para 7.9 observed – Recourse to inherent powers u/s 482 would be permissible even in non-compoundable offences for quashing an FIR and/or criminal proceedings and this power of the court is not controlled and/or

moderated by any of the provisions of the Code including section 320 of the Code; In Para 2.5, the Court observed as – A bare reading of the above provision indicates that the Legislature intentionally worded this provision widely and, thus, necessarily would have larger impact and ramifications on the procedural law governing enquiry, investigation and trial in criminal cases. It is a well-known concept that law is not static and it develops and varies according to the progress of time and the need of society. Similarly, the provision of section 482 in regard to the inherent powers of the Court is not meant to be static and diverse views have been expressed by different High Courts as well as the Supreme Court. In Para 3.16, the Court observed as – In a very recent case titled as Hamida v. Rashid @ Rasheed, (2008) 1 SCC 474, the Supreme Court took the view that a Procedural Code, however, exhaustive, cannot expressly provide for all time to come against all the cases or points that may possibly arise, and in order that justice may not suffer, it is necessary that every court must in proper cases exercise its inherent power for the ends of justice or for the purpose of carrying out the other provisions of the Code. It is a well established principle that every Court has inherent power to act ex debito justitiae to do that real and substantial justice for the administration of which alone it exists or to prevent abuse of the process of the Court. In Para 5.6, the Court observed as – Catena of judgments of the Supreme Court can be referred to where the Supreme Court upheld and/or permitted exercise of inherent powers for quashing proceedings. The scope of power u/s 482 was held to be vast to prevent abuse of process of law by inferior Courts and to see that the stream of administration of justice remains clean and pure. The Courts have also taken the view that mere nomenclature of a petition would not matter and even in a petition under Article 226, the Court could take recourse to the provisions of section 482 of the Code. The legal position was stated to be well settled that when prosecution is sought to be quashed at the

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earliest stage, the test would have to be applied by the Court as to whether the uncontroverted allegations, as made prima facie, establish the offence. It is for the Courts to take into consideration any special features which appear in a particular case and would justify quashing of the proceedings may be at the preliminary stage. In Para 5.14, the Court observed as – When the Court has to consider whether the criminal proceedings should be allowed to continue or the same should be quashed, two aspects are to be satisfied, (i) whether the uncontroverted allegations, as made in the complaint, prima facie establish the offence, and (ii) whether it is expedient and in the interest of justice to permit a prosecution to continue. Applying these two tests, the Supreme Court in the case of M.N. Damani vs. S.K. Sinha and others, (2001) 5 SCC 156, where the accused was charged with offences punishable u/ss 499 and 500 of the IPC, held that the order of the High Court quashing the proceedings was not sustainable. The Supreme Court also relied upon its earlier judgment in the case of Shatrughna Prasad Sinha v. Rajbhau Surajmal Rathi, (1996) 6 SCC 263 and held that on cumulative reading of the complaint, offence was prima facie established and it was not expedient and in the interest of justice to quash the proceedings. The Court also indicated that no special circumstances existed so as to justify the quashing of the proceedings. In Para 5.15, the Court said – In the case of Indian Oil Corporation vs. NEPC India Limited and others, (2006) 6 SCC 736, the Supreme Court, while referring to all its earlier judgments, restated the principles relating to exercise of jurisdiction u/s 482 of the Criminal Procedure Code to quash complaints and criminal proceedings and reiterated the principles as follows:"(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but

without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. (v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c ) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not." In Para 5.19, the Court said – Upon plain analysis of the principles of law, stated supra, it can safely be concluded that the court can exercise its inherent power vested in it for

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quashing the FIR or criminal proceedings free of limitations but with caution, circumspection and sparingly, with reference to the facts and circumstances and the special features of a given case. The language of this provision invites liberal construction keeping in view the objects sought to be achieved that no person should be permitted to abuse the process of court or process of law. The penal code is intended to protect society against crime but it certainly, should not be permitted to be used as an instrument to frustrate the very purpose by incorrectly or illegally implicating other persons and thus, abusing the process of court and law both. Power to quash is the discretion of the court and may be exercised sparingly but there will be no occasion for the court to impose on itself unspecified restrictions or limitations in exercise of such powers. Power to quash is an ancillary or essential aspect of inherent powers of the court. The definition of the 'court' u/s 20 of the Indian Penal Code is not restricted and it includes, obviously, the appellate and revisional court. When a court is exercising its appellate or revisional jurisdiction, it is not divested of its inherent powers. In a given case, the revision petition or even a petition under Article 226 of the Constitution of India would be treated as a petition u/s 482 in the discretion of the court and upon satisfaction of the prescribed tests. As already stated above, nomenclature of the petition is not a determinative factor. Essentially, all the courts exercising jurisdiction under the Code of Criminal Procedure could always have the inherent power and could pass such order which may be necessary to achieve the ends of any of the three objects stated in section 482. In Para 7.10 THE Hon‘ble Court said – We have held that the inherent powers should be used in cases falling in either of the three categories stated in section 482 itself. This wide power must be exercised with caution and circumspection. The inherent powers of the Court of competent jurisdiction can be invoked for quashing the FIR or criminal proceedings but the Court would pass such orders only if the principles laid down in judicial dicta are satisfied and either of the

three objects stated in section 482 of the Code are achieved by exercise of such power. It is neither permissible nor proper for the court to provide a strait-jacket formula regulating exercise of inherent powers u/s 482 of the Code, particularly in relation to quashing, as it would depend upon the facts and circumstances of a given case. No precise and inflexible guidelines or strait-jacket formula or catalogue of the circumstances in which power should or should not be exercised, may be laid down. Still, while recapitulating the enunciated principles in the judgments of the Courts, particularly the Supreme Court in the cases of (i) State of Haryana vs. BhajanLal, AIR 1992 SC 604, (ii) Indian Oil Corporation vs. NEPC India Ltd. , (2006) 6 SCC 736, (iii) Central Bureau of Investigation vs. Ravi Shankar, (2006) 7 SCC 188, (iv) Popular Muthiah vs. State represented by Inspector of Police, (2006) 7 SCC 296, (v) Sanapareddy Maheedhar vs. State of A.P., 2008 AIR SCW 11, and (vi) Som Mittal vs. Government of Karnataka (Criminal Appeal No. 206 of 2008 decided on 21st February, 2008), and other well accepted canons of criminal jurisprudence, we state the principles as under:1. The High Court, in exercise of its inherent powers u/s 482 of the Code, may interfere in proceedings relating to cognizable offences to prevent abuse of the process of any court or otherwise to secure the ends of justice very sparingly and with circumspection; 2. Inherent power u/s 482 of the Criminal Procedure Code should not be exercised to stifle a legitimate prosecution. 3. Power u/s 482 of the Criminal Procedure Code is not unlimited. It can inter alia be exercised where the Code is silent, where the power of the court is not treated as exhaustive, or there is a specific provision in the Code; or the statute does not fall within the purview of the Code because it involves application of a special law; 4. The inherent power of the High Court can be invoked in respect of matters covered by the provisions of the Code unless there is

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specific provision to redress the grievance of the aggrieved party; 5. Inherent power u/s 482 of the Code overrides provisions of the Code but evidently cannot be exercised in violation/contravention of a statutory provision or power created under any other enactment; 6. Power u/s 482 to quash proceeding should not be used mechanically or routinely, but with care and caution; 7. Such power should be used only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice; 8. Inherent jurisdiction u/s 482 Cr.P.C. may be exercised in following three circumstances. (i) to give effect to an order under the Cr. P.C. (ii)to prevent abuse of the process of court; and (iii)to otherwise secure the ends of justice.

of such power will not result in miscarriage of justice and will not encourage those accused to repeat the crimes;

13. The inherent powers of High Court u/s 482 of the Code, cannot be exercised in regard to matters specifically covered by the other provisions of the Criminal Procedure Code;

14. For the purpose of quashing, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint;

15. The exercise of inherent jurisdiction u/s 482 of the Code should not be such as to harm legitimate expectation of the people and the society, that the persons committing offence are expeditiously brought to trial and if found guilty are adequately punished;

9. Inherent power should be exercised to do the right and undo a wrong; 10. In exercise of inherent power u/s 482 of the Code, Court would be justified to quash any proceeding if the initiation/continuation of such proceeding amounts to 'abuse of the process' of court or quashing of the proceeding would otherwise serve the ends of justice'; 11. While exercising inherent power u/s 482 of the Code, High Court must refrain from making imaginary journey in the realm of possible harassment which may be caused to concerned petitioner on account of investigation of FIR or complaint; 12. While exercising inherent power u/s 482 of the Code, the High Court must all the while be conscious of the fact that its exercise

16. Inherent powers may be used only when reasonably necessary for the court to be able to function and courts may not exercise inherent powers merely because their use would be convenient or desirable;

17. The exercise of inherent power would be necessary whenever it is just or equitable and it should be to ensure observance of the due process of law, to prevent improper vexation or oppression and to do justice between the parties and to secure a fair trial; and

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18. While passing an order quashing FIR or criminal proceedings, as the case may be, it may be appropriate for the Court to examine the impact of such an order upon the system of administration of criminal justice and the social fabric. This, of course, is not a

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determinative factor but only a relevant consideration. 

material in support of it to see the light of the day. PNB Finance versus Gita Kriplani, ITO New Delhi – (1985) 1 Crimes 1094, 1100 (Del).  In the case of Inder Mohan Goswami and another v. State of Uttaranchal and others, AIR 2008 SC 251 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 debito justitiae' 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 – AIR 1954 Bom 65. 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) a All 441 (FB); AIR 1963 Mys 326. In the cases of Madhu Limaye versus State of Maharashtra – AIR 1978 SC

A three Judge Bench of the Supreme Court in the case of State of Karnataka vs. L. Muniswamy and others, (1977) 2 SCC 699 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 harasssment 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 – (1954) Travan 1326. 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 – AIR 1998 SC 128. 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











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47; Lalit Mohan Mandal versus Dehayendra Nath Chaterjee – AIR 1982 SC 785, the SC has held that the following principles would govern the exercise of the inherent jurisdiction of HC given by section 482 – 1. The power is not to be resorted to if there is a specific provision in the code for the redress of the grievance of the aggrieved party. 2. To prevent abuse of the process of the court or to secure the ends of justice. 3. It should not be exercised as against the express bar of the law engrafted in any other provision of the code.  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 CrLJ 1967 (Pat). In Municipal Corporation of Delhi v. R.K. Rohtagi [1983 (1) SCR 884 at p. 890]: AIR 1983 SC 67 at p. 70, 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."





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In the case of State of Bihar vs. Muradali Khan and others, AIR 1989 SC 1 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 tofind 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. [See Dhanalakshmi v. R. Prasanna Kumar, State of Bihar v. P.P. Sharma, Rupan Deol Bajaj v. Kanwar Pal Singh Gill, State of Kerala v. O.C. Kuttan, State of U.P. v. O.P. Sharma, Rashmi Kumar v. Mahesh Kumar Bhada, Satvinder Kaur v. State (Govt. of NCT of Delhi), Rajesh Bajaj v. State NCT of

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Delhi and State of Karnataka v. M. Devendrappa.]" (emphasis supplied) 

judgment. 1970 CrLJ 378; 1985 CrLJ 23; AIR 1987 Raj 83 (FB); AIR 1972 SC 1300; AIR 1981 SC 1156; (2009) 2 SCC 703; AIR 2011 SC 1232. Para 31: Inherent powers, however, can be exercised by the High court only when there are change of circumstances in the case and in the changed circumstances the High court can, in the exercise of inherent powers, pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the court. (1990) 2 SCC 437 : AIR 1990 SC 1605. Para 33: Inherent powers cannot be resorted if there is specific provision in the CrPC for the redressal of the grievance of the aggrieved party; or where alternative remedy is available. Para 40: Inherent powers can be exercised only to prevent the abuse of the process of the court and to secure the ends of justice. However, said powers can be exercised provided there is no prohibition under the provisions of CrPC for passing such an order; and there is no provision under which the aggrieved party can seek redressal of its grievance.  Application under 482 can be entertained only when the proceedings are pending in the subordinate court. In case, the proceedings have attained finality, the inherent powers cannot be exercised. The party aggrieved may approach the Appellate/Revisional forum. Inherent jurisdiction can be exercised if injustice is done to a party for example – a clear mandatory provision of law is overlooked or where different accused in the same case are being treated differently by the subordinate court. State of Haryana versus Bhajanlal – Guidelines – AIR 1992 SC 604.

Under 482, the HC is to see that there is no abuse of the process of the court. If there is any inordinate delay or laches in the prosecution without any progress in the same, it would amount to harassment of the petitioner warranting interference under 482. 1991 CrLJ 970 at page 972 (Bom) 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 CrLJ 2080 at page 2081 (All) Nagawwa versus Veeranna – AIR 1976 SC 1947 – principle laid down as circumstances under which process issued by the Magistrate could be set aside or quashed u/s 482 of CrPC. In the recent case of State of Punjab versus Davinder Pal Singh Bhullar – 2012 AIR SCW 207, the Apex Court, inter alia, observed – Para 27 – If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it; or where an order was obtained by abuse of the process of the court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order, for the reason, that in such eventuality the order becomes a nullity and the provisions of section 362 CrPC would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the







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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 pertains to Criminal Procedure Code, 1973.
REMEDIES THAT ARE AVAILABLE TO THE AGGRIEVED PERSON WHO IS VICTIM OF FALSE FIR / COMPLAINT / MALICIOUS PROSECUTION

1. 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. 2. It is a criminal offence u/s 182 and 211 of IPC, 1860 to knowingly register a false complaint against any person. In such cases the innocent person cannot register FIR or make complaint to Magistrates court against those persons who have filed false complaint. In such cases, as far as offence u/s 182 is concerned, a complaint can be made to the Police officer to whom false complaint has been made, or complaint can be made to a higher authority about the filing of said false complaint, and the concerned Police officer or the higher authority is empowered to file the case against the person in the Magistrates Court who has made false complaint to the Police. As far as offence u/s 211 is concerned, a Complaint u/s 200 or Application u/s 156(3) can be made before the Magistrates court. However, aforesaid two section 182 and 211 should be invoked only after where the FIR is quashed by the HC, or if the Court has discharged the Accused or has acquitted the Accused.

Where, in pursuance to said false complaint, criminal proceedings before the court have been initiated, then, an Application u/s 340 read with section 195 of CrPC 1973, may be preferred before the said Magistrate / Sessions court, against those persons, praying therein for Magistrates court to refer the said offence of false accusation to the appropriate / competent Magistrate Court of jurisdiction. (IPC section 182: False information, with intent to cause public servant to use his lawful power to the injury of another person. IPC section 211: False charge of offence made with intent to injure.) 3. 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. 4. Writ of Mandamus may be preferred before respective High court seeking exemplary Damages / Compensation from respective State Government for ―malicious prosecution‖ by the Police. 5. A Suit for exemplary Damages for Defamation or Suit for compensation for malicious prosecution can be filed against the person who has filed the false complaint, including against the Police.

For more details; and contents are updated at http://thepracticeoflawjalan.blogspot.in/2012/ 04/legal-options-for-innocent-personwho.html

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WHERE A FALSE COMPLAINT HAS BEEN FILED IN THE MAGISTRATES COURT AND THE MAGISTRATE HAS ISSUED SUMMONS / OR WHERE A GENUINE COMPLAINT HAS BEEN FILED BUT THE MAGISTRATE HAS DISMISSED THE SAID COMPLAINT, THEN –

initiated, 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. (IPC section 182: False information, with intent to cause public servant to use his lawful power to the injury of another person. The scope of section 182 is wide enough and includes false complaint made to any public servant. IPC section 211: False charge of offence made with intent to injure.) However, aforesaid two section 182 and 211 preferably be invoked only after (a) where the Complaint has been dismissed by the Magistrates Court u/s 203 and no Appeal or Revision is preferred by the Complainant, or (b) where the Complaint is quashed by the HC in the exercise of its power u/s 482;, or (c) where if the trial Court has discharged the Accused or has acquitted the Accused, and no Appeal is preferred against the acquittal. However, Application invoking sections 182 and/or 211 should be invoked keeping in mind the limitation period provided u/ss 467 to 473 of CrPC, 1973. (iii) A Civil Suit for damages for ―defamation‖ or ―malicious prosecution‖ may be filed in the District Court / City Civil Court or in the High Court of original jurisdiction. (iv) In every Criminal Complaint / Criminal Application / Criminal Petition, the noncompliance to provisions of section 297 of CrPC, 1973, in respect of Verification Clause in the respective Criminal Complaint / Criminal Application / Criminal Petition, may render the said Criminal Complaint / Criminal Application / Criminal Petition as ―DEFECTIVE‖ and said Criminal Complaint / Criminal Application / Criminal Petition shall be liable to be dismissed. A Miscellaneous Application may be made before the concerned Court in this regard for the dismissal of the said Criminal Complaint / Criminal Application / Criminal Petition. (v) section 313 of CrPC, 1973, appears to be most salutary provision to protect innocent

(i) The person against whom said Summons have been issued or the person whose genuine complaint is dismissed, may prefer a Revision Application u/s 397 of CrPC, 1973, before Sessions Court, or may prefer a Revision Application u/s 401 of CrPC, 1973, before 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 Revisional Jurisdiction, the aggrieved person must invoke the jurisdiction of the Sessions Court. (ii) It is a criminal offence u/s 182 and 211 of IPC, 1860 to knowingly register a false complaint against any person. In such cases the innocent person cannot register FIR or make complaint to Magistrates court against those persons who have filed false Complaint. In such cases, as far as offence u/s 182 is concerned, a complaint can be made to the Police officer to whom false complaint has been made, or complaint can be made to a higher authority, about the filing of said false complaint, and the concerned Police officer or the higher authority, is empowered to file the case in the Magistrates Court against the person who has made false complaint to the Police. Where, in pursuance to said false complaint, if criminal proceedings before the court have been initiated, then, an Application u/s 340 read with section 195 of CrPC 1973, may be preferred before the said Magistrate / Sessions court, against those persons, praying therein for Magistrates / Sessions court to refer the said offence of false accusation to the appropriate / competent Magistrate Court of jurisdiction. Where, in pursuance to said false complaint, if no criminal proceedings have been

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persons who are falsely charged / accused as having committed an offence. The said section enables the accused person to personally move an Application or make a informal 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 informal 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. From the nature of language employed in the said section 313, it appears that the representation should be personally made by accused person and not through Advocate. 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. Unfortunately, there is no Apex Court ruling on this point. Fortunately, 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. [Judg dated 22nd March, 2012] [Paras 88 to 90] (vi) 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.

For more details; and contents are updated at http://thepracticeoflawjalan.blogspot.in/2012/ 04/where-false-complaint-has-been-filedin.html

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WHEN SOMEONE HAS FILED A CASE IN THE COURT OF LAW, MAKING FALSE CLAIM THEREIN

(i) It is a criminal offence for to make false claim against any person in the court of law and is punishable u/s 209 of Indian Penal Code, 1860. However, FIR or private complaint to Magistrates court is not permissible for registering of above offence. In such cases, criminal proceedings may be initiated against guilty person by making an Application u/s 340 read with section 195 of CrPC 1973, before the concerned trial Court, praying therein for trial court to refer the said offence of ―false claim‖, to the competent Magistrate Court of jurisdiction. (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 permissible for registering of above offences. In such cases, criminal proceedings may be initiated against guilty 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. 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 after the filing of documents in 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) 4 SCC 370] Also, making of false statements / false declarations in one‘s pleadings and filing of false Affidavit or filing of forged documents 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 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. (iii) A Civil Suit for damages for ―malicious prosecution‖ may be filed in the District Court / City Civil Court / High Courts of original jurisdiction. (iv) If a Civil Suit making false claim, is filed, then following provisions of CPC, 1908 may be invoked – (a) Order VI Rule 16 – Striking out Pleadings; (b) Order VII Rule 11 – Rejection of Plaint; (c) In the said Suit of false claim, non compliance to all applicable provisions contained in Order VI and Order VII may be alleged – Order IV Rule 1(3); (d) Order XI: Discovery and inspection; (e) Order 12 Rule 6 – Judgment on admission; (f) Order 13 R.1 – Production of original documents at or before settlement of issues; (g) Order XIV Rule 1,2, 6 – determination of Suit on issue of law or on issue agreed upon; (h) Order XV Rule 1, 2, 3 – disposal of the Suit at the first hearing;

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(i) Order XXV Rule 1 – Security by the Plaintiff; (j) Order 39 – Temporary Injunctions. (k) Where a person against whom a Suit is filed, is making frivolous defences / defences untenable in law, he may be stopped / precluded from taking any such defences, by aid of section 9 of the Specific Relief Act, 1963.

For more details; and contents are updated at http://thepracticeoflawjalan.blogspot.in/2012/ 04/when-someone-has-filed-case-in-courtof.html

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WHEN A PERSON MAKES A FALSE STATEMENT / FALSE DECLARATIONS IN HIS PLEADINGS OR FILES A FALSE AFFIDAVIT BEFORE THE COURT OF LAW OR KNOWINGLY GIVES A FALSE EVIDENCE TO THE COURT

(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 as contained in section 463, 464, 467, 468, 469, 470, 471, 472 etc. of IPC, in the evidence before the Court of law. Where aforesaid offences are committed during any proceedings before Court, than FIR or private complaint to Magistrates court is not permissible for registering of above offences. 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. 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 after the filing of documents in 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) 4 SCC 370]

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. (ii) As stated hereinbefore, making of false statements / false declarations in one‘s pleadings and filing of false Affidavit or filing of forged documents 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 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.

For more details; and contents are updated at http://thepracticeoflawjalan.blogspot.in/2012/ 04/when-person-makes-false-statementfalse.html

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WHEN GRIEVANCE IS AGAINST THE JUDGE OR THE PRESIDING OFFICER OF ANY TRIBUNAL OR AGAINST ANY PERSON ACTING ―JUDICIALLY‖

(i) By virtue of Article 227 and 235 of the Constitution of India, complaint against judges / magistrates of Subordinate / lower courts /tribunals may be made before the office of the Chief Justice of the High Court concerned, seeking inquiry into the allegation made against the Judge / Magistrate. RTI application may be made to know the status of the complaint / inquiry. (ii) Where it is alleged against any of the Judge / Magistrate that the said Judge / Magistrate is knowingly and intentionally not following / observing the law laid down by the Supreme Court / High Court concerned, the said Judge / Magistrate, 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. (iii) Where the offence is alleged to have been committed, but not in the discharge of duties, or the nature of offence 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 or Magistrate would be treated liken any private individual and would be subject to ordinary law of the land, as apply to every person. (iv) Section 3(2) of the Judges Protection Act, 1985, empowers the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil, criminal, or departmental proceedings or otherwise) against any person who is or was a Judge. Therefore, a suitable complaint may be recorded to any or all the above authorities against the concerned Judge or Magistrate.

In June, 2012, the Andhra Pradesh antiCorruption bureau have arrested CBI judge Justice Pattabhi Raman Rao in the cash-forbail case. Rao was accused of accepting a bribe worth five crores to pass bail orders in favour of former Karnataka minister Gali Janardhana Reddy in an illegal mining case. http://www.hindustantimes.com/Indianews/Hyderabad/CBI-judge-Pattabhi-RamaRao-arrested/Article1-874603.aspx

For more details; and contents are updated at http://thepracticeoflawjalan.blogspot.in/2012/ 05/when-grievance-is-against-judge-or.html

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OBJECTIVE
HAND

APPROACH TO THE

CASE

AT

The litigations, sometimes, can be extremely complex, and therefore, an objective approach to any litigation may greatly help in attending any litigation. So as to put it simply – I suggest and say – a. There are always two parties to any litigation, one alleges and the other defend, and thus one seeks some ―reliefs‖ and the other says that the seeker is not entitled to the ―reliefs‖ claimed / prayed for; b. The dynamics of every Court Litigation, substantially, in my view, is – sufficiently satisfying the Court, of the existence of Legal / Contractual ingredients of the rights, pertaining to the Relief claimed; and for the other side to sufficiently satisfy the Court of the Non existence of legal / contractual ingredients of the rights, of the Relief claimed. c. And where an Advocate is representing the ―Relief seeker‖, he first should very clearly spell out the specific ―principal relief‖ and all other independent and alternate relief; d. and then he has to spell out, ―point wise‖, every material fact, legal and factual, which needs to be ―proved‖ to claim the said ―principal relief‖, and other independent and alternate relief. e. And where an Advocate is representing the ―defence‖, he has to look at the ―principal relief‖ sought and then he has to spell out, ―point wise‖, every material fact, legal and factual, which needs to be ―proved‖ by the ―Relief seeker‖ to claim the said ―principal relief; and then ―proving‖ that ―Relief seeker‖ has failed to prove ―material facts‖ which entitles him to the relief claimed;

f. And with respect to criminal trials, where an Advocate is representing the ―defence‖, he has to look at the ―Sections of the offence‖ with which his client is charged with, and then, first, he has to spell out ―each and every‖ ―ingredient of the offence‖ which constitutes the ―commission of the offence‖, and then he has to read very carefully and attentively the chargesheet or the complaint of the complainant, and see whether the ―acts or omissions‖ alleged in the Chargesheet or complaint, attributed towards the accused person, satisfies each and every ―ingredients‖ of the offence charged with. Like for an example – We take the illustration of a case of dishonoured cheque and on behalf of our Client we seek to adopt section 138 of the Negotiable Instruments Act, 1881, proceedings against the person who has issued the cheque in question. The offence alleged to have been committed is ―cheque given is returned unpaid by the bank‖. The said ―act‖ constituting the offence, is defined u/s 138 of the Negotiable Instruments Act, 1881, which reads as – Section 138. Dishonour of cheque for insufficiency, “etc”., of funds in the account: Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid. either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice. to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both:

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Provided that nothing contained in this section shall apply unless(a) the cheque has been, presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course. of the cheque as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within thirty days of the receipt of the said notice. Explanation.-For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability. Coming to ingredients of the section, which needs to be satisfied to bring home the guilt of the accused person – a. Where any cheque drawn by a ―person‖ – (person is defined under General Clauses Act, 1897) b. on an ―account maintained by him‖ with a banker c. for payment of ―any‖ amount of money d. to another person from out of that account e. for the ―discharge‖, in whole or in part, f. of ―any debt‖ or ―other liability‖, [legally enforceable debt or other liability g. is returned by the bank unpaid, h. either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank,

i. such person shall be ―deemed‖ to have committed an offence j. and shall, ―without prejudice‖ to any other provision of this Act, k. be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both: The section lays down further conditions to comply with – Provided that nothing contained in this section shall apply unlessl. the cheque has been, presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier; m. the payee or the holder in due course of the cheque as the case may be, ―makes a demand‖ for the n. ―payment of the said amount of money‖ o. by giving ―a notice, in writing‖, p. ―to the drawer of the cheque‖, q. ―within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid‖; and r. the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within thirty days of the receipt of the said notice.  However, it is not suffice to satisfy the ingredients of the section, but the offence also has to be proved in accordance with the procedure prescribed by law, and all the mischief is played in the procedural aspect. All the mercies of law enacted to protect the innocent are cornered by the offenders of law to prolong and frustrate the trial. It is also to be satisfied that the Court in which the case is instituted has

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sufficient territorial, pecuniary and subject matter jurisdiction to deal with the nature of issue placed before it for adjudication.  Also, it is of utmost importance that one must understands the scheme of the Act which he is dealing with and should find out important provision of the Act which may have great bearing during the trial. A lawyer must have a reasonable grip over procedural aspect of trial, and practice makes man near perfect.

a man has a certain reputation, is a fact. 4. Then, drawing of – facts which can be logically inferred from the aforesaid main facts stated hereinbefore. 5. Identifying the Court which will have the jurisdiction to obtain the nature of relief which can lawfully be claimed. 6. The provisions of law and the Statutes that may be applicable in the aforesaid facts of the case, including applicable laws on jurisdiction of the court, limitation, notice prior to filing of Case, and any other preliminary issue that may arise before the court. 7. Identifying the main / principal point of controversy between the client and opposite party, i.e. the opposite party is contending this and the Petitioner is contending this. 8. Drawing the principal proposition of law that may emerge and needs to be applied in the facts of the case. 9. Drawing our main points to be emphasized upon, to show that we are, either in law or in equity, entitled for the relief claimed. 10. Finding out case laws / judgments (a) which supports our argument on jurisdiction and on limitation; (b) which supports our proposition of law; and (c) which supports our main points which is to be emphasized upon. 11. All necessary parties are joined in the Plaint / Petition / Complaint.



Steps before drafting of Suits / petitions / complaints – 1. Understanding the subject matter of the case, i.e. the precise nature of the grievance of the client. 2. The Reliefs which the client is looking from the court of law; and the Reliefs which can lawfully be obtained from the court of law. 3. A very close study of facts, ordinarily constituting the acts and omissions of the parties, state of things; than chronology of events which led to arise of cause of litigation. As provided under the Indian Evidence Act, 1872, Fact means and includes any thing, state of things, or relation of things, capable of being perceived by the senses; or any mental condition of which any person is conscious. Like for example - (a) That there are certain objects arranged in a certain order in a certain place, is a fact. (b) That a man heard or saw something, is a fact. (c) That a man said certain words, is a fact. (d) That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact. (e) That

For more details; and contents are updated at http://thepracticeoflawjalan.blogspot.in/2012/ 04/objective-approach-to-any-litigation.html

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FRAMING / DRAFTING OF SUITS / PLAINT A broad approach to drafting of any case, in my limited understanding of things, may be undertaken in three chronological ―Heads‖, and any drafting must ―start‖ in this order only, that is to say – 1. Reliefs prayed for / claimed; 2. Grounds for Reliefs prayed / claimed for; (both factual and legal); 3. Narration of Facts substantiating the said grounds. 4. Further, there may be narration of such facts in the beginning of the draft, which would lay foundation for ―material facts of the case‖. Grounds for Reliefs prayed for / claimed implies (a) the essence / conclusion of material facts; and (b) other legal provisions which supports the reliefs prayed / claimed. ===============================  It is of central importance that any Relief prayed for / claimed, must be duly articulated, keeping in mind (a) the jurisdiction of the concerned court, where the case is sought to be filed; (b) the rights / interest claimed of, by the Plaintiff / Petitioner / Complainant; (c) the obligations and liabilities of the opposite party alleged of; Further, every principal prayer claimed, must be supported by sufficient grounds, to make a strong case for the entitlement of the said prayer; Also, courts exercises limited jurisdiction, in respect of certain Applications, wherein the provision of law itself prescribes the conditions, on the satisfaction of which, the court may exercise its jurisdiction. Like for example, in Civil Revision Application, conditions prescribed for exercising jurisdiction are narrated in Section 115 itself and expounded in numerous HC and SC judgments. Like

wise, there could be Review Applications, Application for condonation of delay, Bail Applications, Criminal Revision Application, Application u/s 482 of CrPC, 1973 and so on.  Also, while claiming any relief under Specific Relief Act, 1963, the said Act also indicates the conditions to be satisfied with, while claiming relief. In fact, in the exercise of every jurisdiction, the conditions to be satisfied with, for the exercise of that jurisdiction by the Court, are provided in the concerned Section / Article itself, which confers jurisdiction upon the Court to entertain the concerned Application / Suit / Petition.

Short title of the Suit http://thepracticeoflawjalan.blogspot.in/2012/ 11/short-title.html

Index http://thepracticeoflawjalan.blogspot.in/2012/ 11/index.html

Proforma (Roznama) http://thepracticeoflawjalan.blogspot.in/2012/ 11/proforma-rozanama.html Synopsis of the case – The chronology of happening of events (acts and omissions of the parties) which led to the filing of this case. Main points to be urged Acts (Statutes) and authorities (judgments) relied upon http://thepracticeoflawjalan.blogspot.in/2012/ 11/synopsis-acts-auth-relied-upon-and.html Heading – Name AND Place of the court, Jurisdiction of the court,





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Suit No. Full Cause title – Full Name (Natural person or juristic entity), Age, Adult, Religion followed, Indian Inhabitant, place of residence / place of business of the Plaintiffs and Defendants. (Order 27 to 33 may be checked for their applicability) http://thepracticeoflawjalan.blogspot.in/2012/ 11/full-title-in-suit-petition-complaint.html

That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact. (e) That a man has a certain reputation, is a fact. Ordinarily, it is seen that parties to the litigation “argues and disputes” what “logically” flows from the “Facts of the Case”; and they sometimes really do not “dispute” the “Facts of the Case”. If the “Facts of the Case” are not in dispute, than, instead of going into elaborate trial of the Suit, the Court may proceed to adjudicate the Suit, based on undisputed “Facts of the Case” and interpretation and conclusions, whether logical or absurd, which are drawn and alleged by the Parties. (Order XV or Order XII Rule 6, read with the aid of Order X Rule 3 & 4) a. Each allegation should be contained in separate para; dates and numbers, amounts, should be expressed in figures as well as in words; b. To check if the Suit has causes of action more than one and if the Suit is to be founded on joinder of causes of action, as provided under O.2 R.3. c. Where party pleading alleges any misrepresentation, fraud, breach of trust, wilful default or undue influence and in other alike cases, particulars of such allegation should be pleaded. d. If there is any condition to be complied with before filing of the Plaint, it must be stated that the said condition is complied with, or if it is not complied, stating the reasons for not complying with the same. Like for example, before filing of a Suit against any Public authority, notice u/s 80 of CPC must be given. e. Where any document is relied in the Plaint, the main part of the document may only be stated.

1. Brief introduction of the parties, i.e. of Plaintiffs and defendants. It must be secured that all necessary and formal parties are joined. (Order 1 - Necessary and proper Parties to the Suit) 2. The gist of the grievance of the Plaintiff. 3. ―MATERIAL
AND OTHER RELEVANT

FACTS OF THE CASE:

Narration of material “Facts of the Case” is perhaps one of the most important skill of the draftsman, which really decides the “fate” and “length” of any litigation. Therefore, it is of core importance to understand what really constitute “Facts of the Case”. The acts and omissions of the parties prior to the filing of the Suit; and nature of legal obligations voluntarily / or under the law, incurred by the parties against each other, ordinarily may constitute “Facts of the Case”; and “Facts of the Case” should not be misunderstood as interpretation and conclusions which are ordinarily drawn and alleged by the Parties from the said “Facts of the Case”; NOR the Evidence which are advanced in support of the “Facts of the Case” constitute any “Facts of the Case”. As defined under the Indian Evidence Act, 1872, Fact means and includes any thing, state of things, or relation of things, capable of being perceived by the senses; or any mental condition of which any person is conscious. Like for example - (a) That there are certain objects arranged in a certain order in a certain place, is a fact. (b) That a man heard or saw something, is a fact. (c) That a man said certain words, is a fact. (d)

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f. Where there is allegation of malice, fraudulent intention, knowledge or other condition of the mind of any person, necessary details must be incorporated. g. Where there is allegation of ―knowledge‖ of any fact, necessary details may be incorporated. h. If the subject matter of the Suit is for the recovery of money, the Plaint shall state the precise amount claimed; i. http://thepracticeoflawjalan.blogspot.i n/2012/11/particulars-of-claim.html j. If the subject matter of the Suit is Immovable property, then a complete description of the property sufficient to identify that property must be stated; k. Defendant‘s interest and liability must be shown and also it must be shown that he is liable to be called upon to answer Plaintiff‘s demand; l. Where the Plaintiffs / Defendants are minor or of unsound mind, a statement to that effect shall be made. m. Where the Plaintiff has allowed a Set off or has relinquished a part of his claim, a statement and particulars to that effect be stated; or where the Plaintiff does not include whole of the reliefs in the present Suit, which he is entitled to claim in the present cause of action, must state so and seeks the leave of the Court to file separate Suit for the reliefs which are not claimed in the present Suit on the said cause of action. (See O.2, R.2); 4. DRAWING
MAIN POINTS TO BE

and Resolution, wherever necessary, is passed accordingly. 6. Valuation of the Suit and applicable court fees: A Para valuing the subject matter of the Suit and stating that the Plaintiff accordingly pays the applicable Court fees in accordance with the provisions of Court fees Act / Bombay Court fees Act. 7. A Para narrating facts that this court has territorial / pecuniary and subject matter jurisdiction to adjudicate upon the present dispute and pass decree. The “Material acts and omissions” of the Parties, ordinarily, constitutes the “Cause of action‖. 8. Limitation: The date on which the cause of action have arisen and stating that therefore the Suit is filed within the limitation period. If the Suit is filed beyond limitation, then, a statement showing the grounds on which the exemption from the law of limitation is claimed. 9. No other Suit: A Para stating that Plaintiff has not filed any other Suit in respect of the reliefs claimed in this Suit, in any other Court of law. 10. The Plaintiff would rely upon the documents, the list whereof is annexed herewith. 11. Reliefs and Interim Reliefs, if any, claimed: In my view, drafting of Plaint / Suit must start from the Prayer Clause, that is to say, one must be very clear in his mind as what are the Reliefs he is seeking from the Court and so he must first articulate the Reliefs to be claimed; and then proceeds to draft the rest of the Plaint / Suit. The Reliefs Claimed, of course, would depend upon the nature of Suit filed and it must be secured that Reliefs Claimed in the Suit, should fall within the Jurisdiction” of that Court before which the Suit is filed. For claiming Interim Reliefs as mentioned in the Plaint, the Plaintiff has to adopt separate proceeding under Order 39 of CPC, 1908. 12. The Plaintiffs and the Advocate of the Plaintiff (If there is any) shall Sign at the end

EMPHASIZED UPON,

to show that Plaintiff is entitled for the relief claimed.

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of the Plaint, i.e. after Prayer Clause. The Plaintiffs shall sign on the right side of the page and the Advocate shall sign on the left side of the page. (Before Verification clause) Standard Paragraphs in every Plaint http://thepracticeoflawjalan.blogspot.in/2012/ 11/standard-paras-in-every-plaintpetition.html

O.7 R. 14(2) & 18.

Check list before finalizing draft and before lodging – http://thepracticeoflawjalan.blogspot.in/2012/ 11/general-check-lists-before-finalizing.html

STEPS AFTER INSTITUTION OF SUITS Verification clause http://thepracticeoflawjalan.blogspot.in/2012/ 11/verification-clause.html a. Obtaining copies of Summons from the Court; section 27 and Order 7 Rule 9; b. Service of Summons: sections 28, 29 and Order 5; c. Filing of Written Statement (WS) by the Defendant: O.8; Memorandum of Regd address of the Plaintiff / Advocate on record http://thepracticeoflawjalan.blogspot.in/2012/ 11/memo-of-regd-address-of-plaintiff.html d. Adjudication of preliminary issue by the trial Court (Section 9A for Maharashtra / Order 14), if any, raised by the Defendant, challenging the maintainability of the Suit and seeking rejection of the Plaint under O.7 R.11 or challenging the Suit on any other ground. The grounds of challenge can be of (a) limitation, (b) suit barred by any law, (c) non compliance to O.4 R.1(3), i.e. defects in Pleadings, (d) no cause of action; (e) other grounds as mentioned in O.7 R.11; Moreover, at any stage of the Suit, an Application under O.14 R.2 may be taken out by the Plaintiffs or defendants to adjudicate any issue of law or of fact, which may have the effect of dismissal / disposal of the Suit; Where a person against whom a Suit is filed, is making frivolous defences / defences untenable in law, he may be stopped / precluded from taking any such defences, by aid of section 9 of the Specific Relief Act, 1963. e. Wherein it is alleged by the Plaintiff that Defendant has in any way made false statements / false declarations in his pleadings (WS) or has filed false Affidavit or has filed a forged

Vakalatnama http://thepracticeoflawjalan.blogspot.in/2012/ 11/vakalatnama.html

List of Documents relied upon http://thepracticeoflawjalan.blogspot.in/2012/ 11/list-of-doc-relied-upon-in-suit.html

Exhibits

Affidavit in support of Plaint http://thepracticeoflawjalan.blogspot.in/2012/ 11/affidavit-in-support-of-petition-plaint.html

Docket Please also see the applicable provisions of High Court Rules, State Amendments in respect of Institution of Suits. Please see rules contained in respective Civil Manual. Please also see this before finalizing the Plaint ORDER 4 RULE 1 (2) (3)

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document; or wherein it is alleged by the Defendant that Plaintiff has made a false claim in the Suit and/or that Plaintiff has made false statements / false declarations in his pleadings (Plaint) or has filed false Affidavit or has filed a forged document; Please refer following links: http://thepracticeoflawjalan.blogspot.i n/2012/04/when-person-makes-falsestatement-false.html http://thepracticeoflawjalan.blogspot.i n/2012/04/when-someone-has-filedcase-in-court-of.html

l. Applying for Judgment of the Court if the Defendant, expressly or by necessary implication, admits the case of the Plaintiff in his WS: Order 12 Rule 6; m. Inspection of Documents: Order 11 Rule 15 n. Applying for Judgment of the Court if the Defendant, expressly or by necessary implication, admits the case of the Plaintiff after inspection of the document: Order 12 Rule 6 o. Interrogatories: Order 11

f. Taking out Notice of Motion for Interim Reliefs, if any: Order 38, 39, 40; g. Service of copy of Notice of Motion; h. Filing of Affidavit of Service of Notice of Motion; i. Hearing of the said Motion; j. Applying for Ex-parte decree if no Written Statement is filed by the Defendant: Order 9; k. First Hearing before the Court: Order 9 & 10 At the first hearing of the Suit, if it appears to the Court that there exist elements of 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 Lok Adalat; or (d) mediation.

p. Applying for Judgment of the Court if the Defendant, expressly or by necessary implication, admits the case of the Plaintiff after interrogatories were duly answered by the defendant: Order 12 Rule 6 q. Notice to Defendants to admit facts and documents: Order 12 r. Applying for Judgment of the Court if the Defendant, expressly or by necessary implication, admits the case of the Plaintiff : Order 12 Rule 6 s. Framing of issues: Order 14 t. The Plaintiff, under Order 15, may apply for adjudication and Judgment, on the ground that parties are "Not at issue". u. The framing of issues is one of most important step in the trial of the Suit, and precise framing of issues by the Court, with the due assistance of the Advocates representing the parties, will go a long way in proper adjudication of the Suit The Plaintiff may claim that parties are "Not at issue" when there are "no evidence" adduced by the Defendant to substantiate the defense so raised. Similarly, the Defendant may claim for Suit of the Plaintiff be dismissed, on the grounds that parties are "not at

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issue", when there are "no evidence" adduced by the Plaintiff to prove that he is entitled for the reliefs he has claimed in the Suit. The issues are framed in the manner where it stipulates "whether the Plaintiff or the Defendant, as the case may be, prove the fact asserted by him, "having regard to the evidence adduced" by him. So, if "Evidence" is not forthcoming from the concerned party, No issue could be framed altogether. Order 13 R.1 stipulates that parties must produce original documents at or before settlement of issues. v. Order 18 R.4: Filing of (a) Original documents / secondary evidence relied upon by the Plaintiffs, and (b) Affidavit of Examination – in – Chief of the Plaintiffs and his Witnesses, if there are any; Say of the Defendant on the said documents; Deciding the relevancy and admissibility of documents and Exhibiting of documents by the trial Court (O.13 R.4), in the exercise of powers conferred u/s 136 of Indian Evidence Act, 1872; Cross Examination of the Plaintiffs and his Witnesses by the Defendant. w. Closing of Evidence by the Plaintiff. x. Order 18 R.4: Filing of (a) Original documents relied upon by the Defendants, and (b) Affidavit of Examination – in – Chief of the Defendant and his Witnesses, if there are any; Say of the Plaintiffs on the said documents; Deciding the relevancy and admissibility of documents and Exhibiting of documents by the trial Court (O.13 R.4), in the exercise of powers conferred u/s 136 of Indian Evidence Act, 1872; Cross Examination of the Defendants and his Witnesses by the Plaintiffs. y. Applying for Judgment of the Court if the Defendant, expressly or by

necessary implication, admits the case of the Plaintiff: Order 12 Rule 6 z. Closing of Evidence by Defendant. aa. oral arguments and Written Submissions: O.18 R.2(3A,B,C,D) bb. Judgment: O.20. cc. Where the ―dispute/ case‖ is pending before the Court, both the parties, or any one of the Party may make an Application to the concerned Court [by virtue of section 20(1)(i) (a) and (b) read with section 19(5)(i) of the Legal Services Authorities Act, 1987], requesting the Court to refer their matter to Lok Adalat, for due resolution of dispute; or the Court may on its own refer the matter to Lok Adalat [by virtue of section 20(1)(ii) of the Legal Services Authorities Act, 1987], subject to proviso in the section 20 of the said Act. dd. There can be compromise between the parties or withdrawal of the Suit, at any stage of the Suit. (Order 23) ee. In the instances of death, marriage or insolvency of the parties, their Heirs / Legal representatives may be brought on record. (Order 22)

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DRAFTING / INSTITUTION OF PETITIONS / COMPLAINTS (OTHER THAN SUITS & CRIMINAL COMPLAINTS) A broad approach to drafting of any case, in my limited understanding of things, may be undertaken in three chronological ―Heads‖, and any drafting must ―start‖ in this order only, that is to say – 1. Reliefs prayed for / claimed; 2. Grounds for Reliefs prayed for / claimed; (both factual and legal); 3. Narration of facts substantiating the said grounds. 4. Further, there may be narration of such facts in the beginning of the draft, which would lay foundation for ―material facts of the case‖. Grounds for Reliefs prayed for / claimed implies (a) the essence / conclusion of material facts; and (b) other legal provisions which supports the reliefs prayed for / claimed. ===============================  It is of central importance that any Relief prayed for / claimed, must be duly articulated, keeping in mind (a) the jurisdiction of the concerned court, where the case is sought to be filed; (b) the rights / interest claimed of by the Plaintiff / Petitioner / Complainant; (c) the obligations and liabilities of the opposite party alleged of; Further, every principal prayer claimed, must be supported by sufficient grounds, to make a strong case for the entitlement of the said prayer; Also, courts exercises limited jurisdiction, in respect of certain Applications, wherein the provision of law itself prescribes the conditions, on the satisfaction of which, the court may exercise its jurisdiction. Like for example, in Civil Revision Application, conditions prescribed for

exercising jurisdiction are narrated in Section 115 itself and expounded in numerous HC and SC judgments. Like wise, there could be Review Applications, Application for condonation of delay, Bail Applications, Criminal Revision Application, Application u/s 482 of CrPC, 1973 and so on.  Also, while claiming any relief under Specific Relief Act, 1963, the said Act also indicates the conditions to be satisfied with, while claiming relief. In fact, in the exercise of every jurisdiction, the conditions to be satisfied with, for the exercise of that jurisdiction by the Court, are provided in the concerned Section / Article itself, which confers jurisdiction upon the Court to entertain the concerned Application / Suit / Petition.

Short title of the Petition / Complaint http://thepracticeoflawjalan.blogspot.in/2012/ 11/short-title.html

Index http://thepracticeoflawjalan.blogspot.in/2012/ 11/index.html

Proforma (Roznama) http://thepracticeoflawjalan.blogspot.in/2012/ 11/proforma-rozanama.html Synopsis of the case – The chronology of happening of events (acts and omissions of the parties) which led to the filing of this case. Main points to be urged:





Heading –

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Acts (Statutes) and authorities (judgments) relied upon http://thepracticeoflawjalan.blogspot.in/2012/ 11/synopsis-acts-auth-relied-upon-and.html

Name and Place of the court, Jurisdiction of the court, Complaint / Petition No. Full Cause title – Full Name (Natural person or juristic entity), Age, Adult, Religion followed, Indian Inhabitant, place of residence / place of business of the Complainant / Petitioners and opposite parties / Respondents. http://thepracticeoflawjalan.blogspot.in/2012/ 11/full-title-in-suit-petition-complaint.html 1. Brief introduction of the parties, i.e. of Petitioners / Complainant / Respondents / opposite parties. It must be secured that all necessary and formal parties are joined in the Petition / Complaint. 2. The gist of the grievance of the Petitioner /Complainant. 3. MATERIAL
AND OTHER RELEVANT FACTS OF THE CASE:

“Facts of the Case”; and they sometimes really do not “dispute” the material “Facts of the Case”. Ordinarily, proceedings before Statutory Tribunals are “Summary” in nature. If the “Facts of the Case” are not in dispute, than, the Court / Tribunal may proceed to adjudicate the Complaint / Petition, based on undisputed “Facts of the Case” and interpretation and conclusions, whether logical or absurd, which are drawn and alleged by the Parties. Although, provisions of CPC, 1908, are not strictly applicable to the proceedings before Statutory Tribunals, the principles employed in the provisions of CPC, 1908, may always be invoked in appropriate situations. 4. Each allegation should be contained in separate para; dates and numbers, amounts, should be expressed in figures as well as in words; 5. Where party pleading alleges any misrepresentation, fraud, breach of trust, wilful default or undue influence and in other alike cases, particulars of such allegation should be pleaded. 6. If there is any condition to be complied with before filing of the Petition / Complaint, it must be stated that the said condition is complied with, or if it is not complied, stating the reasons for not complying with the same. 7. Where any document is relied in the Petition / Complaint, the main part of the document may only be stated. 8. Where there is allegation of malice, fraudulent intention, knowledge or other condition of the mind of any person, necessary details may be incorporated.

Narration of material “Facts of the Case” is perhaps one of the most important skill of the draftsman, which really decides the “fate” and “length” of any litigation. Therefore, it is of core importance to understand what really constitute “Facts of the Case”. The acts and omissions of the parties prior to the filing of the Complaint / Petition; and nature of legal obligations voluntarily / or under the law, incurred by the parties against each other, ordinarily may constitute “Facts of the Case”; and “Facts of the Case” should not be misunderstood as interpretation and conclusions which are ordinarily drawn and alleged by the Parties from the said “Facts of the Case”; NOR the Evidence which are advanced in support of the “Facts of the Case” constitute any “Facts of the Case”. Ordinarily, it is seen that parties to the litigation “argues and disputes” what “logically” follows from the

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9. Where there is allegation of ―knowledge‖ of any fact, necessary details may be incorporated. 10. If the subject matter of the Petition / Complaint is for the recovery of money / claim of compensation, the Petition / Complaint shall state the precise amount claimed; http://thepracticeoflawjalan.blogspot.i n/2012/11/particulars-of-claim.html 11. If the subject matter of the Petition / Complaint is Immovable property, then a complete description of the property sufficient to identify that property may be stated; 12. THE
MAIN POINT CONTROVERSY between you OF

Resolution, wherever necessary, is passed accordingly. 18. Valuation of the Petition / Complaint and applicable court fees: A Para thereby valuing the subject matter of the Petition / Complaint and stating that the Petitioner / Complainant accordingly pays the applicable Court fees in accordance with the provisions of Court fees Act / Maharashtra Court fees Act. 19. A Para narrating facts that this court has territorial / pecuniary and subject matter jurisdiction to adjudicate upon the present dispute and pass authoritative Orders and grant Reliefs paryed for / claimed. The acts and omissions of the parties prior to the filing of the Complaint / Petition; and nature of legal obligations voluntarily / or under the law, incurred by the parties against each other, ordinarily may constitute “Facts of the Case. 20. Limitation: The date on which the cause of action have arisen and stating that therefore the Petition / Complaint is filed within the limitation period. If the Petition / Complaint is filed beyond limitation, then, a statement showing the grounds on which the exemption from the law of limitation is claimed. 21. A Para stating that the Petitioners / Complainant, with the leave of the Hon'ble Court, shall be entitled to add / amend / delete any clause in the present Petition / Complaint. 22. No other Complaint: A Para stating that the Petitioner / Complainant has not filed any other Petition / Complaint in respect of the reliefs prayed for / claimed in this Petition / Complaint, in any other Court of law.

and opposite party, i.e. the opposite party is contending this and the Petitioner is contending this. 13. BRIEFLY
STATING THE APPLICABLE PROVISIONS OF LAW AND RELEVANT TEXT OF THE AUTHORITATIVE JUDGMENTS RELIED UPON.

14. SUBMISSIONS OF THE PETITIONER / COMPLAINANT in the light of (a) facts of the case and the position of law; (b) interpreting principles of statutes; (c) identifying the specific illegalities of opposite parties, (d) submissions on ―non recording of reasons by the opposite party‖, if it a cause of action. 15. DRAWING
THE APPARENT ILLEGALITIES OF THE RESPONDENT / OPPOSITE PARTY, in the light of the

position of law. 16. DRAWING
MAIN POINTS TO EMPHASIZED UPON, to show BE

that Petitioner / Complainant, is either in law or in equity, entitled for the relief claimed. 17. Where the Petition / Complaint is filed by Authorized Representative / power of attorney holder – a para to that effect that POA is duly executed and

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78

23. Grounds for each relief claimed.

In my view, drafting of Complaint / Petition must start from the Prayer Clause, that is to say, one must be very clear in his mind as what are the Reliefs he is seeking from the Court / Tribunal and so he must first articulate the Reliefs to be claimed; and than proceed to draft the rest of the Complaint / Petition. The Reliefs Claimed, of course, would depend upon the nature of Complaint / Petition filed and it must be secured that Reliefs Claimed in the Complaint / Petition, should fall within the Jurisdiction” of that Court / Tribunal before which the Complaint / Petition is filed. For claiming Interim Reliefs as mentioned in the Complaint / Petition, the Complainant / Petitioner may have to adopt separate proceeding, as may be provided under the Rules framed under the respective Statute.

Memorandum of Regd address of the Petitioner / Complainant / Advocate on record http://thepracticeoflawjalan.blogspot.in/2012/ 11/memo-of-regd-address-of-plaintiff.html

List of Documents relied upon http://thepracticeoflawjalan.blogspot.in/2012/ 11/list-of-doc-relied-upon-in-suit.html Exhibits Affidavit in support of Complaint / Petition http://thepracticeoflawjalan.blogspot.in/2012/ 11/affidavit-in-support-of-petition-plaint.html Docket

Please Note: In a ―Complaint‖ before any Tribunal / or any Proceedings to be adopted under any Statute, it must be secured that the ―Complaint‖ / Proceedings is made in accordance and compliance to the applicable Statutory provisions and Rules and procedure, if any, prescribed by / under the said Statute.

The Complainant / Petitioner and the Advocate of the Complainant / Petitioner (If there is any) shall Sign at the end of the Complaint / Petition, i.e. after Prayer Clause. The Complainant / Petitioner shall sign on the right side of the page and the Advocate shall sign on the left side of the page. (Before Verification clause)

Check list before finalizing draft and before lodging – http://thepracticeoflawjalan.blogspot.in/2012/ 11/general-check-lists-before-finalizing.html

Standard Paragraphs in every Petition / Complaint http://thepracticeoflawjalan.blogspot.in/2012/ 11/standard-paras-in-every-plaintpetition.html

STEPS

AFTER COMPLAINTS

INSTITUTION

OF PETITIONS

/

Verification clause http://thepracticeoflawjalan.blogspot.in/2012/ 11/verification-clause.html

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Vakalatnama http://thepracticeoflawjalan.blogspot.in/2012/ 11/vakalatnama.html

Ordinarily, every Statute prescribe procedure to be followed in prosecuting the case before it. However, ordinarily, the Procedure may be – 1. Admission stage of the Petition / Complaint, and Application, if any, for Interim Reliefs; 2. Service of Copy of the Petition / Complaint upon Respondent; 3. Filing Affidavit of Service; 4. The Hearing of the Application, and grant or denial of the Interim Prayers;

5. Reply of the Respondent to the Complaint 6. Wherein it is alleged by the Petitioner / Complainant that Respondent has in any way made false statements / false declarations in his reply or has filed false Affidavit or has filed a forged document; or wherein it is alleged by the Respondent that Petitioner has made a false claim in the Petition / Complaint and/or that Petitioner / Complainant has made false statements / false declarations in his Petition / Complaint or has filed false Affidavit or has filed a forged document; Please refer following links: http://thepracticeoflawjalan.blogspot.i n/2012/04/when-person-makes-falsestatement-false.html http://thepracticeoflawjalan.blogspot.i n/2012/04/when-someone-has-filedcase-in-court-of.html 7. Rejoinder of the Petitioner / Complainant; 8. Oral Arguments and Submission of Written submission / Written Arguments 9. Judgment.

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DRAFTING / INSTITUTION
COMPLAINT

OF

CRIMINAL

A broad approach to drafting of any case, in my limited understanding of things, may be undertaken in three chronological ―Heads‖, and any drafting must ―start‖ in this order only, that is to say – 1. Reliefs prayed for / claimed; 2. Grounds for Reliefs prayed for / claimed; (both factual and legal); 3. Narration of facts substantiating the said grounds. 4. Further, there may be narration of such facts in the beginning of the draft, which would lay foundation for ―material facts of the case‖. Grounds for Reliefs prayed for / claimed implies (a) the essence / conclusion of material facts; and (b) other legal provisions which supports the reliefs prayed for / claimed. ===============================  It is of central importance that any Relief prayed for / claimed, must be duly articulated, keeping in mind (a) the jurisdiction of the concerned court, where the case is sought to be filed; (b) the rights / interest claimed of by the Plaintiff / Petitioner / Complainant; (c) the obligations and liabilities of the opposite party alleged of; Further, every principal prayer claimed, must be supported by sufficient grounds, to make a strong case for the entitlement of the said prayer; Also, courts exercises limited jurisdiction, in respect of certain Applications, wherein the provision of law itself prescribes the conditions, on the satisfaction of which, the court may exercise its jurisdiction. Like for example, in Civil Revision Application, conditions prescribed for exercising jurisdiction are narrated in

Section 115 itself and expounded in numerous HC and SC judgments. Like wise, there could be Review Applications, Application for condonation of delay, Bail Applications, Criminal Revision Application, Application u/s 482 of CrPC, 1973 and so on.

Short title http://thepracticeoflawjalan.blogspot.in/2012/ 11/short-title.html

Index http://thepracticeoflawjalan.blogspot.in/2012/ 11/index.html

Proforma (Roznama) http://thepracticeoflawjalan.blogspot.in/2012/ 11/proforma-rozanama.html Synopsis of the case – The chronology of happening of events (acts and omissions of the parties) which led to the filing of this Complaint. Main points to be urged: Acts (Statutes) and authorities (judgments) relied upon http://thepracticeoflawjalan.blogspot.in/2012/ 11/synopsis-acts-auth-relied-upon-and.html Heading – Name and place of the court, Case no. Full Cause title – Full Name (Natural person or juristic entity), Age, Adult, Religion followed, Indian Inhabitant, place of residence / place of business of the Complainant and accused persons http://thepracticeoflawjalan.blogspot.in/2012/ 11/full-title-in-suit-petition-complaint.html





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a. Brief introduction of the parties, i.e. of Complainant and accused persons. b. The gist of the grievance of the Complainant. c. MATERIAL
AND OTHER RELEVANT FACTS OF THE CASE:

other condition of the mind of any person, necessary details may be incorporated. f. Where there is allegation of ―knowledge‖ of any fact, necessary details may be incorporated. g. If the subject matter of the Complaint is Immovable property, then a complete description of the property sufficient to identify that property may be stated; h. DRAWING
THE ACTS AND OMISSIONS OF THE ACCUSED, in the light of the

Narration of material “Facts of the Case” is perhaps one of the most important skill of the draftsman, which really decides the “fate” and “length” of any litigation. Therefore, it is of core importance to understand what really constitute “Facts of the Case”. The acts and omissions of the parties prior to the filing of the Complaint constitute “Facts of the Case”; and “Facts of the Case” should not be misunderstood as interpretation and conclusions which are ordinarily drawn and alleged by the Parties from the said “Facts of the Case”; NOR the Evidence which are advanced in support of the “Facts of the Case” constitute any “Facts of the Case”. a. Each allegation should be contained in separate para; dates and numbers, amounts, should be expressed in figures as well as in words; b. Where party pleading alleges any misrepresentation, fraud, breach of trust, wilful default or undue influence and in other alike cases, particulars of such allegation should be pleaded. c. If there is any condition to be complied with before filing of the Complaint, it must be stated that the said condition is complied with, or if it is not complied, stating the reasons for not complying with the same. d. Where any document is relied in the Complaint, the main part of the document may only be stated. e. Where there is allegation of malice, fraudulent intention, knowledge or

position of law. (Note: 1) i. DRAWING
MAIN POINTS EMPHASIZED UPON: TO BE

j. Limitation: If the nature of Offence comes within the purview of law of limitations, as provided u/s 468 to 473 of CrPC, 1973, state the date on which the offence is committed / or the date on which the knowledge has acquired of the commission of the offence / or the date on which the identity of the Accused person is ascertained as to the commission of the offence; and stating that therefore the Complaint is filed within the limitation period. If Complaint is filed beyond limitation, then, a statement showing the grounds on which the exemption from the law of limitation is claimed. k. Where the Complaint is filed by Authorized Representative / power of attorney holder – a para to that effect that POA is duly executed and Resolution, wherever necessary, is passed accordingly. l. A Para narrating facts that this court has jurisdiction to entertain the present Complaint. m. http://thepracticeoflawjalan.blogspot.i n/2012/04/crpc-territorial-jurisdictionof-court.html

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n. No other Complaint: A Para stating that the Complainant has not filed any other Criminal Complaint, touching the subject matter of the present Complaint, in any other Court of law. o. Reliefs Prayed: The Complainant and the Advocate of the Complainant (If there is any) shall Sign at the end of the Complaint, i.e. after Prayer Clause. The Complainant shall sign on the right side of the page and the Advocate shall sign on the left side of the page. (Before Verification clause) Verification clause http://thepracticeoflawjalan.blogspot.in/2012/ 11/verification-clause.html

Example – section 191 of IPC, 1860: [Reproduce complete text of the said section (including Explanations and illustration, if any appended to the applicable penal section] Than state Ingredient of the offence u/s 191 and existence of the respective ingredient in the present case: (You need to separate and divide each ingredient of the section and state the facts of the existing case. This illustration below may help you in understanding the point I am trying to make). (a) section 191. Giving false evidence: Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence. Explanation 1- A statement is within the meaning of this section, whether it is made verbally or otherwise. Explanation 2- A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know. Illustrations (a): A, in support of a just claim which B has against Z for one thousand rupees, falsely swears on a trial that he heard Z admit the justice of B's claim. A has given false evidence. (b) A, being bound by an oath to state the truth, states that he believes a certain signature to be the handwriting of Z, when he does not believe it to be the handwriting of Z. Here A states that which he knows to be false, and therefore gives false evidence. (c) A, knowing the general character of Z's handwriting, states that he believes a certain signature to be the handwriting of Z; A in good faith believing it to be so. Here A's statement is merely as to his belief, and is true as to his belief, and therefore, although the

Vakalatnama http://thepracticeoflawjalan.blogspot.in/2012/ 11/vakalatnama.html

Memorandum of Regd address of the Complainant / Advocate on record http://thepracticeoflawjalan.blogspot.in/2012/ 11/memo-of-regd-address-of-plaintiff.html

List of Documents relied upon http://thepracticeoflawjalan.blogspot.in/2012/ 11/list-of-doc-relied-upon-in-suit.html

List of Witnesses http://thepracticeoflawjalan.blogspot.in/2012/ 11/list-of-witnesses.html Exhibits Affidavit in support of Complaint http://thepracticeoflawjalan.blogspot.in/2012/ 11/affidavit-in-support-of-petition-plaint.html Docket Note:1: (Please see Point No. ―h‖ above) The acts and omissions committed by the accused which constitute the offence of – for

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signature may not be the handwriting of Z, A has not given false evidence. (d) A, being bound by an oath to state the truth, states that he knows that Z was at a particular place on a particular day, not knowing anything upon the subject. A gives false evidence whether Z was at that place on the day named or not. (e) A, an interpreter or translator, gives or certifies as a true interpretation or translation of a statement or document which he is bound by oath to interpret or translate truly, that which is not and which he does not believe to be a true interpretation or translation. A has given false evidence. Ingredient of the offence u/s 191 and existence of the respective ingredient in the present case: (a) Whoever, Whoever includes the accused herein; (b) being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declarationThe accused herein is legally bound by an express provision of law to state the truth (Section 17 the Representation of Peoples Act, 1950 read with Rule 20 of the The Registration of Elector Rules, 1960, Rule being made under the Representation of Peoples Act, 1950); (c) upon any subject, The accused herein made declaration in respect of his ordinary place of residence and in respect of non existence of accused‘s name in any other Electoral Constituency; (d) makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, The accused made false statement that he is permanent resident of Mumbai and his name doesn‘t appear in Jaipur‘s Voter‘s Record as alleged by the Complainant. The knowledge of the falsity of this statement can safely be attributed towards the accused herein when the Public Records manifests itself that accused name reflects in Jaipur‘s Voter‘s Record since 1980 and renewed in 1993.



Rules for the Institution of the Criminal Complaints before the Competent Magistrates Courts are provided in Criminal Manual of each State. Criminal Manual contains the Rules prescribed by every High Court in the exercise of their Powers under Article 227 and 235 of the Constitution of India. The said Rules fill the gaps and vacuum in legislative provisions and are in furtherance of the provisions contained in CrPC and in Indian Evidence Act, 1872.

STEPS AFTER INSTITUTION OF COMPLAINTS 1. Examination of the Complainant by the Magistrate u/s 200 of CrPC, 1973. 2. Examination of witnesses of the Complainant, wherever the Magistrates think fit. 3. Inquiry by Magistrates u/s 202, either by himself or by directing any Police officer empowered in this behalf, to conduct inquiry and submit report. The said Inquiry is mandatory only in cases where the accused resides beyond the jurisdiction of the concerned Magistrates Court; and in other cases, it is the discretion of the Magistrate to direct any Inquiry as the facts of the case necessitates. 4. Dismissal of Complaint by the Magistrate u/s 203; or 5. Issuance of Summons / Warrant u/s 204, to the Accused Person.

Commencement of proceedings before Magistrates Courts – sections 204 to 210 Issuance of Summons / Warrant to the accused – section 204 http://thepracticeoflawjalan.blogspot.in/2012/ 04/crpc-issuance-of-summons-toaccused.html

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Exemption from Personal appearance of accused – section 205

84

http://thepracticeoflawjalan.blogspot.in/2012 /04/crpc-exemption-from-personalappearance.html

Discharge of accused http://thepracticeoflawjalan.blogspot.in/2012/ 04/crpc-discharge-of-accused.html

Copy of Chargesheet / Complaint to accused must be given – section 207, 208 http://thepracticeoflawjalan.blogspot.in/2012/ 04/crpc-copy-of-chargesheet-complaintto.html

Trial before Magistrates Courts of Summons cases – sections 251 to 259 http://thepracticeoflawjalan.blogspot.in/2012/ 04/crpc-trial-before-magistrates-court.html Dismissal of Complaint for default – section 256 http://thepracticeoflawjalan.blogspot.in/2012/ 04/crpc-dismissal-of-complaint-fordefault.html Summary trials before Magistrates Courts – sections 260 to 265 (Will be added soon) Wherein it is alleged by the Accused that Complainant has in any way made false statements / false declarations; or has filed false Affidavit or has filed a forged document; or wherein it is alleged by the Complainant that Accused has made a false statements / false declarations in his deposition or has filed a forged document, Please refer following links: http://thepracticeoflawjalan.blogspot.in/2012/ 04/when-person-makes-false-statementfalse.html http://thepracticeoflawjalan.blogspot.in/2012/ 04/when-someone-has-filed-case-in-courtof.html Short, Easy and Successful Litigation depends on.. http://commonlawsandeep.blogspot.in/2014/01/short-easy-andsuccessful-litigation.html For more details; and contents are updated at http://thepracticeoflawjalan.blogspot.in/2012/ 12/drafting-institution-of-criminal.html

Magistrate directing Investigation and also taking Cognizance of Private Complaint – section 210 http://thepracticeoflawjalan.blogspot.in/2012/ 04/crpc-magistrate-directinginvestigation.html Framing of Charges – sections 211 to 224 http://thepracticeoflawjalan.blogspot.in/2012/ 04/crpc-framing-of-charges-examinationof.html Trial before Sessions Court – sections 225 to 237 http://thepracticeoflawjalan.blogspot.in/2012/ 04/crpc-trial-before-sessions-court.html

Discharge of accused http://thepracticeoflawjalan.blogspot.in/2012/ 04/crpc-discharge-of-accused.html Trial before Magistrates on Police Report of Warrant cases – sections 238 to 243 http://thepracticeoflawjalan.blogspot.in/2012/ 04/crpc-trial-before-magistratescourt_09.html Discharge of accused http://thepracticeoflawjalan.blogspot.in/2012/ 04/crpc-discharge-of-accused.html Trial before Magistrates Court on Private Complaint of Warrant cases – sections 244 to 247 http://thepracticeoflawjalan.blogspot.in/2012/ 04/crpc-trial-before-magistratescourt_09.html

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PREPARING   

ONESELF FOR FEARLESS ARGUMENTS BEFORE JUDGES / MAGISTRATES

The correct understanding of the main issues involved; Emphasizing upon the Issues during arguments before the Court; Stick to the issues when divergence is played by the other side.

Also keeping in our had the gist of the whole of the case, that is to say – Para 1 – The gist of the grievance of the Petitioner / Plaintiff / Complainant / Appellant; Para 2 – The Main Relief claimed; Para 3 – Drawing the attention of the court to the main point of controversy between the Petitioner and the Respondent and drawing the attention of the court to the precise point that arises for consideration is ….. Para 4 – Briefly stating, the main contention of the opposite party / or the unlawful conduct of the opposite party. The shortcoming, if any, of our Client, although may be serious, depending upon the facts of each case, may be informed to the court, instead the opposite party telling the same to the court and thereby prejudicing the mind of the Court. Para 5 – State the position of law and / Para 6 – Citing carefully studied judgments which supplement our aforesaid argument. Para 7 – The admitted / existing facts which satisfies the ingredients of aforesaid law, and which clearly goes on to show the unlawful conduct of the opposite party; demonstrate and satisfy the court that it is a fit case for taking cognizance or the Petitioner is entitled for Interim Relief.

Quoting Lord Denning, He said – Remember that whatever be the tribunal, you must give a good impression. Your appearance means a lot. Dress neatly. Your voice must be pleasing. Speak not too fast nor too slow. No hands in pocket. Don’t repeat yourself too often. All these things are commonplace but they are so often forgotten, I see made daily. He also said – One thing you will not be able to avoid – the nervousness before the case starts. To have a very effective argument before the court, one must have, in place, a very good pleadings being filed before the court, for, one is not allowed to argue beyond his pleadings, except on the law point. Quoting Lord Denning, again, He said – To succeed in the profession of law, one must seek to cultivate command over English language. Words are lawyer’s tools of the trade. On the words you use, whether in addressing the judge, or in a Will or Contract, or the Words you read in the statutes to understand its scope, your client’s future depends. He further said – The words are the medium when one intends to convey his inner feeling and emotions and other submissions. There is no other means available. To do it convincingly, do it simply and clearly. And thus we must have in our hand – SYNOPSIS OF THE CASE (Dates and Events) Date Heading of the fact Subs. narrated in the pleading Ex.

ADDRESSING THE COURT: The very brief introduction of the Petitioner / Plaintiff / Complainant / Appellant The Main Relief claimed;

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The grounds on which these reliefs are claimed; The factual aspects which substantiate the grounds stated hereinabove; Para 3 – Drawing the attention of the court to the main point of controversy between the Petitioner and the Respondent and drawing the attention of the court to the precise point that arises for consideration is ….. Para 5 – State the position of law Para 6 – Citing carefully studied judgments which supplement our aforesaid argument. Para 7 – The admitted / existing facts which satisfies the ingredients of aforesaid law, and which clearly goes on to show the unlawful conduct of the opposite party; demonstrate and satisfy the court that it is a fit case for taking cognizance or the Petitioner is entitled for Interim Relief / issuing of Rule Nisi / Notice to the opposite party. Also, 1. There is a fear that the presiding judge will not give me a proper hearing and may pass order to my prejudice, in a hurry; In case, it so happen that the presiding judge seeks to pass an order without properly hearing you, then, the presiding judge may be told to record your submission – ―My Lords may please my take on record my respectful submission in the case and then may pass appropriate orders‖. If this opportunity is not granted, then, a statement may be recorded that the Petitioner / respondent was not heard in the matter. 2. Undefined ―Discretion of the court‖ – The most damaging phenomena, which causes nervousness the most. In my limited wisdom I say, there can be two kinds of cases – (a) where the presiding judge has nearly full discretion to refuse or grant the relief to you, and the relief cannot be sought as a matter of right, but can only be

claimed under equity, justice and good conscience, no matter you have a very good case at hand. Like for example – the discretion exercised by the Magistrate in granting or refusing bails in Non bailable offences; or the discretion in granting or refusing anticipatory bail; granting interim injunctions; interim stay etc; (b) where the judge, no doubt has a discretion, but as a matter of right, one can claim the grant of relief by the court. But then how to deal with both the aforesaid situations (a) and (b). In situation (a), after making forceful argument, the Court may be addressed by saying ―and it is left to the wisdom of the Court to decide‖; and in situation (b) after making forceful argument, the Court may be addressed by saying ―the party is entitled for the relief, in law and in equity‖.

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3. There is a fear that the other side may prejudice / influence the judge with his loud and fanciful and sometime strange arguments or sometime not applicable judgments (precedents); It is necessary to keenly observe what absurd submissions the other side is making. A submission may be made before the court that (a) Let there be arguments on merits instead of hypothetical presumptions; (b) It is ―my Application‖ and I must be given the opportunity to present my case and the learned advocate will get the opportunity to present his case; (c) Let there be not bare submissions and as long as the learned advocate does not place on record the proof of said legal proposition, I am entitled for the interim relief. Regarding citing useless precedents / judgments – the court may be told to analyze if the cited judgment really lays down any law in respect of the issue of law or fact agitated before this court; or whether the said judgment is reversed by larger bench; or whether the said judgment lays down the correct proposition of law; or what are other

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judgments on the same point of law delivered by the Apex court. 4. There is a fear that what if the presiding judge will raise a strange or academic or hypothetical query and if I could not answer; The court may be respectfully replied that the query of the court is not germane to the issues before the court and yet the Petitioner will satisfy the query of the court in due time. 5. The ultimate fear of losing the case and suffering and the annoyance of the client; we must do our best and leave the rest. This is also the essence of Bhagvat Geeta. The results can never be in our hand. Anyway, I don‘t have very good and convincing answer and I am too searching for the answer.

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SUBMISSION REJOINDER

OF

WRITTEN

ARGUMENTS

/

a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist; ―Not proved‖.—A fact is said not to be Not proved when it is neither proved nor disproved. Article 141 of the Constitution of India -The law declared by the Supreme Court shall be binding on all courts within the territory of India.

Written arguments are filed after the conclusion of leading of evidences by both sides of the parties and Rejoinder is usually filed in reply to the Affidavit filed by the opposite parties. The framework of the Written arguments / Rejoinder may be – 1. The gist (simplifying the facts of the case) of the whole case; the flow of events that led to the filing of the present case before the court of law. 2. The following Reliefs have been claimed / prayed by the Plaintiff / Petitioner / Complainant / Appellant in this Plaint / Petition / Complaint / Appeal. a) b) c) As in the case of other documents, so in the case of proof of Will, it would be idle to expect proof with mathematical certainty. The test in each case to be applied would be the usual test of the satisfaction of the prudent mind. Venkatachala Iyengar versus Thimmajamma – 1959 (Supp) 1 SCR 426 (473). The Plaintiff / Petitioner / Complainant / Appellant / Respondent at this point crave leave to reproduce the definition of proved, disproved and Not proved as provided under Indian Evidence Act – ―Proved‖.—A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists; ―Disproved‖.—A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that

3. The following particular facts were asserted by the Plaintiff / Petitioner / Complainant / Appellant in support of his claim to Relief (a). (i) (ii) (iii) The following evidences and judgments / precedents were advanced by the Plaintiff / Petitioner / Complainant / Appellant in support of the aforesaid assertion of facts. The Defendant / Respondent / Opposite party has advanced ………to negate the evidences and judgments advanced by the Plaintiff / Petitioner / Complainant / Appellant. The Hon‘ble Court is humbly prayed, to employ the aforesaid test prescribed in the Indian Evidence Act, 1872, and record a finding and reach a conclusion and satisfy itself whether Plaintiff / Petitioner / Complainant / Appellant has been able to prove the fact asserted so as to entitle for the Relief (a) claimed / prayed for.

4. The following facts were asserted by the Plaintiff / Petitioner / Complainant / Appellant in support of his claim to Relief (b). (i) (ii) (iii) The following evidences and judgments / precedents were advanced by the Plaintiff / Petitioner / Complainant / Appellant in support of the aforesaid assertion of facts.

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The Defendant / Respondent / Opposite party has advanced ………to negate the evidences and judgments advanced by the Plaintiff / Petitioner / Complainant / Appellant. The Hon‘ble Court is humbly prayed, to employ the aforesaid test prescribed in the Indian Evidence Act, 1872, and record a finding and reach a conclusion and satisfy itself whether Plaintiff / Petitioner / Complainant / Appellant has been able to prove the fact as asserted so as to entitle for the Relief (b) claimed / prayed for.

A judgment by Court of Law in a case, may lay down a precedent. A judgment so pronounced thus says that all persons having similarly placed and having identical facts may be awarded this judgment. This is also the basic postulate of equality before law cherished in Article 14 of our Constitution. The Petitioners / Respondents humbly state that the Reliefs prayed for / claimed hereinafter are not unlawful / unlawful. Yet, the Hon. Court may think otherwise and may deny / grant the Reliefs so claimed / prayed for; and in that event the Hon. Court may please be generous to incorporate in its order, reasons for denying / granting the reliefs. a) The Petitioners respectfully submit that Reasoned Orders are inescapable in the entire scheme of administration of Justice. b) The Petitioners respectfully submit that explained decisions breathe life into court order. c) Reasons disclose how the mind is applied to the subject matter for a decision and reveal a rational nexus between the facts considered and conclusions reached. Union of India Vs Mohan Lal Capoor (1973) 2 SCC 836 d) 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. e) Reasons also aid the Appellate Authority to see whether the maker of the order, Judgment, decree has justly met out justice to the aggrieved person. f) In Breen Vs Amalgamated Engineering Union, LORD DENNING MR, observed that the giving of reasons is one of the fundamentals of good administration. g) As President of the National Industrial Relations Court, SIR JOHN DONALDSON in

5. The following facts were asserted by the Plaintiff / Petitioner / Complainant / Appellant in support of his claim to Relief (c). (i) (ii) (iii) The following evidences and judgments / precedents were advanced by the Plaintiff / Petitioner / Complainant / Appellant in support of the aforesaid assertion of facts. The Defendant / Respondent / Opposite party has advanced ………to negate the evidences and judgments advanced by the Plaintiff / Petitioner / Complainant / Appellant. The Hon‘ble Court is humbly prayed, to employ the aforesaid test prescribed in the Indian Evidence Act, 1872, and record a finding and reach a conclusion and satisfy itself whether Plaintiff / Petitioner / Complainant / Appellant has been able to prove the fact as asserted so as to entitle for the Relief (c) claimed / prayed for.

7. The Petitioners / Respondent (as the case may be) respectfully submits that Petitioners / Respondents are still receiving Justice even if their all prayers are turned down / granted. The Petitioners / Respondents most respectfully submit that the fate of Justice is tied to the thread of reason. The Petitioners / Respondents further submit that the idea and the notions of Justice are not litigant centric. In every case before the Court of law, the rule of law is at stake.

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Alexander Machinery (Dudley) Ltd Vs Crabtree, observed that failure to give reasons amounts to denial of Justice. h) The giving of satisfactory reasons is required by the ordinary man‘s sense of justice and is also a healthy discipline for all who exercise powers over others. Reasoned decisions are vital for the purpose of showing that he is receiving justice. i) An unreasoned Order presupposes the non consideration of submissions on record made by the Petitioners and the opportunity of affording due hearing would be rendered meaningless and a empty formality and thus in essence occasion the breach of principles of natural justice and the breach of Article 14 of the Constitution of India. And therefore, it is humbly prayed that this Hon'ble Court to pass a reasoned and speaking order in this Petition, for, in case, it will help, both to the Petitioners and to the Respondents, in the higher Court, if they are not satisfied with the decision of this Hon‘ble Court. As the learned Nani Palkhiwala has once said, ―an aggrieved‘s act of seeking courts' intervention, in fact, is an appeal to the judicial conscience of the sitting judge, to do that - which all prudent man will do, in the facts of the case‖.

offender. Also, the punishment must also bring in some kind of shame to the delinquent so as to make deterrence demonstrative. Offenders are to suffer by punishment not merely because they were malignant or mischievous, but because others may not behave malignant and mischievous. There seems to be an instinctive feeling in most of men that a person who has done an injury should be punished for it. However, in the light of above settings, the valid reason for punishing delinquency is not to avenge injury caused, but to prevent future injury to someone else. And, therefore, if it is true that, ―if one is to be hanged so that others may not steal‖, then I go to the Court of law not only to get justice for self but also for the good of the society. However, the deterrence is zero if there is no certainty to the punishment. The gravitation of sin to sorrow should be as certain and analogous as that of earth to the sun. Yet those mighty Public functionaries have begun to believe that the consequence of disregarding the law will not be more than the strictures of the Court. Punishment is thus a method of forcing good behaviour. The business of Justice is to reduce crime & prevent mischief in the society. So evident is the truth of this simple great idea, that will bring good deal of respect for law in the society.

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It is said that if by punishing one offender, there is hope of deterring other prospective

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8. The Petitioners crave leave to refer to Sir Lionel Fox who was an acclaimed Penologist of England. He quotes the example of an 18th Century Judge who passed sentence of death saying, ―You are to be hanged not because you have stolen a sheep, but in order that others may not steal.‖ He continued, ―Executions are intended to draw spectators, and if they don‘t, Executions do not serve their purposes.‖

9. The Petitioners humbly state that in this mutually complex interactive Socioeconomic-political settings of our flat earth, and the oceans of legislations, along with the theory of ―proving guilt beyond reasonable doubt‖, justice dispensation in any system of governance seems bound to be inherently procedurally complex and thus time consuming; and only way the Petitioner could imagine to have a very efficient administration of justice is to secure that let there be least cases for courts to decide. And this may become the reality of day if Judges begin to take a serious view of those who take law of the land for granted and cause them to earn the wages of reformatory prison

institutions. The sounds of Justice must be alarming. Everything else is a bad idea. I will therefore insist that, whoever, when files a petition of complaint or appeal before any judicial or before any quasi judicial forum, alleging delinquency and seeking punishment for the same, then, the above proposition of punishment must be made demonstrative in their so petition or appeal.

Court about the due compliance of various ingredients / components of applicable section of law at hand, which brings home, either the right of the Petitioners or the guilt of the Respondent. 5. While taking into account the submissions of Petitioners as contained in points .., the Hon‘ble Court is prayed to satisfy itself, recording their valued reasoning in its Judgment / order whether facts of the case & supporting evidences indicates the infringement of rights of the Petitioners, in the light of the position of law. 6. While taking into account the submissions of Petitioners as contained in points .., the Hon‘ble Court is prayed to satisfy itself, recording their valued reasoning in its Judgment / order that if conduct of the opposite parties, in the matrix of facts of the case & settled position of law, indicates the breach of enacted laws / indicates the failure of duties enjoined by law on them.

Apart from above, depending upon the nature of judicial proceeding – the following points may be included in the Written arguments – 1. While taking into account the submissions of Petitioners / Respondents as contained in points .., the Hon‘ble Court is prayed to satisfy itself, recording their valued reasoning in its Judgment / order, that if this Hon‘ble Court has had the Jurisdiction as to case at hand and if the Petitioners has had the locus to file the case at hand. (If preliminary issue of jurisdiction / locus is raised by the opposite party). 2. While taking into account the facts of the case & position of law, as set out in Para …., the Hon‘ble Court is prayed to satisfy itself, recording their valued reasoning in its Judgment / order that if the ―principal allegations made by the Petitioners‖, as outlined in the points… against the Respondent appears genuine; 3. The Hon‘ble Court is prayed to record in its Judgment / order, the scope & ambit of ‗these‘ legal terms & phrases, which forms part of the statute laws and other applicable legal incidents in this case. 4. While taking into account the submissions of Petitioners / Respondents as contained in points .., the Hon‘ble Court is prayed to record in its Judgment / order if the Petitioner has reasonably satisfied this Hon‘ble

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WHERE ONE IS AGGRIEVED BY THE ILLEGAL / PERVERSE ORDER (INTERIM OR FINAL) OF ANY COURT / TRIBUNAL

(i) Subject to availability of other remedies of Review (CPC, 1908 – section 114, Order 47); Revision (CPC, 1908 – section 115) or Appeal (CPC, 1908 – sections 96, 97, 100, 104, 105, 107, 108, Orders 41, 42, 43), a Writ of Certiorari under Article 226 OR Petition under Article 227 (Article 227 contemplates the jurisdiction of High Courts, of Superintendence over all subordinate courts and tribunals), may be preferred before respective High Court, challenging said illegal / perverse Order. Some Rulings of the HC / SC may be observed in this regard – (a) Where the Order / judgment was passed considering Irrelevant & extraneous material, such order / judgment can be challenged under Writ Jurisdiction. – 2011 (3) ABR (NOC) 261 Bom –Paras 6, 7, 56, 57 – M/s Formac Engineering versus MCGM; (b) Writ Jurisdiction under Article 226 was invoked in a case where the Appellate Auth did not considered several material pieces of evidence while passing impugned order – Appellate auth failed in its duty in deciding the Appeal in accordance with law – a fit case for remanding the matter to the Appellate auth for deciding the Appeal afresh on merit – in accordance with law – Khatri Film Ent versus Vijay Cycle – 2010 (2) All MR 722 – Para 3. (c) Article 226 – any misadventure of Subordinate court – resulting in grave injustice – warrants exercise of writ jurisdiction – Balaji Properties & Developers versus The Church of St. Matias – 2010 (3) All MR 62 (d) Article 226, 227 – Interlocutory orders – wrong notions of law canvassed before lower court – Writ court may interfere – Kanhaiyalal K Kewalramani versus Anil K Gurbakshani – 2010 All MR (Cri) 797 (e) Article 226, 227 – Suit filed for temporary Injunction – Appeal court granted Injunction

– failure of Appellate court to consider relevant material and appreciation of findings of trial court – omissions can be corrected at under Article 226, 227 – General Manager versus Mehmooda Shikshan and Mahila Gramin – 2010 All MR (Supp) 676 – Para 10; Relied on (2008) 9 SCC 1; (2001) 8 SCC 97; (2002) 1 SCC 319; (1998) 3 SCC 341; (2006) 5 SCC 282 (f) Article 226 – Challenge to order of Civil Court – Material irregularity – Set aside – Francisco Rodrigues versus Angelica Rebello – 2010 (5) All MR 516 (ii) The perverse Order presupposes the non consideration of ―submissions on record‖ made by the party who is victim of the perverse Order and the opportunity of affording due hearing given is thus rendered meaningless and empty formality, thereby causing the breach of principles of natural justice and the victim of the said Order, may file an Application u/s 151 of CPC, before the Court concerned, for Recall of Orders. Some Rulings of the HC / SC may be observed in this regard – (a) Passing of speaking order, discussion of relevant case law, analysis of defence pleas, and recording of findings is an essential requirement of natural justice. Govan Soma Tandel versus C C (Prev) – (2000) 115 ELT 772. (b) An extension of principles of natural justice requires a reasoned decision – R B Desai versus UOI – (1987) 3 Comp LJ 111 (Del). (c) Article 14 – Speaking orders – Necessity of – Order of HC setting aside Interlocutory Order without assigning any reason – Not proper – AIR 2011 SC 1353. (d) Article 226 – Orders passed must be reasoned – AIR 2011 SC 1883 –Para 27. (iii) Where there is an apprehension that the subordinate Court is exercising a jurisdiction not vested in it, or refuse to exercise the jurisdiction vested in it or exercising its jurisdiction in grossly improper manner, and

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is about to pass illegal / unlawful Order, a Writ Petition of Prohibition under Article 226 OR under Article 227, may be filed before the concerned High Court, stating therein the alleged illegalities committed by said lower court / tribunal and praying for HC to direct the said lower court / tribunal to not to pass any illegal order. (iv) A Miscellaneous Application may be filed u/s 151 of CPC before the Court concerned, for Recall of Orders – Judgments, if the order / judgment is alleged to have been obtained by fraud – suppression of facts – misrepresentation; or in breach of principles of natural justice, or where it is brought to the notice of the Court that the Court itself has committed a mistake. Every court has inherent powers to recall such judgment /order. – S P Chengalverau versus Jagannath – (1994) 1 SCC 1; Indian Bank versus satyam Fibres – (1996) 5 SCC 550 – Paras 40, 38, 39, 26, 43, 44. Recall of HC order – (2007) 4 SCC 221 ********** (v) In Criminal trials, if a judgment / order has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it; or where an order was obtained by abuse of the process of the court which would really amount to its being without jurisdiction, a Miscellaneous Application can be made before the Trial Court concerned for the recall such order, for the reason, that in such eventuality the order becomes a nullity and the provisions of section 362 CrPC would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. State of Punjab versus Davinder Pal Singh Bhullar – 2012 AIR SCW 207 – Para27. Other judgmenrs relied upon are – 1970 CrLJ 378; 1985 CrLJ 23; AIR 1987 Raj 83 (FB); AIR 1972 SC 1300; AIR 1981 SC 1156; (2009) 2 SCC 703; AIR 2011 SC 1232. (vi) If where the Case is about to be dismissed / decided by the Court on technical

shortcoming of any nature, the aggrieved party may argue before the Court that – (a) The observation of the Court in a case that – 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) The observation of the Court in a case that – Every venial 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) The observation of the Court in a case that – Parties win or lose on substantial questions, not on technical tortures and Courts cannot be "abettors".[ Noronha V Prem Kumari, AIR 1980.] (d) The observation of the Court in a case that – 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, AIR 1985.] (e) The observation of the Court in a case that – 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 – A 1986 SC 687; (f) The judges need to be reminded, humbly, they are dealing with human lives, and not merely web of statements of law. (vii) Where the Decree is passed by a court lacking inherent (subject matter) jurisdiction

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– it can be challenged at any stage – (2011) 11 SCC 198 – Paras 20, 24 and even Application under Article 227 can be maintained before the High Court concerned. Article 227 – decree obtained by fraud – misrepresentation – can be invoked – Kedariseth Atmaram versus Seetharamaraju – CRA – 5044 / 2009 – Judgment dated – 3108-2010 – AIR 2011 (NOC) (viii) Where the Court while passing the Order / judgment, has misinterpreted the provision of law and thus acted beyond the scope of their powers conferred upon them under the Statute, then, their such Orders / judgments may be deemed as Ultra Vires and can be challenged under Writ Jurisdiction. Acting beyond Statutory powers / exceeding Statutory powers – (2010) 14 SCC 1. (ix) Where one is aggrieved and prejudiced 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. (x) 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. Nullity of Orders of the Court – Some Instances 1. An Order passed without jurisdiction is a nullity.

2. When there is inherent lack of jurisdiction, no consent can confer jurisdiction – AIR 1954 SC 340; AIR 1978 SC 1062. 3. A decree passed by a Court inherently lacking jurisdiction, the decree is a nullity and the said decree can be challenged even in execution proceedings – AIR 2003 SC 1475. 4. Distinction between illegal decree and void decree – AIR 2003 SC 3789; Illegal decree cannot be challenged in execution proceedings. 5. Distinction between null and void Order and an illegal or irregular Order – (2008) 7 SCC 748, Paras 18, 19. 6. Whenever jurisdiction is given by a Statute upon certain specified terms, those terms should be complied with, or else there will be inherent lack of jurisdiction – AIR 2003 SC 942 : (2003) 3 SCC 128. 7. A restrain Order issued by a Civil Court which is a Court of general jurisdiction, cannot be ignored by a Court or tribunal of limited jurisdiction, on the ground that it is a nullity – AIR 2002 SC 3062. 8. The principle that void Orders may have legal consequences – AIR 2000 SC 434 : (2000) 2 SCC 139. 9. Defects of jurisdiction may arise even during or at the conclusion of the proceedings. 10. The Courts make a jurisdictional question of fact or law and question of fact or law which are not jurisdictional. If a question of fact or law is of former category, the tribunal though competent to inquire into that question, cannot decide it conclusively, and a wrong determination of such a question, results in making the final decision, in excess of jurisdiction. In other words,

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a tribunal, cannot by a wrong determination, of a jurisdictional question of fact or law, exercise a power which the legislature did not conferred upon it – AIR 1962 SC 1621. 11. If a tribunal is not properly constituted, or if it has authority against whom it makes its final Order, or if it acts in bad faith, the final Order passed, would be in excess of jurisdiction and would be a nullity. 12. Lack of jurisdiction may arise in various ways – AIR 1986 SC 872 : (1986) 1 SCC 133, Pg.219; 13. Landmark Anisminic Ltd versus Foreign Compensation Commission – (1969) 1 All ER 208. 14. In respects of Courts of limited jurisdiction, it has been held that such courts, cannot by wrong determination of jurisdictional question of fact or law, give to themselves a jurisdiction, which they do not possess, and the ultimate decision in such cases, has been held to be Revisable by the HC, being in excess of jurisdiction – AIR 1949 PC 239; AIR 1959 SC 492; AIR 1962 SC 647; AIR 1965 SC 540, Para 16; AIR 1966 SC 1431; AIR 1970 SC 1193; AIR 1999 SC 958. 15. A wrong determination on question of limitation or res Judicata, which results in assumption of jurisdiction, which the Court did not possess, or declining to exercise jurisdiction, which the Court possessed, would thus be the error of jurisdiction, amenable to correction u/s 115 of CPC, 1908 – AIR 1966 SC 153, Para 10; AIR 2007 SC 1491 : (2007) 4 SCC 451, Para 17. 16. Special Acts gives much wider Revisional jurisdiction – AIR 1993 SC 1616; AIR 2000 SC 1261; AIR 2002 SC 2562;

17. What is a jurisdictional fact – (2007) 1 SCC 732; (1985) 1 SCC 565 : AIR 1985 SC 602. 18. Cause of action is a jurisdictional question of fact. AIR 2008 SC 187, Para 21 : (2007) 8 SCC 559. 19. High court can set aside Order of the tribunal which is obtained by fraud, in the exercise of power as a Court of Record under Article 215 of the Constitution of India – AIR 2006 SC 3028 : (2006) 7 SCC 416. 20. Failure to exercise jurisdiction – If a bonafide application is rejected erroneously, there is a failure to exercise jurisdiction – AIR 1973 AP 203; 21. Cases of nullity may also arise – (a) When the tribunal has wrongly determined a jurisdictional question of fact or law; (b) When it has failed to follow the fundamental principles of judicial procedure, for example, have passed an Order without giving an opportunity of hearing to the affected party; (c) When it has violated the fundamental provisions of the Statute; (d) When it fails to take into account matters which it, is required to take into account, or when it takes into account matters which are extraneous and irrelevant; (e) When it has acted in bad faith; (f) When it grants a relief or makes an Order which it has no authority to grant or make; (g) When by misapplication of law, it has asked itself the wrong questions – AIR 1992 SC 232; (2006) 3 SCC 208 : AIR 2006 SC 1204; (1997) 5 SCC 536. For more details; and contents are updated at http://thepracticeoflawjalan.blogspot.in/2012/ 04/where-one-is-aggrieved-by-illegal.html

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NON COMPLIANCE TO DECREES / ORDERS / PROCESSES / SUMMONS OF THE COURT

In case a proper reply is sent, either the claim in the notice may be admitted or the area of controversy curtailed, or the citizen may be satisfied on knowing the stand of the State. Having regard to the existing state of affairs, we direct all Governments, Central or State or other authorities concerned, whenever any statute requires service of notice as a condition precedent for filing of suit or other proceedings against it, to nominate, within a period of three months, an officer who shall be made responsible to ensure that replies to notices u/s 80 or similar provisions are sent within the period stipulated in a particular legislation. The replies shall be sent after due application of mind. Despite, if 1the court finds that either the notice has not been replied to or the reply is evasive and vague and has been sent without proper application of mind, the court shall ordinarily award heavy costs against the Government and direct it to take appropriate action against the officer concerned including recovery of costs from him.”. The said judgment can also be used in Notices issued before filing of Writ Petition, and Public authorities cannot be heard to say that ―Public authorities are not bound to give reasons in Notice under Writ. In the case of Legrand (India) Private Limited Versus Union Of India [2008 (2) BCR 387 : 2007 (6) MhLj 146], the Bombay High Court have held that the Public authorities / persons may be held guilty of contempt of the Court, if, in the regular discharge of their duties, they knowingly disregard the law laid down by the said Court. By virtue of this judgment, a private individual / private entity may also be compelled to adhere to the law laid down by the High courts / Apex court. It is a case where, despite being specifically brought to the knowledge of the law being laid down by the Bombay High Court, the Public officer acted in breach of the law laid down; and the High Court, in the Writ

(i) A person who is wilfully not complying to decree / orders / summons / processes of the Court, may be held guilty of Civil 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. (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. (iii) Where the decree passed is for money against the Pvt / Public Limited Company, than, if the money is not paid, Winding up Proceedings may be initiated against the said Pvt / Public Limited Company. (iv) The decree may be executed in accordance with the provisions of sections 36 to 74, Order 21 of CPC, 1908. (v) The Award passed under Arbitration proceedings may be executed in the same manner like a decree of the Court. (vi) In a landmark judgment given by Hon‘ble SC in the case of in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, wherein the Hon‘ble Court, among other things observed and directed as – The Governments, government departments or statutory authorities are defendants in a large number of Cases pending in various courts in the country. Judicial notice can be taken of the fact that in a large number of cases either the notice is not replied to or in the few cases where a reply is sent, it is generally vague and evasive. It not only gives rise to avoidable litigation but also results in heavy expenses and costs to the exchequer as well. A proper reply can result in reduction of litigation between the State and the citizens.

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jurisdiction, initiated Contempt proceedings against the said officer. The Court held that – (a) It is immaterial that in a previous litigation the particular petitioner before the Court was or was not a party, but if a law on a particular point has been laid down by the High Court, it must be followed by all authorities and tribunals in the State; (b) The law laid down by the High Court must be followed by all authorities and subordinate tribunals when it has been declared by the highest Court in the State and they cannot ignore it either in initiating proceedings or deciding on the rights involved in such a proceeding; (c) If inspite of the earlier exposition of law by the High Court having been pointed out and attention being pointedly drawn to that legal position, in utter disregard of that position, proceedings are initiated, it must be held to be a wilful disregard of the law laid down by the High Court and would amount to civil contempt as defined in S. 2 (b) of the Contempt of Courts Act, 1971. a. Therefore, whenever there is any grievance against any Public authority / official, a Notice u/s 80 of CPC, 1908, may be recorded to the concerned Public authority / official. b. Further, where the nature of the Notice / complaint is based on a prima facie breach of any provision of the law, and if there is any Apex Court or High court ruling on the said provision of law, and where the said ruling is unambiguous and categorical, the contempt proceeding may also be initiated against the concerned authority / official, for acting in the willful disregard / breach of the order of the Apex court / High court, as the case may be. Every High Court too has Su Moto contempt powers, as Apex court has. c. And where public authority / official don‘t reply or reply in interplay of words, than, a simple letter may be

made to the concerned High Court / Apex court, requesting it to take Su Moto cognizance (action on its own) of the contempt of the order of the court, being committed by the concerned authority / official; and the copy of said letter may also be sent to the concerned authority / official; and thereafter, after sometime, say about, expiry of about 30 days, an RTI may be filed with the concerned High court / Apex court, requesting it to furnish the details of action taken by it, on your said letter. The draft of said letter to the High court / Apex court and draft of RTI Application is annexed herewith. The Apex court and every High court have prescribed the form in which RTI Application can be made to it. d. Further, the complainant may also file a Writ Petition before concerned High court under Article 226 of the Constitution of India, against the concerned public authority / official, and praying the court to direct the concerned public authority / official to make a ―Reasoned reply‖ to the Petitioner‘s complaint / Notice; and the reply shall be made in accordance with the law laid down by the Apex court in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India [(2005) 6 SCC 344]; with a further prayer that reasonable and deterrent cost must also be imposed on the concerned authority / official, for his / its willful failure in making a due reply; e. It may further be prayed that reply of public authority / official to deal with the substantial points which has been raised therein in the said complaint / Notice and cover other relevant points; and eschew irrelevancies and reply shall demonstrate that the authority has given due consideration to the points in controversy and that decisions of the public authority / official on the issue raised in the said

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complaint / Notice have been reached according to law. f. And where the Complaint / Notice to the Public authority / official is based on settled position of law declared by Apex court / High court, and yet Public authority / officials, despite being brought to their knowledge of the said ruling, acting contrary to the law so settled, then, in the said Writ Petition, the court may be prayed to initiate contempt proceedings against the concerned Public official, as laid down in Bombay High Court ruling stated hereinabove. g. If Writ is filed for this limited purpose, than it may be disposed of in two to three hearings; and, if any such order is passed, than that public authority / official is bound to make a reasoned and proper reply, in a time bound manner. h. However, all persons, aggrieved by the acts and omissions of public authorities / officials, may not have easy access to the High Court. Therefore, a Civil Suit for mandatory Injunction u/s 39 of Specific Relief Act, 1963, may be filed before the District Court / City Civil Court, seeking necessary reliefs. i. The law declared by Apex court, by virtue of Article 141 and 144 of the Constitution of India, is binding on all public authorities / judicial authorities, and directions so given by Apex court becomes the law of the land. And therefore, the City Civil courts, District courts, shall also have the jurisdiction to direct the public authority / official to give proper and reasoned reply to the Notice issued to it; with a further relief praying that ―A Reference shall be made to the High Court concerned to initiate contempt proceedings against the concerned Public authority / official‖. However, while filing this Suit, the mandatory Notice provided u/s 80 may not be

given, for, the relief in the Suit is claimed on the premise that concerned public authority / official is not making a reply to the Notice, sent to it u/s 80. For more details; and contents are updated at http://thepracticeoflawjalan.blogspot.in/2012/ 08/non-compliance-to-decree-orders.html

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JUDGMENTS ON IMPOSITION OF HEAVY COSTS ON LITIGANTS FILING FALSE CASES / TAKING FALSE DEFENSE / PLEAS

– (2009) 5 SCC 634, 640, 645 16. LITIGANT TAKING FALSE PLEA – PUNITIVE COSTS – 2001 AIHC 3500, 3509 (BOM) 17. LITIGANT CAN BE BURDENED WITH COSTS FOR MAKING RECKLESS AND BLATANTLY UNTRUE ALLEGATIONS – 1998 AIHC 4974, 4977 (P&H) 18. PERSON WRONGFULLY OR UNNECESSARILY MADE PARTY – COSTS – 1942 PC 27; 1924 MAD 476 19. ABUSE OF PROCESS OF COURT – PUBLIC OFFICIAL DIRECTED TO PAY COSTS FROM THEIR OWN POCKET – (1995) Supp (2) scc 449, 452 20. PUBLIC OFFICIAL ABUSING PROCESS OF COURT – FILING FRIVOLOUS, VEXATIOUS SLP – PERSONALLY LIABLE – (2005) 12 SCC 174 21. COSTS IMPOSED SHOULD BE ACTUALLY INCURRED BY THE SUCCESSFUL PARTY – (2005) 6 SCC 344, 369 22. FRIVOLOUS PETITION, THE COST IS TO BE DETERRENT AND EXAMPLARY – 2007 AIHC 947, 953 23. LITIGANT ADOPTING DUBIOUS METHODS – COURT MUST TAKE SERIOUS NOTE – INCLUDING IMPOSING EXAMPLARY COSTS – (2000) 6 SCC 120 24. ABUSE OF PROCESS OF COURT – (1995) 1 SCC 753 25. UNNECESSARY DRAGGING LITIGATION – A 2002 RAJ 248, 252 26. PROLONGING LITIGATION – (2005) 5 SCC 548, (2005) 5 SCC 527 27. LITIGANT TAKING FALSE DEFENSE – DIRECTED TO PAY COST OF RS.50,000/ AS COST – (2004) 2 SCC 278. 28. WHENEVER ANY PERSON WITH MALAFIDE INTENTION AND DILATORY TACTICS TRIED TO DELAY JUSTICE, THEN IN SUCH CIRCUMSTANCES, HEAVY COST COULD BE IMPOSED UPON THE SAME. (a) NATWAR TEXTILES PROCESSORS PVT LTD VERSUS UOI AIR 1995 SC 2256; (b) M/S SRF LTD V. GARWARE PLASTICS & POLYESTERS LTD AIR 1995 SC 2228; (c) SALEM ADVOCATE BAR ASSOCIATION V. STATE OF UOI AIR 2005 SC 3353. 29. COST AWARDED SHOULD NOT BE NOMINAL BUT SUFFICIENT TO MEET THE EXPENSES INCURRED BY THE SUCCESSFUL PARTY – 2004 AIHC 2693 (RAJ) (DB). 30. COSTS AGAINST STATE FOR ILLEGAL ACTION – (2011) 6 SCC 570 For more details; and contents are updated at http://thepracticeoflawjalan.blogspot.in/2013/01/impositionof-heavy-costs.html Thank you.

1. THE PRIMARY OBJECT OF LEVYING COST U/s 35, 35A CPC IS TO RECOMPENSE A LITIGANT FOR THE EXPENSES INCURRED BY HIM IN LITIGATION TO VINDICATE OR DEFEND HIS RIGHTS – (2009) 2 SCC 656, 659. 2. RS.5.00 LACS IMPOSED AS COSTS ON THE ERRING OFFICIALS OF THE DEVELOPMENT AUTHORITY FOR HARASSING THE PETITIONER – A 2005 DEL 150 (DB) 3. OBJECTIONABLE CONDUCT OF THE APPELLANT – HEAVY COSTS – (2004) 3 SCC 437 4. MERITLESS LITIGATION – COSTS THROUGHOUT TO BE BORNE BY DEFENDANT / RESPONDENT – (2004) 1 SCC 551; (2003) 2 SCC 3; (2005) 5 SCC 375; (2005) 6 SCC 138 5. COSTS AWARDED THROUGHOUT FOR PROLONGING THE LITIGATION – ANGUISH EXPRESSED BY SC – (2004) 1 SCC 287; (2005) 5 SCC 375; (2005) 5 SCC 543; (2005) 5 SCC 527 6. FABRICATED DOCUMENT FILED – AMOUNT TO ABUSE OF PROCESS OF THE COURT – EXAMPLARY COST – (1994) 6 SCC 9. 7. LACK OF BONAFIDE IN LITIGATION – AIR 1958 SC 512 8. PETITIONERS UNLAWFULLY DEPRIVED, RESPONDENT BUREAUCRAT DIRECTED TO PAY EXAMPLARY COSTS RECOVERABLE FROM THEIR SALARY – AIR 1995 AP 208, 211, 212 9. SECTION 35 AND ORDER 8 RULE 1 AND PROVISO THERETO – IMPOSITION OF COSTS IS CONDITION PRECEDENT FOR PERMITTING DEPARTURE FROM TIME SCHEDULE LAID DOWN SO – (2005) 4 SCC 480 10. PETITIONER HAVING LOST BEFORE LOWER COURT – FILING REVISION – THEREBY PUTTING THE RESPONDENT TO HARDSHIP AND INCONVENIENCE – SADDLED WITH EXAMPLARY COSTS. – 2000 AIHC 3772, 3775 (KANT) 11. PROLONGING LITIGATION – IMPOSITION OF HEAVY COSTS – (2005) 1 SCC 705 12. OFFICERS IN THE GOVT NOT IMPLEMENTING COURT ORDERS – STATE DIRECTED TO PAY COSTS TO BE RECOVERABLE FROM THE SALARY OF THE OFFICER AT FAULT – (2001) AIHC 4712, 4714 (KANT)(DB) 13. AWARD OF COSTS WHERE THE LITIGANT WAS UNNECESSARILY DRAGGED TO COURT – (2003) 7 SCC 270. 14. WP FILED BY STATE FOUND TO BE FRIVOLOUS – DIRECTED TO PAY COSTS OF RS.10,000 – 1999 AIHC 983, 985 (RAJ) 15. JUDICIAL PROCESS MISUSED – HEAVY COSTS

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