BLOG IT LEGAL

Subsoil rights are separate and they do not form part of the surfacial land

2012-04-08T15:49:00.000+05:30

Hon'ble Supreme Court relying upon its earlier decision in the case of State of A.P. v. Duvvuru Balarami Reddy reported at AIR 1963 SC 264 upheld that subsoil rights do not form part of surfacial rights of land. The pattedar/owner of the land is entitled only for the surfacial rights and subsoil rights normally vest in the State.

The aforesaid finding was given in the case of K. Thippanna Alias Thippeswamy Vs. Varalakshmi And Anr., while deciding that in a decree for partition of land belonging to joint family, a party (plaintiff) cannot claim as of right a share in extracted minerals stored by defendants on the land in absence of any evidence that he was co-licensee under Mines and Minerals (Development and Regulation) Act, 1957. The relevant portion of the judgement is as under:-

"12. Even assuming for the sake of arguments that there is iron ore extracted from and stored on the decree scheduled property by the (defendant) appellant herein, in our opinion, the respondent is not entitled, as of right, to a share in the iron ore by virtue of her being a co-sharer in the decree scheduled property. It must be remembered that the suit was for partition of the suit scheduled property, on the ground that the same is the joint family property of the 1st respondent's father and the appellant herein. The plaint schedule does not deal with the subsoil rights of the various items of landed property included therein. It is well settled in law that subsoil rights do not form part of surfacial rights of the land. The pattedar / owner of the land is entitled only for the surfacial rights and subsoil rights normally vest in the State (See State of Andhra Pradesh Vs Duvvuru Balarami Reddy and others, AIR 1963 SC 264). Therefore, assuming for the sake of arguments that the appellant herein did, in fact, win the mineral from the decree scheduled property, the respondent is not entitled for the share in the same on the ground that she is entitled for a half share of the surface of the property from out of which, the iron ore was (allegedly) extracted.

Extraction of the minerals is governed in this country by the Provisions of the Mines and Minerals Development and Regulatory Act, 1957, which requires a license to be acquired by any person interested in carrying on the mining activity. Such a license is granted under the said Act, subject to various rules and regulations and including a requirement of payment of royalty on the part of the licensee as the mineral essentially belongs to the State. Without any pleading or proof in this regard to the effect that the respondent is a licensee under the provisions of the above mentioned Act, the respondent is not entitled, automatically, to claim a share in the mineral alleged to have been extracted by the appellant herein."

Supreme Court issued Guidelines in order to reduce landlord-tenant litigation.

2011-09-13T09:32:00.002+05:30

While deciding the Special Leave Petition against the interim order of High Court, for increasing rent of the premises, Supreme Court in the case of Mohd. Ahmad Vs. Atma Ram Chauhan¸ held that one half of the lis between the landlord and tenant would not reach courts, if the tenant agrees to pay the present market rate of the tenanted premises to the landlord. The tenant is happy in paying the meagre amount of rent fixed years ago and the landlord continues to find out various grounds under the Rent Acts, to evict somehow or the other. That looking at the problem which society faces at large Supreme Court framed certain guidelines to be followed in landlord-tenant litigation and held as under:-

“21. According to our considered view majority of these cases are filed because landlords do not get reasonable rent akin to market rent, then on one ground or the other litigation is initiated. So before saying omega, we deem it our duty and obligation to fix some guidelines and norms for such type of litigation, so as to minimise landlord-tenant litigation at all levels. These are as follows:-

(i) The tenant must enhance the rent according to the terms of the agreement or at least by ten percent, after every three years and enhanced rent should then be made payable to the landlord. If the rent is too low (in comparison to market rent), having been fixed almost 20 to 25 years back then the present market rate should be worked out either on the basis of valuation report or reliable estimates of building rentals in the surrounding areas, let out on rent recently.

(ii) Apart from the rental, property tax, water tax, maintenance charges, electricity charges for the actual consumption of the tenanted premises and for common area shall be payable by the tenant only so that the landlord gets the actual rent out of which nothing would be deductible. In case there is enhancement in property tax, water tax or maintenance charges, electricity charges then the same shall also be borne by the tenant only.

(iii) The usual maintenance of the premises, except major repairs would be carried out by the tenant only and the same would not be reimbursable by the landlord.

(iv) But if any major repairs are required to be carried out then in that case only after obtaining permission from the landlord in writing, the same shall be carried out and modalities with regard to adjustment of the amount spent thereon, would have to be worked out between the parties.

(v) If present and prevalent market rent assessed and fixed between the parties is paid by the tenant then landlord shall not be entitled to bring any action for his eviction against such a tenant at least for a period of 5 years. Thus for a period of 5 years the tenant shall enjoy immunity from being evicted from the premises.

(vi) The parties shall be at liberty to get the rental fixed by the official valuer or by any other agency, having expertise in the matter.

(vii) The rent so fixed should be just, proper and adequate, keeping in mind, location, type of construction, accessibility with the main road, parking space facilities available therein etc. Care ought to be taken that it does not end up being a bonanza for the landlord.”

Such guidelines will definitely help in speedy dispute resolution, though it is high time that the legislature comes out with the new Rent Law which addresses the present day problems of the landlord – tenant.

Now Non-Lawyers can also represent parties before Consumer Forum

2011-09-02T16:23:00.000+05:30

Larger Bench of Supreme Court comprising of three judges in the case of C. Venkatachalam vs Ajitkumar C. Shah & Ors., while upholding the decision of Bombay High Court held that an 'agent' appointed by a party can plead a case before the Consumer Disputes Redressal Forum, even though he/she may not be an advocate. Hon’ble Supreme Court came to the said conclusion after discussing various laws and rules on the subject in India and also after thorough compression with the situation other foreign development country. Now as a result any person can represent his/her client before the Consumer Forum and can start his/her exclusive even if one is not even a law graduate. This is a welcome step in India where concept of specialization is still rare, which affects the quality of work and caused delay in adjudication also. The relevant part of the judgement is as under:-

“14. It is imperative to properly comprehend the objects and reasons of the Consumer Protection Act, 1986 in order to deal with the controversy involved in the case.

"Statement of Objects and Reasons - The Consumer Protection Bill, 1986 seeks to provide for better protection of the interests of consumers and for the purpose, to make provisions for the establishment of Consumer Councils and other authorities for the settlement of consumer disputes and for matters connected therewith.

2. It seeks, inter alia, to promote and protect the rights of consumers such as-

(a) the right to be protected against marketing of goods which are hazardous to life and property;

(b) the right to be informed about the quality, quantity, potency, purity, standard and price of goods to protect the consumer against unfair trade practices;

(d) the right to be heard and to be assured that consumer interests will receive due consideration at appropriate forums;

(e) the right to seek redressal against unfair trade practices or unscrupulous exploitation of consumers; and

(f) right to consumer education.

3. These objects are sought to be promoted and protected by the Consumer Protection Council to be established at the Central and State level.

4. To provide speedy and simple redressal to consumer disputes, a quasi-judicial machinery is sought to be set-up at the district, State and Central levels. These quasi- judicial bodies will observe the principles of natural justice and have been empowered to give relief of a specific nature and to award, wherever appropriate, compensation to consumers. Penalties for non-compliance of the orders given by the quasi-judicial bodies have also been provided."

15. Mr. Santosh Paul, learned counsel appearing for the appellants argued these appeals and also submitted the written submissions. He submitted that ordinarily right to practise has been given only to advocates who are enrolled with the Bar Council of a State. Section 29 of the Advocates Act, 1961 recognised advocates as class of persons entitled to practise the profession of law. Section 29 reads as under:

"29. Advocates to be the only recognized class of persons entitled to practice law - Subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates."

16. Section 32 of the Advocates Act, 1961 deals with the power of court to permit appearances in particular cases where court can permit any person not enrolled as an advocate. Section 32 reads as under:

"Power of Court to permit appearances in particular cases - Notwithstanding anything contained in this Chapter, any court, authority, or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case."

17. Section 33 of the Advocates Act, 1961 says that no person shall, on or after the appointed day, be entitled to practise in any court or before any authority unless he is enrolled as an advocate. Section 33 reads as under:

"Advocates alone entitled to practise - Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practise in any court or before any authority or person unless he is enrolled as an advocate under this Act."

18. According to Mr. Paul, analysis of these provisions lead to clear conclusion that only advocates can act, plead and argue before the Consumer Forums.

19. He placed reliance on the following judgments of this court :-

20. In O.N. Mohindroo v. The Bar Council of Delhi and Others 1968 (2) SCR 709, the court held as under:-

"The object of the Act is thus to constitute one common Bar for the whole country and to provide machinery for its regulated functioning. Since the Act sets up one Bar, autonomous in its character, the Bar Councils set up thereunder have been entrusted with the power to regulate the working of the profession and to prescribe rules of professional conduct and etiquette, and the power to punish those who commit breach of such rules. The power of punishment is entrusted to the disciplinary committees ensuring a trial of an advocate by his peers. Sections 35, 36 and 37 lay down the procedure for trying complaints, punishment and an appeal to the Bar Council of India from the orders passed by the State Bar Councils. As an additional remedy section 38 provides a further appeal to the Supreme Court. Though the Act relates to the legal practitioners, in its pith and substance it is an enactment which concerns itself with the qualifications, enrollment, right to practise and discipline of the advocates. As provided by the Act once a person is enrolled by any one of the State Bar Councils, he becomes entitled to practise in all courts including the Supreme Court. As aforesaid, the Act creates one common Bar, all its members being of one class, namely, advocates. Since all those who have been enrolled have a right to practise in the Supreme Court and the High Courts, the Act is a piece of legislation which deals with persons entitled to practise before the Supreme Court and the High Courts. Therefore the Act must be held to fall within entries 77 and 78 of List I. As the power of legislation relating to those entitled to practise in the Supreme Court and the High Courts is carved out from the general power to legislate in relation to legal and other professions in entry 26 of List III, it is an error to say, as the High Court did, that the Act is a composite legislation partly falling under entries 77 and 78 of List I and partly under entry 26 of List III."

21. In Harishankar Rastogi v. Girdhari Sharma and Another (1978) 2 SCC 165, the court held as under:-

"Advocates are entitled as of right to practise in this Court (Section 30(i) of the Advocates Act, 1961). But, this privilege cannot be claimed as of right by any one else. While it is true that Article 19 of the Constitution guarantees the freedom to practise any profession, it is open to the State to make a law imposing, in the interest of the general public, reasonable restrictions on the exercise of the right. The Advocates Act, by Section 29, provides for such a reasonable restriction, namely, that the only class of persons entitled to practise the profession of law shall be advocates. Even so, is it not open to a party who is unable for some reason or other to present his case adequately to seek the help of another person in this behalf? To negative such a plea may be to deny justice altogether in certain cases, especially in a land of illiteracy and indigence and judicial processes of a sophisticated nature. That is precisely why legislative policy has taken care to provide for such contingencies. Sections 302, 303 and 304 of the Criminal Procedure Code are indicative of the policy of the legislature. I do not think that in this Court we should totally shut out representation by any person other than the party himself in situations where an advocate is not appearing for the party...."

22. Mr. Paul appearing for the appellants also gave reference to international law and conventions to strengthen his submissions that only advocates enrolled with the respective Bar Councils alone can practise in the Consumer Forums and the agents cannot appear. He submitted that practice under the Consumer Protection Act, 1986 requires extensive legal skills which only a trained legal practitioner possesses and he alone can discharge those functions. He submitted that the agents have no legal training to handle complicated legal matters pertaining to consumers and hence the agents cannot be permitted to practise law before the Consumer Forums.

Historical perspective of the consumer movement

23. The consumer movement had primarily started in the West. We can trace history of the consumer movement from the judgment of the leading case Carlill v. Carbolic Smoke Ball Company 1893 (1) Q.B. 256. In this case first time Manufacturers' liability for minimum quality standard for product was established.

24. For the first time in 1856 a select committee recommended that a cheap and easy remedy, by a summary charge before a magistrate, should be afforded to consumers who received adulterated or falsely described food. This suggestion was taken up in the Merchandise Marks Act, 1887. Section 17 of the Act provides as follows :

"That a person applying a trade description to a product was deemed to warrant that it was true, so that a false trade description constituted breach of both criminal and civil law."

25. In a leading English case Donoghue v. Stevenson (1932) A.C. 562, where the consumer claimed to have suffered injury as well as result of drinking from a bottle of ginger-beer containing a decomposed snail. Over a strong dissent the majority held that the manufacturer would be liable. The case did not herald strict liability but it facilitated more claims than were provided under the nineteenth century approach. Lord Atkin enunciated the manufacturer's duty of care in the following words:

"..........the preparation or putting up of the products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care."

26. This theory of strict liability already exists under the Consumer Protection Act, 1961.

27. The organized English consumer movement started after the Second World War. The Labour Party for the first time gave slogan of "battle for the consumers" in Parliament. In the decade of 1960, number of legislations were introduced in Britain for the protection of the consumers. The Consumer Safety Act, 1978 was enacted.

United States of America

28. The consumer movement in the United States of America developed in the beginning of the 19th century when in Donald C. MacPherson v. Buick Motor Company 217 N.Y. 382, 111 N.E. 1050 the New York Court of Appeal observed that a car manufacturer had to compensate a consumer who had been injured when one of the car wheels collapsed because of defect. The court held that the manufacturer had been negligent because the defect could have been discovered by reasonable inspection. In 1972, the Consumer Product Safety Act was enacted.

29. Paul S. Boyer, a distinguished author, in his article on "Consumer Movement", published by The Oxford Companion to United States History, 2001, has mentioned about the modern consumer movement. The relevant following extract is instructive and is reproduced as under.

"The modern consumer movement arose in the Progressive Era, as citizens concerned about unsafe products and environmental hazards used lobbying, voting, and journalistic expos is to press for government protection. In the same vein, the Consumers Union (1936), publisher of Consumer Reports, tests products for safety, economy, and reliability, to give consumers an objective basis for choice. .......Such socially engaged consumerism actually had long historical antecedents, including Revolutionary Era patriots who had boycotted English tea and textiles and abolitionists who had refused to purchase goods made of slave produced cotton. Consumer activism revived in the late 1960s, flourished in the 1970s, and, despite a conservative backlash against government regulation, survived in diminished form in the 1990s. A byproduct of 1960s social activism, consumer advocates insisted on citizens' rights to safe and reasonably priced goods and services and to the full disclosure of product information. The lawyer Ralph Nader gained fame for Unsafe at Any Speed (1965), which detailed safety hazards plaguing General Motors' (GM) Corvair automobile. Using $425,000 won in an invasion of privacy suit against GM in 1970, Nader founded numerous consumer groups, nicknamed "Nader's Raiders," that pursued legal challenges to unsafe products and demanded greater government protection for consumers. The formation of the Consumer Federation of America (1968), the Occupational Safety and Health Administration (1970), and the Consumer Product Safety Commission (1972) attested to the movement's success but also to its regulatory and legalistic bent. Focused on consumers' rights, the modern movement downplayed the power of consumers to effect social change."

30. Ralph Nader played an extremely important role in consumer movement in the United States of America. A note appears in "America in Ferment : The Tumultuous 1960s - Ralph Nader and the Consumer Movement.' An extract is reproduced. It reads :-

"Ralph Nader has been called the nation's nag. He denounced soft drinks for containing excessive amounts of sugar (more than nine teaspoons a can). He warned Americans about the health hazards of red dyes used as food colorings and of nitrates used as preservatives in hot dogs. He even denounced high heels:

"It is part of the whole tyranny of fashion, where women will inflict pain on themselves ... for what, to please men."

Since the mid-1960s, Ralph Nader has been the nation's leading consumer advocate."

31. Ralph Nader is an extraordinary example of total devotion to the cause. It is men like him who leave an imprint and make history. Consumer movements all over the world have taken great inspiration from Ralph Nader.

32. Every year 15th March is observed as the World Consumer Rights Day. On that day in 1962 President John F. Kennedy of the United States called upon the United States Congress to accord its approval to the Consumer Bill of Rights. They are (i) right to choice; (ii) right to information; (iii) right to safety; and (iv) right to be heard. President Gerald R. Ford added one more right i.e. right to consumer education. Further other rights such as right to healthy environment and right to basic needs (food, clothing and shelter) were added. Unfortunately, in most of the countries these rights are still not available to the consumers. In India 24th December every year celebrated as National Consumer Rights Day.

33. The General Assembly of the United Nations adopted a set of general guidelines for consumer protection and the Secretary General of the United Nations was authorized to persuade member countries to adopt these guidelines through policy changes or law. These guidelines constitute a comprehensive policy framework outlining what governments need to do to promote consumer protection in following seven areas:

(i) Physical safety; (ii) Protection and Promotion of the consumer economic interest; (iii) Standards for the safety and quality of consumer goods and services; (iv) Distribution facilities for consumer goods and services; (v) Measures enabling consumers to obtain redress; (vi) Measures relating to specific areas (food, water and pharmaceuticals); and (vii) Consumer education and information programme.

34. Though not legally binding, the guidelines provide an internationally recognized set of basic objectives particularly for governments of developing and newly independent countries for structuring and strengthening their consumer protection policies and legislations. These guidelines were adopted recognizing that consumers often face imbalances in economic terms, educational levels and bargaining power and bearing in mind that consumers should have the right of access to non hazardous products as well as the importance of promoting just, equitable and sustainable economic and social development.

Indian perspective

35. It was in this background that the Indian Parliament had enacted the Consumer Protection Act, 1986. The declared objective of the statute was "to provide for better protection of the interests of consumers." It seeks to provide a speedy and inexpensive remedy to the consumer.

36. The Consumer Protection Act, 1986 is one of the benevolent social legislations intended to protect the large body of consumers from exploitation. The Act has come as a panacea for consumers all over the country and is considered as one of the most important legislations enacted for the benefit of the consumers. The Consumer Protection Act, 1986 provides inexpensive and prompt remedy.

37. The Consumer Protection Act, 1986 is dedicated, as its preamble shows, to provide for effective protection of the rights of the consumers. According to the Statement of Objects and Reasons, it seeks to provide speedy and simple redressal to consumer disputes. The object of the Act is to render simple, inexpensive and speedy remedy to the consumers with complaints against defective goods and deficient services and for that a quasi-judicial machinery has been sought to be set up at the District, State and Central levels. The Consumer Protection Act has come to meet the long-felt necessity of protecting common man from wrongs for which the remedy under the ordinary law for various reasons has become illusory.

38. The Consumer Protection Act, 1986 was amended in the years 1991, 1993 and in 2002 to make it more effective and purposeful.

39. To effectuate this objective, a provision has been made in Chapter II of the Act for the constitution of `the Central Consumer Protection Council' and `the State Consumer Protection Councils." The purpose as indicted in section 6 is to "promote and protect the rights of consumers" against the "marketing of goods and services which are hazardous to life and property; the right to be informed about the quality, quantity, potency, purity, standard and price of goods or services, as the case may be, so as to protect the consumer against unfair trade practices; the right to be assured, wherever possible, access to a variety of goods and services at competitive prices; the right to be heard and to be assured that consumer's interests will receive due consideration at appropriate Forums; the right to seek redressal against unfair trade practices or restrictive trade practices or unscrupulous exploitation of consumers and the right to consumer education."

40. A perusal of Chapter II clearly shows that the statute seeks to protect the `consumer' of goods and services in every possible way. It aims at providing a speedy and inexpensive remedy. Any interpretation of the provisions of the 1986 Act and the rules framed thereunder must promote this objective of the enactment.

41. In furtherance of the declared objective of protecting the consumer against exploitation as well as providing an inexpensive and speedy remedy, the competent authority has framed Rules which enable the party to appear either personally or through an `agent'.

42. The issue is - Do the Rules permit a party to have an `Agent' for merely presenting the papers on its behalf or can the Agent even act and argue?

Maharashtra Consumer Protection Rules, 1987

- Rule 2(b) defines an Agent to mean "a person duly authorized by a party to present any complaint, appeal or reply on its behalf before the State Commission or the District Forum."

- Under Rule 4(7), the parties are obliged to either appear personally or through "authorized agent." If "the complainant or his authorized agent fails to appear before the District Forum" it may "in its discretion either dismiss the complaint for default or decide it on merit." Similarly, "where the opposite party (defendant) or its authorized agent fails to appear on the day of hearing, the District Forum may decide the complaint ex parte."

- A perusal of the provisions show that while the advocates have not been debarred from pleading and appearing, the parties have been given an option to either appear personally or be represented by "duly authorized" agents. Every advocate appointed by a party is an agent. However, the agent as contemplated under the rules need not necessarily be an advocate.

- The provision in the Rules promotes the object of the statute. It is meant to help the consumer to vindicate his right without being burdened with intricate procedures and heavy professional fees.

- In the very nature of things, the disputes under the 1986 Act can involve claims for small amounts of money by way of compensation. Engagement of advocates in all such matters may not be economically viable. It is equally possible that the claim may involve professional expertise. To illustrate: A person may sue a hospital for medical negligence. Or an Architect for a faulty design. Or a building contractor for defective work. In such cases, a professional like a doctor, architect or an engineer may be more suitable than an advocate. Thus, both the parties have been given an option to choose from an advocate or any other person who may even be a professional expert in the particular field.

43. Such an interpretation is not only literally correct but also promotes the declared objective of the statute. It helps the claimant and the defendant equally. It does not violate any provision of the Advocates Act.

44. The Consumer Protection Act, 1986 was amended in the year 2002, in pursuance to the United Nations resolution passed in April, 1985 indicating certain guidelines under which the Government could make law for better protection of the interest of the consumers. Such laws were necessary, particularly in the developing countries to protect the consumers from hazards to their health and safety and to provide them available speedier and cheaper redressal of their grievances.

45. The amended Act 62 of 2002 reads as under: "Amendment Act 62 of 2002.

- The enactment of the Consumer Protection Act, 1986 was an important milestone in the history of the consumer movement in the country. The Act was made to provide for the better protection and promotion of consumer rights through the establishment Consumer Councils and quasi-judicial machinery. Under the Act, consumer disputes redressal agencies have been set up throughout the country with the District Forum at the district level, State Commission at the State level and National Commission at the National level to provide simple, inexpensive and speedy justice to the consumers with complaints against defective goods, deficient services and unfair and restrictive trade practices. The Act was also amended in the years 1991 and 1993 to make it more effective and purposeful."

46. In the developed countries the consumer movement has been going on for several decades in which the trader and the consumer find each other as adversaries.

47. The Consumer Protection Act, 1986 was enacted with the object and intention of speedy disposal of consumer disputes at a reasonable cost, which is otherwise not possible in ordinary judicial/court system.

48. In the book on Administrative law, its distinguished author M.P. Jain has brought about the distinction between the Court and the Tribunal. According to him Courts are bound by prescribed rules of procedures and evidence and their proceedings are conducted in public. The lawyers are entitled to appear before them and the judge in the open Court hears the case and decides it by giving reasons for a judgment. The courts are totally independent of the executive will, whereas, the Tribunals are not ordinarily governed by the provisions of Code of Civil Procedure and the Evidence Act, except to the extent it is indicative in the Act itself. There is also a significant difference between the Court and the Tribunal with regard to the appointment of Members. The object of the constitution of a Tribunal is to provide speedy justice in a simple manner and the Tribunal be should easily accessible to all.

49. According to the celebrated book on `Administrative Law' by Wade, the other object of constituting a Tribunal is to create specialist Forum which would include specialists in the field to adjudicate efficiently and speedily the matters requiring adjudication in that field and that commands the confidence of all concerned in the quality and reliability of the result of such adjudication.

50. The Consumer Protection Rules, 1987 also defines the expression `agent' in the same manner.

51. The appellants submitted before the High Court that the complainant may appear through its authorized agent, but, that doesn't mean that authorized agent is empowered to act, appear or plead on behalf of the party before the State Commission or the District Forum as a lawyer. According to the appellants (Bar Council of India and advocate), the agent appointed by the complainant is empowered only to present any complaint, appeal or rely on behalf of the party to the complaint before the Consumer Forum by physically remaining present on the date/dates of hearing. This contention was rejected by the Division Bench of the High Court.

52. According to the judgment of this Court in Harishankar Rastogi (supra), a non-advocate can appear with the permission of the Court. The Court may, in an appropriate case, even after grant of permission withdraw it if the representative proves himself reprehensible. It is only a privilege granted by the Court and it depends entirely on the discretion of the court.

53. The learned counsel for the respondent has drawn our attention to Rule 9 of the Maharashtra Consumer Protection Rules, 2000 which provides for procedure for hearing appeals. He also referred to sub-rules 1 and 6 of Rule 9 which reads as under:

"9. Procedure for hearing appeal –

(1) Memorandum shall be presented by the appellant or his authorized agent to the State Commission in person or sent by registered post addressed to the Commission.

(6) On the date of hearing or any other day to which hearing may be adjourned, it shall be obligatory for the parties or their authorized agents to appear before the State Commission. If appellant or his authorized agent fails to appear on such date, the State Commission may, in its discretion, either dismiss the appeal or decide it on the merit of the case. If respondent or his authorized agents fails to appear on such date, the State Commission shall proceed ex-parte and shall decide the appeal ex- parte on merits of the case."

54. The clear interpretation of the Rules is that the authorised agent appointed by the (consumer) complainant may appear before the Consumer Fora. The Consumer Fora may, in its discretion, either dismiss the appeal or decide it on the merit of the case. In this view of the matter, it is abundantly clear that the authorized agent of the complainant can act and plead before the State Tribunal otherwise the complaint is liable to the dismissed. 55. The learned counsel for the respondents submitted that non-advocates are permitted to appear in various Forums including Income Tax Tribunal, Sales Tax Tribunal and Monopolies and Restrictive Trade Practises Tribunal, therefore, wherever the legislature has accorded the permission to the persons other than advocates, who appear before these Tribunals can act and appear according to the object of the Act and legislative intention.

Legislative intention

56. We deem it appropriate to briefly deal with the importance of gathering legislative intention while interpreting provisions of law.

57. In Blackstone's Commentaries on the Laws of England, Volume I, published in the year 2001 (Edited by Wayne Morrison), it has been observed as under:-

"The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, of the spirit and reason of the law."

58. A Constitution Bench of this Court in R.M.D. Chamarbaugwalla and Another v. Union of India and AnotherAIR 1957 SC 628 has laid down that in interpreting the statute the legislative intent is paramount and the duty of the Court is to act upon the true intention of the legislature.

59. In Anandji Haridas & Company Private Limited v. Engineering Mazdoor Sangh and Another (1975) 3 SCC 862, this Court laid down that as a general principle of interpretation where the words of a statute are plain, precise and unambiguous, the intention of the Legislature is to be gathered from the language of the statute itself and no external evidence such as parliamentary debates, reports of the Committees of the Legislature or even the statement made by the minister on the introduction of a measure or by the framers of the Act is admissible to construe those words.

60. In another Constitution Bench judgment in Kartar Singh v. State of Punjab (1994) 3 SCC 569, this Court has observed that though normally the plain ordinary grammatical meaning of an enactment affords the best guide and the object of interpreting a statute is to ascertain the intention of the legislature enacting it, other methods of extracting extracting the meaning can be resorted to if the language is contradictory, ambiguous or leads really to absurd results so as to keep at the real sense and meaning.

61. In District Mining Officer and Others v. Tata Iron and Steel Company and Another (2001) 7 SCC 358, a three Judge Bench of this Court has observed:

"A statute is an edict of the legislature and in construing a statute, it is necessary to seek the intention of its maker. A statute has to be construed according to the intent of them that make it and the duty of the court is to act upon the true intention of the legislature. If a statutory provision is open to more than one interpretation, the court has to choose that interpretation which represents the true intention of the legislature."

62. In Bhatia International v. Bulk Trading S.A. and Another (2002) 4 SCC 105, a three Judge Bench of this Court has held as under:-

"The conventional way of interpreting a statute is to seek the intention of its makers. If a statutory provision is open to more than one interpretation then the Court has to choose that interpretation which represents the true intention of the legislature."

63. It is the bounden duty of the courts to discern legislative intention and interpret the statutes accordingly. The instant case Act and Rules have made specific provisions by which the agents have been permitted to plead and appear on behalf of the parties before the Consumer Forums. Therefore, to interpret it differently would be contrary to legislative intention.

...

68. Shri Gupta also dealt with the disciplinary aspect of the matter. He submitted that in the appeal filed by the Bar Council, considerable emphasis on discipline and ethics was expressed by the learned counsel for the Council. During the course of hearing, a reference was made to the Regulations as framed by the National Consumer Disputes Redressal Commission (For short, `National Commission') under the Act with the approval of the Central Government in 2005. The Regulations actually appear at page 52 of the Bar Act (Professional's - 2010 Edition).

69. A perusal thereof shows that the Regulations appear to have been framed by the National Commission in exercise of the power conferred by section 30A with the previous approval of the Central Government. The footnote indicates that these were published in the Gazette of India dated May 31, 2005.

70. Specifically, Regulation 16 inter alia makes provision to ensure that the agents do not indulge in any malpractice or commit misconduct. The relevant part provides as under:-

"(6) A Consumer Forum has to guard itself from touts and busybodies in the garb of power of attorney holders or authorised agents in the proceedings before it.

(7) While a Consumer Forum may permit an authorised agent to appear before it, but authorised agent shall not be one who has used this as a profession: Provided that this sub-regulation shall not apply in case of advocates.

(8) An authorised agent may be debarred from appearing before a Consumer Forum if he is found guilty of misconduct or any other malpractice at any time."

71. Mr. Bharat Sangal, learned counsel appearing for the respondents submitted that Maharashtra Consumer Protection Rules, 2000 defines `agents'. The authorized agents can appear on behalf of complainant in consumer fora.

72. Mr. Sangal also submitted that when the legislature permits the authorized agents to appear, then they cannot be restrained from appearing before the consumer fora.

73. Mr. Sangal also submitted that the authorized agents can't be said to practise law. He further submitted that there are many Forums and Tribunals where non-advocates are permitted to appear, therefore, there is no merit in restraining the agents from appearing before the Consumer Fora.

74. Reliance was placed on the judgment in the case of Lucknow Development Authority v. M.K. Gupta(1994) 1 SCC 243. This court observed that the provisions of the Act have to be construed in favour of the consumer to achieve the purpose of enactment as it is a social benefit oriented legislation. The primary duty of the court while construing the provisions of such an Act is to adopt a constructive approach subject to that it should not do any violence to the language of the provisions and is not contrary to the attempted objective of the enactment. In other words, according to the purpose of enactment the interest of the consumer is paramount.

75. In Laxmi Engineering Works v. P.S.G. Industrial Institute (1995) 3 SCC 583 this Court observed thus:

"10. A review of the provisions of the Act discloses that the quasi-judicial bodies/authorities/agencies created by the Act known as District Forums, State Commissions and the National Commission are not courts though invested with some of the powers of a civil court. They are quasi-judicial tribunals brought into existence to render inexpensive and speedy remedies to consumers. It is equally clear that these forums/commissions were not supposed to supplant but supplement the existing judicial system. The idea was to provide an additional forum providing inexpensive and speedy resolution of disputes arising between consumers and suppliers of goods and services. The forum so created is uninhibited by the requirement of court fee or the formal procedures of a court. Any consumer can go and file a complaint. Complaint need not necessarily be filed by the complainant himself; any recognized consumers' association can espouse his cause. Where a large number of consumers have a similar complaint, one or more can file a complaint on behalf of all. Even the Central Government and State Governments can act on his/their behalf. The idea was to help the consumers get justice and fair treatment in the matter of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies. Indeed, the entire Act revolves round the consumer and is designed to protect his interest.

The Act provides for "business-to-consumer" disputes and not for "business-to-business" disputes. This scheme of the Act, in our opinion, is relevant to and helps in interpreting the words that fall for consideration in this appeal."

76. In Indian Photographic Company Limited v. H.D. Shourie (1999) 6 SCC 428 the court has held that a rational approach and not a technical approach is the mandate of law.

77. In Dr. J.J. Merchant and Others v. Shrinath Chaturvedi (2002) 6 SCC 635 it is observed as under:-

"7. ...One of the main objects of the Act is to provide speedy and simple redressal to consumer disputes and for that a quasi-judicial machinery is sought to be set up at the district, State and Central level. These quasi-judicial bodies are required to observe the principles of natural justice and have been empowered to give relief of a specific nature and to award, wherever appropriate, compensation to consumers. Penalties for non- compliance with the orders given by the quasi-judicial bodies have also been provided. The object and purpose of enacting the Act is to render simple, inexpensive and speedy remedy to the consumers with complaints against defective goods and deficient services and the benevolent piece of legislation intended to protect a large body of consumers from exploitation would be defeated. Prior to the Act, consumers were required to approach the civil court for securing justice for the wrong done to them and it is a known fact that decision in a suit takes years.

12. ...It should be kept in mind that legislature has provided alternative efficacious, simple, inexpensive and speedy remedy to the consumers and that should not be curtailed on the ground that complicated questions of facts cannot be decided in summary proceedings. It would also be totally wrong assumption that because summary trial is provided, justice cannot be done when some questions of facts required to be dealt with or decided. The Act provides sufficient safeguards."

78. In Common Cause, A Registered Society v. Union of India and others (1997) 10 SCC 729, the Supreme Court held thus:

"The object of the legislation, as the Preamble of the Act proclaims, is "for better protection of the interests of consumers".

During the last few years preceding the enactment there was in this country a marked awareness among the consumers of goods that they were not getting their money's worth and were being exploited by both traders and manufacturers of consumer goods. The need for consumer redressal fora was, therefore, increasingly felt. Understandably, therefore, legislation was introduced and enacted with considerable enthusiasm and fanfare as a path-breaking benevolent legislation intended to protect the consumer from exploitation by unscrupulous manufacturers and traders of consumer goods. A three-tier fora comprising the District Forum, the State Commission and the National Commission came to be envisaged under the Act for redressal of grievances of consumers..."

79. The agent has been defined both in the Consumer Protection Rules, 1987 and under the Maharashtra Consumer Protection Rules, 2000. The agents have been permitted to appear before the Consumer Forums. The appearance of authorized agents is not inconsistent with section 33 of the Advocates Act, 1961.

80. The legislature in its wisdom has granted permission to the authorized agents because most of the cases before the Consumer Forums are small cases of relatively poor people where legal intricacies are not involved and great legal skills are not required, which may be handled by the authorized agents.

81. The other reason is that a large number of litigants may not be able to afford heavy professional fees of trained advocates, therefore, authorized agents have been permitted.

82. It is the bounden duty and obligation of the Court to carefully discern the legislative intention and articulate the same. In the instant case we are not really called upon to discern legislative intention because there is specific rule defining the agents and the provisions of permitting them to appear before the Consumer Forums. The agents have been permitted to appear to accomplish the main object of the act of disposal of consumers' complaints expeditiously with no costs or small costs.

83. In our considered view the High Court was fully justified in observing that the authorised agents do not practise law when they are permitted to appear before the District Forums and the State Commissions.

84. In the impugned judgment the High Court aptly observed that many statutes, such as, Sales Tax, Income Tax and Competition Act also permit non-advocates to represent the parties before the authorities and those non-advocates cannot be said to practise law. On the same analogy those non- advocates who appear before Consumer fora also cannot be said to practise law. We approve the view taken by the High Court in the impugned judgment.

85. The legislature has given an option to the parties before the Consumer Forums to either personally appear or be represented by an `authorized agent' or by an advocate, then the court would not be justified in taking away that option or interpreting the statute differently.

86. The functioning, conduct and behaviour of authorized agents can always be regulated by the Consumer Forums. Advocates are entitled as of right to practise before Consumer Fora but this privilege cannot be claimed as a matter of right by anyone else.

87. When the legislature has permitted authorized agents to appear on behalf of the complainant, then the courts can't compel the consumer to engage the services of an advocate.

88. However, at this stage we hasten to add that the National Commission being aware of a possibility of misuse of the right by an agent had framed Regulation 30-A of the Consumer Protection Act, 1986, wherein certain restrictions on the right of audience and also certain precautions to rule out any misuse of liberty granted has been taken by way of framing Regulation 16. Reference is made to Clauses 6 and 7 thereof. We may extract the aforesaid provisions for ready reference:

"16. Appearance of Voluntary Consumer Organization:

(6) A Consumer Forum has to guard itself from touts and busybodies in the garb of power of attorney holders or authorized agents in the proceedings before it.

(7) While a Consumer Forum may permit an authorized agent to appear before it, but authorised agent shall not be one who has used this as a profession: Provided that this sub-regulation shall not apply in case of advocates."

89. These provisions are enacted for providing proper guidelines and safeguards for regulating appearance and audience of the agents. The aforesaid regulation in our considered opinion is a reasonable restriction on the right to appear by an agent. Such reasonable restrictions as provided for are to be strictly adhered to and complied with by the Consumer Forum hearing cases under the Consumer Protection Act so as to rule out any misuse of the privilege granted. In terms of the said regulation and other regulations as provided and framed by the National Commission and as approved by the Parliament of India, the Consumer Forum has the right to prevent an authorized agent to appear in case it is found and believed that he is using the said right as a profession. The Consumer Forums being empowered with such Regulations would be in a position to judge whether the agent appearing before it is in any manner exercising such privileges granted for any ulterior purpose.

90. In the foregoing paragraph, it has been indicated that many statutes and Acts in India permit non-advocates to represent the parties before the authorities and forums.

91. In other jurisdictions also, non-advocates are permitted to appear before quasi-judicial fora or subordinate courts. In most of these jurisdictions, specific rules have been framed for the regulation of qualifications, conduct and ethical behaviour of the non-advocates appearing in these fora.

92. In most jurisdictions, the statutes or court rules impose some form of restrictions on appearances of non-advocate representatives in quasi-judicial fora or subordinate courts. Restrictions on non-advocates agents vary significantly in terms of their specificity, but most forums have rules granting them some discretion in admitting or refusing the appearance of a non-advocate representative. Brief summary of Rules pertaining to Non-Advocates in different jurisdictions

United States of America

- Congressional legislation neither grants nor denies the right to have a non-attorney representative in quasi- judicial proceedings.

- The individual fora (administrative law courts) are allowed to create their own rules for non-attorney representatives.

- Several administrative law courts/fora allow non-attorney representatives to appear if they meet certain qualifications.

Social Security Administration

93. In addition to administering Social Security Retirement and Disability payments, the Social Security Administration (SSA) handles disputes arising from Social Security Payments or the lack thereof. If a current or former recipient of social security believes that he has been wrongfully denied some or all of his benefit amount, he may first apply for reconsideration.

94. According to SSA Rules, any attorney in good standing is allowed to represent a claimant before the ALJ and Appeals Council. A non-attorney is allowed to represent a claimant if the non-attorney:

(1) Is generally known to have a good character and reputation; (2) Is capable of giving valuable help to you in connection with your claim;

(3) Is not disqualified or suspended from acting as a representative in dealings with us; and

(4) Is not prohibited by any law from acting as a representative.

95. SSA rules also restrict the amount that any representative of claimant (attorney or non- attorney) may receive for the services rendered by him.

Tax Court

96. The US Tax Court adjudicates disputes over federal income tax. Taxpayers are permitted to litigate in many legal forums (such as a district federal court), but many choose the Tax Court because they may litigate their case without first paying the disputes tax amount in full.

Non-Attorney Representation

97. Tax Court Rules state that all representatives must be admitted to practice before the Tax Court in order to appear in proceedings on behalf of a taxpayer. To be admitted, a non- attorney must pass a special written examination and obtain sponsorship from two persons who are already admitted to practice before the Court.

98. Representatives before the Court are instructed to act "in accordance with the letter and spirit of the Model Rules of Professional Conduct of the American Bar Association." Representatives may be disciplined for inappropriate conduct and may be suspended or banned from appearing in the Court.

Court of Appeals for Veterans' Claims

99. The Court of Appeals for Veteran's Claims reviews decision of the Board of Veterans' Appeals, which adjudicates disputes pertaining to Veteran's benefits.

Non-Attorney representation

100. A non-attorney may represent claimants if (1) he is under direct supervision of an attorney or (2) he is employed by an organization that the Secretary of Veteran's Affairs has deemed is competent to handle veterans' claims. However, if the Court deems it appropriate it may admit non-attorney representatives to represent the claimants.

South Africa The Equality Court

101. The Equality Court hears complaints pertaining to unfair discrimination, harassment and hate speech. The court rules allow parties in this court to be represented by lawyers and non- lawyers. However, the rules also require the judge of the court inform a party accordingly if he is of the opinion that a particular non-attorney representative "is not a suitable person to represent the party."

England and Wales

102. There are two kinds of courts in England that are similar in structure and function to the consumer courts in India: Magistrate Courts and Tribunals.

Magistrates' Courts

103. Magistrates' Courts are lowest level of court in England and Wales and deals with minor civil and criminal offences. There are also specialist courts within the Magistrates' Courts system, such as the Family Proceedings Court and the Youth Court. Under statute, a party may only be represented in a Magistrates' Court by a "legal representative". A "legal representative" is a person who has been authorized by a government-approved regulator to perform "reserved legal activities."

Tribunals

104. England and Wales also have a fairly complex system of tribunals that hear special complaints. These tribunals are similar to US administrative courts in that they are allowed to create their own procedural rules that regulate representation. For instance, the Asylum and Immigration Tribunal permits non-attorney representatives to appear if they meet certain requirements elaborated in Section 84 of the Immigration and Asylum Act, 199. Other tribunals may follow different procedures.

Small Claims Court

105. There is no bar for small claims court. A non-attorney may appear as a representative without prior authorization from the court. He may, however, be dismissed at the judge's discretion.

(1) Non-attorney advocates do not appear to be bound by any code of conduct. But they may be dismissed by a judge if they judge disapproves of their conduct.

(2) The judge may disqualify a non-attorney from appearing in court if the judge "has reason to believe" the non-attorney "has intentionally misled the court, or otherwise demonstrated that he is unsuitable to exercise [the right to be a representative]. The statute specifically mentions that the judge may disqualify a representative for conduct done in previous judicial appearances.

(3) The court rules and relevant legislation do not appear to prescribe a limit to the number of appearances a non-lawyer can make before the small claims court. However, the statute allows a judge to discipline a non-attorney representative for conduct in previous judicial proceedings. This suggests that if a judge believes a non-attorney is making frequent appearances before a small claims court and charging in appropriate fees, the judge may disqualify the non-attorney from appearing in a particular case.

Australia

106. State Governments in Australia have their own court systems and also specialized courts to deal with certain subject matter. In the State of Victoria, statutory law states that only lawyers may appear in court as representatives with a few exceptions. A non-attorney may represent a party in a cause of action for a debt or liquidated demand if the non- attorney is in the exclusive employment of the aggrieved party. Also, the statute mentions that a non-attorney representative may appear if empowered by some other piece of legislation.

New Zealand

107. New Zealand has a large number of tribunals that are similar to India's consumer courts and seek to provide quick and easy dispute resolution. There appears to be a strong preference in tribunals for the parties to represent themselves; professional lawyers are rarely allowed to appear as representatives. Two tribunals are discussed below, but New Zealand's other tribunals should function similarly.

Disputes Tribunal

108. The Disputes Tribunal hears civil complaints that concern amounts less than $15,000. Parties subject to proceedings are generally required to represent themselves. However, the Tribunal may permit a representative to appear on a party's behalf under certain special circumstances. Representatives may only appear with specific authorization from the Tribunal and cannot be lawyers.

Directions

109. In order to ensure smooth, consistent, uniform and unvarying functioning of the National Commission, the State Commissions and the District Forums, we deem it appropriate to direct the National Commission to frame comprehensive rules regarding appearances of the agents, representatives, registered organizations and/or non-advocates appearing before the National Commission, the State Commissions and the District Forums governing their qualifications, conduct and ethical behaviour of agents/non- advocates/representatives, registered organizations and/or agents appearing before the consumer forums.

The National Commission may consider following suggestions while framing rules

110. The Commission may consider non-advocates appearing without accreditation - A party may appoint a non-advocate as its representative provided that the representative –

(1) is appearing on an individual case basis

(2) has a pre-existing relationship with the complainant (e.g., as a relative, neighbour, business associate or personal friend)

(3) is not receiving any form of direct or indirect remuneration for appearing before the Forum and files a written declaration to that effect

(4) demonstrates to the presiding officer of the Forum that he or she is competent to represent the party.

Accreditation Process

Fees

(a) The National Commission may consider creating a process through which non- advocates may be accredited to practice as representatives before a Forum.

(b) Non-advocates who are accredited through this process shall be allowed to appear before a Forum on a regular basis

(1) an written examination that tests an applicant's knowledge of relevant law and ability to make legal presentations and arguments

(2) an inspection of the applicant's educational and professional background

(3) an inspection of the applicant's criminal record

(d) the National Commission may prescribe additional requirements for accreditation at its discretion provided that the additional requirements are not arbitrary and do not violate existing law or the Constitution.

(a) A representative who wishes to receive a fee must file a written request before the Forum

(b) The presiding officer will decide the amount of the fee, if any, a representative may charge or receive

(1) the extent and type of services the representative performed (2) the complexity of the case

(3) the level of skill and competence required of the representative in giving the services

(4) the amount of time the representative spent on the case; and

(5) the ability of the party to pay the fee

(d) If a party is seeking monetary damages, its representative may not seek more a fee of more than 20% of the damages Code of Conduct for representatives - The National Commission to create a code of conduct which would apply to non- advocates, registered organizations and agents appearing before a Forum. Disciplinary Powers of a Forum (a) The presiding officer of a Forum may be given specific power to discipline non-advocates, agents, authorized organizations and representatives for violating the code of conduct or other behaviour that is unfitting in a Forum (b) In exercising its disciplinary authority, the presiding officer may –

(1) revoke a representative's privilege to appear before the instant case (2) suspend a representative's privilege to appear before the Forum (3) ban a representative from appearing before the forum (4) impose a monetary fine on the representative

111. We direct the National Commission to frame comprehensive Rules as expeditiously as possible, in any event, within three months from the date of communication of this order. The copy of this judgment be sent to the National Commission.

112. On consideration of totality of the facts and circumstances, the view taken by the Division Bench of the Bombay High Court in the impugned judgment cannot be said to be erroneous and unsustainable in law. Consequently, these appeals being devoid of any merit are accordingly dismissed.”

First of it kind: Combination of Companies u/s 6 of the Competition Act, 2002 cleared by CCI in flat 18 days

2011-07-31T00:32:00.002+05:30

In very first application under section 6 of the Competition Act, 2002, Competition Commission of India has approved Reliance Industries’ acquisition (combination – as per the act) of Bharti Group’s 74 per cent stake in its insurance joint venture with French insurer Axa within 18 days of the notice. Competition Act is enacted by the parliament in the year 2002 keeping in view the economic development of the country, for the establishment of a Commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets, in India, and for matters connected therewith or incidental thereto.

In the operating part of the order, Competition Commission of India observed that in India as there are in total 49 Insurance companies, who are registered with IRDA, hence if the present acquisition (combination) is allowed, it is not likely to have an appreciable adverse effect on competition in the insurance market in India.

The order passed under Section 31(1) dated 26th July, 2011 under the Competition Act, 2002 can be read here.

Territorial Jurisdiction of Court u/s 138 of Negotiable Instrument Act, 1981

2011-07-25T23:22:00.002+05:30

Hon'ble Gujarat High Court while dealing with the issue of territorial jurisdiction of the court under Section 138 of the Negotiable Instrument Act, 1981 has distinguished on facts the land mark judgement of Hon'ble Supreme Court of India in the case of M/s HARMAN ELECTRONIC (P) LTD. & ANR Vs. M/s NATIONAL PANASONIC INDIA LTD., reported at 2009 AIR SCW 410 relying upon the division bench judgement of Bombay High Court and various earlier Supreme Court Judgement.

It has been held after discussing Section 177 of Code of Criminal Procedure that any court within whose jurisdiction either of the following acts has occured i.e. (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice, is competent and have jurisdiction to try the case u/s 138 of the Negotiable Instruments Act, 1981.

The High Court inter alia observed as under:-

“11. In paragraph 13, the Division Bench of the Bombay High Court has considered the decision of the Hon'ble Supreme Court in the case of SHAMSHAD BEGAM (SMT)(Supra), which reads as under;

“13. In SHAMSHAD BEGAM (SMT), a Single Judge of the Karnataka High Court had dismissed the petition under Section 482 of the Code where a prayer was made to quash the case pending on the file of learned Magistrate at Mangalore arising out of Section 138 of the NI Act. The appellant accused had filed the petition in the Karnataka High Court on the ground that the Mangalore Court had no jurisdiction to try the case because the agreement was entered into at Bangalore and the cheques were returned by the Banks at Bangalore. The respondent-complainant stated that before issuing the notice, he had shifted his residence to Mangalore and, therefore, he had issued the notice from Mangalore, which was received by the appellant-accused and the reply was sent by her to the appellant-accused at Mangalore address. As the notice in writing to the drawer of the cheque demanding payment of cheque amount was sent from Mangalore, the Court at Mangalore has jurisdiction to try the case. The High Court noted that one of the components of the offences was giving notice in writing to the drawee of the cheque by demanding payment of the cheque amount. The said action had taken place in Mangalore and, therefore, the petition was without merit. The Supreme Court referred to K. BHASKARAN and quoted extensively from it. The Supreme Court reaffirmed that offence under Section 138 of the NI Act has five components i.e. (1) Drawing of the cheque, (2) Presentation of the cheque to the Bank, (3) Returning the cheque unpaid by the drawee bank, (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount and (5) failure of the drawer to make payment within 15 days of the receipt of the notice. The Supreme Court reiterated that it is not necessary that the above five acts should have been perpetrated at the same locality and it is possible that each of these five acts could be done at five different localities. The Supreme Court refused to interfere with the High Court's order. In our opinion, the law of jurisdiction has been succinctly stated in K. BHASKARAN followed by SHAMSHAD BEGAM (SMT) and we need to say nothing more on this aspect.”

11.1. Before the Bombay High Court, it was the case on behalf of the accused that the cheque was drawn on Syndicate Bank, Angamaly Branch, Ernakulam District, Kerala and the accused is doing business at Ernakulam and the dealership agreement was entered into at District Ernakulam and the notice was issued at Ernakulam and the cheque was handed over in Kerala and, therefore, Mumbai Court would not have any jurisdiction. On considering the aforesaid two decisions of the Hon'ble Supreme Court, and other decisions on the point, the Division Bench of the Bombay High Court negatived the said contention and held that the Court at Mumbai will have jurisdiction. The Division Bench of the Bombay High Court also considered the decision of the Hon'ble Supreme Court in the case of M/s HARMAN ELECTRONIC (P) LTD. & ANR (Supra) (the decision, which is heavily relied upon by the learned advocate appearing on behalf of the respective applicants) and the Division Bench held that the said decision would not be applicable as in the case before the Hon'ble Supreme Court in the case of M/s HARMAN ELECTRONIC (P) LTD. & ANR (Supra), on facts, Hon'ble Supreme Court held that the Chandigarh Court had jurisdiction to entertain the Complaints because the parties were carrying on business at Chandigarh and it has its branch office at Chandigarh. The transactions were carried on only from Chandigarh and the cheque was issued and presented at Chandigarh and, therefore, considering the above, the Division Bench of the Bombay High Court held that the case of M/s HARMAN ELECTRONIC (P) LTD. & ANR (Supra) is therefore, only an authority on the question whether a Court will have jurisdiction because only notice is issued from the place which falls within its jurisdiction and it does not deviate from the other principles laid down by the Hon'ble Supreme Court in the case of K. BHASKARAN (Supra).

12. Considering the aforesaid decision of the Hon'ble Supreme Court in the case ofK. BHASKARAN (Supra) and SHAMSHAD BEGAM (SMT)(Supra) what is emerging is that the offence under Section 138 of the Act has five components; (i) drawing of the cheque (ii) presentation of the cheque to the Bank (iii) returning the cheque unpaid by the drawee bank (iv) giving notice in writing of the to drawer of the cheque demanding payment of the cheque amount and (v) failure of the drawer to make payment within 15 days of the receipt of notice.

13. In the aforesaid decisions and the decision of the Bombay High Court it is specifically held that it is not necessary that the above five acts should have been perpetrated at the same locality. Each of these five acts could have been done at five different localities. Thus, from the aforesaid decisions and the observations made by the Hon'ble Supreme Court in the aforesaid decisions, the locality where the bank which dishonoured the cheque is situated cannot be regarded as a sole criteria to determine the place of the offence. In the aforesaid decision, the Hon'ble Supreme Court has further observed that the offence under Section 138 of the Act would not be completed with the dishonour of the cheque. It attains completion only with failure of the drawer of the cheque to pay the cheque amount within the expiry of 15 days mentioned in Clause (c) of the proviso to Section 138 of the Act and, therefore, considering the aforesaid decisions and the facts of the case on hand when the original complainant has its Head Office at Ahmedabad, the transactions are alleged to have taken place at Ahmedabad, the cheques are reported to be issued at Ahmedabad and the same were deposited by the original complainant with their Banker at Ahmedabad and even the statutory notice under Section 138 of the Act were issued from Ahmedabad and the same were replied by the respective applicants at the address at Ahmedabad, it is very difficult to accept the contention on behalf of the respective applicants that the Court at Ahmedabad would not have territorial jurisdiction.

14. This Court is in complete agreement with the reasoning given by the Division Bench of the Bombay High Court made while considering the decision of the Hon'ble Supreme Court in the case of M/s HARMAN ELECTRONIC (P) LTD. & ANR(Supra). As seen from the decision of the Hon'ble Supreme Court in the case of M/s HARMAN ELECTRONIC (P) LTD. & ANR (Supra), on facts, it was held that the Chandigarh Court had jurisdiction to entertain the Complaint because the parties were carrying on business at Chandigarh and had its Branch Office at Chandigarh and the transaction were carried on only from Chandigarh and the cheque was issued and presented at Chandigarh. Only statutory notice under Section 138 of the Act was issued by the original complainant from New Delhi. Considering the aforesaid, the Hon'ble Supreme Court held that issuance of notice would not by itself give rise to a cause of action and, therefore, solely on the ground that notice was issued from the Head Office of the complainant at New Delhi Court at Delhi would not have territorial jurisdiction.

15. Under the circumstances and for the reasons stated hereinabove, the contention on behalf of the respective applicants that the Court at Ahmedabad would not have any territorial jurisdiction to entertain the Complaints in question cannot be accepted and, therefore, the present applications deserves to be dismissed and are accordingly dismissed. Notice is discharged. Ad-interim relief granted earlier stands vacated forthwith in both of the applications"

Entire Judgment can be read here.

Euthanasia: SC Laid down procedure until Parliament makes legislation on the subject of euthanasia

2011-07-13T21:33:00.002+05:30

That in the Writ Petition filed u/s 32 of Constitution of India, for prayer to grant of Euthnasia, Justice Markandeya Katju of Supreme Court as stated by himself in the judgement {reported at (2011) 4 SCC 454} could have dismissed the said writ petition summarily on the short ground that under Article 32 of the Constitution (unlike Article 226) the petitioner has to prove violation of a fundamental right as it has been held by the Constitution Bench decision of Hon'ble Supreme Court in the case of Gian Kaur vs. State of Punjab reported at 1996 (2) SCC 648 (vide paragr aphs 22 and 23) that the right to life guaranteed by Article 21 under Constitution of India does not include the right to die. Accordingly the petitioner has not shown any violation of any of her fundamental rights for which the present Writ Petition under Article 32 of the Constitution of India is filed. In spite of this Justice Katju goes on the decide the matter on merit and lays down certain guidelines by giving detailed judgment of more than 35 pages and after discussing various legal as well as medical scenario.

In general term Euthanasia is the termination of a very sick person's life in order to relieve them of their suffering. In most cases euthanasia is carried out because the person who dies asks for it, but there are cases called euthanasia where a person can't make such a request and hence such request is done by the next friend of the sufferer as in this case.

There are mainly two types of Euthanasia i.e. to say active and passive euthanasia. In active euthanasia, something is done to end the patient’s life’ while in passive euthanasia, something is not done that would have preserved the patient’s life. It was discussed and held in the judgement after relying many Foreign Judgement and medical experts opinion thatpassive euthanasia (withdrawal of life support of a patient in permanent vegetative state ) was permitted to a person who was being kept alive only mechanically, through life support systems and had been in that condition for many years. Though it is categorically held that discontinuing of life support system had to be taken either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision could be taken even by a person or a body of persons acting as a next friend including doctors attending the patient and it was categorically held that it is Court alone who has power to take final decision as to whether or not allow Euthanasia or not as principle of parens patriae.

It was further held that however, injecting a deadly drug to a person who was being kept alive only mechanically, through life support systems and had been in that condition for many years remains illegal and a crime under S. 302 or at least S. 304 IPC and further even a Physician assisted suicide is a crime under S. 306 IPC.

In facts dismissing the petition filed by the best friend of petitioner as it was the case of Active Euthanasia and not Passive Euthanasia Supreme Court laid down procedure to be followed all over the India until Parliament comes out with a piece of legislation in the subject matter. Supreme Court held than when an euthanasia petition is filed before the High Court, the Chief Justice of the HC should forthwith constitute a Bench of at least two Judges who should decide to grant approval or not. That the Division Bench of the High Court should seek the opinion of a committee of three reputed doctors to be nominated by the Bench after consulting such medical authorities/medical practitioners as it may deem fit and Preferably one of the three doctors should be a neurologist, one should be a psychiatrist, and the third a physician.

The committee of three doctors nominated by the Bench should carefully examine the patient and also consult the record of the patient as well as taking the views of the hospital staff and submit its report to the HC. Simultaneously with appointing the committee of doctors, the HC should also issue notice to the State and close relatives e.g. parents, spouse, brothers/sisters etc. of the patient, and in their absence his/her next friend, and supply a copy of the report of the doctor's committee to them as soon as it was available - After hearing them, and going through the report submitted by the expert committee thoroughly the HC should give its verdict.

What was more praise worthy about the judgement is the credit and acknowledgemnt given by the Justice Katju in the concluding part to number of people including lawyers, law clerks, doctors, professors who paid a pivotal role in assisting the court to come to the decision which is not normally seen. Further Court also expressed their appreciation to the petitioner named Ms. Pinki Virani and kept her in high esteem who filed this petition by observing that although court have dismissed the petition Court regard her as a public spirited person who filed the petition for a cause she bona fide regarded as correct and ethical.

Relevant finding of the court is as under:-

“WITHDRAWAL OF LIFE SUPPORT OF A PATIENT IN PERMANENT VEGETATIVE STATE (PVS)

126. There is no statutory provision in our country as to the legal procedure for withdrawing life support to a person in PVS or who is otherwise incompetent to take a decision in this connection. We agree with Mr. Andhyarujina that passive euthanasia should be permitted in our country in certain situations, and we disagree with the learned Attorney General that it should never be permitted. Hence, following the technique used in Vishakha's case (supra), we are laying down the law in this connection which will continue to be the law until Parliament makes a law on the subject.

(i) A decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient.

In the present case, we have already noted that Aruna Shanbaug's parents are dead and other close relatives are not interested in her ever since she had the unfortunate assault on her. As already noted above, it is the KEM hospital staff, who have been amazingly caring for her day and night for so many long years, who really are her next friends, and not Ms. Pinky Virani who has only visited her on few occasions and written a book on her. Hence it is for the KEM hospital staff to take that decision. The KEM hospital staff have clearly expressed their wish that Aruna Shanbaug should be allowed to live. Mr. Pallav Shisodia, learned senior counsel, appearing for the Dean, KEM Hospital, Mumbai, submitted that Ms. Pinky Virani has no locus standi in this case. In our opinion it is not necessary for us to go into this question since we are of the opinion that it is the KEM Hospital staff who is really the next friend of Aruna Shanbaug.

We do not mean to decry or disparage what Ms. Pinky Virani has done. Rather, we wish to express our appreciation of the splendid social spirit she has shown. We have seen on the internet that she has been espousing many social causes, and we hold her in high esteem. All that we wish to say is that however much her interest in Aruna Shanbaug may be it cannot match the involvement of the KEM hospital staff who have been taking care of Aruna day and night for 38 years. However, assuming that the KEM hospital staff at some future time changes its mind, in our opinion in such a situation the KEM hospital would have to apply to the Bombay High Court for approval of the decision to withdraw life support. (ii) Hence, even if a decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires approval from the High Court concerned as laid down in Airedale's case (supra). In our opinion, this is even more necessary in our country as we cannot rule out the possibility of mischief being done by relatives or others for inheriting the property of the patient.

127. In our opinion, if we leave it solely to the patient's relatives or to the doctors or next friend to decide whether to withdraw the life support of an incompetent person there is always a risk in our country that this may be misused by some unscrupulous persons who wish to inherit or otherwise grab the property of the patient. Considering the low ethical levels prevailing in our society today and the rampant commercialization and corruption, we cannot rule out the possibility that unscrupulous persons with the help of some unscrupulous doctors may fabricate material to show that it is a terminal case with no chance of recovery. There are doctors and doctors. While many doctors are upright, there are others who can do anything for money (see George Bernard Shaw's play `The Doctors Dilemma'). The commercialization of our society has crossed all limits. Hence we have to guard against the potential of misuse (see Robin Cook's novel `Coma'). In our opinion, while giving great weight to the wishes of the parents, spouse, or other close relatives or next friend of the incompetent patient and also giving due weight to the opinion of the attending doctors, we cannot leave it entirely to their discretion whether to discontinue the life support or not. We agree with the decision of the Lord Keith in Airedale's case (supra) that the approval of the High Court should be taken in this connection. This is in the interest of the protection of the patient, protection of the doctors, relative and next friend, and for reassurance of the patient's family as well as the public. This is also in consonance with the doctrine of parens patriae which is a well known principle of law.

DOCTRINE OF PARENS PATRIAE

128. The doctrine of Parens Patriae (father of the country) had originated in British law as early as the 13th century. It implies that the King is the father of the country and is under obligation to look after the interest of those who are unable to look after themselves. The idea behind Parens Patriae is that if a citizen is in need of someone who can act as a parent who can make decisions and take some other action, sometimes the State is best qualified to take on this role.

129. In the Constitution Bench decision of this Court in Charan Lal Sahu vs. Union of India (1990) 1 SCC 613 (vide paras 35 and 36), the doctrine has been explained in some details as follows :

"In the "Words and Phrases" Permanent Edition, Vol. 33 at page 99, it is stated that parens patriae is the inherent power and authority of a legislature to provide protection to the person and property of persons non sui juris, such as minor, insane, and incompetent persons, but the words parens patriae meaning thereby `the father of the country', were applied originally to the King and are used to designate the State referring to its sovereign power of guardianship over persons under disability. Parens patriae jurisdiction, it has been explained, is the right of the sovereign and imposes a duty on the sovereign, in public interest, to protect persons under disability who have no rightful protector. The connotation of the term parens patriae differs from country to country, for instance, in England it is the King, in America it is the people, etc. The government is within its duty to protect and to control persons under disability". The duty of the King in feudal times to act as parens patriae (father of the country) has been taken over in modern times by the State.

130. In Heller vs. DOE (509) US 312 Mr. Justice Kennedy speaking for the U.S. Supreme Court observed :

"the State has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable to care for themselves".

131. In State of Kerala vs. N.M. Thomas, 1976(1) SCR 906 (at page 951) Mr. Justice Mathew observed :

" The Court also is `state' within the meaning of Article 12 (of the Constitution).".

132. In our opinion, in the case of an incompetent person who is unable to take a decision whether to withdraw life support or not, it is the Court alone, as parens patriae, which ultimately must take this decision, though, no doubt, the views of the near relatives, next friend and doctors must be given due weight.

UNDER WHICH PROVISION OF THE LAW CAN THE COURT GRANT APPROVAL FOR WITHDRAWING LIFE SUPPORT TO AN INCOMPETENT PERSON

133. In our opinion, it is the High Court under Article 226 of the Constitution which can grant approval for withdrawal of life support to such an incompetent person. Article 226(1) of the Constitution states : "Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose".

134. A bare perusal of the above provisions shows that the High Court under Article 226 of the Constitution is not only entitled to issue writs, but is also entitled to issue directions or orders.

135. In Dwarka Nath vs. ITO AIR 1966 SC 81(vide paragraph 4) this Court observed :

"This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them.
That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Art. 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure."

136. The above decision has been followed by this Court in Shri Anadi Mukta Sadguru vs. V. R. Rudani AIR 1989 SC 1607 (vide para 18).

137. No doubt, the ordinary practice in our High Courts since the time of framing of the Constitution in 1950 is that petitions filed under Article 226 of the Constitution pray for a writ of the kind referred to in the provision. However, from the very language of the Article 226, and as explained by the above decisions, a petition can also be made to the High Court under Article 226 of the Constitution praying for an order or direction, and not for any writ. Hence, in our opinion, Article 226 gives abundant power to the High Court to pass suitable orders on the application filed by the near relatives or next friend or the doctors/hospital staff praying for permission to withdraw the life support to an incompetent person of the kind above mentioned.”

Entire Judgment can be read here.

Allotment of land to the trust formed by Sourav Ganguly family qaushed by Supreme Court

2011-07-12T00:03:00.001+05:30

Justice A.K. Ganguly of Supreme Court in the recent case of Humanity & Anr Vs. State of West Bengal & Others reported at (2011) 6 SCC 125, quashed the allotment of land to the trust formed by Sourav Ganguly & Family for running ICSE affiliated School. The allotment was mainly quashed on the ground that much bigger land was allotted to the allottee without publishing fresh advertisement merely on the application of allottee for granting such bigger plot against the original land allotted earlier pursuant to advertisement for the allotment for the said land originally of small size. Supreme Court held that once Government has initiated process of advertisement, it cannot jettison it and allow a new plot to allottee without any advertisement and such action of allotting larger plot is arbitrary and violates Article 14 of the Constitution of India.

Further Supreme Court also held that the High Court cannot refuse to examine the challenge on the basis of what may happen in future. By doing so, the High Court refused to exercise jurisdiction which is vested in it.

Interestingly just before concluding part of the judgement Justice Ganguly said that, I make it clear that I am aware that the allottee is a cricketer of great repute and has led this country to victory in many tournaments, both in India and abroad. I have watched him on the television on many occasions and was delighted to see his glorious cover drives and effortlessly lofted shots over the fence. But as a Judge, I have different duties to discharge. Here I must be objective and eschew my likes and dislikes and render justice to a cause which has come before the Court.

Entire Judgement can be read here.

High Court cannot exercise power u/s 482 at interlocutory stage: Supreme Court

2011-07-09T21:40:00.002+05:30

In the recent decision of Hon'ble Supreme Court in the case of Dharmatma Singh Vs. Harminder Singh & Ors., Justice A.K. Patnaik held that when Magistrate had not applied his mind to the merits of the reports filed under Section 173 CrPC, complaint filed by the private party can not be quashed by High Court exercising power under Section 482 of CrPC.

Supreme Court further held while interpreting Section 190 & 482 of CrPC that Section 482 of CrPC saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure ends of justice and such inherent power cannot be exercised in regards to the matter specifically covered by the the provisions of the Code and therefore it is the Magistrate, who has the power to take cognizance of any offence upon 'police report' of such facts which constitute an offence. Thus, when a police report is forwarded to the Magistrate either under sub-section (2) or under sub-section (8) of Section 173 CrPC, it is for the Magistrate to apply his mind to the police report and take a view whether to take cognizance of an offence or not to take cognizance of offence against an accused person.

Supreme Court inter alia held as under:-

"9. A reading of provisions of sub-section (2) of Section 173, Cr.P.C. would show that as soon as the investigation is completed, the officer in charge of the police station is required to forward the police report to the Magistrate empowered to take cognizance of the offence stating inter alia whether an offence appears to have been committed and if so, by whom. Sub-section (8) of Section 173 further provides that where upon further investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall also forward to the Magistrate a further report regarding such evidence and the provisions of sub-section (2) of Section 173,Cr.P.C., shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2). Thus, the report under sub-section (2) of Section 173 after the initial investigation as well as the further report under sub-section (8) of Section 173 after further investigation constitute "police report" and have to be forwarded to the Magistrate empowered to take cognizance of the offence. It will also be clear from Section 190(b) of the Cr.P.C. that it is the Magistrate, who has the power to take cognizance of any offence upon a "police report" of such facts which constitute an offence. Thus, when a police report is forwarded to the Magistrate either under sub-section (2) or under sub-section (8) of Section 173, Cr.P.C., it is for the Magistrate to apply his mind to the police report and take a view whether to take cognizance of an offence or not to take cognizance of offence against an accused person.

10. It follows that where the police report forwarded to the Magistrate under Section 173 (2) of the Cr.P.C. states that a person has committed an offence, but after investigation the further report under Section 173 (8) of the Cr.P.C.states that the person has not committed the offence, it is for the Magistrate to form an opinion whether the facts, set out in the two reports, make out an offence committed by the person. This interpretation has given by this Court in Abhinandan Jha & Ors. v. Dinesh Mishra [AIR 1968 SC 117 1967 Indlaw SC 445] to the provisions of Section 173 and Section 190 of the Criminal Procedure Code, 1898, which were the same as in the Criminal Procedure Code, 1973. In Abhinandan Jha 1967 Indlaw SC 445 (supra), para 15 at page 122 of the AIR this Court observed:

"... The police, after such investigation, may submit a charge-sheet, or, again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence, under Section 190(1)(b), notwithstanding the contrary opinion of the police, expressed in the final report."

11. After referring to the law laid down in Abhinandan Jha 1967 Indlaw SC 445(supra) this Court has further held in Mrs. Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh Gill & Anr. [AIR 1996 SC 309 1995 Indlaw SC 1896] that where the police in its report of investigation or further investigation recommends discharge of the accused, but the complainant seeks to satisfy the Court that a case for taking cognizance was made out, the Court must consider the objections of the complainant and if it overrules such objections, it is just and desirable that the reasons for overruling the objections of the complainant be recorded by the Court and this was necessary because the Court while exercising power under Section 190,Cr.P.C. whether to take cognizance or not to take cognizance exercises judicial discretion.

12. In the facts of the present case, the police in its report submitted to the Judicial Magistrate, First Class, Ludhiana, on 02.02.2006 had filed two challans, one against the appellant, his father Mohan Singh and Bhupinder Singh stating that they had committed offences under Sections 452, 323, 326, 506 read with Section 34 of the IPC and the other challan against the respondent Nos.1 and 2 and some others stating that they had committed offences under Sections 342, 323, 324, 148 of the IPC. Pursuant to permission granted by the learned Magistrate on 27.07.2006 for further investigation, a further report has been made by the Superintendent of Police, City-II, Ludhiana, stating that respondent no.1 for his self-defence had caused injuries to the appellant and others and hence the cross-case against the respondent no.1 is required to be cancelled. This further report has to be forwarded to the learned Magistrate and as has been held by this Court in Abhinandan Jha 1967 Indlaw SC 445(supra) and Mrs. Rupan Deol Bajaj 1995 Indlaw SC 1896 (supra) it was for the learned Magistrate to apply judicial mind to the facts stated in the reports submitted under sub-sections (2) and (8) respectively of Section 173, Cr.P.C., and to form an opinion whether to take cognizance or not to take cognizance against the respondent no.1 after considering the objections, if any, of the complainant, namely, the appellant.

13. Section 482 of the Cr.P.C. saves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. It has been held by this Court in R. P. Kapur v. State of Punjab [AIR 1960 SC 866 1960 Indlaw SC 471] that Section 561-A of the Criminal Procedure Code, 1898 (which corresponds to Section 482 of the Criminal Procedure Code, 1973) saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice and such inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code and therefore where the Magistrate has not applied his mind under Section 190 of theCr.P.C. to the merits of the reports and passed order, the High Court ought not to consider a request for quashing the proceedings. In the case of R. P. Kapur 1960 Indlaw SC 471 (supra) on 10.12.1958, M.L. Sethi lodged a First Information Report against R.P. Kapur and alleged that he and his mother-in-law had committed offences under Sections 420-109, 114 and 120B of theIndian Penal Code. R.P. Kapur moved the Punjab High Court under Section 561-A of the Code of Criminal Procedure for quashing the proceedings initiated by the First Information Report. When the petition of R.P. Kapur was pending in the High Court, the police report was submitted under Section 173,Cr.P.C. and the High Court held that no case had been made out for quashing the proceedings under Section 561-A of the Criminal Procedure Code, 1898 and dismissed the petition. R. P. Kapur carried an appeal by way of Special Leave to this Court and this Court dismissed the appeal for inter alia the following reasons:

" ... In the present case the magistrate before whom the police report has been filed under S. 173 of the Code has yet not applied his mind to the merits of the said report and it may be assumed in favour of the appellant that his request for the quashing of the proceedings is not at the present stage covered by any specific provision of the Code. It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily, criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage..."

As we have found in the present case that learned Magistrate had not applied his mind to the merits of the reports filed under Section 173, Cr.P.C., we are of the considered opinion that the exercise of power by the High Court under Section 482, Cr.P.C., was at an interlocutory stage and was not warranted in the facts of this case.

14. In the result, the appeal is allowed and the impugned order dated 25.03.2008 is set aside. The police will forward the further report of the Superintendent of Police, City-II, Ludhiana, to the Magistrate concerned and the learned Magistrate will apply his mind to the police report already forwarded to him and the further report of further investigation forwarded to him and take a final decision in accordance with law after considering the objections, if any, of the appellant against the further report of further investigation."

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