Law relating to Automatic Vacation of Stay by & post-Asian Resurfacing Case

                Written by

 

   Vandana Singh Katiyar 

  Researcher & Advocate  

High Court Lucknow Bench

                                                                      & 

       Vijay Katiyar

     Deputy Director

 JTRI, UP, Lucknow

Introduction-

 As you know India is a big country and has the second-largest population in the world. Cases in India can take years to be disposed of. The stay of proceedings on account of interim orders has been greatly responsible for causing inordinate delay in the disposal of cases. These orders typically stay effective unless expressly vacated, or until a final order is passed, which then subsumes the interim order. Interim orders that stay proceedings before a subordinate court are often misused by litigants as a dilatory tactic to maintain the status quo in their favor. The subordinate courts account for 87% of India’s pending cases. A greater challenge faced by the judiciary and litigants alike is the delay in the determination of cases at the appellate level, which in turn leads to endless wait for a determination of matters even at the trial stage. The Ministry of Law estimates that a trial is delayed by about 65 years due to the stay of proceedings by higher courts. Due to this situation, Hon’ble Supreme Court has passed an order that speedy justice is a fundamental right under article-21 of the Constitution of India.

Whether stay is automatically vacated after the expiry of six months-

The Hon’ble Supreme Court of India dealt with the issue of undue delay in trials caused by stays and noted that once a stay is granted, disposal of the petition before the High Court takes a long time. The Hon’ble Supreme Court also emphasized the accountability of the courts while granting a stay of proceedings and held that such matters should be disposed of in two-three months without allowing any adjournments. To ensure speedy disposal of such cases, the Supreme Court directed that a stay of trial proceedings before civil and criminal appellate/revisional courts ordered by a High Court or a court below High Court shall automatically expire in six months From the date of order as the case may be unless extended by a speaking order. This direction has been reiterated by the Hon’ble Supreme Court on October 15, 2020, in MA No. 1577 of 2020 in Criminal Appeal Nos. 1375-1376 of 2013. This essentially means that once the six-month period is over, the trial courts may resume the proceedings without waiting for any other intimation, unless an express order extending the stay is passed. No contempt proceedings would lie against the presiding officers of trial courts on having proceeded in terms of Asian Resurfacing after a lapse of six months.

1- Asian Resurfacing Road Agency v. Central Bureau of Investigation,  2018(16) SCC 299.

      It is pertinent to mention here that a trial proceeding must be pending before Civil or Criminal Court, under term Civil Court includes JSCC Court, Revenue Curt and in Criminal Court includes Judicial Magistrate Courts, Special Courts, Session Courts, Anti-corruption Courts, CBI Courts, etc. Civil or Criminal proceedings may be pending in the Court of the first instance, or maybe appeal or revision proceeding. It means that if any appeal or revision is pending before District or session Court and any stay order has been passed by appellate authority except Hon'ble Supreme Court, in respect of any appeal or revision during the pendency of trial then Asian resurfacing case would be applicable. It also inculcates that if any appeal or revision is finally decided then principles of the Asian Resurfacing case would not be applicable.

The original text of pronouncement of Asian Resurfacing Road Agency v. Central Bureau of Investigation,  2018(16) SCC 299.

"35. Because of the above, the situation of proceedings remaining pending for long on account of stay needs to be remedied. The remedy is required not only for corruption cases but for all civil and criminal cases where on account of stay, civil and criminal proceedings are held up. At times, proceedings are adjourned sine die on account of stay. Even after the stay is vacated, intimation is not received and proceedings are not taken up. In an attempt to remedy this, situation, we consider it appropriate to direct that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from today unless in an exceptional case by a speaking order such stay is extended. In cases where the stay is granted in the future, the same will end on the expiry of six months from the date of such order unless a similar extension is granted by a speaking order. The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalized. The trial Court where the order of stay of civil or criminal proceedings is produced may fix a date not beyond six months of the order of stay so that on expiry of the period of stay, proceedings can commence unless the order of extension of stay is produced."

(emphasis supplied) The dispute before the Supreme Court emanated from criminal proceedings in a case relating to the Prevention of Corruption Act, 1988. The Supreme Court held that the order framing charge is not purely an interlocutory order nor a final order, consequently, the jurisdiction of the High Court is not barred irrespective of the label of a petition, be it under Section 397 or 482 Cr.P.C. or Article 227 of the Constitution. However, the jurisdiction is to be exercised consistent with the legislative policy to ensure expeditious disposal of a trial without the same being in any manner hampered. The Supreme Court, thereafter observed that even where the challenge is entertained and it is considered desirable to stay the proceedings of the trial, the same should be for short period and endeavor should be made to decide the challenge expeditiously, normally within 2-3 months. Even where the matter remains pending for a long time, the duration of stay of the trial should not exceed six months unless an extension is granted by a specific order recording reasons therefor.

The Supreme Court also observed thus:-

"In all pending matters before the High Courts or other courts relating to PC Act or all other civil or criminal cases, where a stay of proceedings in a pending trial is operating, stay will automatically lapse after six months from today unless extended by a speaking order on above parameters. The same course may also be adopted by civil and criminal appellate/revisional courts under the jurisdiction of the High Courts. The trial courts may, on expiry of the above period, resume the proceedings without waiting for any other intimation unless express order extending stay is produced. "

Observation of Hon’ble Supreme Court in the order dated, October 15, 2020, in MA No. 1577 of 2020 in Criminal Appeal Nos. 1375-1376 of 2013  Asian Resurfacing Road Agency vs. Central Bureau of Investigation-

we are constrained to point out that in our directions contained in the judgment delivered in Criminal Appeal Nos. 1375-1376 of 2013 [Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. vs. Central Bureau of Investigation] and, in particular, para 35, it is stated thus: “35. … …. In cases where the stay is granted in the future, the same will end on the expiry of six months from the date of such order unless a similar extension is granted by a speaking order. The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalized. The trial Court where the order of stay of civil or criminal proceedings is produced may fix a date not beyond six months of the order of stay so that on expiry of the period of stay, proceedings can commence unless the order of extension of stay is produced.” Learned Additional Chief Judicial Magistrate, Pune, by his order dated 04.12.2019, has instead of following our judgment in the letter as well as spirit, stated that the Complainant should move an application before the High Court to resume the trial. The Magistrate goes on to say: “The lower court cannot pass any order which has been stayed by the Hon’ble High Court, Bombay with due to respect of ratio of the judgment in Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. (supra).” We must remind the Magistrates all over the country that in our pyramidical structure under the Constitution of India, the Supreme Court is at the Apex, and the High Courts, though not subordinate administratively, are certainly subordinate judicially. This kind of order flies in the face of para 35 of our judgment. We expect that the Magistrates all over the country will follow our order in letter and spirit. Whatever stay has been granted by any court including the High Court automatically expires within a period of six months, and unless an extension is granted for good reason, as per our judgment, within the next six months, the trial Court is, on the expiry of the first period of six months, to set a date for the trial and go ahead with the same. With this observation, the order dated 04.12.2019 is set aside with a direction to the learned Additional Chief Judicial Magistrate, Pune to set down the case for hearing immediately. Miscellaneous Application is disposed of accordingly. ..........…

Whether Stay automatically vacated only at the trial stage of litigation

High Courts and Tribunals were approached with varying interpretations of the Asian Resurfacing judgment. Parties sought an all-encompassing interpretation of the judgment such that the stay of all kinds would stand automatically vacated. Because of this, the scope of the exception created by Asian Resurfacing was clarified by various High Courts. The Karnataka High Court [1], Allahabad High Court [2] and the Andhra Pradesh High Court [3] have respectively, held that the directions in Asian Resurfacing shall apply only when the trial proceedings have stayed. The courts specifically held that there will be no automatic vacation of stay on proceedings before a court post the trial stage when the judgment and decree have been passed. Even at the trial stage, the power of granting a stay is to be used only on rare occasions held by the Delhi High Court.[4]

1- Order dated January 10, 2019, in Writ Petition 100648-100649 of 2019 and Order dated March 15, 2019, in R.F.A. No.1344 of 2012.

2- Dharam Vir Sood vs. Savitri Devi and Ors., S.C.C. Revision No. 205 of 2016, order dated April 5, 2019, 2019 (134) ALR 442.

3- K. Ranga Prasad Varma vs. Kotikalapudi Sitarama Murthy and Ors., AIR 2020 AP 22.

4- Ganga Ram Hospital v. State, 2020 SCC OnLine Del 662.

Whether Stay by Supreme Court vacated automatically or not?

The applicability of the judgment to the orders of the Hon’ble Supreme Court was clarified  While dealing with the question of eviction proceedings, the division bench held that the directions in Asian Resurfacing would not apply to the interim orders issued by the Hon’ble Supreme Court. It was clarified that if the interim order granted by the Hon’ble Supreme Court is not vacated and continues beyond a period of six months because of the pendency of the appeal, it cannot be said that the interim order would automatically stand vacated. See the below case law-

1- Fazalullah Khan vs. M. Akbar Contractor and Others, Order dated July 22, 2019, in I.A. No. 27524 of 2019 in Civil Appeal No. 6088 of 2011.

Whether the automatic stay is applicable on proceedings before quasi-judicial bodies

Since the Asian Resurfacing judgment specifically referred to only stay on a proceeding before the civil and criminal trial courts, another issue of interpretation is whether the exception would mutandis mutandis apply to cases before the quasi-judicial bodies and statutory tribunals. In this regard, the Central Board of Indirect Taxes and Customs issued a clarification in July 2019,[1] that the Asian Resurfacing judgment would not apply on stay of recovery proceedings before the Customs Excise and Service Tax Appellate Tribunal (“CESTAT”). The Board relied upon an opinion issued by the Ministry of Law and Justice, wherein the distinction between ‘Court’ and ‘Tribunal’ in terms of the CPC was highlighted, to conclude that CESTAT would not be constituted a ‘trial court’ and hence is outside the scope of the judgment in Asian Resurfacing. The Bombay High Court[2] and Gujarat High Court[3] have also held that the stay on income tax recovery proceedings, imposed due to an appeal to Commissioner or the High Court, would not be vacated automatically on expiry of six months.

Thus, it is safe to assume that a similar approach can be adopted for other quasi-judicial bodies and tribunals that are not ‘courts’ and do not conduct ‘trials’, such as the NCLT and NCLAT. Any stay on proceedings before such tribunals would continue until vacated or final order is issued. see the below case laws-

1- Circular no. F. No. 1080/2/DLA/Tech/Action Taken/2019/3514.

2- Oracle Financial Services Software Ltd., Mumbai v. Deputy Commissioner of Income Tax-13(1)(1) & Ors., Writ Petition No. 542 of 2019, decided on February 28, 2019.

3- Commr. of Central Goods and Services Tax vs. Anmol Chlorochem, Civil Application No. 1 of 2019, decided on June 20, 2019.

Whether directions delivered in the case of Asian Resurfacing of Road Agency vs CBI is applicable in Execution cases.

The response is negative because the guidelines would apply only to pending civil and criminal trials. It means that guidelines given in the above case law would not be applicable in Execution cases. The hon’ble supreme court, Hon’ble Karnataka High Court, Allahabad High Court, Andhra Pradesh High Court & Delhi High Court have clarified in their pronouncements these are being mentioned below-

1- Order dated January 10, 2019, in Writ Petition 100648-100649 of 2019 and Order dated March 15, 2019, in R.F.A. No.1344 of 2012.

2- Dharam Vir Sood vs. Savitri Devi and Ors., S.C.C. Revision No. 205 of 2016, order dated April 5, 2019, 2019 (134) ALR 442.

3- K. Ranga Prasad Varma vs. Kotikalapudi Sitarama Murthy and Ors., AIR 2020 AP 22.

4- Ganga Ram Hospital v. State, 2020 SCC OnLine Del 662.

Whether directions rendered in the case of Asian Resurfacing of Road Agency vs CBI would apply in respect of the stay order passed by the division bench in letters patent appeal

The applicant seeks clarification that the order passed by this Court in Asian Resurfacing of Road Agency Private Limited and another vs Central Bureau of Investigation (2018) 16 SCC 299 SC would apply to the facts of the applicant’s case. It must be noted that the applicant is a writ petitioner before the High Court. Learned Single Judge has disposed of the writ petition. The said judgment is challenged before the Division Bench in a Letter Patent Appeal. Accordingly, the miscellaneous application for clarification is disposed of by clarifying that the order of stay granted by the Division Bench in the High Court cannot be treated as having no force. However, we leave it open to the applicant to seek early disposal of the case. see the case law given below-

Asian Resurfacing Of Road Agency ... vs Central Bureau Of Investigation, Mic. application No. 706/2022, DOJ 25 April 2022. 

Whether order in respect of no coercive action comes within the purview of Stay under Asian Resurfacing case

     It depends on the situation of the case if any order in respect of no coercive action has been passed by the court and the case is under investigation then such order would not come within the purview of stay under Asian Resurfacing case because according to the Asian Resurfacing case proceeding must be pending before Civil or Criminal Courts.

  Now the question before us is when it would be deemed that proceeding is pending before Civil or Criminal Courts? The answer is that, the date of the order when the court took cognizance or made an order for the registration of such case by the same.

  It must be kept in mind that if an order has been passed in respect of no coercive action in a case that is under investigation and that order itself denotes that no coercive action shall be taken till submission of the charge sheet, in that case, while charge-sheet files order of the stay itself lost his effect. In case of any order passed till the next date of the listing and charge-sheet has been submitted then such kind of the stay order is automatically vacated after the expiry of the six months from the date of the taking cognizance or date of the making order for registration of particular case or proceeding.

  

Conclusion-

for the above discussion, it is quite clear that the principle laid down by the Supreme Court in the Asian Resurfacing case applies only to trial proceedings before Civil and Criminal Courts, Trial Courts do not include Tribunal and the doctrine propounded in the above pronouncement does not applicable upon Hon’ble Supreme Court. It must also inculcate that over Execution proceeding it would not apply. If there is no clear-cut order in respect of extension of the stay then the trial court must proceed with such case and contempt proceeding is not applicable against such Magistrate. 

 

FIR and its Significance: a Comprehensive approach

Written by- 1- Vijay Katiyar 

                        Deputy Director,

                         JTRI

                    2- Vandana Singh Katiyar

                         Researcher & Advocate

Introduction -

     First Information Report is the ignition of the Criminal justice system. the purpose of registering FIR is to set the machinery of criminal Investigation into motion, which culminates with the filing of the police report and only after registration of FIR, beginning of Investigation in a case, collection of evidence during investigation and formation of the final opinion is the sequence which results in the filing of a report under section-173 Cr.P.C. Hon'ble Supreme Court in the case of  Manoj Kumar Sharma and others vs The State of Chhatisgarh and another, AIR,2016 SC 3930 propounded about the significance and purpose of FIR.

     While any incidence has been taken place in respect of any cognizable offence then FIR is the First step towards criminal justice administration. In a very simple word you can say that FIR is the basic structure or foundation stone of a building upon which the structure of the criminal justice system raised. 

What is FIR?

          The very important question is before us that what is FIR means what is the meaning of the FIR? It is very clear that in the Code of Criminal Procedure or Indian Penal Code the term FIR has not been defined yet. But word FIR itself denotes that First Information Report, But the question is still before us that about whom then you can simply reply that about the cognizable offence . Now you can define in a simple term that FIR means the First Information about Cognizable offence. What is cognizable offence Section 2(c) in The Code Of Criminal Procedure, 1973 defined as below-

(c) " cognizable offence" means an offence for which, and" cognizable case" means a case in which, a police officer may, in

accordance with the First Schedule or under any other law for the time being in force, arrest without warrant

The term offence is also defined under section 2 (n) of the Code of Criminal Procedure as below-

" offence" means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section- 20 of the Cattle- Trespass Act, 1871 (1 of 1871 );

        The very serious question again arises before us that whether each and every first-time information regarding the commission of cognizable offence comes within the purview of FIR, If the answer is affirmative then why? If the answer is negative then why?

         In the opinion of the author, the answer is negative because each and every piece of information made by any person first time before a police officer in respect of the commission of the cognizable offence does not come within the purview of FIR, unless and until it does not bear all the ingredients of the FIR. It means that if the information is given so,  does not bear all the ingredients and information given so is vague and cryptic then it would not come within the purview of FIR. 

Ingredients of FIR- 

     Now the next question is before us that what are the ingredients of the FIR? It is very clear that there is no provision regarding ingredients of the FIR, But on the basis of Interpretation laid down by the Court of records, it is necessary for the FIR it must be clear and unambiguous. It means that if information regarding cognizable offence receives in a cryptic and vague manner then such kind of information can not constitute a valid FIR. Now the question before us that in what circumstances information regarding cognizable offence would be clear and unambiguous. The reply of this particular question is also known as ingredients of the valid FIR, these are as follows-

Information in respect of cognizable offence must be bear particulars given below-

(1) Time of offence .

(2) Date of the offence.

(3) Name of the place of occurrence.

(4) Particulars of the informant/victim.

(5) Name or particulars of Accused persons.

(6)  Description/Particulars of the incident.

     For the detailed description, you can see the below case laws-

1- Sidhartha Vashisth: Alias Manu Sharma vs State (NCT of Delhi), CRIMINAL APPEAL NO. 179 OF 2007 judgment dated 19th April 2010.

2-Damodar v. State of Rajasthan, AIR 2003 SC 4414.

 In order to constitute an FIR in terms of section 154 of the Code. of Criminal Procedure, 1973 two conditions are to be fulfilled:-

(a) what is conveyed must be a piece of information; and

(b) that information should relate to the commission of a cognizable offence on the face of it.

Whether Information furnished through a telephonic message etc. would constitute a valid FIR or not?

There is not straight jacket answer to this proposition. Time and again it has been held by the Hon’ble Courts of our country that a telephonic conversation is generally made with an intention to gather police at the crime scene. In such cases, the telephonic conversation made between the informant and the police officer would not amount to the registration of the FIR.

    Phone calls made immediately after an incident to the police constitute an FIR only when they are not vague and cryptic. Calls purely for the reason of getting the police to the scene of crime do not necessarily constitute the FIR”. Hence, as per the author's interpretation, a telephonic conversation would amount to the constitution of an FIR if the information furnished about the crime is unambiguous, clear, and in detail that satisfies the above-mentioned test (not vague and cryptic). 

1- Sidhartha Vashisth: Alias Manu Sharma vs State (NCT of Delhi), CRIMINAL APPEAL NO. 179 OF 2007 judgment dated 19th April 2010.

2-Damodar v. State of Rajasthan, AIR 2003 SC 4414.

Telephonic FIR whether FIR in law? : 

Telephonic information to the police station about cognizable offence recorded in the daily diary book would be treated as FIR u/s 154 CrPC even when the said information though mentioning the names of assailants but the investigation has started on its basis. See : 

1. Sunil Kumar Vs. The State of M.P., AIR 1997 SC 940

2. Vikram Vs. The state of Maharashtra, 2007 CrLJ 3193 (SC)

A cryptic telephonic message recorded at police station not to be treated as FIR : 

A cryptic telephonic message was given to police to the effect that the accused accompanied by others assaulted the complainant party cannot be treated as an FIR u/s 154 CrPC when the said message did not disclose the letter of offence and the manner in which the offence was committed. See: 

1. Bhagwan Jagannath Markad Vs. State of Maharashtra, AIR 2016 SC 4531 (para 26).

2. Netaji Achyut Shinde (Patil) & Another vs State of Maharashtra, Criminal appeal No-121/2019 & 328/2020 Judgment dated March 23, 2021, SC.

R.T. message & FIR :

R.T. message or high frequency set message simply informing police that one person had died due to gunshot without disclosing the names of assailants or deceased, cannot be treated as FIR u/s 154 CrPC particularly when details of the occurrence regarding commission of 29 cognizable offence were subsequently conveyed to the police station officer. See : 

1. Budhraj Singh Vs. State of U.P.,2006(5) ALJ (NOC) 972(All— D.B.)

2. Uppari Venkataswamy Vs. Public Prosecutor, 1996 SCC (Criminal) 284

3. Ramsinh Bavaji Jadeja Vs. The state of Gujarat, (1994) 2 SCC 685

Cryptic telephonic message not to be treated as FIR : 

Where information by an individual to police regarding commission of the cognizable offence was given in the form of cryptic telephonic message not for purpose of lodging FIR but the police to reach the place of occurrence, it has been held that such Cryptic telephonic information can not be treated as FIR. See : 

Sidharth Vashisth alias Manu sharma Vs. State of NCT of Delhi, 2010(69) ACC 833 (SC) 

GD entries whether FIR? : 

The gist of information regarding the commission of cognizable offences recorded in GD can legally be treated as FIR. See : 

 Superintendent of Police, CBI Vs. Tapan Kumar Singh, 2003 (46) ACC 961 (SC). 

The only gist of information received required to be recorded in the general diary (GD) : 

What is to be recorded in the general diary as per Section 44 of the Police Act, 1861 in the general diary is the only gist of information received and not the whole of information received. It cannot, therefore, be said that what is recorded in the general diary is to be considered as compliance with the requirement of Section 154 CrPC for registration of FIR. See : 

Lalita Kumari Vs. Govt. of UP, AIR 2014 SC 187 (Five-Judge Bench). 

Daily diary entry, not FIR:- 

Where on receiving the telephonic message about the incident, SI made an entry in the Daily Diary report that after receiving the information he was proceeding to the spot along with other constables, it has been held that that was not an FIR u/s 154 CrPC and therefore non-mentioning of the names of the assailants in that entry cannot have any bearing on the case of the prosecution. See : 

Thaman Kumar Vs. State, (2003) 6 SCC 380. 19(C-3).

Entries made in G.D. not to be treated as FIR registered u/s 154 CrPC:- 

What is recorded in General Diary cannot be considered as compliance with the requirement of Section 154 CrPC of registration of FIR. See the below case law- : 

Lalita Kumari Vs Govt. of UP, AIR 2014 SC 187 (Five-Judge Bench). 

Information received by the police must be entered into the G.D.:- 

Since the General Diary/Station Diary/Daily Diary is the record of all information received in a Police Station, all the information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected as mentioned above. See : 

Lalita Kumari Vs Govt. of UP, AIR 2014 SC 187 (Five-Judge Bench) (para 111 ). 

Who can lodge  FIR?

Anyone who has information about the commission of a cognizable offense can lodge an FIR. It is not necessary that he/she should be the victim or eye-witness himself. A police officer can lodge an FIR on his own if he comes to know about the Commission of a cognizable offence. In Hallu & Ors. vs. the State of M.P, AIR 1974 1936 SC, it was held that “Section 154 does not require that the Report must be given by a person who has personal knowledge of the incident reported. The section speaks of information relating to the commission of a cognizable offense given to an officer in charge of a police station.”

Use of FIR-

An FIR can be used for many purposes some of those are as follows-

1. For the purpose of corroboration and contradiction against maker if he is examining.

2. For the purpose of testing that information is not afterthought or piece of evidence Resgaste or conduct.

3. For the purpose of Dying declaration.

4. For the purpose of admission under Sec-21 Evidence Act.

5. For the purpose of recovery of articles under Sec-27 Evidence Act. See the case laws as below-

1. A. Nagesia vs State of Bihar, AIR 1966 SC 119

2. Damodar Prasad vs State of Maharashtra, AIR 1972 SC 622.

How to register non-cognizable offenses?

    • In non-cognizable offences, when an informant approaches the officer in charge, the officer enters such information in his book (maintained as per the format prescribed by the State Government).

    • Secondly, a police officer can begin with the investigation for a non-cognizable offense, only after receiving an order from the magistrate under section 155(2) of the CrPC.

The investigating powers of a police officer are the same in respect of cognizable and non-cognizable offences, except the power to arrest without a warrant. The Hon’ble Supreme Court in State Of West Bengal & Ors vs. Swapan Kumar Guha & Ors held that “there is no such thing like unfettered discretion in the realm of powers defined by statutes and indeed, unlimited discretion in that sphere can become a ruthless destroyer of personal freedom. The power to investigate into cognizable offences must, therefore, be exercised strictly on the condition on which it is granted by the Code”.

  Hence, it can be concluded that if a person wants to register a complaint regarding the commission of a non-cognizable offense, he/she has to first register a complaint with the magistrate having proper jurisdiction. There are no strict norms pertaining to the format of a complaint. A complaint can be in the form of an affidavit or a petition as the case may be. After receiving the complaint, the magistrate will decide upon the issue of cognizance. If the magistrate is satisfied that a non-cognizable offense has been committed, he will order further investigations.

What are the remedies available if the police refuse to lodge  FIR?

       It is not always illegal when the officer in charge refuses to lodge the FIR. As it all depends upon the reason because of which the police officer refuses to lodge the FIR. If the police officer refuses to lodge the FIR because the case does not fall within their jurisdiction, deals with an offense which is non-cognizable in nature or it is outside their legal capacity to take cognizance of such an offense, in such circumstances the refusal to lodge an FIR is legitimate and justified.

Although, if the FIR is refused on the ground of jurisdiction, it is mandatory for the police officer to record information about the commission of a cognizable offense and forward the same to the police station having proper jurisdiction. Otherwise, it would amount to dereliction of duty.

     If the refusal to lodge FIR is not legitimate then there are two kinds of remedies available to the person who want to lodge FIR these are statutory or primary or immediate remedy and another is the judicial remedy which can be get by the Court of records under article-32 and 226 of the Indian Constitution.

      1-Statutory Remedies                    ​

          (a) Under section 154(3) CrPC – When an informant’s right to register the  FIR is refused, he/she can approach the Superintendent of Police and submit the substance of such information in writing by post. If the Superintendent of Police is satisfied that such information discloses the commission of a cognizable offense then, he might investigate the case himself or direct an investigation to be made by any police officer subordinate to him.

          (b) Under section 156(3), read with section 190 CrPC – If an informant remains unsatisfied even after pursuing the remedy under section 154(3), he/she can further pursue the remedy mentioned under section 156(3) read with section 190 CrPC.

This is a different channel to get the FIR registered. This remedy is similar to the process of registering a complaint about non-cognizable offences. As through this channel, a magistrate first take cognizance of an offense under section 190 and then order for consequential investigations under section 156(3 )​

      (c) Under section 200 CrPC – A complaint can be submitted to the magistrate orally or in writing under section 200 of the CrPC. After the submission of a complaint, the magistrate will conduct a hearing, deciding upon the issue of cognizance. In this channel, the complainant and the witnesses thereof are examined on oath in front of the magistrate.

      2-Judicial remedy- Mandamus is one of the prerogative writs issued by the superior Courts (High Court or Supreme Court), which is in the form of a command to the State, its instrumentality or its functionaries as the case may be,  to compel them to perform their constitutional/statutory/public duty. Hence, a writ of mandamus can be filed under Article 226 or Article 32 of the Constitution of India, directing the police officials to perform their duty and register the FIR. 

Can I pursue the Judicial Remedy before the Statutory Remedy?

It is a well-settled principle that an alternative remedy is not an absolute bar while filing a writ petition. In other words, it is nowhere expressly mentioned that a writ petition cannot be filed if there exists an alternative remedy. Although, on perusal of the various High Court’s and Supreme Court’s decisions, it can be concluded that ordinarily, the courts prefer and advise to first exhaust the remedies available to an informant. Some of the examples of such decisions are mentioned below:

1- Sakiri Vasu Vs. State of U.P, MANU/SC/8179/2007

2- Aleque Padamsee and others Vs. Union of India and others, reported in, MANU/SC/2975/2007.

3- Sudhir Bhaskar Rao Tambe Vs. Hemant Yashwant Dhage and Ors, MANU/SC/1328/2010.

The procedure for lodging FIR-

The process of filing an FIR is very simple. It is as simple as narrating a story to the police. The informant has to visit the police station (ideally near the crime scene) and furnish all the information he/she has pertaining to the commission of an offence. Section 154 of the CrPC gives a choice to the informant to furnish information orally or in writing. If the information is disclosed orally then, the report must be reduced to writing by the police officer himself or under his direction. The report must be read out to the informant. Every report whether reduced to writing or submitted in written form shall be signed by the informant. The procedure in respect of lodging FIR has been prescribed in Cr.P.C. under section-154 these are as follows-

154. Information in cognizable cases

Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

Provided that if the information is given by the woman against whom an offence under section 326A, section 326B, section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB, section 376E or section 509 of the Indian Penal Code is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer;

Provided further that—

           (a) in the event that the person against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB, section 376E or section 509 of the Indian Penal Code is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person’s choice, in the presence of an interpreter or a special educator, as the case may be;

           (b) the recording of such information shall be video graphed;

           (c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible.

       (1) A copy of the information as recorded under Sub-Section (1) shall be given forthwith, free of cost, to the informant.

       (3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in Sub-Section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.

The provision in section 154 regarding the reduction of oral statement to writing and obtaining the signature of the informant to it, is for the purpose of discouraging irresponsible statements about criminal offences by fixing the informant with the responsibility for the statement he makes. Refusal by the informant to sign the first information is an offence punishable under section 180 of the Indian Penal Code. The absence of signatures on the first information report by the informant, however, is not necessary to the extent that it will vitiate and nullify such a report. The first information is still admissible in evidence.

     In other words, FIR is only a complaint to set the affairs of law and order in motion and it is only at the investigation stage that all the details can be gathered. In one of the judgments, the Madhya Pradesh High Court observed that the report of the crime which is persuading the police machinery towards starting investigation is FIR, subsequent reports are/were written, they are not hit under section 161 of the Code of Criminal Procedure, 1973 and cannot be treated as such.

What was the fate of prosecution case if Informant/complainant when turning hostile & not proving FIR ?: 

Once registration of the FIR is proved by the police and the same is accepted on record by the Court and the prosecution establishes its case beyond reasonable doubt by other admissible, cogent and relevant evidence, it will be impermissible for the Court to ignore the evidentiary value of the FIR. It is settled law that FIR is not a substantive piece of evidence. But certainly, it is a relevant circumstance of the evidence produced by the investigating agency. Merely because the informant turns hostile it cannot be said that the FIR would lose all of its relevancy and cannot be looked into for any purpose. See Bable Vs. The state of Chhattisgarh, AIR 2012 SC 2621.

Whether the Public prosecutor is bound or not to examine such witnesses which are not supportive of the prosecution's case:-

Under S. 226 CrPC the public prosecutor has to state what evidence he proposes to adduce for proving the guilt of the accused. If he knew at that stage itself that certain persons cited by the investigating agency as witnesses might not support the prosecution case he is at liberty to state before the court that fact. Alternatively, he can wait further and obtain direct information about the version which any particular witness might speak in Court. If that version is not in support of the prosecution case it would be unreasonable to insist on the Public Prosecutor to examine those persons as witnesses for the prosecution. When the case reaches the stage envisaged in S. 231 of the Code the Sessions Judge is obliged "to take all such evidence as may be produced in support of the prosecution". It is clear from the said Section that the Public Prosecutor is expected to produce evidence "in support of the prosecution" and not in derogation of the prosecution case. At the said stage the Public Prosecutor would be in a position to make a decision as to which among the persons cited are to be examined. If there are too many witnesses on the same point the Public Prosecutor is at liberty to choose two or some among them alone so that the time of the Court can be saved from repetitious depositions on the same factual aspects. That principle applies when there are too many witnesses cited if they all had sustained injuries at the occurrence. The Public Prosecutor in such cases is not obliged to examine all the injured witnesses. If he is satisfied by examining any two or three of them, it is open to him to inform the Court that he does not propose to examine the remaining persons in that category. This will help not only the prosecution for relieving itself of the strain of adducing repetitive evidence on the same point but also helps the Court considerably in lessening the workload. Time has come to make every effort possible to lessen the workload, particularly those Courts crammed with cases, but without impairing the cause of justice. See below case laws- 

(i) Sandeep Vs. The state of UP, (2012) 6 SCC 107.                                                                                                                                           (ii) Hukum Singh & others Vs. The state of Rajasthan, 2001 CrLJ 511 (SC).

Whether reports Newspaper can be treated as evidence or not? : 

Newspaper reports would be treated as hearsay evidence and cannot be relied upon. See the below case laws- : 

1. Joseph M. Puthussery Vs. T.S. John, AIR 2011 SC 906.

2. Laxmi Raj Shetty Vs. The state of T.N, AIR 1988 SC 1274.

3. Quamarul Ismam Vs. S.K. Kanta, 1994 Supp. (3) SCC 5.

Whether FIR is a substantive piece of evidence or not? :- 

It is settled law that an FIR registered under Section 154 CrPC is not a substantive piece of evidence. See Bable Vs. State of Chhattisgarh, AIR 2012 SC 2621 17(B).Evidentiary value of FIR is not lost if informant turns hostile: Once registration of the FIR is proved by the police and the same is accepted on record by the Court and the prosecution establishes its case beyond reasonable doubt by other admissible, cogent and relevant evidence, it will be impermissible for the Court to ignore the evidentiary value of the FIR. It is settled law that FIR is not a substantive piece of evidence. But certainly, it is a relevant circumstance of the evidence produced by the investigating agency. Merely because the informant turns hostile it cannot be said that the FIR would lose all of its relevancy and cannot be looked into for any purpose. See the below case law:- 

Bable Vs. The state of Chhattisgarh, AIR 2012 SC 2621. 

What would be the fate of FIR if Informant/complainant when turning hostile:-

Once registration of the FIR is proved by the police and the same is accepted on record by the Court and the prosecution establishes its case beyond reasonable doubt by other admissible, cogent and relevant evidence, it will be impermissible for the Court to ignore the evidentiary value of the FIR. It is settled law that FIR is not a substantive piece of evidence. But certainly, it is a relevant circumstance of the evidence produced by the investigating agency. Merely because the informant turns hostile it cannot be said that the FIR would lose all of its relevancy and cannot be looked into for any purpose. See the below case law:-

 Bable Vs. The state of Chhattisgarh, AIR 2012 SC 2621 

 Scribe of FIR when not examined? : 

Non-examination of the scribe of FIR is not fatal to prosecution and no adverse inference can be drawn against prosecution if the scribe was not an eye-witness to the incident and the complainant/informant had proved the execution of the FIR by examining himself as PW:-

1. Moti Lal Vs. The State of U.P., 2009 (7) Supreme 632

2. Anil Kumar Vs. The State of U.P., (2003) 3 SCC 569 

Non-mentioning of the name of accused in FIR not fatal to prosecution case:- 

 It is well settled that if the name of the accused is not mentioned in the FIR, but the case has been proved beyond a reasonable doubt, the same cannot be fatal to the prosecution case. See the case laws : 

(i) Mukesh Vs. State for NCT of Delhi & Others, AIR 2017 SC 2161 (Three-Judge Bench)

(ii) Mritunjoy Biswas Vs Pranab alias Kuti Biswas & Another, AIR 2013 SC 3334. 

Whether FIR can be used in respect o other witnesses- It is an established principle that FIR can be used only in respect of the maker, it means that it can not be used to discredit the testimony of other witnesses. See the below case law- 

1. George vs the State of Kerala, AIR 1998 SC 1376.

FIR lodged by the Accused-

If an FIR has been lodged by the Accused himself the exculpatory part of the FIR would be admissible against him under Sec-21 and 27 Evidence Act. But as a confessional statement, the FIR would not be admissible against the Accused. See the below case law-

1. Dal Singh vs Emperor, AIR 1917 PC 25.

2. Faddi vs State of MP, AIR 1964 SC 1850.

3. Aghnoo Negesia vs State of Bihar, AIR 1966 SC 119.

4. Murli vs State of Rajasthan, AIR 1994 SC 610.

5. Bheru Singh vs State of Rajasthan, (1994) 2 SCC 467.

5. Ramaiah vs State of A.P., AIR 1997 SC 496.

Whether correction or overwriting can fatal the prosecution case-

 mere correction or overwriting can not fatal the prosecution case unless there is a serious improvement in a version of the prosecution. See the case law-

1. Golla Pullana vs State of AP, AIR 1966 SC 2727.

2. State of UP vs Hari om, AIR 1998 SCW 4130. 

Appreciation of FIR & its contents:-

 The FIR is not the encyclopedia of all the facts relating to crime. The only requirement is that at the time of lodging FIR, the informant should state all those facts which normally strike to mind and help in assessing the gravity of the crime or identity of the culprit briefly. See below case laws- : 

1. State of MP Vs. Chhaakki Lal, AIR 2019 SC 381.

2. Prabhu Dayal Vs. The state of Rajasthan, (2018) 8 SCC 127

3. Motiram Padu Joshi Vs. The state of Maharashtra, (2018) 9 SCC 429

4. Bhagwan Jagannath Markad Vs. The state of Maharashtra, (2016) 10 SCC 537.

5. Jarnail Singh Vs. The state of Punjab, 2009 (6) Supreme 526 18(C).

Non-mentioning of the name of a witness in FIR not fatal:- 

Testimony of witness cannot be disbelieved merely because of non-mentioning of his name in FIR. See : 

Prabhu Dayal Vs. The state of Rajasthan, (2018) 8 SCC 127 

Information regarding cognizable offence from two or more sources & FIR:-

 Where two information regarding the commission of cognizable offence are received and recorded and it is contended before the court that the one projected by the prosecution as FIR is not the real FIR but some other information recorded earlier (in GD) is the FIR, that is a matter which the court trying the accused has jurisdiction to decide. See :

1. Superintendent of Police, CBI Vs. Tapan Kumar Singh, 2003 (46) ACC 961 (SC)

2. Vikram Vs. The state of Maharashtra, 2007 CrLJ 3193 (SC)

Witness when not named in FIR or charge-sheet: Mentioning of names of all witnesses in FIR or in statements u/s 161 CrPC is not a requirement of law. Such witnesses can also be examined by the prosecution with the permission of the court. Non-mentioning of the name of any witness in the FIR would not justify rejection of the evidence of the eye-witness : 

1. Prabhu Dayal Vs. The state of Rajasthan, (2018) 8 SCC 127

2. Raj Kishore Jha Vs. State of Bihar, 2003(47) ACC 1068 (SC)

3. Chittarlal Vs. State of Rajasthan, (2003) 6 SCC 397

4. Bhagwan Singh Vs. State of M.P., 2002(44) ACC 1112 (SC)

5. Sri Bhagwan Vs. State of Rajasthan, (2001)6 SCC 296

6. Satnam Singh Vs. State of Rajasthan, (2000)1 SCC 662 

Delayed FIR and delayed recording of statement of PWs by I.O. u/s 161 CrPC—

effect thereof? : Delay in lodging of FIR—if causes are not attributable to any effort to concoct a version and the delay is satisfactorily explained by prosecution, no consequence shall be attached to mere delay in lodging FIR and the delay would not adversely affect the case of the prosecution. Delay caused in sending the copy of FIR to Magistrate would also be immaterial if the prosecution has been able to prove its case by its reliable evidence :

1. State of MP Vs. Chhaakki Lal, AIR 2019 SC 381

2. Mukesh Vs. State for NCT of Delhi & Others, AIR 2017 SC 2161 (Three-Judge Bench).

3. Ashok Kumar Chaudhary Vs. State of Bihar, 2008 (61) ACC 972 (SC)

4. Rabindra Mahto Vs. State of Jharkhand, 2006 (54) ACC 543 (SC)

5. Ravi Kumar Vs. State of Punjab, 2005 (2) SCJ 505

6. State of H.P. Vs. Shree Kant Shekari, (2004) 8 SCC 153

7. Munshi Prasad Vs. State of Bihar, 2002(1) JIC 186 (SC)

8. Ravinder Kumar Vs. State of Punjab, 2001 (2) JIC 981 (SC)

9. Sheo Ram Vs. State of U.P., (1998) 1 SCC 149

10.State of Karnataka Vs. Moin Patel, AIR 1996 SC 3041 25. 

Delayed sending of FIR to Magistrate u/s 157 CrPC : 

Delay in sending a copy of FIR to the area Magistrate is not material where the FIR is shown to have been lodged promptly and investigation had started on that basis. Delay is not material in the event when the prosecution has given a cogent and reasonable explanation for it. Mere delay in sending the FIR to Magistrate u/s 157 CrPC cannot lead to a conclusion that the trial is vitiated or the accused is entitle to be acquitted on that ground. The accused must show that prejudice was caused to him by delayed sending of the FIR to the Magistrate u/s 157 CrPC. See:

(i) Ramji Singh Vs. State of UP, (2020) 2 SCC 425

(ii) Jafel Biswas Vs. State of West Bengal, AIR 2019 SC 519.

(iii) Anil Rai Vs. State of Bihar, (2001) 7 SCC 318

(iv) State of Punjab Vs. Hakam Singh, (2005)7 SCC 408 

Whether Accused is entitled to get a copy before the stage of Sec- 207 CrPC? 

 Hon’ble Supreme Court has issued the following directions in respect of providing a copy of the FIR to the Accused as well as uploading it to the website-

(1) An accused is entitled to get a copy of the FIR at an earlier stage than as prescribed under sec-207

(2) Suspect Accused has the right to submit an application for grant of certified copy before concerned Police Officer or to Superintendent of Police on payment of the prescribed fee.

(3) On an application being filed for a certified copy of the FIR on behalf of the accused, the same shall be given by the Court concerned within two working days.

(4) Copy of the FIR except in sensitive cases like sexual offences, offences pertaining to insurgency, and terrorism should be uploaded on the website within 24 hours of registration.  See the case law-

Youth Bar Association of India vs Union of India and others, AIR 2016 SC 4136.

Whether second FIR can be lodged or not?

        There can be no second FIR in the event of any further information being received by the Investigating Agency in the respect of offence or same occurrence or incident giving rise to one or more offence because it is his by Sec-162 Code of Criminal Procedure. See the case law-

Awdhesh Kumar sha alias Akhilesh Kumar Jha vs State of Bihar, AIR 2016 SC 373.

Whether FIR can be lodged against the dead person-

      Now the very important question is before us that whether FIR can be lodged against death person? Even though this issue is very debatable because some High Courts clearly denied that FIR can not lodge against the dead person but some High Courts are of the view that FIR can be lodged against a dead person. But this dispute has been ended right now and Hon'ble Supreme Court has established that FIR can lodge against a dead person, even though Human Rights workers are criticizing that judgment of the Hon'ble Supreme Court. But in others' opinion for the purpose of seeking private defence, the purpose of an accident claim is required by the same. See the below case laws-

1- PUCL vs State of Maharashtra, Criminal appeal No- 1255/1999, judgment dated 23.09.2014.

2- Rajiv Gandhi Ekta Samiti vs Union of India, 2000, Cri. L.J. 2002 Delhi.

3- Andhra Pradesh Civil Liberties Committee vs the State of AP, 2008 Cri. L.J. 402 (FB)

Summing up-

      It is very clear from the above discussion that FIR is the foundation stone of the Criminal justice system. But it also inculcates that the procedural and technical shortcomings in respect of FIR must be ignored by the Court of law and in the interest of justice adjudication or trial of the accused should be made by the same.

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Law of Adverse Possession : A Comprehensive Approach

 

Law of Adverse Possession : A Comprehensive Approach

Written By

Vandana Singh Katiyar       Vijay Kumar Katiyar

Researcher & Advocate       Sr. Civil Judge

Introduction-

The famous unknown poet in India rightly said that  " जो जागे सो पावे जो सोवे सो खोवे"( Jo jage so pave jo sove so khove). The concept of Law of Adverse possession is rightly based on the lines above stated. It means that the root of the tenet of Adverse Possession is deeply rooted in the Indian Society, But in the Ancient era there is no clear cut provision in this respect. Globally this concept has been recognized by the various Countries of the World likewise America, Britain, France, Canada etc. Behind this Concept there should be relationship between property and Hunan Being. If from long time, the person whose having even paper ownership over property have no relation with the corpus of the property than it would be deemed to that he has been relinquished his right and a person who has in peace full possession and taken care of particular property shall deemed to be the owner by the same. It is well said by the known scholar that Adverse possession begins with wrong and end with gain. In this article Authors will try to discuss about the tenet of Adverse possession, legal provisions in this respect, nature of the Adverse possession, history of the pronouncement as interpreted by the Courts of records, Pleadings in this regard, proof of Adverse possession and appreciation of Evidence in the light of Adverse possession.

Tenet Behind Adverse possession -

Before dilating upon the issue it is necessary to discuss here about the concept of the Adverse possession or Philosophy behind it . there are three basic tenet of the Adverse possession these are as follows-

1- The title of the land should not kept in the doubt for a long time.

2- The person taking care of property should prevail over paper owner who has no care of his property from long time.

3- The person who is claiming Adverse possession and true owner does not take any action in statutory period then it shall presumed that he has relinquish his right in the favour of possessor.

Origin and historical background of the Concept of Adverse possession-

       Historically, adverse possession is a pretty old concept of law. It is useful but often criticized concept on the ground that it protects and confers rights upon wrongdoers. The concept of adverse possession appeared in the Code of Hammurabi approximately 2000 years before Christ era. Law 30 contained a provision “If a chieftain or a man leaves his house, garden, and field …. and someone else takes possession of his house, garden and field and uses it for three years; if the first owner returns and claims his house, garden, and field, it shall not be given to him, but he who has taken possession of it and used it shall continue to use it.” However, there was an exception to the aforesaid rule: for a soldier captured or killed in battle and the case of the juvenile son of the owner. In Roman times, attached to the land, a kind of spirit that was nurtured by the possessor. Possessor or user of the land was considered to have a greater “ownership” of the land than the titled owner. 

     We inherited the Common Law concept, being a part of the erstwhile British colony. William in 1066 consolidated ownership of land under the Crown. The Statute of Westminster came in 1275 when land records were very often scarce and literacy was rare, the best evidence of ownership was possession. In 1639, the Statute of Limitation fixed the period for recovery of possession at 20 years. A line of thought was also evolved that the person who possesses the land and produces something of ultimate benefit to the society, must hold the best title to the land. Revenue laws relating to land have been enacted in the spirit to confer the title on the actual tiller of the land. The Statute of Wills in 1540 allowed lands to be passed down to heirs. The Statute of Tenures enacted in 1660 ended the feudal system and created the concept of the title. The adverse possession remained as a part of the law and continue to exist. The concept of adverse possession has a root in the aspect that it awards ownership of land to the person who makes the best or highest use of the land. The land, which is being used is more valuable than idle land, is the concept of utilitarianism. The concept thus, allows the society as a whole to benefit from the land being held adversely but allows a sufficient period for the “true owner” to recover the land. The adverse possession statutes permit rapid development of “wild” lands with the weak or indeterminate title. It helps in the Doctrine of Administration also as it can be an effective and efficient way to remove or cure clouds of title which with memories grow dim and evidence becomes unclear. The possessor who maintains and improves the land has a more valid claim to the land than the owner who never visits or cares for the land and uses it, is of no utility. If a former owner neglects and allows the gradual dissociation between himself and what he is claiming and he knows that someone else is caring by doing acts, the attachment which one develops by caring cannot be easily parted with. The bundle of ingredients constitutes adverse possession.

     But in Indian history first time the concept of the Adverse possession has been recognized by the Privy council in the case of Perry vs Clissold (1907) AC 73 PC. Even though it is well settled that the pronouncement of the Privy Council is not binding upon Indian Courts but in the year of 1968 Hon'ble Supreme Court in the case of Nair Service Society Ltd vs K C Alexender, AIR 1968 SC 1165 ( 3 Judges Bench) has approved the concept which has been enunciated by the Privy Council in the year of 1907.

Relevant Provisions in respect of Adverse possession-

      For the better understanding to the concept of Adverse possession it is relevant to discuss here about the relevant provisions. In the limitation Act, 1963 there are six provisions i.e. Sec-3 and 27 limitation Act & Article-64,65,111 and 112 Limitation Act, 1963 these are as bellow-

3. Bar of limitation.—

(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.

(2) For the purposes of this Act— (2) For the purposes of this Act—"

(a) a suit is instituted— 

(i) in an ordinary case, when the plaint is presented to the proper officer; (i) in an ordinary case, when the plaint is presented to the proper officer;"

(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and (ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and"

(iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator; (iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;"

(b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted— (b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted—"

(i) in the case of a set off, on the same date as the suit in which the set off is pleaded; (i) in the case of a set off, on the same date as the suit in which the set off is pleaded;"

(ii) in the case of a counter claim, on the date on which the counter claim is made in court; (ii) in the case of a counter claim, on the date on which the counter claim is made in court;"

(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court.

27-Extinguishment of right to property.—At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. 

Article-64- For possession for immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed .The Limitation is twelve years from the date of dispossession.

Article-65- For possession of Twelve years. When the possession immovable property or of the defendant any interest therein becomes adverse to based on title. the plaintiff.

Explanation- For the purpose of this article-

(a) Where the suit is by a remainderman, reversioner ( other than a landlord) or a devisee, the possession of the defendant shall be deemed to be become adverse only when the estate of the remainderman, revioner or devisee as the case may be, falls into possession.

(b) Where the suit is by Hindu or Muslim entitled to the possession of the immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to be become adverse only when the female dies.

(c) Where the suit is by a purchaser at a sale in execution of the decree when the Judgment debtor was out of possession at the date of sale, the purchaser shall be deemed to be representative of the Judgment debtor who was out of possession. 

Article- 111. By or on behalf of any local authority for possession of public street or road or any part thereof from which it has been dispossessed or of which it has discontinued the possession. The limitation is thirty years from the date of dispossession or discontinuance.

Article-112. Any suit ( except a suit before the Supreme Court in the exercise of its original jurisdiction) by or on behalf of the Central Government or any state Government, including the Government of the State of Jammu an Kashmir. The limitation time is thirty years, when the period of limitation would begin to run under this Act against a like suit by a private person.

       In the light of above relevant provisions it is very clear that section-3 of the limitation  Act provides that no suit shall be filed after statutory period of limitation. it means that if any suit has files after prescribed period of time shall dismissed by the court, although there is no plea in defence in this respect.

        Sec-27 of the limitation Act denotes about the consequence of the sec-3. It means that if the statutory period prescribed in limitation Act expires and suit does not file by the paper owner then it shall deemed that he has relinquish his right over the property.

        Article-64, 65, 111 & 112 provides about statutory period for filing suits in case of private person statutory time is twelve years and in the respect of the Government thirty years. 

            The consolidated conclusion on the behalf of all above provisions is that the concept of the Adverse possession is vested in all six provisions which has been mentioned above by the author.

Nature of the Adverse possession-

            When we talk about right of possession and ownership in respect of true owner than such right is positive in nature. Other hand if the possession is adverse or title is hostile then we can say that such rights are negative and consequential in nature.

             Nature of title acquired by adverse possession has also been discussed in the Halsbury’s Laws of England Para 785 is also extracted hereunder:

“785. Nature of title acquired: The operation of the statutory provision for the extinction of title is merely negative; it extinguishes the right and title of the dispossessed owner and leaves the occupant with a title gained by the fact of possession and resting on the infirmity of the right of others to eject him."

       The operation of the statute of limitation in giving a title is merely negative; it extinguishes the right and title of the dispossessed owner and leaves the occupant with a title gained by the fact of possession and resting on the infirmity of the right of others to eject him. Perry v. Clissold (1907) AC 73 has been referred to in Nair Service Society Ltd. v. K.C. Alexander (supra) in which it has been observed that it cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the original owner, and if the original owner does not come forward and assert his title by the process of law within the period prescribed under the statute of limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title. In Ram Daan (Dead) through LRs. v. Urban Improvement Trust, (2014) 8 SCC 902, this Court has observed thus:

     “11. It is settled position of law laid down by the Privy Council in Perry v. Clissold 1907 AC 73 (PC) (AC p. 79) “It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is forever extinguished, and the possessory owner acquires an absolute title.” The above statement was quoted with the approval by this Court in Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165. Their Lordships at para 22 emphatically stated: (AIR p. 1175) “22. The cases of the Judicial Committee are not binding on us but we approve of the dictum in Perry v. Clissold 1907 AC 73 (PC).””

        The decision in Fairweather v. St. Marylebone Property Co. Ltd. (1962) 2 AER 288 (HL) has also been referred, to submit that adverse possession is a negative concept where the possession had been taken against the tenant, its operation was only to bar his right against men in possession. As already discussed above, it was a case of limited right possessed by the tenant and a sub­tenant could only perfect his right against the tenant who inducted him as sub­tenant prescribed against the tenant and not against the freeholder. The decision does not run counter to any other decision discussed and is no help to hold that plaintiff cannot take such a plea or hold that no right is conferred by adverse possession. It may be a negative right but an absolute one. It confers title as owner in case extinguishment is of the right of ownership.

In the case of Ravinder kaur Grewal vs Manjeet Kaur, Civil appeal No-7764/2014 Judgment dated 07/08/2019 Hon'ble Supreme court in parra-53 observed about the nature of adverse possession as bellow- 

   " 53. There is the acquisition of title in favour of plaintiff though it is negative conferral of right on extinguishment of the right of an owner of the property. The right ripened by prescription by his adverse possession is absolute and on dispossession, he can sue based on ‘title' as envisaged in the opening part under Article 65 of Act. Under Article 65, the suit can be filed based on the title for recovery of possession within 12 years of the start of adverse possession, if any, set up by the defendant. Otherwise right to recover possession based on the title is absolute irrespective of limitation in the absence of adverse possession by the defendant for 12 years. The possession as trespasser is not adverse nor long possession is synonym with adverse possession."

Basic elements of Adverse possession-

   After reading of the several pronouncement of the Hon'ble Supreme Court we can classifieds elements of adverse possession as bellow-

1- Exclusive.

2- Continuous.

3- Uninterpreted.

4- Actual.

5- Open.

 In the case of  P T Munichikkanna Reddy vs Revamma,(2007) 6 SCC 59, Hon'ble Supreme Court held that in a claim of adverse possession, two­ pronged enquiry is required:

1. Application of limitation provision thereby jurisprudentially “willful neglect” element on part of the owner established. Successful application in this regard distances the title of the land from the paper owner.

2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper­owner , to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.

     In Karnataka Wakf Board vs Government of India, 2004 (10) SCC 779 the law was stated, thus: (SCC p. 785, para 11) “11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non ­use of the property by the owner even for a long time won’t affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well settled principle that a party claiming adverse possession must prove that his possession is ‘nec vi, nec clam, nec precario’, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity, and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina, Parsinni v. Sukhi and D.N. Venkatarayappa v. State of Karnataka.) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: 

(a) on what date he came into possession, 

(b) what was the nature of his possession, 

(c) whether the factum of possession was known to the other party,

(d) how long his possession has continued, and 

(e) his possession was open and undisturbed.

 A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.”

 In the case of Ravinder kaur Grewal vs Manjeet Kaur, Civil appeal No-7764/2014 Judgment dated 07/08/2019 Hon'ble Supreme court in his para-57 observed  about thre element and requirement of the adverse possession as under-

57. The adverse possession requires all the three classic requirements to co­exist at the same time, namely, nec­vi i.e. adequate in continuity, nec­clam i.e., adequate in publicity and nec­precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser’s long possession is not synonym with adverse possession. Trespasser’s possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and the large concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.

      On the basis of above pronouncements it is very clear that mere long possession over property can not be converted in adverse possession . In other words we can say that if the possession over property become hostile against true owner for this respect there should be specific date of adverse possession an such possession must be absolute means without any condition. It is also important that such adverse possession must be open, means it should be in the knowledge of the true owner and public at large. It is also inculcate that such adverse possession must be continuous an uninterpreted, it means that statutory period which has been prescribed under article-64, 65, 111 & 112 of the Limitation Act, must be expired and no action has been taken by the true owner within statutory period then such possession would be  become adverse against true owner.

Example-1

     

A is the paper owner of the property of X situated in Kanpur Uttar Pradesh. A is residing in USA from last twelve years. B a stranger forcefully entered into property and make some constructions over there. A come to India  from USA and visit his property, he finds that there are some construction has been made by any stranger and immediately make an inquiry afterwards B come and asserted that he is the owner of the property. A without causing any delay institutes a suit against B for the relief of recovery of possession. B file his defence and takes plea that his is having peace full possession over property and his right of ownership has been perfected over property by adverse possession. In this case even though possession is peace full, continuous, uninterpreted and actual but such kind of possession can not deemed to be adverse possession because such possession is not open in a simple term you can say that there is no knowledge of possession in respect of true owner he is in USA from last twelve years and A has no knowledge.It means that from the date of hostile possession statutory period should be expired but in this case B has claimed his hostile possession on that date when A went to visit his property after arriving from USA, it means A has filed suit within twelve year hence plea of adverse possession which has been taken by the defendant can not be survived.

Example -2

A is the paper owner of the property  X situated in Bareilly  Uttar Pradesh. B is the Tenant of property and pays rent Rs-10,000/- per month. Rent dues on the first day of the every Month. B stop paying rent from First January, 2020, A who was the paper owner has not been taken any action against B within statutory period in this situation B will be become owner of property by way of prescription   or adverse possession, because possession of B is Continuous, open, actual, uninterpreted & exclusive because from the date of first January, 2020 possession of B had become hostile against paper owner and paper owner in-spite of knowledge has not been taken any action within statutory period. Hence B would be became owner of the property by adverse possession. Knowledge may be express or implied and in above case denial of rent would be deemed to implied knowledge in respect of hostile possession and on the date of hostility limitation commences.

Act which do not amount to adverse possession-  

          It is general principle that permissible possession is always permissible it means that if possession is permissible then on basis of long possession it can not be converted into adverse possession. the possession of Tenant, Licence, lease, joint or co-owner and possession under section-53 A Transfer of property Act. can not be converted into adverse possession. But there are one exception if such permissible possession becomes hostile against true owner then such permissive possession may be converted into adverse possession if all ingredient in respect of adverse possession are present. please see below case laws-

1- 1996(1) SCC 639 SC

2- 1995(4) SCC 496  SC 

Whether adverse possession can be claimed against juristic person -

            The response of the author is affirmative in this regard because juristic person is person like living person but he act through his manager like Mathadhipati etc. There is no matter whether Mathadhipati is legally appointed or defacto appointed.  See these case laws in this regard-

1- Baba ji Rao vs Laxamandas (1904) ILR 28 Bob 215 (223)

2- Mahadeo Prasad Singh vs Karia Bharti, 69 IND APP 47 at p. 51

3- Vithalbowa vs Narayan Daji (1893) ILR 18 Bom. 507 to 511.

Whether  plea of adverse possession can be taken against co-owner -

     It is general principle that co-owner is always co-owner but there is an exception in which possession of co-owner converted into adverse possession if ouster of co-owner proved by the person who alleged adverse possession. It means that if co-owner declares his hostile possession against co-owner and co-owner ouster from the property such affected and has not been taken any action within statutory period then such possession would be become adverse possession. See the below case law-

1- Desh Raj and others vs Bhagat Ram and others, (2007) 9 SCC 641.

Whether alternative/inconsisitent plea can be taken or not in respect of adverse possession-

     It is general principle that inconsistent plea in respect of adverse possession can not be taken, But on other hand alternative plea can be taken by the plaintiff in a suit of adverse possession. such as in a case plaintiff has taken plea that he is the Benami owner of the property and taken alternative plea that if in case he is not found Benami owner then his title became perfect by adverse possession  because he has in possession  over property to the knowledge of the defendant. See the below case laws-

1- Karim vs Bibi Skina (1964) 6 SCR 780 SC.

2- Kshitish Chandra Bose vs Commissioner of Ranchi (1981) 2 SCC 103 SC.

3- 2009 (13) SCC 229 SC.

Whether Suit can be filed on basis plea of adverse possession-

        It is very important to discuss here that whether suit can be filed on the basis of adverse possession or not ? It is very old concept that plea of adverse possession can be taken in the defence, it also means that plea of adverse possession can be used as a sheld . See these case laws-

1- Gurudwara Sahib Sannauli vs State of Punjab, (2009) 154 PLR 756 P & H .

2- Gurudwara Sahib vs Gram Panchayat Village Sirthal (2014) 1 SCC 669 SC.

3- State of Uttrakhand vs Mandir sri Laxam Sidh Maharaj, (2017 )9 SCC 579 SC .

4- Dharmpal vs Punjab Wakf Board, (2018) 11 SCC 449 SC. 

  In 2019 Hon'ble Supreme Court in the case of Ravinder kaur Grewal vs Manjeet Kaur, Civil appeal No-7764/2014 Judgment dated 07/08/2019 has over ruled above mentioned pronouncement and said that above pronouncement has been passed without discussion of the decision of the larger bench. in this case Hon'ble Supreme Court said that on the basis of adverse possession suit can be filed and plea of adverse possession can be used as a sword as well as shield. It means that on the basis of the adverse possession suit in respect of declaration of title, Injunction or  recovery of possession can be filed.  the expression title includes title acquire by adverse possession. See the relevant paras of this pronouncement as below-

46. The conclusion reached by the High Court is based on an inferential process because of the language used in the III rd Column of Article 65. The expression is used, the limitation of 12 years runs from the date when the possession of the defendant becomes adverse to the plaintiff. Column No.3 of Schedule of the Act nowhere suggests that suit cannot be filed by the plaintiff for possession of immovable property or any interest therein based on title acquired by way of adverse possession.

There is absolutely no bar for the perfection of title by way of adverse possession whether a person is suing as the plaintiff or being sued as a defendant. The inferential process of interpretation employed by the High Court is not at all permissible. It does not follow from the language used in the statute. The large number of decisions of this Court and various other decisions of Privy Council, High Courts and of English courts which have been discussed by us and observations made in Halsbury Laws based on various decisions indicate that suit can be filed by plaintiff on the basis of title acquired by way of adverse possession or on the basis of possession under Articles 64 and 65. There is no bar under Article 65 or any of the provisions of Limitation Act, 1963 as against a plaintiff who has perfected his title by virtue of adverse possession to sue to evict a person or to protect his possession and plethora of decisions are to the effect that by virtue of extinguishment of title of the owner, the person in possession acquires absolute title and if actual owner dispossesses another person after extinguishment of his title, he can be evicted by such a person by filing of suit under Article 65 of the Act. Thus, the decision of Gurudwara Sahib v. Gram Panchayat, Sirthala (supra) and of the Punjab & Haryana High Court cannot be said to be laying down the correct law. More so because of various decisions of this Court to the contrary.

47. In Gurudwara Sahib v. Gram Panchayat, Sirthala (supra) proposition was not disputed. A decision based upon concession cannot be treated as precedent as has been held by this Court in State of Rajasthan v. Mahaveer Oil Industries, (1999) 4 SCC 357, Director of Settlements, A.P. v. M.R. Apparao, (2002) 4 SCC 638, Uptron India Limited v. Shammi Bhan (1998) 6 SCC 538. Though, it appears that there was some expression of opinion since the Court observed there cannot be any quarrel that plea of adverse possession cannot be taken by a plaintiff. The fact remains that the proposition was not disputed and no argument to the contrary had been raised, as such there was no decision on the aforesaid aspect only an observation was made as to proposition of law, which is palpably incorrect.

48. The statute does not define adverse possession, it is a common law concept, the period of which has been prescribed statutorily under the law of limitation Article 65 as 12 years. Law of limitation does not define the concept of adverse possession nor anywhere contains a provision that the plaintiff cannot sue based on adverse possession. It only deals with limitation to sue and extinguishment of rights. There may be a case where a person who has perfected his title by virtue of adverse possession is sought to be ousted or has been dispossessed by a forceful entry by the owner or by some other person, his right to obtain possession can be resisted only when the person who is seeking to protect his possession, is able to show that he has also perfected his title by adverse possession for requisite period against such a plaintiff.

49. Under Article 64 also suit can be filed based on the possessory title. Law never intends a person who has perfected title to be deprived of filing suit under Article 65 to recover possession and to render him remediless. In case of infringement of any other right attracting any other Article such as in case the land is sold away by the owner after the extinguishment of his title, the suit can be filed by a person who has perfected his title by adverse possession to question alienation and attempt of dispossession.

50. Law of adverse possession does not qualify only a defendant for the acquisition of title by way of adverse possession, it may be perfected by a person who is filing a suit. It only restricts a right of the owner to recover possession before the period of limitation fixed for the extinction of his rights expires. Once right is extinguished another person acquires prescriptive right which cannot be defeated by re­entry by the owner or subsequent acknowledgment of his rights. In such a case suit can be filed by a person whose right is sought to be defeated.

51. In India, the law respect possession, persons are not permitted to take law in their hands and dispossess a person in possession by force as observed in Late Yashwant Singh (supra) by this Court. The suit can be filed only based on the possessory title for appropriate relief under the Specific Relief Act by a person in possession. Articles 64 and 65 both are attracted in such cases as held by this Court in Desh Raj v. Bhagat Ram (supra). In Nair Service Society (supra) held that if rightful owner does not commence an action to take possession within the period of limitation, his rights are lost and person in possession acquires an absolute title.

52. In Sarangadeva Periya Matam v. Ramaswami Gounder, (supra), the plaintiff’s suit for recovery of possession was decreed against Math based on the perfection of the title by way of adverse possession, he could not have been dispossessed by Math. The Court held that under Article 144 read with Section 28 of the Limitation Act, 1908, the title of Math extinguished in 1927 and the plaintiff acquired title in 1927. In 1950, he delivered possession, but such delivery of possession did not transfer any title to Math. The suit filed in 1954 was held to be within time and decreed.

53. There is the acquisition of title in favour of plaintiff though it is negative conferral of right on extinguishment of the right of an owner of the property. The right ripened by prescription by his adverse possession is absolute and on dispossession, he can sue based on ‘title' as envisaged in the opening part under Article 65 of Act. Under Article 65, the suit can be filed based on the title for recovery of possession within 12 years of the start of adverse possession, if any, set up by the defendant. Otherwise right to recover possession based on the title is absolute irrespective of limitation in the absence of adverse possession by the defendant for 12 years. The possession as trespasser is not adverse nor long possession is synonym with adverse possession.

54. In Article 65 in the opening part a suit “for possession of immovable property or any interest therein based on title” has been used. Expression “title” would include the title acquired by the plaintiff by way of adverse possession. The title is perfected by adverse possession has been held in a catena of decisions.

55. We are not inclined to accept the submission that there is no conferral of right by adverse possession. Section 27 of Limitation Act, 1963 provides for extinguishment of right on the lapse of limitation fixed to institute a suit for possession of any property, the right to such property shall stand extinguished. The concept of adverse possession as evolved goes beyond it on completion of period and extinguishment of right confers the same right on the possessor, which has been extinguished and not more than that. For a person to sue for possession would indicate that right has accrued to him in presenti to obtain it, not in futuro. Any property in Section 27 would include corporeal or incorporeal property. Article 65 deals with immovable property.

56. Possession is the root of title and is right like the property. As ownership is also of different kinds of viz. sole ownership, contingent ownership, corporeal ownership, and legal equitable ownership. Limited ownership or limited right to property may be enjoyed by a holder. What can be prescribable against is limited to the rights of the holder. Possession confers enforceable right under Section 6 of the Specific Relief Act. It has to be looked into what kind of possession is enjoyed viz. de facto i.e., actual, ‘de jure possession’, constructive possession, concurrent possession over a small portion of the property. In case the owner is in symbolic possession, there is no dispossession, there can be formal, exclusive or joint possession. The joint possessor/co­-owner possession is not presumed to be adverse. Personal law also plays a role to construe nature of possession.

pleading and proof in respect of adverse possession-  

          It is well established that pleading in respect of adverse possession must be pleaded specifically and with full particulars it means that if pleading in this respect is vague and not specially pleaded than suit or defence can not be survived. In a case plaintiff only in relief clause taken plea of adverse possession Court denied his case and has not consider his plea. another very important thing is that the person who alleged about adverse possession must proved his pleading if he could not proved then suit can not be decreed . In a respect of  suit of adverse possession it would be admitted by the plaintiff that defendant was the true owner of the property and his rights has been perfected by adverse possession.It means that if plaintiff does not admit the that defendant was the true owner then his plea would be presumed inconsistent . It is also inculcate that right by adverse possession is negative in nature and must be proves strictly, it means that benefit of equity can not be given in the favour of person who alleged  about the plea of adverse possession. See the case laws as below-

1- Karim vs Bibi Skina (1964) 6 SCR 780 SC.

2- In Karnataka Wakf Board vs Government of India, 2004 (10) SCC 779. 

3- 2006 (7) SCC 570 SC.

4- 2017 (13) SCC 708 SC.

5- Ravinder kaur Grewal vs Manjeet Kaur, Civil appeal No-7764/2014 Judgment dated 07/08/2019.

Conclusion-  

                 On the basis of above discussion it can be said that under section-3, 27 and Article- 64,65,111 & 112 the concept of adverse possession is vested, it is negative right, the expression title includes adverse possession, the plea of adverse possession can be used as a sword as well as shield, suit can be filed on the basis of adverse possession, equity can not be given in the favour of adverse possessor, there must be full particulars in the pleading in this respect, it must be strictly proved by the positive evidence. 

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