Pleadings, Drafting & conveyancing: Practical and Procedure

 

Pleadings, Drafting & conveyancing: Practical and Procedure

    Written by:- 

Vijay Kumar Katiyar

Deputy Director

Judicial Training and Research Institute

UP, Lucknow.

&

Vandana Singh Katiyar

Researcher & Advocate

Introduction-

No doubt pleadings and drafting are the backbones of the Civil Suits it means that if there are no proper pleadings and drafting then the fate of the Suits can not be in your favour. When we talk about pleadings and drafting in respect of State of Uttar Pradesh then Code of Civil Procedure, 1908, General Rule Civil, 1957, Legal Pronouncement of Hon’ble Courts of Record, and Practical experience of Legal professionals are very important. I thought if you have no experience then you can not do well as trained professionals can do. Therefore get the experience through learning, observing things, and learning by doing. I also thought that mistake is a very important thing in respect of legal professionals but a mistake in good faith is permissible and repeated mistake is not allowed. One more very important thing I would like to discuss here that the decision-making in respect of drafting in a Suit with proper pleading. Generally, Litigants and Legal professionals (Advocates) take emotional decisions rather than applying their brains. Pleadings and drafting based on emotions could not be survived. It is necessary for the legal professionals (Advocates) while drafting plaint or W.S. control over their emotions. Judges required control over their emotions while Considering pleading. I thought Litigants are overburdened by emotions because most civil disputes are among his near and dear people, due to this most cases, he thinks emotionally rather than wisely. It means that if there is an application of the legal brain then pleading and drafting and their interpretation would be qualitative. You can use emotions during cross-examination of the witnesses of the opponent and in oral arguments while delivering in the Court of law. 

The extent of the Topic- 

Order-6 deals with pleadings in general, Rule-1 defines pleading, Rule-2 lays down the fundamental principles of pleadings, Rule-3 to 13 requires the parties to supply necessary particulars, Rule-14 to 15 provide for signing and verification of the pleadings, Rule-16 empowers the Court to strike out unnecessary pleadings and Rule-17 and 18 contain provisions relating to amendment in pleadings. Even though pleading and drafting is a very wast and big topic, but for the sake of proper understanding, there must be a limit of the topic by which the interest of the reader should be maintained. For the shake of the convenience, we can subtitle the whole topic as bellow-

1. What is Pleading?

2. What is Drafting?

3. What is conveyancing?

4. Purposes of Pleadings.

5. Importance of Pleadings.

6. Principles of Pleadings. 

7. Alternative pleadings.

8. Amendment in Pleadings.

9. Whether Irregularity in verification and signing of the pleadings curable or not?

10. Conclusion. 

1. What is Pleading?

Now the very important question is before us that what is Pleading? Order IV, Rule 1 of the Civil Procedure Code runs as follows:

1. Suit to be commenced by plaint:-

 (1) Every suit shall be instituted by presenting a [plaint in duplicate to the Court] or such officer as it appoints in this behalf.

 (2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.

 (3) The plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub-rules(1) and (2).

 Order VI of the Civil Procedure Code deals with pleadings in general. Order VII deals with plaint and Order VIII deals with the written statement. Order VI, Rule 1 defines pleadings as follows:

The pleading shall mean plaint or written statement. It would be beneficial to distinguish between the pleadings and conveyancing. The dictionary meaning of the term ‘plead’ means ‘to state and argue a case. Therefore, pleading comprises of respective contentions of the parties in a dispute, which are reduced into writing. ‘Pleadings’, under Civil as well as Criminal Law, meant that to determine what the parties were currently fighting about. Pleading is the beginning stage of a lawsuit in which parties formally submit their claims and defences. In Civil proceedings, the plaintiff submits a plaint stating the cause of action -- the issue or issues in controversy. The defendant submits an answer- the reply- the written statement- stating his or her defences and denials. In other words, it is nothing but the formal presentation of claims and defences by parties to a lawsuit. Therefore, it includes every legal document filed in a lawsuit, petition, motion, and/or hearing, including complaint, petition, answer/reply, rejoinder, motion, declaration, and memorandum of points and authorities (written argument citing precedents and statutes). Hence, the term pleading would apply to the Court proceedings including the filing of the complaint plaint, etc., replies thereto and other incidental documents related to the dispute filed by either of the parties. Needless to mention here that, our legal system is an adversary legal system wherein there are two contesting parties. One party stakes its claim or right to a particular thing, which is disputed by the opposite side before the Court. Under these circumstances, each of the parties in support of its claim files in writing various contentions and submissions in terms of the different provisions under the law before the Court. All these documents constitute pleadings. It is only after the completion of the pleadings that a matter is argued and subsequently the dispute is adjudicated by the Court. See the below case laws-

1. Bharat Singh vs the State of Haryana, AIR,1988 SC 218.

2. Virendra Kashinath vs Vinayak N. Joshi, AIR,1999 SC 162.

2. What is Drafting?

Drafting in general means, putting one’s ideas in writing. Drafting of any matter is an art. Drafting of legal matters requires greater skills and efficiencies. It requires thorough knowledge of the law, procedure, settled judicial principles, besides proficiency in the English language. Perfect drafting of matters concerning suits, applications, complaints, writ petition, appeals, revision, reviews, and other such matters connected therewith shall lead to a good result in terms of money, time, energy, and expectation of not only the learned members of the Bench but also the Bar as well as the parties to the litigation. It creates a congenial atmosphere where the glory of the judiciary and the Law grows to sky-heights. So is the case concerning the drafting of conveyance/deeds. Drafting, Pleadings, and Conveyance (DPC) is made as a compulsory practical subject forming part of the curriculum of the Law Course in India. It envisages, inter alia, drafting of civil pleadings; criminal complaints and other proceedings; writ petition, appeal-civil, criminal; and also SLP; contempt petition, interlocutory applications, etc. A student who acquires the requisite knowledge, perfection, and proficiency in the drafting of these matters, shall undoubtedly become a perfect legal professional.

 3. What is conveyancing?

On the other hand, the dictionary meaning of the ’conveyance’ is ‘an act by which property is conveyed or voluntarily transferred from one person to another utilizing a written statement and other formalities’. It also means ‘instrument’ itself. Therefore, the term conveyancing does not apply to the Court proceedings, rather it applies to the instrument, which has been documented not for Court proceedings, rather creates evidence of a particular transaction, which may be used before the Court in case of any dispute. So broadly speaking the pleading and conveyancing may be distinguished by simply stating that while the pleadings apply to Court proceedings and conveyancing applies to the documentation done outside the Court and not meant for the Court proceedings particularly, though they may be used in the Court proceeding, to substantiate a particular contention, claim or submission. Under this part of the subject, we would be learning the drafting of diverse documents, reflecting different kinds of transactions between the parties, as mentioned in the syllabus. There are some illustrations of conveyancing but these are not exhaustive- 

1. will.
2. General Power of Attorney.
3. Special Power of Attorney to execute Sale Deed.
4. Agreement to sell.
5. Sale Deed.
6. Lease Deed.
7. Mortgage Deed.
8. Partnership Deed.
9. Deed of Dissolution of Partnership.
10. Relinquishment Deed.
11. Gift Deed.
12. Notice under section 106 of The Transfer of Property Act, 1882.
13. Notice under section 80 of Civil Procedure Code, 1908.
14. Notice under Section 138 of the Negotiable Instruments Act, 1881
15. Reply to Legal Notice under Section 138 of N.I. Act, 1881.
16- Acknowledge the debt. 

4. Purposes of Pleadings-

 On the various pronouncement of the Hon'ble Court of records, we can categorize the purpose of pleadings into two parts these areas below-

 1. Intimation-

          The first and very important purpose of the pleading is to the knowledge of the case of the parties reciprocally. It means that without knowing the case of another party cause of action as well as defence can not be established.

2. Real Issues- 

      For the purpose of reaching the real issues, it is necessary that pleadings are very useful. It means that there is no proper pleading then what are the real issues between parties can be ascertained and Court can not make adjudication properly.

5. Importance of Pleadings.

Now the question before us is that what is the importance of the pleadings? For the shake of the convenience, it can be enumerated as below-

1. Which party's burden of proof lies and who can initiate Evidence.
2. Which one Evidence is relevant in the light of pleadings.
3. To what extent Evidence is admissible in the light of pleadings.
4.  To what extent relief can be granted.

6. Principles of Pleadings-

The English law of pleading has got four fundamental rules of pleading upon which Order 6 of the Code of Civil Procedure is based which are set out as under:

1. Every pleading must state facts and not law.

2. It must state all material facts and material facts only.

3. It must state only the facts on which the party’s pleading relies and not the evidence by which they are to be proved; and

4. It must state such facts concisely, but with precision and certainty.

(1) Facts, not the law-

The first fundamental rule is that neither provisions of law nor conclusions of law should be alleged in a pleading. The pleading should be confined to facts only and it is for the judge to draw such interference from those facts as are permissible under the law of which he is bound to take judicial notice. See the case laws-

1. Gauri Dutt Ganesh Lal Firm vs Madho Prasad, AIR 1943 PC 147.

2. Kedar Lal vs Hari Lal, AIR,1952 SC 47.

3. Manoj vs Shanti, AIR 1997 SC 2153.

4. Lakhi Ram vs Trikha Ram, AIR 1998 SC 1230.

5. Syed Dastagir vs T.R. Gopalkrishana Setty, AIR 1999 SC 3029.

Illustration:

It will not be sufficient to state that ‘Abu Mohammad made a gift of his property to the plaintiff. The plaintiff should allege here the gift was made, how it was accepted and how possession was delivered; because there, are the facts that constitute a valid gift under Muslim Law. that ‘Abu Mohammad made a gift’ will be a conclusion of law from the facts which are not to be stated directly in the pleading. In a suit fobe states for negligence, it is not enough for the plaintiff to state that the defendant has been guilty of negligence’ without showing how and in what respect he was negligent and how he became bound to use due care to prevent an injury to other. When the defendant has to reply to the plaintiff's claim in a money suit, it is not sufficient for him to state that ‘the defendant does not owe to the plaintiff’. But he must allege such fact which goes to prove that in the circumstances the defendant does not owe to the plaintiff. The defendant should state that he never borrowed from the plaintiff, or goods were never ordered or were never delivered, or that they were not equal to the sample. It is not sufficient in a suit upon a contract for the defendant to, merely, plead the ‘the contract is rescinded’, the defendant must plead in what manner and by what means he contends that it was rescinded. The reason for not mentioning the law in the pleading is that the court has to find out and examine all pleas of Law that may apply to the facts of the case. However, the parties can make their submission about the law at any time. For example, the non-maintainability of the suit which is a point of law can be urged although no specific plea has been raised in the pleading. The rule that every pleading must state facts and not law or interference of law has got following exceptions:

(a) Foreign Laws: The courts do not take any judicial notice of foreign laws and hence they must be pleaded as facts. The status of the foreign country intended to be relied upon should be set forth as substantially as any other facts.

(b) Mixed question of Laws and facts: Where a question is one of mixed law and fact, it is permissible and proper to plead both the facts and the legal conclusion. For instance, the defendant may say that the suit is barred by the law of limitation, or he may say he is entitled to set off after narrating the facts on which he bases his conclusions.

(c) Condition precedent: The Code of Civil Procedure provides that any condition precedent the performance of which is intended to be contested shall be distinctly specified in the pleading of the plaintiff or defendant (Order 6 r.6 of C.P.C.), for instance, the legality of the notice under section 80, C.P.C.

(d) Custom and Usage of Trades: Custom and usage of any trade and business shall be pleaded like any other facts if a party wants to rely on them. But a custom repeatedly brought before Court and recognized by them regularly is deemed to have acquired the force of law and need not be pleaded. For example, an occupancy tenant is entitled by local custom and usage to cut trees growing upon his holding it is not necessary for the occupancy tenant to plead this custom if he wishes to rely on this right to cut the trees. Similarly, a party who wishes to rely on the usage of a particular trade and business and if it is at variance with any provision of the Contract Act, must not plead the usage of such trade and business with its detailed incident. If it is not pleaded, no evidence to prove it shall be admitted.

(e) The facts of negligence, right or liability, unlawful or wrongful act should be

specifically pleaded. Every plea of fact should be specifically raised and proved.

(2) Material facts-

The second fundamental rule of pleading is that every pleading shall contain only a statement of material facts on which the party pleading relies for his claim or defence. This rule has been enunciated in Order 6, Rule 2 of the Code of Civil Procedure. The omission to observe this rule may increase the difficulty in the Court’s task of ascertaining the rights of the parties. See the case laws-

1. Virendra Nath vs Satpal Singh, AIR 2007 SC 581.

2. Union of India vs Sita Ram Jaiswal, AIR 1977 SC 329.

3. Brahma Prakash vs Manbir, AIR 1963 SC 1607.

Now, the question arises what are material facts?

The facts are essential to the plaintiff’s cause of action or the defendant’s defence. It can be said that fact is material for pleading a party that he is bound to prove at the trial unless admitted by the other party before he can succeed in his claim or defense. If one is in reasonable doubt about a particular fact as a material fact he should plead that fact rather than omit it because unless a fact is pleaded he shall not be allowed to prove it at the hearing of the suit. A plea of fraud and misrepresentation in a suit must set forth full particulars of fraud and misrepresentation because these particulars constitute material facts unless raised by the plaintiff or the defendant in his pleading, he will not be allowed to prove at the trial. Of course, a material fact can be inserted in the pleading by an amendment which is the right of the plaintiff and defendant; but when a pleading is amended one is likely to be saddled with the cost of another side. When the suit is brought under a particular statute, all facts which are necessary to bring the suit under the statute must be alleged. When a rule of law applicable to a case has an exception to it, all facts are material which tends to take the case out of the rule or out of exception. For instance:

(1) If a childless Mohammedan widow claims one-fourth share in the property of her husband as allowed by Shia law, she must allege that her husband was a Shia.

(2)Where a plaintiff claims an alternative relief, he must plead facts entitling him, for such relief.

(3) Where the question of age or time affects the right of the parties, the facts should be specifically pleaded.

(4) Where a plaintiff sues based on a title he must state the nature of the deed from which he has derived title.

(5) The plea that a woman claiming maintenance has lost her right due to continuous desertion or living in adultery should be specifically raised.

(6) Where the plea is based on custom, it must be stated in the precise form what the custom is. For instance, if a childless Mohammedan widow claims one-fourth share in the property of her husband as allowed by Shia Law, she must allege that her husband was a Shia. The following are the exception to this fundamental rule of pleading.

(a) Content of documents: Whenever the contents of the document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible without setting out whIt means introductory or prefatory facts which should be stated in the first and second parts in the body of the plaint or written statement. Though it is not necessary yet sometimes it is desirable to commence a plaint with some introductory allegations stating who the parties are, what business they carry on how thole or any part thereof unless any precise words thereof are material. For instance, if the plaintiff’s claim is based on a sale deed, it is sufficient to state that the “defendant has sold the property to the property to the plaintiff by a sale-deed dated......”

(b) Matters of Inducement: they are related and connected and other surrounding circumstances leading up to the dispute. Though these are not material facts yet these are allowed in England and hence in India too. But the matter of inducement should be reduced to the minimum need.

(3) Facts, Not Evidence-

The third fundamental rule of pleading has been laid down by Order 6, rule 2 of the Code of Civil Procedure. It says that every pleading must contain a statement of material facts but not the evidence by which they are to be proved. The material facts on which a party relies are called Facta Prabanda, i.e. the facts to be proved, and they should be stated in the pleadings. The evidence or facts by which Facta Probanda are to be proved are called Facts Probantia, and they are not to be stated in the pleadings. Facta Probanda is not the facts in issue but only relevant facts which will be proved at the trial to facts in the issue. For instance, in a suit of damages for malicious prosecution, the plaintiff should only allege in the plaint that the defendant was actuated by malice in prosecuting him. He must not allege that he had previously given evidence against the defendant and the defendant had vowed to take revenge. The plaintiff is by all means entitled to tender evidence to prove this fact. Secondly, in a policy of life insurance, the condition that the policy shall be void, if the holder dies of his hand, in the defence it is not necessary to state that the assured brought the pistol a few days before his death and made all preparation to kill himself. It is sufficient to state in defence that the assured died of his hand. In some cases where the facts in issue and relevant facts are so mixed up that it is very difficult to separate them and if it is so the relevant facts may be stated. For example, where the custom is based on the village administration paper, which is the basis of the claim and its sole proof. In such cases, the record has to be pleaded. See the below case laws-

1. Virendra Nath vs Satpal Singh, AIR 2007 SC 581.

2. R.M. Seshadri vs G. Vasantha Pai, AIR 1969 SC 692.

3.Kushalbhai Mahijibhai vs Firm of Mohmadhussain Rahimbux, AIR 1981 SC 977.

(4) Concise Form with Precision and Certainty-

The material facts must be stated in a summary form, succinctly, and in a strict chronological order. All unnecessary allegations and their details should be omitted to attain brevity in pleadings. Pleading is not a place for fine writing but the only assertion of hard facts. It is desirable to go straight to the point and state fact, boldly, clearly, and concisely and to avoid all paraphrasing and all circumlocutions. As far as possible an active voice should be preferred to passive in pleading. The same person or thing should be called by the same name throughout the pleading. The pleading shall be divided into paragraphs numbered consecutively. Dates sums and numbers shall be expressed in figures, even though the pleading should be concise, it should never be obscure. It should be both concise, as well as precise. The parties cannot change the case and get relief. A good pleader should bear in mind the following points concerning a pleading. 

(i) Describe the names and places accurately and spell them correctly and adopt the same spelling throughout.

(ii) One should always avoid the use of pronoun as ‘He’, ‘She’, ‘This’, or ‘That’. The plaintiff or the defendant should not be addressed by their names at someplace and at someplace by the word ‘Plaintiff’ and ‘ defendant’, call them throughout your pleading by the expression ‘the plaintiff’ and ‘the defendant’ as the case may be. Where one has to distinguish between two or more plaintiffs or defendants, they can be referred to as ‘the plaintiff Ramashankar’ or ‘the defendant-Hariharan’ as the case may be.

(iii) A lawyer should allege all facts boldly and plainly. He should use the language of the document or the act itself, and he should not invent his language however correct it may be, e.g. if a policy becomes void in case, “the assured shall die of his hand.” Now, in this case, while drafting the pleading instead “ the assured killed himself” or he committed suicide,” plead that “the assured died of his hand.”

(iv)A lawyer should allege all facts boldly and plainly. He should avoid ifs and buts. As far as possible complex sentences should also be avoided. Facts should not be repeated. Pleading should be divided into separate paragraphs and as far as possible only one fact should be contained by one paragraph embodying all necessary particulars in the pleading.

(v) Every pleading shall be signed by the party and his advocate and if the party is unable to sign the pleading it may be signed by this agent.

(vi) Every pleading shall be verified by the party or the parties. Verification can also be made by any other person who is acquainted with the facts of pleadings. False verification is an offence punishable by the Indian Penal Code.

(Vii) In cases where a corporation is a party, a pleading may be verified by Secretary or by the director or by any other principal officer of that corporation who can depose the facts of the case. In the verification clause, one should denote according to the numbers of a paragraph what he verified out of his knowledge and what he verified upon the information received and believed to be true. See the below case laws-

1. Charan Lal Sahu vs Giani Zail Singh, AIR 1984 SC 309.

2. Virendra Kashinath vs Vinayak N. Joshi, AIR,1999 SC 162.

7. Alternative Pleas:-

Law does not prohibit a plaintiff from relying on several distinct and different rights in the alternative or a defendant from raising as many distinct and separate defences as he like. For example, a plaintiff may sue for possession of a house belonging to A, as an adopted son of A, and in the alternative under a will executed by A in the plaintiff’s favour. A plaintiff may claim a proprietary right in land, or, in the alternative easementary right in an action for pre-emption the defendant is not prohibited from setting up a plea of estoppel in addition to a plea of denial of the custom of pre-emption. A Hindu person claiming under a sale deed from a Hindu widow may support his claim by pleading that the widow separated during the lifetime of her husband and hence she was the owner of the property which she had sold to him, or in the alternative, the widow was in possession for over 12 years and thus became owner by adverse possession. A defendant in a money suit due on the promissory note against him may plead that he did not execute the promissory note, and in the alternative, the plaintiff claim is barred by the law of limitation. But it must be carefully borne in mind by the draftsman and separately be stated in the pleading. The court will not allow any such pleas on the ground covered by implication unless specifically set out. Thus, in a suit by a son to set aside certain transfers made by his mother on the ground of unsoundness of mind of his mother at the time or the transfer and further averred that the donee was residing with his mother and was completely under his dominion and control and the donee knew the mental condition of the donor. See the below case laws-

1. Sriniwas Ram Kumar vs Mahabir Prasad, AIR 1951 SC 177.

2. Akshaya Resturent vs P. Anajanappa, AIR 1995 SC 1498.

8. Amendment of pleadings:-

At any stage of proceedings, the court may allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for determining the real questions in controversy between parties. As it is already mentioned above, and it is evident from the amendment. Hence an application has to be filed under Order VI, Rule 17, for amendment of pleadings either by way of departure or otherwise, To allow the same or not is at the discretion of the court, depending upon the circumstances made out in the application. There are no fixed rules. It is a general rule that pleadings can be amended. Amendment of pleadings can be made at any time and any stage of the proceeding even at the stage of appeal or revision. Delay is not a bar. But it must be within the period of limitation. So also any amendment which alters the very nature of the suit, its fundamental character, a new ground of claim based on a new cause of action is not allowed. Amendment of pleadings plays an important role in civil litigation. There are several landmark judgments on this aspect delivered by the Supreme Court and various High Courts. Advocates and readers are requested to refer to those judgments for details. You are aware that pleadings include plaint and written statement. So, Order VI, Rule 17 is applicable even for amendment of written statements. But there is little confusion regarding Order VIII, Rule 9 C.P.C. There is a feeling that Order VI, Rule 17 is applicable for amendment of plaints and Order VIII, Rule 9 for amendment of the written statement. It is completely wrong. Order VIII, Rule 9 is intended only for subsequent pleadings by way of additional written statement by the defendant and written statement by the plaintiff, where the defendant claims set-off or counterclaim. Hence Order VIII, Rule 9 is not for amendment of the written statement. The scope for amendment of pleadings is very wide, more so, regarding plaint. Each and every minute alteration in plaint including amendment of cause title, adding legal representatives, correcting type mistakes also amounts to an amendment of pleadings.

9. Practical problems in respect of Pleading and drafting-

 There are several practical problems in respect of pleadings these are as follows-

(i) Whether merit of amendment application may Consider or not?-

 The answer is negative it means that while deciding amendment application then the merit of the application can not be taken into consideration because it is the established principle see the case laws-
 1. Sampath Kumar vs Ayakannu, (2002) 7 SCC 559.
 2. Usha Devi vs Rijwan Ahmad, (2008) 3 SCC 717.

(ii) Whether Irregularity in verification and signing of the pleadings curable or not?-

It is well established that most of the people in India are less literate and legally not aware and sound hence the pleadings must be construed liberally. It means that procedural error should be cured because substantive justice should be done and give preference over procedural justice. The answer is affirmative means irregularity in signing and verification in pleadings should be cured in the latter stage of the proceeding, the suit can not be dismissed on that ground. It is also the mandate of the law the person verifying the pleading should also furnish an affidavit in support of his pleadings. Similarly, if the affidavit filed by the party is defective, a Court instead of rejecting it may allow the party to file a proper affidavit. See the case laws as below-

1. Bhikaji vs Brijlal, AIR 1955 SC 610.

2. Purushottam Umedbhai & co. vs Manilal & sons, AIR 1961 SC 325.

3. Dwarka Nath vs ITO, AIR 1966 SC 81.

10. Conclusion-

 It is well established that in the purview of pleadings comes, plaint, written statement, counterclaim, set off, replication, etc. pleading should be based on the fundamental principles and if there are pleadings are not up to mark then Court may order for striking out of the pleadings or may be amended with the leave of the Court. Procedural errors may be cured at the latter stage of the proceeding and last but not least pleadings should be construed liberally & preference should be provided to do substantive justice. 

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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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