Civil Procedure Code

 

Important Points

1. Origins
1. CPC evolved as matter of long years of experience emanating out of common law of England
2. Procedural law Vs Substantive law
1. The provisions of the code should NOT be allowed to defeat substantial justice [1]
2. Hypertechnical view should be avoid by court. [2]
3. A procedural law is always subservient to the substantive law.
4. Nothing can be GIVEN by a procedural law what is not sought to be given by a substantive law and nothing can be TAKEN away by a procedural law what is given by the substantive law.
3. Scope NOT exhaustive
1. Court has INHERENT power to act according to the principles of justice, equity and good conscience.
2. Nothing in Code SHALL be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ENDS of justice or to PREVENT abuse of the process of the Court.
4. Interpretation
1. Procedural laws are always retrospective in operation unless there are good reasons to the contrary ( Halsbury law of England V44 p 574 )
1. No one can have a vested right in forms of procedure.
5. Order 1 to 20 - 1st Schedule - deal with suits
1. Order 1 to 4 : institution and frame of suits, parties to suit and recognized agents & pleaders
2. Order 5 : issue and service of summons.
3. Order 6 : Pleading 
4. Order 7, 8 - written statements, set-off and counter claims
5. Order 9 - parties to suit appear before court and enumerates consequences of non-appearance. - Remedy for setting aside an order of dismisal  and exparte order
6. Order 10 - examine parties
7. Order 11 to 13 : discovery, inspection and production of documents and also admission of parties
8. Order 14 : Frame issues
9. Order 15 : Court pronounce Judgment at first hearing 
10. Order 16 to 18 : Summoning, attendance, examination of witness and adjournments
11. Order 19 : empowers the court to make an order to prove fact on basis of affidavit of a party 
12. Order 39 : Temporary injunction
13. Order 20 :  Judgment and Decrees
14. Order 25 : Security of costs
15. Order 22 : effect of death, marriage  or insolvency of a party to suit
16. Order 23 : withdrawal and compromise of suits.
17. 
    
6. Sections
1. Section 9 - Civil court has jurisdiction to try all suits of a civil nature unless they are barred expressly or impliedly.
2. Section 10 - Provide STAY of suit  ( res sub judice )
3. Section 11 - RES JUDICATA
4. Section 13, 14 - Foreign Judgements
5. Section 15 to 21A - Regulate the place of suing. - Jurisdiction
6. Section 22 to 25 - make provisions from transfer & withdrawal of suit, appeals
7. Section 33 : Judgment and Decrees
8. Section 75 to 78 ( Part III ) & Order 26 - Make provisions of advocate commissions
9. Section 89 : Settlement of disputes out of court through arbitration , conciliation, mediation  and Lok adalat
10. Section 94 to 95 & Order 26 make - issue arrest of a defendant and attachment before judgment
11. Part II : Section 36 to 74 : Execution proceedings 
12. Section 148A - CPC - permit a person to lodge a caveat in a suit or proceeding instituted or about to be instituted against him.
1. It is the duty of the court to issue notice and affort an opportunity of hearing to a caveator to appear and oppose interim relief sought by applicant.

Important Case

1. Hukum Chand Boid Vs Kamalanand Singh ILR (1906) 33 Cal 927
1. The provisions of the code should NOT be allowed to defeat substantial justice
2. Court has INHERENT power to act according to the principles of justice, equity and good conscience.
2. Babu Lal Vs Hazari Lal (1982) 1 SCC 525
1. Hypertechnical view should be avoid by court
3. Saiyad Mohd Bakar Vs Abdulhabib Hasan ( 1998) 4 SCC 343
1. A procedural law is always subservient to the substantive law.
2. Nothing can be GIVEN by a procedural law what is not sought to be given by a substantive law and 
3. nothing can be TAKEN away by a procedural law what is given by the substantive law.
4. State of Punjab Vs Shamlal Murari (1976) 1 SCC 719
1. Procedural law is not to be tyrant but a servant, not an obstruction but an aid to justice.
2. Procedural law is handmaid and not the mistress, a lubricant not a resistant in administration of justice. 
3. Courts are to do justice, not to wreck this end product of technicalities

Solitary Confinment

 

Important points

1. Confinement of an inmate in a cell for 22hrs a day amounts to quasi solitary confinement
1. and such is violative of his Fundamental Right to life guaranteed under A21 
2. Quasi solitary confinement because inmate is deprived of human company for extended lengths of time and such confinement has been held to be extremely harsh and violative of basic human rights which are entitlement of every prisoner.
2. Balance need to be maintained between security enforcement and protection of fundamental rights of prisoners.
3. 
   
4. Private Maintenance 
1. provision of food, clothing, bedding and other necessaries through private sources, cooking facilities, adequate food and water, adequate clothing and newspaper, magazines and television
5. Arguments for solitary confinement
1. Hardened criminal with 34 cases registered against him, convicted in few.
2. Propensity to create riotous situation.
6. Arguments against solitary confinement
1. Stringent measures cannot be justified even on the grounds of maintenance of discipline and order as personal liberty of a prisoner cannot be curtailed to such an extent that he is reduced to a mere animal existence.

Case Law

1. Sunil Batra (II) Vs Delhi Administrationv1978 4 SCC 494
1. Even a person under death sentence has human rights which are non-negotiable and even dangerous prisoner, standing trail, has basic liberties which cannot be battered away.
2. Sunil Batra (II) Vs Delhi Administrationv1980 3 SCC 488
1. It is evident that the letter of law laid down in the path breaking judgement o

Plea of Alibi

 

Statue

1. S103 of Indian Evidence Act - Burden of Proof as to any particular fact lies on that person who wishes court to believe in its existence, UNLESS it is proved by any law that the proof of that fact lies on any particular person
2. Illustration - 
1. A prosecutes B for theft, and wishes the court to believe that B admitted the theft to C. A must prove the admission.
1. "B wishes the Court to believe that at the time in question, he was elsewhere. He must prove it"
3. 
   

Important Points

1. Burden to prove the pleas of alibi lay upon the accused which he could do by leading evidence in the trail and not by filing some affidavits or statements recorded in 161 CrPC.
2. Prosecution would have opportunity to cross examine those(alibi) witness and demonstrate that their testimony was not correct.

Case Laws

1. Gurcharan Singh Vs State of Punjab AIR 1956 SC 460
2. Chandriak Prasad Singh Vs State of Bihar AIR 1972 SC 109
3. State of Haryana Vs Sher Singh AIR 1981 SC 1021

Article 20(3) Constitution of India

 

Statue

1. A20(3) - Extends certain protection to a person in respect of the conviction for offence and sub-clause(3) thereof provides that no person accused of any offence SHALL be compelled to be witness against himself.
1. No person accused of any offence SHALL be compelled to be witness against himself.

Important Points

1. Protection from Self Incrimination
1. Protection ONLY extent of being witness against himself
2. Does not include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy.
3. But which do not contain any statement of teh accused based on his personal knowledge.
4. Testimony by an accused may be said to have been self incriminatory
1. it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so
2. it should be statement which makes the case against the accused person at least probable considered by itself
2. Self Incrimination
1. Conveying information based upon the personal knowledge of the person giving the information 
3. Voice Samples
1. Does not mean that he is asked to testify against himself.
2. No opportunity of hearing to accused is necessary in issuing such direction
3. Since power exist with the Magistrate to issue a direction to give voice sample during investigation  and such direction are not violation of A20(3)
4. UNLESS  accused in a position to show that any prejudice is caused with the direction 
5. Voice samples are taken only for comparison , cannot be said to be witness against himself.
4. During Investigation stage - petitioner right under A20(3) is NOT violated 
5. Specimen handwriting. or signature or finger impression by themselves are no testimony at all being wholly innocuous because they are unchangeable except in rare cases where the ridge of finger or the style of writing have been tampered with with.
6. Purpose served by handwriting, signature, DNA, Voice samples
1. They are ONLY materials for comparison in order to lend assurance to the court that its inference based on other material is reliable.
2. They are neither oral nor documentary evidence but belong to 3rd category of material evidence which is outside the limit of testimony.

Case Laws

1. Selvi & Others Vs State of Karnataka AIR 2010 SC 1974
2. State of Bombay Vs Kathi Kalu Oghad AIR 1961 SC 1808
1. 11 Judge Bench of SC
2. The giving of finger impression or of specimen signature or of handwriting strictly speaking is not to be a witness.
3. To be a witness means imparting knowledge in respect of relevant fact, by means of oral statements or statements in writing by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation.
4. A person is said to be a witness to a certain state of facts which has to be determined by a court or authority authorised to come to a decision, by testifying to what he has seen, or something he has heard which is capable to being heard and is not hit by the rule excluding hearsay or giving his opinion as an expert in respect of matters in controversy.
5. Evidence has been classified by text writers into 3 categories
1. oral testimony
2. Evidence furnished by documents
3. material evidence
6. 20(3) covers oral testimony, written statements which may have a bearing on the controversy with reference to the charge against him
7. The accused may have documentary evidence which may throw some light on the controversy. If it is a document, which is not his statement conveying his personal knowledge relating to the charge against him, he may be called upon by the court to produce the document in accordance with Section 139 of Evidence Act. 
8. Which in terms, provides that a person may be summoned to produce a document in his possession or power and that he does not become a witness by mere fact that he has produced it. and therefore he cannot be cross-examined.
3. Ritesh Sinha Vs State of UP & another 2019 8 SCC 1
1. 3 J bench of SC
2. Until explicit provisions are engrafted in CrPC by Parliment, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime
3. Such power has to be conferred on a Magistrate by a process of Judicial interpretation and in exercise of jurisdiction vested in the court u/s A142 of Constitution of India

Sources

482 CrPC

 

Statue

1. 482 CrPC - to Quash a criminal proceeding only when an allegation made in FIR or the CS constitutes the ingredients of the offence/offences allged
1. NOTHING in this code shall be deemed to limit or affect the INHERENT powers of HC to make such orders as may be necessary to give effect to any order under the code or to
1. prevent abuse of the process of any court or 
2. otherwise to secure the ends of justice.

Important points

1. It is settled law, that the evidence produced by the accused in his defence cannot be looked into by the court, EXCEPT in very exceptional circumstances at the initial stage of the criminal proceedings
2. it is trite law that HC cannot embark upon the appreciation of evidence while considering the petition filed under section 482 CrPC
3. The statements  of the witnesses u/s 161 CrPC being wholly INADMISSIBLE in evidence COULD NOT at all be taken into consideration.
4. HC can quash criminal proceedings in exercise of its inherent powers under 482 CrPC even if the offences are non-compoundable and the compromise is reached after conviction.
1. In Non Heinous offences
2. Offences are predominantly of a private nature.
3. HC has to exercise such discretion with rectitude( Righteousness ), keeping in view the circumstances surrounding the incident.
4. pragmatic approach, to ensure that the felony even if goes unpunished does not tinker with or paralyze the very object of the administration of criminal justice system.
5. handing out punishment is not sole form of delivering justice.
5. Section 320 CrPC - non compoundable cannot be compounded by a criminal court in exercise of power under Section 320
1. any such attempt would amount to alteration, addition and modification of section 320 CrPC - which is exclusive domain of Legislature.
2. There is no patent or latent ambiguity in language of 320 CrPC which may justify its wider interpretation and include such offences in docket of compoundable offences which have been consciously kept out as non compoundable.

Where does Quash Fail?

1. Time taken for conducting preliminary enquiry not ground enough to quash criminal proceedings for an offence ( especially Prevention of corruption ) 

Question

1. can Quash be applied after conviction?
1. Yes
2. in non-heinous offence 
3. where offences are predominantly of a private nature 
2. what is preliminary enquiry?
1. Lalitha Kumari Vs Govt of UP requires conducting mandatory preliminary enquiry before registation of FIR and mandatory filing of FIR
2. Preliminary Enquiry u/s Clause 3.16 - into allegations to consider whether any prima facie case is made out or not which requires further investigation after registration of FIR or not
3. Preliminary Enquiry is only for purpose of finding out a prima facie case for the puspose of registration of the FIR only 
4. Enquiry conducted at the stage of preliminary eqnuiry by no stretch of imigationt will be considered as investigation u/s CrPC, investigation can only after FIR- State of Jammu vs Dr saleem ur Rehman

Reportable & Unreportable Judgements

 

Lord Denning

“Every decision is binding no matter whether it is reported in the regular series of Law Reports, or is unreported. Once you have the transcript, you can cite it as of equal authority to a reported decision. It behoves every counsel or solicitor to find, if he can, a case – reported or unreported – which will help him advise or win his case.” 

Art. 141 of the present Constitution lays down that the law declared by the Supreme Court shall be binding on all courts within India.

“Theory of Precedent - LAW REPORTING IN INDIA by Mr. M.P. Jain.

Reported Judgements means the judgments which are published in Law Reports. Reported Judgements are those which deal with relevant points and matters and which are significant and has its impact and are considered to be valuable precedents and hence are included in Law Reports.

Unreported Judgements are those which are not considered that important for being getting report or may be the recent Judgement which not yet reported but may be reported later. Unreported judgments are decisions that have not been published in an official law report. Despite this, unreported judgments are useful as they may provide commentary by the Courts on unique issues that have not been discussed in reported judgments.

Case Law 

1. Dharamraj Bhanushankar Dave v. State of Gujarat
1. Court observed that there are no specific provisions pointed out by the petitioner which have been violated by publication
2.  it would not be covered under the ambit of Article 21 of the Constitution
3. reportable or non-reportable is the classification made for the reporting of a judgment in law-reporter and not its publication anywhere else

Source 

1. https://fireflieslegal.com/be-aware-of-reported-judgements-vs-unreported-judgements-p409-143.htm