Question: I have been made accused in a case under Section 307, 34 IPC which took place at Pune. But, on the date of the offence, I was appearing in an examination at Nagpur in Maharashtra. How can I prove my defence? What is the level of evidence that I have to lead? Will I have to prove my innocence or the prosecution has to prove my guilt first?
Question: As per the cause of action which arose in Mumbai, my case needs to be filed before the Bombay High Court. I have to file a writ petition. In this petition, I want to challenge the constitutionality or the vires of a Central Act which is passed by the Parliament of India which is situated in New Delhi. I have been advised by my lawyer that if I want to challenge the vires of the Parliamentary Act then I have to file a writ petition only in Delhi High Court since the Parliament is located within the jurisdiction of that High Court and the cause of action of passing the said Act occurred in New Delhi. Please guide me whether I can file this writ petition only in Delhi High Court, which includes challenge to the constitutionality of the Central Act?
Question: During trial of the criminal case against me, the Investigating Officer is being examined by court and his evidence is being recorded. What is seen is that the I.O. is not able to tell anything from his memory and at every stage he is being allowed to refer to the papers of his investigation records. Is it permissible under law? What then is the sanctity of his oral evidence in court, if he is free to refer to the case records as and when he wants? The Court said that he is allowed to refresh his memory. What is that and is it permissible?
Question: During an investigation conducted by the CBI, it has taken a certified copy of a document from the Collector office and the original document was not seized. Can such certified copy be produced by CBI in the trial of the case instead of producing the original document? Will such certified copy be considered primary evidence of the document and be admissible in evidence?
Question: What remedy do I have in case I have exceeded the limitation period of 30 days in sending the legal notice after the cheque bounce? I forgot to issue a notice to the drawer of the cheque within thirty days of the receipt of information from the bank about the return of the cheque unpaid. Can there be any condonation of delay in issue of legal notice to drawer? What are other remedies in this regard?
Question: I had given a loan of Rs.10 lakh in the year 2007 to my brother. He has not paid the amount till now (2017). In December 2014 he had written a letter to me acknowledging his liability to pay the said loan. I did not write or mention or sign on that letter or respond to it. Now for the purpose of limitation, will this letter be sufficient to file a case for recovery of loan amount or will the case get dismissed on the ground of limitation?
Question: Can the Metropolitan Magistrate (MM) court issue Non-bailable Warrant (NBW) in cases of cheque bouncing under Section 138 Negotiable Instruments Act.
The Supreme Court of India comprising a bench of Justices Kurian Joseph and R. Banumathi has decided and clarified the period of limitation in filing a suit or claim under the Fatal Accidents Act, 1855 as two years from the date of the accident. This order was passed on 14 September 2017 in the case of Damini v. Managing Director, Jodhpur Vidyut Vitran Nigam Limited.
Question: I have been offered a job in Government of Gujarat for the post of a lower division clerk on the basis of selection on merit. I am 24 years of age. About 10 years back, I was involved in a case of Section 324 IPC but was acquitted in the case. Will such involvement in the criminal case in which I was acquitted, would come in the way of my getting the above Government job? Should I mention this form in the police verification attestation form at the time of joining this job? I am worried since I am in need of employment in order to help my family.
Question: What are the circumstances under which a witness may be recalled for re-examination during trial of a criminal case? Can a witness be recalled for filling up the lacunae in the prosecution version? Are there any guidelines in this regard? What is the power of the court to recall a witness for his re-examination?
Question: What is the legal validity of an agreement between two parties, if it is required under law to be affixed with stamps but is not duly or properly stamped? Whether such agreement would be legally valid if stamps of lesser value are affixed on it than is necessary under the legal requirements?
Question: Is it possible for a court to grant probate in respect of a will on the basis of compromise between the parties, and more so, if such compromise is against the terms of the will?
Answer: It is not permissible. A court cannot grant probate which is against the terms of the will. In fact, in this regard, it is pertinent to point out the observations of a Division Bench of the Calcutta High Court in the case of Uma Addhya v. Biren Mondal, AIR 2006 Cal 200 : (2006) 2 CHN 680:
“After hearing the learned counsel for the parties and after going through the aforesaid materials, it is found that there was an error on the face of the order sought to be reviewed in setting aside the order of revocation without arriving at its own conclusion as regards the legality and propriety of the order impugned in the appeal and making the compromise a part of probate originally granted.”
“It is now settled law that the Probate Court is a court of conscience and the duty of the Probate Court is only to adjudicate whether the will in question was the last will and testament of the deceased, whether the same was duly executed and attested, whether the same was executed without being vitiated by force, fraud, undue influence, etc. and whether the testator had the required mental capacity to execute the will. Apart from those questions, a Probate Court cannot go into the question of title of the testator nor can the court grant a probate which is at variance with the terms of the will.”
Likewise, in the case of Paresh Chandra Majhi v. Biswanath Majhi, 2009 SCC OnLine Cal 1641 : (2009) 3 CHN 612 (DB), it was held by another Division Bench of the Calcutta High Court:
“What is more surprising is that the Probate application, although became contentious, was disposed of in terms of compromise which is not permissible under the law of the land.”
“In the case before us, it appears from the certified copy of the relevant order-sheet that Probate was granted solely on compromise and the same was made part of the decree which is not permissible.”
In the case of A.E.G. Carapiet v. A.Y. Derderian, AIR 1961 Cal 359, a Division bench of Calcutta high court observed as under:
“A court of Probate always shies at terms of settlement. A Court of Probate is said to be a Court of Conscience which is not to be influenced by private arrangements of the parties. Either it grants probate to a Will or it rejects such grant. For such, a court, it is said, there is no middle path for a happy compromise. The rule of law is stated to be that there can be no probate by consent. Either it is grant or refusal. The Court has to be satisfied in each case whether the Willproposed is truly the Will of a capable testator or not. It is not concerned with any other arrangement. It has been said over and over again that there is no such thing as conditional probate or an amended probate. It is either all or nothing. That seems to be sensible enough law.”
However, in view of a uniform practice followed by the court, in the above case of A.E.G. Carapiet v. A.Y. Derderian, the Calcutta high court directed that the probate be granted of this Will and allowed the terms of settlement between the parties to be recorded with the decree in a separate schedule.
Death of 30 persons in Haryana in violent protests that followed the conviction of Gurmeet Ram Rahim Singh, a Dera chief in Sirsa, in a rape case, is really unfortunate and unpardonable.
On 16 August 2017, the Supreme Court directed investigation by the National Investigation Agency (NIA) in the famous Kerala Love Jihad case, in which there were allegations that a Hindu girl Akhila was forcibly converted to Islam and was married to a Muslim man Shafin Jahan. The Supreme Court further directed that the investigation by NIA would be supervised by a former judge of the Supreme Court Justice R.V. Raveendran. This order of the Supreme Court has been criticised in media on various grounds, the main ground being taking away the freedom of a 24-year old woman to marry a person of her choice. However, such criticism of the Supreme Court order is unwarranted and unjustified due to many reasons.
Question: Is it permissible to file a review petition in the High Court against its decision if a special leave petition (SLP) against the said decision has been already dismissed by the Supreme Court in limine (at the start itself) by passing a non-speaking order?
Answer: In the circumstances mentioned by you, the answer to your question is “yes”. If the Supreme Court has dismissed SLP at the initial stage itself, i.e., without granting the leave to appeal, by a non-speaking order, that is done in the exercise of a special jurisdiction under Article 136 of the Constitution and not in exercise of any appellate jurisdiction. It does not preclude other remedies, if any, available to the party.
In fact, in the case of Indian Oil Corpn. Ltd. v. State of Bihar, (1986) 4 SCC 146 : AIR 1986 SC 1780, Supreme Court held as under:
“It is not the policy of this Court to entertain special leave petitions and grant leave under Article 136 of the Constitution save in those cases where some substantial question of law of general or public importance is involved or there is manifest injustice resulting from the impugned order or judgment. The dismissal of a special leave petition in limine by a non-speaking order does not therefore justify any inference that by necessary implication the contentions raised in the special leave petition on the merits of the case have been rejected by this Court. It may also be observed that having regard to the very heavy backlog of work in this Court and the necessity to restrict the intake of fresh cases by strictly following the criteria aforementioned, it has very often been the practice of this Court not to grant special leave except where the party cannot claim effective relief by approaching the concerned High Court under Article 226 of the Constitution. In such cases also the special leave petitions are quite often dismissed only by passing a non-speaking order especially in view of the rulings already given by this Court in the two decisions aforecited, that such dismissal of the special leave petition will not preclude the party from moving the High Court for seeking relief under Article 226 of the Constitution. In such cases it would work extreme hardship and injustice if the High Court were to close its doors to the petitioner and refuse him relief under Article 226 of the Constitution on the sole ground of dismissal of the special leave petition.”
Relying upon the aforesaid decision, in the case of Kunhayammed v. State of Kerala, (2000) 6 SCC 359 : AIR 2000 SC 2587, the Supreme Court held as under:
“In our opinion what has been stated by this Court applies also to a case where a special leave petition having been dismissed by a non-speaking order, the applicant approaches the High Court by moving a petition for review. May be that the Supreme Court was not inclined to exercise its discretionary jurisdiction under Article 136 probably because it felt that it was open to the applicant to move the High Court itself. As nothing has been said specifically in the order dismissing the special leave petition one is left merely guessing. We do not think it would be just to deprive the aggrieved person of the statutory right of seeking relief in review jurisdiction of the High Court if a case for relief in that jurisdiction could be made out merely because a special leave petition under Article 136 of the Constitution had already stood rejected by the Supreme Court by a non-speaking order.”
From the above judgements of the Supreme Court, it should be quite clear that if Special Leave Petition (SLP) has been dismissed by the Supreme Court in limine, by passing a non-speaking order, against an order of the High Court, it does not preclude filing of a review petition before the High Court against its earlier order, if such review petition is otherwise admissible.
Question: Is it possible to produce additional evidence during the appeal before the appellate court in a civil case? In my case, due to some genuine reasons and also to some extent to the negligence of my lawyer, certain documents could not be produced in evidence during the trial stage. Will the appellate court allow me to submit this additional evidence which is very essential for the proof of my case, and if so under what conditions?
Answer: Order 41 Rule 27 of the Civil Procedure Code (CPC) contains the relevant provision which allows production of additional evidence before the appellate court, subject to certain conditions. As per this Rule, in general, the parties to an appeal are not entitled to adduce additional evidence before the appellate court, whether oral or documentary. However, in following exceptional situations, the appellate court may allow additional evidence to be produced before it during the appeal stage:
In these exceptional circumstances, the Appellate Court may allow such evidence or document to be produced or witness to be examined in the form of additional evidence.
The above Rule further provides that whenever additional evidence is allowed to be produced by an Appellate Court, it shall record the reason for its admission.
Further, it goes without saying that whenever such additional evidence is allowed to be produced by one of the parties before the appellate court, the other parties will have to be given opportunity to rebut such additional evidence, which is a basic requirement of the principles of natural justice.
Therefore, if you want to adduce additional evidence during the appeal stage before the appellate court in your matter, you will have to satisfy one or more of the aforesaid conditions for production of the additional evidence before the appellate court.
Question: Is it possible to file civil and criminal proceedings in the same matter together? In my case, a particular document is forged. I need to file an FIR in respect of such forgery. At the same time, I need to file a civil suit against the opposite party to enforce my rights against the said forged document. Can I file both these proceedings together? If a chargesheet is subsequently filed in the said FIR which I intend to register now in respect of the said forgery, will the trial court proceed with the criminal proceedings at a time when simultaneous civil proceedings are being conducted in respect of the same forged document?
Answer: Yes, it is possible to simultaneously proceed with civil proceedings and criminal proceedings in the same matter, because these are proceedings of different types. The purpose and objective of conducting these proceedings are different.
In fact, in the case of Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.), (2009) 5 SCC 528, the Supreme Court has held that:
“Indisputably, in a given case, a civil proceeding as also a criminal proceeding may proceed simultaneously. Cognizance in a criminal proceeding can be taken by the criminal court upon arriving at the satisfaction that there exists a prima facie case.”
The Supreme Court further held that the question as to whether in the facts and circumstances of the case one or the other proceedings would be stayed would depend upon several factors including the nature and the stage of the case. The court further observed that it is, however, now well settled that ordinarily a criminal proceeding will have primacy over the civil proceeding. Precedence to a criminal proceeding is given having regard to the fact that disposal of a civil proceeding ordinarily takes a long time and in the interest of justice the former should be disposed of as expeditiously as possible.
In M.S. Sheriff v. State of Madras, AIR 1954 SC 397, a Constitution Bench of the Supreme Court, while dealing with a question as to whether a civil suit or a criminal case should be stayed in the event both are pending, held that the criminal matter should be given precedence. In regard to the possibility of conflict in decisions if both proceedings are held, it was held that the law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other or even relevant, except for certain limited purposes, such as sentence or damages. It was held that the only relevant consideration was the likelihood of embarrassment.
In view of these, depending upon facts and circumstances of the case, it may be possible for you to file FIR in the matter of forged document and initiate the criminal proceedings in respect of that, and at the same time to file a civil suit to protect your rights or enforce your rights against such forged document. There is no bar in the law to these two types of proceedings being held simultaneously in a given matter.
Question: Is it possible for a high court to review its order passed in a writ petition under Article 226 of the Constitution?
Answer: There is a judgement of a Constitution bench of the Supreme Court in the case of Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909, which directly covers this issue and holds that a high court has the power to review its order passed in a writ petition under Article 26 of the Constitution. In this case, the Supreme Court held as under:
“It is sufficient to say that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it.”
In this case before the Supreme Court, the appellant had preferred a writ petition before the High Court of Punjab for quashing a particular order. The Director of Rehabilitation alone was made a party thereto. The petition was allowed by a Single Judge of the High Court. Eventually, Respondents 3 to 14, who were affected parties, preferred a petition before the High Court under Article 226 of the Constitution for impleading them as parties in the appellants’ petition and re-hearing the whole matter. This petition was entertained by the High Court and it allowed it. In these circumstances, the Supreme Court held that the previous order of the Single Judge of the high court affected the interests of persons who were not made parties to the proceeding before him. It was at their instance and for giving them a hearing that the Single Judge entertained the second petition. In doing so, he merely did what the principles of natural justice required him to do. It was contended that the respondents had no right to apply for review of the High Court order because they were not parties to the previous proceedings. However, the Supreme Court pointed out that it was precisely because they were not made parties to the previous proceedings, though their interests were sought to be affected by the decision of the High Court, that the second application was entertained by the Single Judge of the High Court.
From the above judgement of the Supreme Court, which is a judgement of five judges of the court, it should be clear that in appropriate cases the High Court has the power to review its earlier order passed under Article 226 of the Constitution.
Question: I have a commercial dispute with a person arising out of an agreement under which there is an arbitration clause. However, instead of resorting to arbitration, the opposite party has filed a civil suit against me in the court. What should I do in such a case since a civil suit will take a very long period to decide the issue between the parties and it appears that the opposite party is interested to delay the proceedings as much as he can? Can I insist for appointment of the arbitrator instead of pursuing with the civil suit?
Answer: Yes, it is possible for you to oppose the civil suit on the ground that there is an arbitration clause in the agreement between the two parties.
In this regard, I may point out that Section 8 of the Arbitration and Conciliation Act, 1996, allows you to file an application before the court where the civil suit is pending, clearly mentioning therein that the subject matter of the suit is governed by an arbitration agreement. You may have to enclose a copy of the original arbitration agreement or a duly certified copy thereof along with such application. If the court is convinced that there is an arbitration agreement between the parties on the subject matter of the suit, it is duty bound to refer the parties to arbitration instead of continuing with the civil suit. This section is reproduced as under:
“8. Power to refer parties to arbitration where there is an arbitration agreement.— (1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.
(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.
Provided that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub-section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that Court.
(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”
Further, the provisions of Section 8(3), as mentioned above, clearly show that even during the pendency of the application filed by you under Section 8(1), you can initiate the process for appointment of the arbitrator. Section 8(3) clearly shows that even during the pendency of such application before the court, and arbitration may be commenced or continued and an arbitral award may also be made.
In view of the above provisions in the law, before submitting your first statement on the substance of the dispute in the court when the civil suit is pending, you should file an application before the court, along with a certified copy of the arbitration agreement, in terms of Section 8(1) of the Arbitration and Consolation Act. You may also proceed with the process of appointment of the arbitrator at the same time.
Question: Can I file a civil suit in the court with insufficient court fees, while the remaining court fees can be paid at a later time? Due to some financial hardships, I am unable to pay huge court fees in one go, but at the same time I cannot delay filing of my suit due to time limitations. Will the court allow me a chance to pay the remaining court fees later while entertaining my suit at this stage on the basis of the part court fees paid? May be in a period of about 6 months, or even earlier, I can pay the remaining court fees.
Answer: Section 149 of the Civil Procedure Code empowers the court, in its discretion, at any stage of the proceedings, to pay the whole or part of the court fees prescribed for the suit. This section is reproduced below:
“149. Power to make up deficiency of court-fees.— Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as is such fee had been paid in the first instance.”
Therefore, if only a part of the court fees has been paid by the plaintiff at the time of filing of the civil suit, the court may permit him, in its discretion, to pay the part court fees at a later stage of the proceedings. You may have to justify why you could not pay the whole of the court fees in the beginning itself.
In this regard, in the case of Manoharan v. Sivarajan, (2014) 4 SCC 163, the Supreme Court has held that:
“Section 149 of the Civil Procedure Code prescribes a discretionary power which empowers the court to allow a party to make up the deficiency of court fee payable on plaint, appeals, applications, review of judgment, etc. This section also empowers the court to retrospectively validate insufficiency of stamp duties, etc. It is also a usual practice that the court provides an opportunity to the party to pay court fee within a stipulated time on failure of which the court dismisses the appeal. In the present case, the appellant filed an application for extension of time for remitting the balance court fee which was rejected by the learned Sub-Judge. It is the claim of the appellant that he was unable to pay the requisite amount of court fee due to financial difficulties. It is the usual practice of the court to use this discretion in favour of the litigating parties unless there are manifest grounds of mala fides. The court, while extending the time for or exempting from the payment of court fee, must ensure bona fides of such discretionary power. Concealment of material fact while filing application for extension of date for payment of court fee can be a ground for dismissal. However, in the present case, no opportunity was given by the learned Sub-Judge for payment of court fee by the appellant which he was unable to pay due to financial constraints. Hence, the decision of the learned Sub-Judge is wrong and is liable to be set aside and accordingly set aside.”
It was further held by the Supreme Court:
“In the case in hand, it is clear from the evidence on record that the appellant could not pay court fee due to financial difficulty because of which his suit got rejected. It is also pertinent to note that the appellant had moved the court claiming his substantive right to his property. The appellant faced with the situation like this, did not deserve the dismissal of the original suit by the court for non-payment of court fee. He rather deserved more compassionate attention from the Court of the Sub-Judge in the light of the directive principle laid down in Article 39-A of the Constitution of India which is equally applicable to district judiciary. It is the duty of the courts to see that justice is meted out to people irrespective of their socio-economic and cultural rights or gender identity.”
In view of the above, it should be possible for you to file the civil suit by paying a part of the court fees and requesting for extension of time for the payment of the remaining court fees. You may highlight your financial constraints and the above Supreme Court judgement in your support.
