My Lord

 

1. Date : 30th July 2021
1. Punjab & Haryana High Court - Justice Arun Kumar Tyagi
1. It is for the information of the respected members of the Bar that Hon'ble justice Arun Kumar Tyagi has requested that respected members of the Bar may AVOID addressing him as "Your Lordship" or "My Lord" and also saying obliged and grateful. All concerned to note Please -  link
2. Date : 17th April 2021
1. Karnataka High Court : Justice Krishna Bhat
1. Court Hall No : 32, Cause list No : 1
2. NOTE : learned counsel are requested to avoid addressing the court with such Excessive honorific as "My Lord" or"Your Lordship". But are requested to Adhere to a practice consistent with dignity and decorum of court which is more appropriate in Indian Circumstances Like SIR
3. Date : 23rd February 2021
1. Supreme Court of India : CJI SA Bobde
1. When you call us Your Honour, you either have the Supreme Court of United States or the Magistrate in mind. We are neither . 
4. Date : 16th March 2020
1. Punjab & Haryan HC , Justice Murlidhar
1. It is for the information of respected members of the bar that Hon'ble Justice S. Murlidhar has requested that they may try and avoid addressing him as 'Your Lordship" or "My Lord", 
5. Date  : 16th July 2020
1. Calcutta High Court, CJ Thottathil B. Nair Radharkrishna
1. CJ addressed a letter to officers of district Judiciary including members of Registry, expressing his desire to be addressed as "SIR" instead of My lord or Lordship
6. Date : 16/01/2017
1.  Judge Rajesh Bindal & Jusrice Harinder Singh Sidhu : CWP No 531 / 2017  HC P&H : Verinder Pal Sharma Vs Bar Council of India
1. Grievance is petitioner used the word "My Lord"/ Your Lordship and as the use of words may violate the provisions of the rules, action may be taken against him
2. No provision in rules provides that violation of provisions u/s Chapter IIIA in Part VI of Rules - any actions could be taken against any advocate.
3. No reason to interfere
7. Date : January 2014
1. Supreme Court : Justice H.L Dattu and Justice S.A Bobde 
1. Addressing judges through such terms were not compulsory and judges only need to be addressed in a dignified manner.
2. You call it your honour, it is accepted, you call your lordship it is accepted. There are some appropriate way of expression which are accepted.
3. PIL by 75y Old advocate Shiv Sagar Tiwari
1. seeking court direction to strictly prohibit the use of 'my Lord' or 'your lordship' in courts alleging 'it is against the dignity of the country"
2. Words 'My Lord"/ "Your Lordship" are symbols of slavery should be strictly prohibited to be used in the courts throughout  India as it is against the dignity of the country
8. Date
1. Rajasthan High Court
9. Date : 2009
1. Madras High Court, Justice K. Chandru
1. Message on Notice Board requesting them not to address the court using Traditional Phrase My Lord.
10. Date : 2007
1. Kerala High Court Advocates Associations had unanimously resoved to stop addressing judges as 'My Lord' or "Your Lordship"
11. Date : 6th May 2006
1. Bar Council of India - Published Resolution in gazette of India - Resolution No 58/2006
1. Consistent with the obligation of the Bar to show a respectful attitude towards the Court and bearing in min the dignity of Judicial Office, the form of address to be adopted whether in the Supreme court, High Court or Subordinate Courts should be as follows: Your Honor or Hon'ble Court in Supreme Court & High Court and in the Subordinate courts and Tribunals it is open to the Lawyers to address the Court as Sir or the equivalent word in respective regional language. 
2. Rule made under section 49(1)(j) of the Advocates Act, 1961 be added as Chapter IIIA in Part VI of the Bar Council of India Rules
1. Consistent with the obligation of the Bar to show a respectful attitude towards the Court bearing in mind the dignity of Judicial Officer, the form of address to be adopted whether in the Supreme Court, High Courts or Subordinate Courts should be as follows
2. "Your Honour" or "Hon'ble Court" in Supreme Court or High Court and in the Subordinate Courts and Tribunals it is open to the Lawyers to address the Court as Sir or the equivalent word in respective regional language
3. Explanation :  As the words "My Lord" and "Your Lordship" are relics of colonial past, it is proposed to incorporate the above rule showing respectful attitude to the Court.
4. The Rule shall come into force from the date of publication in the Official Gazette. IT IS FURTHER RESOLVED to circulate the resolution to all the state Bar councils with a respect to the Bar Councils to circulate the same to all Bar Associations in their state and to the Courts. Letter should also be sent to the Supreme Court Bar Association, the Registrar General of the Supreme Court of India and the Registrars of all the High Courts.

Case Laws

1. PIL Progressive & Vigilant Lawyers Forum
1. 6th Jan 2006 - Dismissed the case - matter to be decided by the BCI as to how the Judges should be addressed

General Exceptions

 

Chapter IV : General Exceptions

1. No criminal Intent ( Incapable of criminal Intent )
2. Justified under Law to do the act

Section 77

1. Nothing done by Judge  when acting judicially in the exercise of any power which is or which in good faith be believe to be given him by law.
2. 19 Judge - denotes NOT only every person who is officially designated as Judge but also every person who is empowered by law to give, in any legal proceeding, civil or criminal a definitive judgement or a judgement which if not appealed against would be definitive or judgment which if confirmed by some other authority, would be definitive or 
1. Who is one of a body or person which body of persons is empowered by law to give such a judgment.

Section 78

1. Mistake of fact NOT by mistake of law in good faith believes bound by law to do it
1. 1981 4 SCC 2 ( WB Vs Theo mangal singh )
2. Bound by law  - specific law he has to follow

Section 79

1. if Justified by law or reason of a mistake of fact and not reason of a mistake of law in good faith
1. Justified law is not there, you are not prohibited under law you are justified by law to do the act.
1. AIR 1980 SC 605 ( Rajkapur vs Lakshman ) - Satyam Sivam Sundaram

Section 80 : accident in doing a lawful act - without any criminal intention or knowledge in the doing of a law full act in lawful manner by lawful means and with proper care and caution.

- Redundant provision

- guilty of unlawful act which is charged 

- Lecture on criminal law by Huda

Section 81 : Act likely to cause harm, but done without criminal intent and to prevent other harm

1. Mens rea 
1. Doing act with knowledge - 
2. Doing act with Criminal Intention 
2. It is question of fact

Section 82 : Doli in capax : act of a child under 7y of age  in capable of offence - this presumption is conclusive and NO rebuttal 

Section 83 : Rebuttable presumption : Act of child above 7y and under 12y of immature understanding who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.

1. Burden on the Prosecution - child is capable of understanding the nature and consequences of the act.
2. 1977 4 SCC 44

Section 84 : Act of a person of unsound mind : incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law.

1. Mcnaughten - Insanity
2. 2010 10 SCC 582 - Sudakaran Vs State of Kerala -- history of Section 84
3. At the time of doing the act, he should suffer from unsoundness of time 
4. And because of that he was incapable of knowing the nature of the act.
5. What is unsoundness of mind? Not defined 
1. Insanity - He should suffer from some form medical insanity 
2. Legal Insanity - there has to some thing more - he must be incapable of nature of the act
6. Test for Incapable of doing the act
1. Deliberation and preparation of doing the act. - answer is Yes then not passed test
2. Whether it was done in a manner to try to conceal the act - capable of knowing the nature of the act.
3. After the crime the offender shows conciseness of guild and avoid detection - then also he is capable
4. if he gave false statement investigation
5. all these Test are only inferential and NOT conclusive . Court is final arbiter
7. case law
1. 2011 11 SCC 495 - surender Mishra Vs state of Jarkhand
2. Bapu vs State  of 2007 8 SCC 636
3. Srikanth Anand rao Vs State of Maharastra   2002 7 SCC 748

Section 85 : act of a person incapable of judgment by reason of intoxication caused against his will 

1. Law presumes - if intoxication is incapable of judgment
2. such intoxication should be without of his knowledge
3. because of intoxication - unable to knowing the nature act he was doing    

Section 86 : is not Exception it is Explanation.  dealt with as if he had same knowledge as he would have had if had not been intoxicated 

1. Burden of proof on the accused - 105 of IEA - court presumes absence  of exceptions.
2. Standard of Proof is Preponderance of Probability
1. 1974 4 SCC 764
2. 1964 7 SCR 361

General Exceptions - applicable to all the offense

Chapter II : General Explanations

Definition in the code to be understood subject to exceptions r/w General Exceptions

Special Exceptions - Definition it self gives these exceptions

1. Defamation
2. Murder

MP/ MLA Privileges

 

MP/ MLA Case

1. Immunities and Privileges
1. Protest by MLA protected by immunities and privileges under A194(3) of Constitution of India
1. Privileges u/s A194 cannot be used to cover for violent actions of members in the precincts of LA
2. Lokayukta Justice Ripusuan Dayal Vs State of MP 2014 4 SCC 473
1. Privileges can only be provided to the extent required so as to allow the members to perform the function without hindrance.
2. Privilege cannot be used as shield to circumvent the application of criminal law since NO person enjoys privilege against criminal Prosecution. 
2. Breach of Privilege - Breach of Privilege is a contempt of the House, which falls under the exclusive jurisdiction of the Speaker of the Assembly.
1. There is NO PROVISION under Constitution or Rules of Procedure and Conduct of Business in persuant of A208(1) that mandate police to seek permission or sanction of speaker before registering a crime against a MLA.
3. Public Interest : Freedom of MLA are necessary for the functioning of democracy and are subject to the power of Speaker or the criminal court with the sanction of the speaker
4. Absence of Mens Rea : 
5. Lack of Evidence
1. Such arguments regarding inadequacy of evidence for successful conviction must be raised accused while seeking discharge
1. Sheonandan Paswan Vs State of Bihar (1987) 1 SCC 288
6. Case Law
1. P.V Narasimha Rao Vs State ( CBI/SPE) Etc AIR 1998 SC 2120
1. Immunity can be claimed by MLA's ONLY in exercise of free speech and voting 

321 CrPC

 

Statue

1. 321 CrPC : Withdrawal of Prosecution
1. The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the court, at any time before the judgement is pronounced withdraw from the prosecution of any person either generally or in respect of any one or more of the offenses for which he is tried; and upon such withdrawal
2. (a) if it is made before a charge has been framed the accused shall be discharged in respect of such offence or offences
3. (b) if it is made after a charge has been framed or when under this code no charge is required, he shall be acquitted in respect of such offence or offences.
4. Provided that where such offence
1. was against any law relating to a matter to which the executive power of the Union extends or
2. was investigation by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946
3. Involved the misappropriation or destruction of or damage to any property belonging to the central government or
4. was committed by a person in the service of the central government while acting or purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case has not been appointed by the Central Government he shall not unless he has been permitted by the central govt

Important Points

1. Role of Court 
1. Access whether the application is made in good faith, in the interest of justice and public policy
2. NOT to stifle the process of law
3. PRESUMED application filed without good faith is based on external influence.
4. The Real TEST 
1. Decision of PP will destroy the administration of Justice
5. Power of court to grant consent for a withdrawal petition is similar to the power under Section 320 CrPC to compound offences
6. Court in 321, 320 CrPC - will NOT have to enquire into the issue of conviction or acquittal of accused person and will only need to restrict itself to providing CONSENT through the exercise of jurisdiction in supervisory manner.
7. 321  does not provide any grounds for seeking withdrawal
1. Public policy,
2. interest of administration of Justice
1. Scrutinize the nature and gravity of the offence and its impact upon public life especially matters involving public funds and discharge of public trust
3. inexpediency to proceed with the prosecution for reasons of state and 
4. paucity of evidence.
5. ONLY restrict itself to ONLY determining if the Prosecutor has exercised the power for the above legitimate reasons.
8. Acquittal or discharge order u/s 321 are not same as the normal final orders in criminal case
1. Conclusion wont be backed by a detailed discussion of the evidence in the case acquittal or absence of prima facie cases or groundlessness in the case of discharge.
2. Public Prosector 
1. should form independent opinion before seeking the consent of the court to withdraw from the prosecution
2. 
   

Case Law

1. Rajendra Kumar Jain Vs State through Special Police Establishment & Ors (1980) 3 SCC 435
1. Power of PP to withdraw from the prosecution for one or more offenses can be exercised in furtherance of public Justice - social, economic & Political
2. Offence that the respondent are accused of committing occurred during the presentation of State Budge, in the premises of LA
3. Their actions are manifestations of effective political participation, and are in furtherance of political purpose which is valid ground for withdrawal of prosecution
2. State of Bihar Vs Ram Naresh Pandey & Anr
1. Section 494 of earlier CrPC 1898
2. Granting consent to withdraw prosecution the court exercises a judicial function.
3. However, in doing so the court need not determine the matter judicially.
4. Court ONLY has to satisfy that Executive function of PP has NOT been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes.
5. Magistrate power u/s 494 CrPC  - to prevent abuse of power of the executive.
3. M.N Sankaraynarayanan Nair Vs P. V Balakrishnan 1972 1 SCC 318
1. Power conferred on PP u/s 494 crpc 1898 are to be exercised in furtherance of the object of law
2. Para 8
1. The court also while considering the request to grant permission under the said setion should not do so as necessary formality - the grant of it is for mere asking.
2. It may do so only if it is satisfied on the materials placed before it that the grant of it subserves the administration of justice and that permission was not being sought covertly with an ulterior purpose unconnected with the vindication of the law which the executive organ are in duty bound to further and maintain.
4. Rajendra Kumar Jain Vs State through Special Police Establishment
1. George Fernandes, accused of rousing resistance against the Emergency 1975 and participatinging in conspiracy to do acts which may have resulted in destruction of property
2. Special PP filed S321 in view of changed circumstances and public Interest.

Alternative Remedy

 

Important points

1. Where alternative remedy existed, It would be sound exercise of discretion to refuse to interfere in a petition under A226.
1. UNLESS there are good grounds therefor
2. Indicating that alternative remedy would NOT operate as an ABSOLUTE BAR and writ petition u/s A226 could still be entertained in exceptional circumstances 
2. Exhaustion of statutory remedies before write will be granted is a rule of policy convenience and discretion RATHER than rule of law and numerous instances where write of certiorari has been issued in spite of the fact that aggrieved party had other adequate legal remedies.
3. Writ is ordinarily not maintainable when there exists an alternative remedy
1. Exceptions to this rule are - statutory authority has not acted accordance with the provisions of the legislation
2. or acted in defiance of the fundamental principles of Judaical procedure
3. Or order has been passed in violation of principles of natural justice.
4. No bar operates atleast for 3 contingencies
1. Writ filed for enforcement of Fundamental Rights
2. Violation of the principle of natural justice
3. Order or proceeding are wholly without jurisdiction or the vires of an act is challenged.

Case Law

1. Whirlpool Corporation Vs Registrar of Trademark (1998) 8 SCC 1
2. Radha Krishan Industries vs state of Himachal Pradesh 2021 SCCOnline SC 334
3. Rashid Ahmad Vs Municipal Board AIR 1960 SC 163
1. Where alternative remedy existed, sound exercise of discretion to refuse to interfere u/s A226
4. State of UP Vs Mohd Nooh 1958 SCR 595
1. Alternative remedy would not operate as an absolute bar and that writ petition u/s A226 could be still entertained under exceptional circumstances.