In the meantime, the Supreme Court of India and many of its High Courts had pointed out some lacunas in the Act. Government of India has decided to have consultations for amendment of the Act as it has become necessary to remove difficulties and lacunas in the Act. It has started the process of amending the Act. Experts may send their suggestions. Following sections are proposed to be amended:

For details see table of amendments at the link provided hereunder:

 Important amendments relate to the following provisions:

Yes it is very unfortunate that the arbitration proceedings are being run as judicial process. In India and UK the arbitration is a big business! Lust of money and fast bucks a reason? I am also undergoing a similar pain in one of arbitration proceedings and is being forced to settle the matter with a hole in the pocket.

I totally agree with Mr.Julian in adopting adjudication as an alternative to resolve disputes through arbitration. In fact I have just finished drafting a construction agreement and would consider to have an adjudication clause.

Unfortunately there is plenty of evidence that adjudication in the UK is also getting more time consuming and expensive. Orignally intended as a quick and cheap method of interim dispute resolution, to be implemented while the project was on site, adjudication has become much more legalistic and costly.

As an adjudicator I rarely get disputes referred for projects still on site. The costs mean that most disputes are saved for a battle a the end of the job, somthing adjudication set out to avoid. I sometimes get large and complex adjudications tha simply cannot be done in 28 days….or 42. I have heard of some adjudications (although none of mine!) going on for a number of months and costing several hundred thousand pounds.

Unlike arbitration, UK statutory adjudication is not final and binding in the same way. It is interim bindng and the parties may have the dispute finally determined in the courts or by arbitration, depending on what their contract states. So, adjudication MAY be cheaper, but without the same finality and generally, unlike adjudication each party has to bear its own costs, so even the winner has to bear its costs.

UK adjudication does appear to be working and few disputes get referred to the courts. However, that has not stopped it from becoming much more costly and time consuming, things that abitration has been blamed for, although perhaps not quite to that extent….yet!

I am also what is known as an Adjudicator in the Small Claims Court of Nova Scotia. The court hears tort and contract claims up to a limit of $25,000.00 Can. The court’s procedure is very flexible and could in fact be described as a form of expedited arbitration. People may and do represent themselves. There is no pre-hearing disclosure or discovery. The only real requirement is that claims be “adjudicated informally and inexpensively but in accordance with established principles of law and natural justice.” Costs are not awarded.

All of this means that the court is an avenue for both the poor and the middle class, the latter beng a class that is increasingly being denied access to the superior courts because of the cost of litigation.

Perhaps ironically it was my experience as an Adjudicator (as well as a civil litigator) that led me to arbitration. My fear is that arbitration–the purpose of which is at least in part to make justice more accessible to “ordinary” people–is ossifying. Which is too bad.

For those of you thinking of inserting an adjudication clause into your contracts, you might want to consider having a dispute board. This is one or three people appointed jointly by the parties at the outset of the contract.

The DB is provided with the contract dosuments and regular updates and carries out 3-4 site visits per year. The advantage of this process is that the DB can help the parties to avoid disputes by helping them to discuss contentious issues before the become real problems. The parties may request the DB give a non binding recommendation to help this process. Evidence suggests that just by having a DB helps the parties to resolve many issues themselves.

If all that fails then a party may refer a dispute to the DB which will adjudicate the dispute and give an interim binding decision. The deecision is usually enforecable under the contract (ultimately by arbitration), because unlike in the UK, most local courts will not enforce an adjudication decision

A distinction between domestic and international commercial arbitration has to be made. Furthermore there are countries such as England which have a large number of very small arbitrations (often only about a few hundred Pounds) und f.e. the Rravel Association scheme.
For International commercial Disputes there is no alternative to Arbitration. Cost vary widely. While some Arbitral Institutions are rather costly and may even not accept small scale arbitrations othe Institutions provide the same service and cost a fraction of the expensive ones.
Therefore in International contracts particular care should be given to the arbitration agreement which usually is an orphan not taken seriously by those who negotiate the contract.
For domestic arbitration one should look at England where the system works well and this also applies to construction disputes the majority of which are decided by two tier arbitration clauses requiring the parties to attemt a settlement by adjudication, mediation etc.

Justice Aftab Alam of Indian Supreme Court in the matter of M/s Dolphin Drilling Ltd vs Oil And Natural Gas Corporation has observed that it is unfortunate that arbitration in India has proved to be a highly expensive and time consuming means for resolution of disputes.

Supreme Court of India

ARBITRATION PETITION NO. 21 of 2009

Judge(s): AFTAB ALAM

Date of Judgment: Wednesday, February 17, 2010

DOLPHIN DRILLING LTD.  Versus  OIL AND NATURAL GAS CORPORATION LTD.

O R D E R

AFTAB ALAM, J

1. This is an application under Section 11(6) of the Arbitration and Conciliation Act, 1996 for appointment of an arbitrator for and on behalf of the respondent and to refer the dispute(s) between the parties for arbitration. The applicant and the respondent entered into an agreement dated October 17, 2003 for “Charter Hire of Deepwater Drilling Rig DP-Drill Ship `Belford Dolphin’ along with Services on Integrated Basis”. In terms of the agreement, the applicant was to carry out drilling operations for the respondent in the offshore waters of India as allocated by the respondent. Clause 28 of the agreement contained the arbitration clause. According to the applicant, though the period of the agreement came to an end on February 13, 2007, on being called upon by the respondent, it continued to provide further services till April 10, 2007 for which it was entitled to be paid additionally on comparable rates under the agreement.

2. The applicant makes the grievance that a number of its invoices were not paid or only paid in part by the respondent and on demands made by it the respondent did not even give any satisfactory reply for non-payment/part-payment of those invoices. Failing to get any positive response from the respondent despite demands and reminders, the applicant was left with no option but to invoke the arbitration clause under the agreement. It accordingly, addressed a notice to the respondent on January 29, 2008 invoking arbitration on the disputes broadly set-out in the notice and nominating Mr. Justice S. P. Bharucha, a former Chief Justice of India, as its arbitrator. The applicant further states that the respondent did not respond to the arbitration notice in the manner as provided in the arbitration clause in the agreement and hence, it was forced to move this application before the court.

3. Mr. Gaurav Agrawal, learned counsel appearing for the respondent, accepted the provision for arbitration vide clause 28 of the agreement dated October 17, 2003. He also acknowledged that the dispute(s) raised by the applicant in the arbitration notice dated January 29, 2008 arose under the agreement dated October 17, 2003 and was/were fully arbitrable. Nevertheless, he resisted the applicant’s prayer to refer the dispute(s) raised in the arbitration notice dated January 29, 2008 to arbitration on the plea that the applicant had already invoked the arbitration clause albeit in connection with a different dispute earlier arising under the agreement.

4. Mr. Agrawal submitted that the remedy of arbitration under clause 28 of the agreement was a one-time measure and it could not be taken recourse to repeatedly even though the disputes may be different and unconnected to each other. Learned counsel further submitted that the arbitration was an expensive proposition and even though the respondent was liable to bear only half of the expenses, the financial burden cast by the arbitration proceedings in terms of fees for the learned arbitrators and counsel/solicitors and other incidental expenses was quite onerous. Hence, the arbitration clause in the agreement envisaged one, single arbitration for all disputes between the parties and not repeated arbitrations for different disputes arising between the parties at different times under the same agreement. The gist of the respondent’s objection is contained in sub-paragraphs (d) and (e) of paragraph 4 of its counter affidavit which are reproduced below:

“(d) The respondent would further beg leave of this Hon’ble Court to submit that in the List of Dates and in the Arbitration Application, the Petitioner did not refer to the fact that the petitioner had already invoked clause 28 of the agreement in 2004. Pursuant to the said request for arbitration, an Arbitration Tribunal consisting of Hon’ble Mr. Justice B.P. Sharaf (Retd.) Hon’ble Mr. Justice S.C. Pratap and Hon’ble Mr. Justice A.K. Dutta (Retd.) was constituted in the year 2005. The said arbitration has continued for the last more than four years. Needless to mention, the Respondent has incurred heavy expenses in the arbitration which is at the concluding stage, i.e. arguments have been completed and written submissions to be filed.

(e) In view of the aforesaid invocation of Clause 28 by the Petitioner, the notice issued by the Petitioner on 29.01.2008 purportedly invoking the arbitration clause once again and raising further disputes was not permissible under the contract. It is most respectfully submitted that there cannot be repeated arbitrators in relation to the very same contract. The arbitration agreement cannot be interpreted to imply that for every dispute under the contract, the parties can invoke a fresh arbitration. As per the contract, all disputes should have been referred to arbitration at one go.”

5. The plea raised by the respondent voices a real problem. It is unfortunate that arbitration in this country has proved to be a highly expensive and time consuming means for resolution of disputes. But on that basis it is difficult to read the arbitration clause in the agreement as suggested by the respondent. Clause 28 of the agreement dated October 17, 2003 reads as follows:

“28. SETTLEMENT OF DISPUTES

28.1 Except as otherwise provided elsewhere in the Agreement, if any dispute, difference, question or disagreement or matter whatsoever shall, before or after completion or abandonment of work or during extended period, hereafter arises between the parties hereto or respective representative or assignees concerning with the construction, meaning, operation or effect of the Agreement or out of or relating to the Agreement or breach thereof shall be referred to arbitration.

28.2 The reference to arbitration shall be to an arbitral tribunal consisting of three arbitrators. Each party shall appoint one arbitrator and the two appointed arbitrators shall appoint the third arbitrator, who shall act as the presiding arbitrator.

28.3 The party desiring the settlement of dispute shall give notice of its intention to go in for arbitration clearly stating all disputes to be decided by arbitral tribunal and appoint its own arbitrator and call upon the other party to appoint its own arbitrator within 30 days. If the other party fails to appoint its arbitrator within stipulated period or the two arbitrators fail to appoint the third arbitrator, Chief Justice of High Court of competent jurisdiction or Chief Justice of India as the case may be or any person or institution designated by them shall appoint the Second Arbitrator and/or the Presiding arbitrator as the case may be.

6. The plea of the respondent is based on the words “all disputes” occurring in paragraph 28.3 of the agreement. Mr. Agrawal submitted that those two words must be understood to mean “all disputes under the agreement” that might arise between the parties throughout the period of its subsistence. However, he had no answer as to what would happen to such disputes that might arise in the earlier period of the contract and get barred by limitation till the time comes to refer “all disputes” at the conclusion of the contract. The words “all disputes” in clause 28.3 of the agreement can only mean “all disputes” that might be in existence when the arbitration clause is invoked and one of the parties to the agreement gives the arbitration notice to the other. In its present form clause 28 of the agreement cannot be said to be a one time measure and it cannot be held that once the arbitration clause is invoked the remedy of arbitration is no longer available in regard to other disputes that might arise in future.

7. The issue of financial burden caused by the arbitration proceedings is indeed a legitimate concern but the problem can only be remedied by suitably amending the arbitration clause. In future agreements, the arbitration clause can be recast making it clear that the remedy of arbitration can be taken recourse to only once at the conclusion of the work under the agreement or at the termination/cancellation of the agreement and at the same time expressly saving any disputes/claims from becoming stale or time -barred etc. and for that reason alone being rendered non- arbitrable.

8. For the reasons aforesaid I am unable to sustain the objection raised on behalf of the respondent.

9. In the result, the application is allowed. The applicant has nominated Justice S.P. Bharucha, a former Chief Justice of India, as its arbitrator. Justice Mrs. Sujata V. Manohar, a former judge of this court, is appointed arbitrator on behalf of the respondent, subject to her consent and on such terms as she may deem fit and proper.

10. The Registry is directed to communicate this order to the learned Arbitrator to enable her to enter upon the reference and decide the matter as expeditiously as practicable.

11. The petition stands disposed of with no order as to costs.

“311. Power to summon material witness, or examine person present. – Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”[1]

Besides the above specific provision under the Cr. P.C. empowering the criminal and civil Courts as the case may be, to summon and examine witnesses, a Judge in order to discover or to obtain proof of relevant facts is empowered under Section 165 of the Indian Evidence Act to exercise all the privileges and powers subject to the proviso to that section which power he has under the Evidence Act. Section 540 of the old Code (Section 311 of the new Code) and Section 165 of the Evidence Act may be said to be complementary to each other and as observed by this Court in Jamatraj Kewalji Govani v. State of Maharashtra[2], these two sections between them confer jurisdiction on the Judge to act in aid of justice.

Section 165 of Indian Evidence Act 1872 says:

“The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e. : (i) giving a discretion to the court to examine the witness at any stage, and (ii) the mandatory portion which compels the court to examine a witness if his evidence appears to be essential to the just decision of the Court. Though the discretion given to the Court is very wide, the very width requires a corresponding caution. In Mohanlal v. Union of India[3] this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the words such as, “any court”, “at any stage”, or “any enquiry or trial or other proceedings”, “any person” and “any such person” clearly spells out that the section has expressed in the widest-possible terms and do not limit the discretion of the Court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow any discretion but obligates and binds the court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case, “essential” to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the section is to enable the Court to arrive at the truth irrespective of the fact that prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth.”[4]

Section 311 is an almost verbatim reproduction of Section 540 of the old Code except for the insertion of the words ‘to be’ before the word ‘essential’ occurring in the old Section. This section is manifestly in two parts. Whereas the word used in the first part is ‘may’ the word used in the second part is ’shall’. In consequence, the first part which is permissive gives purely discretionary authority to the Criminal Code and enables it ‘at any stage of enquiry, trial or other proceedings’ under the Code to act in one of the three ways, namely,

(1) to summon any person as a witness, or

(2) to examine  any person in attendance, though not summoned as a witness, or

(3) to recall and re-examine any person already examined.

The second part which is mandatory imposes an obligation on the Court-

(1) to summon and examine, or

(2) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.

The very usage of the words such as, ‘any Court’, ‘at any stage’, or of ‘any enquiry’, trial or other proceedings, ‘any’ person and any such person clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the Section does not allow for any discretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case.

The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The exercise of jurisdiction under Section 311 Cr.P.C. for examining the witnesses can be in the interest of justice only. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. The section consists of two parts i.e. (i) giving a discretion to the Court to examine the witness at any stage and (ii) the mandatory portion which compels the Court to examine a witness if his evidence appears to be essential to the just decision of the Court. Though the discretion given to the Court is very wide, the very width requires a corresponding caution. In Mohan Lal v. Union of India[5] this Court has observed, while considering the scope and ambit of Section 311, Object of the Section is to enable the Court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the Court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth. [6]

Section 540 was found in Chapter XLVI of the old Code of 1898 under the heading ‘Miscellaneous’. But the present corresponding Section 311 of the new Code is found among other Sections in Chapter XXIV under the heading ‘General Provisions as to Enquiries and Trials’.

This section leaves a very wide discretion with the Court to summon and examine any witness at any stage of the proceedings, yet these are required to be exercised with caution and only when the exigency of justice require that too with circumspection and consistent with the provisions of the Code.

Fazal Ali, J. in Rameshwar Dayal V. State of U. P.[7]  while expressing his views about the careful exercise of its power by the Court has stated:

“It is true that under Section 540 of the Criminal Procedure Code the High Court has got very wide powers to examine any witness it likes for the just decision of the case, but this power has to be exercised sparingly and only when the ends of justice so demand. The higher the power the more careful should be its exercise…………….. The words, “Just decision of the case” would become meaningless and without any significance if a decision is to be arrived at without a sense of justice and fair play”.

In State of West Bengal v. Tulsidas Mundhra[8] it was observed:

“It would be noticed that this section confers on criminal Courts very wide powers. It is no doubt for the Court to consider whether its power under this section should be exercised or not. But if it is satisfied that the evidence of any person not examined or further evidence of any person already examined is essential to the just decision of the case, it is its duty to take such evidence. The exercise of the power conferred by Section 540 is conditioned by the requirement that such exercise would be essential to the just decision of the case.”

It is cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. It is emphasized that power is circumscribed by the principle that underlines Section 311 Cr.P.C., namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the Court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution (as was held in Mohd. Iqbal Ahmad v. State of Andhra Pradesh[9]) or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties. The basic requirement in his regard would remain the `just decision’ and the discretion of the court must obviously be dictated by exigency of the situation and fair play and good sense appear to be the safe guides and that only the requirement of justice command the examination of any person which would depend on the facts and circumstances of each case.”[10]

Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavourable to the party withholding such evidence, the Court can draw a presumption under illustration (g) to Section 114 of the Evidence Act. In such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions whether discretionary or obligatory – according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted where under any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.

Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness. [11]

The powers under Section 540 of the old Code, wide though they may be, must not be exercised to the disadvantage of the accused particularly after his defence is over. Hon’ble Supreme Court observed that it is difficult to limit the powers under the Code to the cases which involve something ex improviso which no human ingenuity could foresee in the course of the defence. Hon’ble Supreme Court further observed that our Code does not make this a condition of the exercise of powers and that it would not be right to embark on judicial legislation. As per the Hon’ble Supreme Court, it can always be seen whether the new matter is strictly necessary for a just decision and not intended to give an unfair advantage to one of the rival sides. Even in England where the rule in Dora Harris case obtains, the powers of the Courts have not been held to be wrongly exercised, when fresh evidence has been let in for a just decision. 

In the case of Sasi Thomas v. State, (SC)[12]  it was held that the Trial Court even is not powerless. It, if a case is made out, can exercise its discretionary jurisdiction under Section 311 of the Code of Criminal Procedure as also Section 391 thereof. In the event of open marshalling of the evidence, it comes to the opinion that a case has been made out for alteration of charge, it indisputably can do so in exercise of its power under Section 311 of the Code of Criminal Procedure. 

The question which arose in Rameshwar Dayal’s case[13] was whether the person indicated should be given an opportunity to rebut the evidence of the witness or witnesses summoned and examined under S. 540 and this court answered that question:

“It was argued by counsel for the State that there is no provision in the Criminal Procedure Code which requires the court to allow the appellant an opportunity to rebut the evidence of witnesses recommended under S. 540, Cr. P. C. This argument, in our opinion, is based on a serious misconception of the correct approach to the cardinal principles of criminal justice. Section 540 itself incorporates a rule of natural justice. The accused is presumed to be innocent until he is proved guilty. It is, therefore, manifest that where any fresh evidence is admitted against the accused the presumption of innocence is weakened and the accused in all fairness should be given an opportunity to rebut that evidence. The right to adduce evidence in rebuttal is one of the inevitable steps in the defence of a case by the accused and a refusal of the same amounts not only to an infraction of the provisions of the Criminal Procedure Code but also of the principles of natural justice and offends the famous maxim audi alteram partem…………. A careful perusal of this provision manifestly reveals that the statute has armed the Court with all the powers to do full justice between the parties as full justice cannot be done until both the parties are properly heard the condition of giving an opportunity to the accused to rebut any fresh evidence sought to be adduced against him either at the trial or the appellate stage appears to us to be implicit under S. 540 of the Cr. P. C.”

This view was taken by various High Courts such as in Channu Lal v. R[14],  Rengaswami Naicker v. Muruga Naicker[15], Shugan Chand v. Emperor[16], and The Queen v. Assanoollah[17].  The views expressed in the judgments of the various High Courts have been approved by this Court in Rameshwar Dayal’s’case (AIR 1978 SC 1558). Whenever any additional evidence is examined or fresh evidence is admitted against the accused, it is absolutely necessary in the interest of justice that the accused should be afforded a fair and reasonable opportunity, to rebut that evidence brought on record against him.

A decision of this Court in Mir Mohd Omar v. State of West Bengal[18] was relied upon to show that after the examination of the accused under S. 313 of the new Code (corresponding to S. 342 of the old Code) the prosecution should not move the Trial Judge for recalling a witness already examined, but the observation made in that decision has no application to the present case because in that case the said observation was made in a different context by this court while examining the plea of the prosecution in making corrections of the evidence already recorded under S. 272 of the Code and that decision does not deal with the ambit of S. 540 of the Code.

[2] (1967) 3 SCR 415 : (AIR 1968 SC 178)

[3] 1991(Sup1) S.C.C. 271

[4] Mahavir v. State of Haryana, (P&H) 2005(1) R.C.R.(Criminal) 75

[5] 1991(3) RCR(Criminal) 182 : (1991 Supp (1) SCC 271)

[6] Himanshu Singh Sabharwal v. State of M.P. , (SC)

[7] (1978) 2 SCC 518 : (AIR 1978 SC 1558)

[8] (1963) 2 SCJ 204 at 207 : (1964 (1) Cri LJ 443 at p. 446)

[9] AIR 1979 Supreme Court 677

[10] Harnam Singh v. M/s. Bhushan Metallics Ltd., (P&H) 2007(1) R.C.R.(Criminal) 992

[11] Himanshu Singh Sabharwal v. State of M.P. , (SC)

[12] 2007(1) R.C.R.(Criminal) 695

[13] (AIR 1978 SC 1558)

[14] AIR 1949 All 692

[15] AIR 1954 Mad 169

[16] AIR 1925 Lahore 531

[17] 13 SWR (Cri) 15

[18] 1989(2) RCR(Cri.) 346 : (1989) 4 SCC 436 : (AIR 1989 SC 1785)

“Nothing in this code shall be deemed to limit or effect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice” [1]

Exercise of power under Section 482 Cr.P.C. is the exception and not rule – Inherent jurisdiction of High Court under Section 482 Cr.P.C. may be exercised :-

1.         To give effect to an order under the Code.

2.         To prevent abuse of the process of Court.

3.         To otherwise secure the ends of justice.

4.         In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice.

5.         So long as inherent power of Section 482 CrPC is in statute, the exercise of such power is not impermissible.

6.         This power has to be exercised sparingly with circumspection and in the rarest of rare cases, but cannot be held that it should be exercised in the rarest of rare cases – The expression rarest of rare case may be exercised where death penalty is to be imposed under Section 302 of IPC but this expression cannot be extended to a petition under Section 482 CrPC.

7.         The power under Section 482 is not intended to scuttle justice at the threshold but to secure justice.

8.         High Court has no power to review own order its under Section 482 Cr.P.C. :-

(a) Court cannot alter or review its judgment or final order after it is signed except to correct clerical or arithmetical error.

(b) As soon as judgment is pronounced or order is made by a Court, it becomes functus officio (ceases to have control over the case) and has no power to review , override, alter or interfere with it.

(c) Power of review is not an inherent power and must be conferred on a Court by a specific or express provision to that effect. (1971) 3 SCC 844 relied. [2]

9.         Where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal.

10.       Inherent power of the Court under Section 482 of the Code of Criminal Procedure can be invoked by the High Court either to prevent abuse of process of any Court or otherwise to secure the ends of justice.

11.       Proceedings cannot be quashed on the ground of mala fide on part of complainant if criminal case was made out from FIR – If the material collected during the investigation and evidence led in Court which decides the fate of the accused persons . The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding.

12.       In proceedings instituted on complaint, exercise of inherent powers under Section 482 CrPC to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same.

13.       When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. 

14.       All Courts, whether civil or criminal possess, in the absence of any express provisions, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice.

In State of Haryana and others v. Bhajan Lal and others [3], this Court examined the extraordinary power under Article 226 of the Constitution and also the inherent powers under Section 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice. While laying down certain guidelines where the court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to be followed by the courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. One of such guidelines is where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This Article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226. Some of the decisions of this Court laying down principles for the exercise of powers by the High Court under Articles 226 and 227 may be referred to.

M/s Pepsi Foods Ltd v. Special Judicial Magistrate, (SC)  [4]

It was held in this case that no doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. It was submitted before us on behalf of the State that in case we find that the High Court failed to exercise its jurisdiction the matter should be remanded back to it to consider if the complaint and the evidence on record did not make out any case against the appellants. If, however, we refer to the impugned judgment of the High Court it has come to the conclusion, though without referring to any material on record, that “in the present case it cannot be said at this stage that the allegations in the complaint are so absurd and inherently improbable on the basis of which no prudent man can ever reach a just conclusion that there exists no sufficient ground for proceedings against the accused.” We do not think that the High Court was correct in coming to such a conclusion and in coming to that it has also foreclosed the matter for the Magistrate as well, as the Magistrate will not give any different conclusion on an application filed under Section 245 of the Code. The High Court says that the appellants could very well appeal before the Court and move an application under Section 245(2) of the Code and that the magistrate could discharge them if he found the charge to be groundless and at the same time it has itself returned the finding what there are sufficient grounds for proceeding against the appellants. If we now refer to the facts of the case before us it is clear to us that not only that allegation against the appellants make out any case for an offence under Section 7 of the Act and also that there is no basis for the complainant to make such allegation.

The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are complete and hazy, more so when the evidence has not been collected and produced before the Court and the issued involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage. (The Janata Dal etc. v. H.S. Chowdhary and others, etc [5]., Dr. Raghubir Saran v. State of Bihar and another[6] ,). It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person.

[2] Sunita Jain v. Pawan Kumar Jain , (SC)

[3] 1991(1) RCR (Crl.) 383 : 1992 Supp. (1) SCC 335

[4] 1998 A.I.R. (SC) 128

[5] AIR 1993 SC 892

[6] AIR 1964 SC 1

They had only an ‘undivided’ share in the Shamlat-deh lands because such lands were not liable to be partitioned. Some of the villages in Punjab and many in Haryana were inhabited partly by Muslims and partly by non-Muslims. After the partition most of the Muslims proprietors migrated to Pakistan whereas the non-Muslims continued to live in their villages. Problems of administration of the properties of those who had left the country and those who had poured into the country arose.

The question as to the management and the preservation of the property left by Muslim evacuees led to the passing of the East Punjab Evacuees (Administration of Property) Act, 14 of 1947. This Act of the State Legislature, was repealed and replaced by an Act passed by the Parliament, the Administration of Evacuee Property Act, 1950. The interest of all evacuees which had vested in the Custodian appointed under the Punjab Act 14 of 1947, came to be vested in the Custodian appointed under the Central Act of 1950. In the villages which were wholly inhabited by Muslims and from which almost the entire population migrated to Pakistan, all the Shamlat-deh lands together with the other proprietary lands were declared evacuee property and came to be vested in the Custodian.

In the writ petitions filed in the High Court the controversy was between the right of the Gram Panchayats to the Shamlat-deh lands situated in those villages which fell within their jurisdiction and, on the other hand, the right of Rehabilitation Department of the Central Government to allot lands of that description, to the extent of the evacuee interest therein, to persons who migrated from Pakistan to India after the partition of the Country.

The contention of the Government of Punjab and of the Gram Panchayats in Punjab and Haryana is that, by reason of the provisions of the Punjab Village Common Lands (Regulation) Act of 1953, the interest of all persons whether Hindus, Sikhs or Muslims, in the

 Shamlat-deh lands stood extinguished and those lands were placed by the said Act under the control and power of the respective Gram Panchayats.

What is Shamlat Deh?

Shamlat Deh is the land which is used for the benefit of the village community or any part for the common purpose of the village.

Lands recorded as Shamlat Deh /Panchayat Deh  are covered under the definition of Shamlat Deh under section 2(g)(i) of the Punjab Village Common Lands (Regulation) Act, 1961 and therefore encroachments from such lands can be removed under the Act.

The Shamlat Deh includes:-

• Land described in the revenue records as Shamlat Deh excluding abadi deh;
• Shamilat Tikkas
• Land described in the revenue record as shamilat, Taraf, Pattis, Pannas and Tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purpose of village.
• Lands used or reserved for the benefit of the village community including streets, lanes, playgrounds, schools, drinking wells, jor ponds within abadi deh or gora deh and
• Lands in any village described as Banjar quadim and used to common purposes of the village, according to revenue records.[1]

But does not include land which :

• Omitted
• If the land has been allotted on quasi permanent basis to a displaced person,
• If the land has been partitioned and brought under cultivation by individual landholders before the 26th January, 1950.
• having been acquired before the 26th January, 1950, by a person by purchase or in exchange for proprietary land from a co-sharer in the Shamilat deh and is so recorded in the Jamabandi,
• is described in the revenue records as Shamilat, Taraf, Pattis, Pannas, and Tholas and not used; according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village,
• lies outside the abadi deh and was being used as gitwar, bara, manure pit, house or for cottage industry, immediately before the commencement of this Act.
• was Shamilat deh, was assessed to land revenue and has been in the individual cultivating possession of co-sharers not being in excess of their respective shares in such Shamilat deh on or before the 26th January, 1950, or
• was being used as a place of worship or for purposes subservient thereto, immediately before the commencement of this Act.”[2]

The Court in Kangra Velly Slate Company Ltd. v. Kidar Nath and others[3], has held as under

“That Section 3(a) of Punjab Act No. 1 of 1954 is not limited to the rights, title and interests of proprietors as such, but extends to all persons having the same in the land included in the shamilat deh and further that Section 3(a) extends to rights, title and interests in such land even when the same have been acquired from proprietors as such prior to the coming into force of the Act in relation to the land irrespective of the persons having rights, title or interests in it so long as it is shamilat land.”

Lands to which this Act applies-

The Shamilat Law shall be deemed always to have applied to all lands which are shamilat  deh.

Where any land vested in the Panchayat under the shamilat law, but such land has been excluded from Shamilat deh as defined in clause (g) of section 2, all rights, title and interest of the Panchayat in such land shall, as from the commencement of this Act, cease and such rights, title and interest shall be revested in the persons in whom the vested immediately before the commencement of the Shamilat law and the Panchayat shall deliver possession of such land to such person or persons:

Section 4 deals with vesting of rights in Panchayat and non-proprietors

• All rights, title and interest in the land which is included in the Shamilat deh of any village and which has not vested in a Panchayat under the Shamilat law shall at the commencement of this Act vest in a Panchayat constituted for such village, and where no such  Panchayat has been constituted  for such village, vest in the Panchayat on such date as a Panchayat having jurisdiction over that village is constituted.
• Which is situated within or outside the abadi deh [4]of a village and which is under the house owned by a non-proprietor on the commencement of Shamilat law, be deemed to have been vested in such non-proprietor.
• Any land which is vested in a Panchayat under the Shamilat law shall be deemed to have been vested in the Panchayat.
• existing rights, title or interests of persons who, though not entered as occupancy tenants in the revenue records are accorded a similar status by custom or otherwise, such as Dholidars, Bhondedars, Butimars, Basikhopohus, Saunjidars, Muqarrirdars;
  • (ii) rights of persons in cultivating possession of Shamilat deh, for more than twelve years without payment of rent or by payment of charges not exceeding the land revenue and cesses payable thereon.
  • (iii) rights of a mortgagee to whom such land is mortgaged with possession before the 26th January, 1950.

 Section 5 deals with regulation of use and occupation, etc of lands vested or deemed to have been vested in Panchayats-

(1)       All lands vested or deemed to have been vested in a Panchayat under this Act, shall    be utilised or, disposed of by the Panchayat for the benefit of the inhabitants of the village concern in the manner prescribed.  

(2)       The area of Shamilat deh to be utilized for the purposes of the third proviso to sub-section (1) shall be demarcated by such officer in consultations with the Panchayat and in such manner as may be prescribed.

(3)       The State Government or any officer authorised by it in this behalf may, from time to time, with a view to ensuring compliance with the  provision of the second proviso to sub-section (1) or sub-section (2) issue to any panchayat such directions as may be deemed necessary.

²(4)      Nothing shall apply to the Hilly area.

³(5)      Nothing shall be disposed of by way of sale, gift or exchange,  so as to have with the Panchayat, cultivable area which is less than fifty percent of the total cultivable area  vested  or deemed  to have been vested in the Panchayat ].

If any person is aggrieved  by an act or decision of Panchayat under section 5,he may, within thirty days from the date of such decision, appeal to the Collector who may confirm, reverse of modify decision or make such other order as he thinks to be just and proper. The order of the Collector shall be final. (Section 6)

The collector on an application made panchayat, after making such enquiry, put the panchayat in possession of the land or other immovable property in the Shamilat deh of that village which vests or is deemed to have been vested in it under this Act and for doing so the collector  may exercise the powers of a revenue court in relation to execution of a decree for possession  of land under the Punjab Tenancy Act,1887. (Section 7 of the Act)

An appeal against the order of the collector shall lie to the Commissioner and the period of limitation for such an appeal shall be sixty days from the date of the order appealed against.

Commissioner under this Act to exercise powers under Punjab Act 31 of 1973.-

For the purposes of appeals under section 9 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act,1973 hereinafter referred to be the said Act in relation to lands vested or deemed to have been vested in a panchayat under  this Act, the Commissioner under  this Act shall be deemed to be the Commissioner under the said Act].

Where, on any land in the shamilat deh immediately before it vests or is  deemed to have been vested in a Panchayat under this Act, a person is in cultivating possession and his uncut and  ungathered crops are standing thereon, he  shall not be ejected from such land, unless his  crops have ripened and he has been allowed reasonable time to harvest them. Section 8 of the Act)

Any income accruing from the use and occupation of the lands vested or deemed to have been vested in a Panchayat shall be credited to the Panchayat fund and shall be utilised in the manner prescribed.No persons  shall be entitled to any compensation for any loss suffered or alleged to have been suffered as a result of the coming into force of this Act or of the Shamilat law.

Power of the Collector to cancel or vary leases etc. of lands vested in Panchayats.

(1)       The Collector in the area of his jurisdiction may call for the record of any  lease contact or agreement entered into by the Panchayat in respect of land vested or deemed to be vested in it, whether such lease, contact or agreement is entered before or after the commencement of the Act.

(2)       If on examination of the record and after making such inquiry, the Collector is satisfied that such lease, contract or agreement:

• has been entered into in contravention of any of the provisions of this Act or the Rules made there under
• has been entered into as result of fraud or concealment of fact
• is detrimental to the interests of the panchayat as prescribed; the Collector may, notwithstanding anything as aforesaid, cancel the lease, contract or agreement or vary the terms thereof unconditionally or subject to such conditions as he may think fit

 (3)       Where the terms of any lease, contract or agreement have  been revised by the Collector the variation shall, notwithstanding anything contained it this Act or Shamilat law  be binding on the parties  to  the lease,  contract or agreement as the case may be.

(4)       Where the lessee or the person with whom a contract or agreement has entered into by a Panchayat refuses to accept the variation made by the Collector under this section in the terms of lease, contract or agreement, shall be deemed to be cancelled by the Collector with effect the date of such refusal.

(5)       Where any lease, contract or agreement is cancelled or is deemed to be cancelled or its terms are varied, the person with whom the contract or has been entered into, is entitled to receive compensation to be assessed by the Collector for any loss or damage caused to the lessee or such person,.

Section 11 of the Punjab Village Common Lands Act gives a right to person who claims a right, title or interest in Shamilat deh to approach the Collector who after examining the matter can grant the necessary relief, if a case is made out. Section 11 reads as :-

“11. Decision of claims of right, title or interest in Shamilat deh. – (1) Any person claiming right, title or interest in any land, vested or deemed to have been vested in a Panchayat under this Act or claiming that any land has not so vested in a Panchayat, may submit to the Collector, within such time, as may be prescribed, a statement of his claim in writing and signed and verified in the prescribed manner and the Collector shall have jurisdiction to decide such claim in such manner as may be prescribed.

(2) Any person or a Panchayat aggrieved by an order of the Collector made under sub-section (1) may, within sixty days from the date of the order, prefer an appeal to the Commissioner in such form and manner as may be prescribed and the Commissioner may after hearing the appeal, confirm, vary or reverse the order appealed from and may pass such order as he deems fit.”

Gurmeet Singh v. Consolidation Officer, Ludhiana, (P&H)[5]

In this case the Assistant Consolidation Officer was having no jurisdiction to change the mutations from the name of Shamlat Patti Rajputan and Shamlat Patti Awana to the name of individual proprietors and to re-partition the land. The contention here was  whether the land in question is a Bachat land or Shamlat deh which vests in the Gram Panchayat, being the land belonging to Shamlat Patti, in view of Section 2(g) of the Punjab Village Common Lands (Regulation) Act (hereinafter referred to as `the Act’), is to be decided before changing the mutation in the name of the individual proprietors. Such question can only be decided by the authorities under the Act and the consolidation authority has no jurisdiction to decide such question as so held by the Hon’ble Supreme Court in Gram Panchayat, Nurpur v. State of Punjab and others,[6].    

[2] Gram Panchayat, Jalajan v. Director, Consolidation of Holdings, Pb., 1997(1) P.L.R. 600

[3] 1961 The Punjab Law Reporter (Vol. LXIII) 553

[4] Land included in abadi deh in Jamabandi is excluded from shamilat Deh and Panchayat has no jurisdidction over it.

[5] 2003(1) R.C.R.(Civil) 678

[6] 1997(4) RCR(Civil) 47 (SC) : 1997(1) PLJ 268

 Documents included in the record-of-rights are:

(a)      statements showing, so far as may be practicable: -

• the persons who are land-owners, tenants or assignees of land-revenue in the estate or who are entitled to receive any of the rents, profits or produce of the estate or to occupy land therein;
• the nature and extent of the interests of those persons, and the conditions and  liabilities attaching thereto;
• the rent, land-revenue, rates, cesses or other payments due from and to each of those persons and to the Government;

 (b)     a statement of customs respecting rights and liabilities in the estate;

             (c)     a map of the estate; and

(d)   such other documents as the Financial Commissioner may, with the pervious    sanction of prescribe.

Here, the Onus(burden) to prove is always on the person  to prove, who pleads that the entries are not correct and not on the person in whose favour the entries in the revenue record have been made.

In Jasmer Singh Jaijee and others v. The Financial Commissioner, Punjab and others[1] it was held that Presumption of truth is always attached to the Jamabandi entries, unless the same are got corrected from the Civil Court in accordance with the provisions of Section 45 of the Punjab Land Revenue Act.

In Jattu Ram V. Hakkam Singh and others[2] it was held that The entries made by patwari in official record are only for fiscal purpose, no title is created by them.

In Jagir Singh V. Jagwant Singh[3] it was held that mere recital in the Sale Deed as to transfer of possession is not conclusive, if the actual possession is not reflected in the revenue record nor any application for change of entry to that effect is made for the years together, there is no presumption of delivery of actual physical possession.

Special provision of revision of record-of-rights is also made under section 32 of the Act: - 

• when it appears to the  ²[Commissioner] that a record-of-right for an estate does not exist, or that the existing record-of-rights for an estate requires special revision, the ²[Commissioner] may by notification direct that a record-of-rights be made or that the record-of-rights be specially revised as the case may be.
• The notification may direct that record-of-rights shall be made or specially revised for all or any estates in any local area.
• A record-of-rights made or specially revised for an estate under this section shall be deemed to be the record-of-rights for the estate, but shall not affect any presumption in favour of the Government which has already arisen from any previous record-of-rights.

What is Annual record?

• The Collector shall cause to be prepared by the patwari of each estate yearly, or at such other intervals as the Financial Commissioner may prescribe, an edition of the record-of-rights amended in accordance with the provisions of this Chapter.
• This edition of the record-of-rights shall be called the annual record for the estate, and shall comprise the statements mentioned in sub-section (2), clause (a), of section 31 and such other documents, if any, as the Financial Commissioner may, with the previous sanction of the ¹[State Government] prescribe.
• For the purposes of the preparation of the annual record, the Collector shall cause to be kept up by the patwari of each estate a register of mutations and such other registers as the Financial Commissioner May Prescribe.

Procedure for making records

Making of that part of the annual record which relates to land-owners, assignee of revenue and occupancy tenants( Section 34 of the Act)

• Any person acquiring, by inheritance, purchase, mortgage, or otherwise, any right in an estate as a land-owner, assignee of land-revenue or tenant having a right of occupancy, shall report his acquisition of the right to the patwari of the estate.
• If the person acquiring the right is a minor or otherwise disqualified, his guardian or other person having charge of his property shall make the report to the patwari.
• The patwari shall enter in his register of mutations every report made to him under sub-section (1) or sub-section (2), and shall also make an entry therein respecting the acquisition of any such right as aforesaid which he has reason to believe to have taken place, and of which a report should have been made to him under one or other of those sub-sections and has not been so made.
• A Revenue-officer shall from time to time inquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which, under the foregoing sub-sections, report should have been made to the patwari and entry made in that register and shall in each case make such order as he thinks fit with respect to the entry in the annual record of the right acquired.
• Such an entry shall be made by the insertion in that record of description of the right acquired and by the omission from that record of any entry in any record previously prepared which by reason of the acquisition has ceased to be correct.

Making of that part of the annual record which relates to other persons( Section 35 of the Act): - 

The acquisition of any interest in land other than a right refered to in sub-section (1) of the last foregoing section shall: -

• if it is undisputed, be recorded by the patwari in such manner as the Financial Commissioner may by rule in this behalf  prescribe; and
• if it is disputed, be entered by the patwari in the register of mutations and dealt with in the manner prescribed in sub-sections (4) and (5) of the last foregoing section.

Determination of disputes( Section 36)

• If during the making, revision or preparation of any record or in the course of any inquiry under this Chapter a dispute arises as to any matter of which an entry is to be made in a record or in a register of mutations, a Revenue-officer may, of his own motion, or on the application of any party interested but subject to the provisions of the next following section, and after such inquiry as he thinks fit, determine the entry to be made as to that matter.
• If any such dispute the Revenue-officer is unable to satisfy himself as to which of the parties thereto is in possession of any property to which the dispute relates, he shall ascertain by summary inquiry who is the person best entitled to the property, and shall by order direct that person be put in possession thereof, and that an entry in accordance with that order be made in the record or register.
• A direction of a Revenue-officer under sub-section (2) shall be subject to any decree or order which may be subsequently passed by any Court of competent jurisdiction.

Restrictions on variations of entries in records(Section 37): - 

Entries in record-of-rights or in annual records, except entries made in annual records by Patwaris under clause (a) of section 35 with respect to undisputed acquisitions of interest refered to in that section, shall not be varied in subsequent records otherwise than by–

• making entries in accordance with facts proved or admitted to have occurred;
• making such entries as are agreed to by all the parties interested therein or are supported by a decree or order binding on those parties;
• making new maps where it is necessary to make them.

Section 40 of the Act says Any person whose rights, interests or liabilities are required to be entered in any record under this Chapter shall be bound to furnish, on the requisition of any Revenue-officer or village-officer engaged in compiling the record, all information necessary for the correct compilation thereof.

Presumption as to ownership of forests, quarries and waste lands(Section 40 of the Act): -

• when in any record-of-rights completed before the eighteenth day of November, 1871, it is not expressly provided that any forest, quarry, unclaimed, unoccupied, deserted or waste-land, spontaneous produce or other accessory interest in land belongs to the [Government].
• when in any record-of-rights completed after the date it is not expressly provided that any forest or quarry or any such land or interest belongs to the ¹[Government], it shall be presumed to belong to the landowners.
• The presumption created by sub-section (1) may be rebutted by showing–
  • from the records or report made by the assessing officer at the time of assessment; or
  • if the record or report, is silent, then from a comparison between the assessment of villages in which there existed, and the assessment of villages of similar character in which there did not exist, any forest or quarry, or any such land or interest, that the forest, quarry, land or interest was taken into account in the assessment of the land-revenue.
  • Until the presumption is so rebutted, the forest, quarry, land or interest shall be held to belong to the Government.

[2] AIR 1994 SC 1653

[3] 2002(2) RCR (Civil) 93

“154. Information in cognizable cases :- (1) 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.

(2) 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 shall have all the powers of an officer in charge of the police station in relation to that offence.”

obliges the Officer-in-charge of a Police Station to reduce into writing every information which reaches him regarding the commission of a cognizable offence.

“156. Police Officer’s power to investigate cognizable cases :- (1) Any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.”

 Sukhwasi v. State of U.P., (Allahabad) (DB) 2008(1) R.C.R.(Criminal) 520 If Police is not registering FIR, Application under Section 156(3) Cr.P.C. making a request to Magistrate to direct the Police to register FIR can be done. Magistrate has discretion to treat the application as complaint.

Criminal Procedure Code, Section 156(3) states the power of Magistrate to direct police to register FIR a question was raised whether the Magistrate is bound to pass an order on each and every application under Section 156(3) Cr.P.C. containing allegations of commission of a cognizable offence for registration of the F .I. R . and its investigation by the police even if those allegations, prima-facie, do not appear to be genuine and do not appeal to reason, or he can exercise judicial discretion in the matter and can pass order for treating it as `complaint’ or to reject it in suitable cases -

It is not incumbent upon a Magistrate to allow an application under Section 156(3) Cr.P.C. and there is no such legal mandate. He may or may not allow the application in his discretion. The second leg of the reference is also answered in the manner that the Magistrate has a discretion to treat an application under Section 156(3) Cr.P.C. as a complaint.

In the case of Ram Babu Gupta v. State of U.P., 2001(3) RCR(Criminal) 698 : [2001(43) ACC 201], it was held by the Full Bench of this Court that the Magistrate is supposed to exercise its discretion while acting on an application under Section 156(3) Cr.P.C., and he is not supposed to pass an order in a routine manner, and he has to apply his mind. This naturally means that the Magistrate has an option of refusing for registration of the first information report. This will appear from the following observations made in para ‘Supra’ Full Bench judgment :

“In view of the aforesaid discussion on the legal provisions and decisions of the Supreme Court as on date, it is hereby held that on receiving a complaint, the Magistrate has to apply his mind to the allegations in the complaint upon which he may not at once proceed to take cognizance and may order it to go to the police station for being registered and investigated. The Magistrate’s order must indicate application of mind. If the Magistrate takes cognizance, he proceeds to follow the procedure provided in Chapter-XV of Cr.P.C. The first question stands answered thus”.

The use of the word ‘Shall’ in Section 154(3) Cr.P.C. and the use of word ‘May’ in Section 156(3) Cr.P.C. should make the intention of the legislation clear. If the legislature intended to close options for the Magistrate, they could have used the word ‘Shall’ as has been done in Section 154(3) Cr.P.C. Instead, use of the word ‘May’ is, therefore, very significant, and gives a very clear indication, that the Magistrate has the discretion in the matter, and can, in appropriate cases, refuse to order registration.

In the case of State of West Bengal v. Union of India, AIR 1963 SC 1241 it was observed by the Supreme Court that the intention of the legislature can best be ascertained “by directing it’s attention not merely to the clauses construed, but to the entire statute; it must compare the clause with the other parts of the law, and the setting in which the clause to be interpreted occurs”.

Let us take an example to make things clear. If somebody wants to file a First Information Report, that the District Judge of the concerned District came to his house at 1.20 O’clock in the day, and fired upon him, with the country made pistol and he ducked and escaped being hurt, and the District Judge is, therefore, liable for an offence under Section 307 Indian Penal Code. The Magistrate knows that the District Judge was in his court room, at that time, and the concerned staff also known that. Is the Magistrate still bound to order registration of a First Information Report because the application discloses a cognizable offence ? It is obvious that the answer has to be in negative and it cannot, therefore, be said that the Magistrate is bound to order registration of a First Information Report in all cases, where a cognizable offence is disclosed.

The next point, which remains for consideration is, the question whether the Magistrate can treat an application under Section 156(3) Cr.P.C. as a complaint? It is clear from the judgment of the Supreme Court in the case Suresh Chandra Jain v. State of Madhya Pradesh and another, 2001(1) RCR(Criminal) 335 : AIR 2001 SC 571, that a Magistrate has the authority to treat an application under Section 156(3) Cr.P.C. as a complaint. This will become clear from the reference in the said report to the case of Gopal Das Sindhi and others v. State of Assam and another, AIR 1961 SC 986, in which the following observations were made :

“If the Magistrate had not taken cognizance of the offence on the complaint filed before him, he was not obliged to examine the complainant on oath and the witnesses present at the time of filing of the complaint. We cannot read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word ‘may’ in Section 190 to mean ‘must’. The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint, under Section 156(3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and ‘Take’ cognizance of a cognizable offence.”

It becomes clear from the said underlined portion that the Magistrate has the authority to treat an application under Section 156(3) Cr.P.C. as a complaint. Hon’ble Mr. Justice Vinod Prasad has also referred to the case of Suresh Chand Jain ‘Supra’ and has extracted the following portion therefrom in order to take a different view : (para 7) :-

“Section 156, falling within Chapter XII, deals with powers of the police officers to investigate cognizable offences. True, Section 202 which falls under Chapter XV, also refers to the power of a Magistrate to “direct an investigation by a police officer”. But the investigation envisaged in Section 202 is different from the investigation contemplated in Section 156 of the Code.”

It has been further held by the Apex Court in the same judgment. “But the significant point to be noticed is when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance.

It has been held by the Apex Court in case of Madhu Bala v. Suresh Kumar and others, 1997(3) RCR(Criminal) 679 : (1997) Supreme Court Cases 476 as follows:-

Indeed, even if a Magistrate does not pass a direction to register a case, still in view of the provisions of Section 156(1) of the Code which empowers the police to investigate into a cognizable “case” and the Rules framed under the Indian Police Act, 1861 it (the police) is duty bound to formally register a case and then investigate into the same.”

Thus from the above it is clear that the Magistrate by not directing investigation under Section 156(3) Cr.P.C. gives a long rope to the police to act on it’s whims and caprices and fosters illegality of inaction by the police in registration of information of cognizable offences. It is not permissible for any Magistrate under the code to act contrary to the provisions of the code.”

The Hon’ble Judge has also referred to the case of State of Haryana and others v. Bhajan Lal and others, 1991(1) RCR(Criminal) 383 : JT 1990(4) SC 650 and has extracted the following observations :-

“At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the concerned police officer cannot embark upon any enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer-in- charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 157 of the Code to investigate, subject to the proviso to Section 157 (As we have proposed to make a detailed discussion about the power of a police officer in the field of investigation of a cognizable offence within the ambit of Sections 156 and 157 of the Code in the issuing part of this judgment, we do not propose to deal with those sections in extenso in the present context).

In case an offence incharge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by sub-section (3) of Section 154 of the Code.

Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression “information” without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, “reasonable complaint” and “credible information” are used. Evidently, the non-qualification of the word information in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, ‘reasonableness’ or ‘credibility’ of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word “information” without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that ‘every complaint or information’ preferred to an officer-in-charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that ‘every complaint’ preferred to an officer-in-charge of a police station shall be reduced in writing. The word ‘complaint’ which occurred in previous two codes of 1861 and 1872 was deleted and in that place the word ‘information’ was used in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 189(c) of the present Code of 1973 (Act 2 of 1974). An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a first information report is that there must be an information and that information must disclose a cognizable offence.”

“It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid therefore, officer-in-charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed from, that is to say, to register a case on the basis of such information”.

As in the earlier case, a completely irrational and egregiously erroneous inference has been drawn from the aforesaid observation. The observations relate to the registration of a case by a police officer as will appear from the last paragraph with emphasis and they have nothing to do with the order passed by the Magistrate under Section 156(3) Cr.P.C.

It will not be out of place to note that even for registration of a case by a police officer, the condition is that he must have reason to suspect the commission of an offence as will appear from the following quotations extracted from the case of Ramesh Kumari v. State NCT of Delhi and others, 2006(2) RCR(Criminal) 197 : 2006(1) Apex Criminal 541 : JT 2006(2) SC 548 the following are the words extracted :-

“The true test is whether the information furnished provides a reasons to suspect the commission of an offence which the concerned police officer is empowered under Section 156 of the code to investigate. If it does he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is named and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses commission of a cognizable offence. Even if the information does not give full details regarding these matters, the investigating officer is not absolve of his duty to investigate the case and discover the true facts, if he can.”

In a recent pronouncement, Hon’ble Mr. Justice Shiv Charan Sharma in the case of Chandrika Singh v. State of U.P. and others [2007(58) ACC 777] has held that a Magistrate can treat an application under Section 156(3) Cr.P.C. as a complaint. The Hon’ble Judge referred to various cases in his judgment and has come to this conclusion thereafter. It was observed by Shiv Charan, J. as follows:

“In view of this judgment of Full Bench, the Magistrate is fully competent to pass an order to register a case and investigate on an application under Section 156(3) Cr.P.C., all the application under Section 156(3) Cr.P.C. may be treated as complaint and in the circumstance, the Magistrate shall follow the procedure as provided in Chapter XV Cr.P.C. This judgment of Full Bench has not been set aside. Hence, in view of the Apex Court and Full Bench of this Court the Magistrate is fully competent to treat an application under Section 156 Cr.P.C. as a complaint and in the present case the Magistrate passed an order in the circumstances of the case that it may be registered as a complaint case and proceed to record the statement under Sections 200 and 202 Cr.P.C. There appears no illegality and impropriety in the order of the Magistrate.

This controversy must come to an end that an application under Section 156(3) Cr.P.C. can only be treated as an application for passing an order for registration of the case and investigation cannot be treated as a complaint case. The Magistrate is not bound in each and every case to pass an order to register a case and investigate if cognizable offence is made out. The Magistrate is fully competent to use this judicial direction in the matter. This is wrong notion that if an application has been moved under Section 156(3) Cr.P.C. that the only order can be passed for registration in the matter. The magistrate has got direction under Section 190 Cr.P.C. to take the cognizance directly or to pass an order that the police to investigate and then take cognizance on submissions of a report under Section 173 Cr.P.C. The Magistrate is also expected to act under some guidelines and it should not be left at the arbitrary discretion of the Magistrate to pass an order or not to pass an order to register the case and investigation under Section 156(3) Cr.P.C. In Gulab Chandra Upadhyaya v. State of U.P., (2002 All.L.J. 1225) Hon’ble Single Judge of this Court laid down the guidelines for the guidance of Magistrate while deciding the application under Section 156(3) Cr.P.C. and the guidelines cannot be said against any provision of law or check on the judicial direction of the Magistrate. Even Hon’ble Apex Court also held that the Magistrate has got a direction to pass an order to register the case and investigation under Section 156(3) Cr.P.C. or to treat an application as a complaint case.

In the law laid down by Hon’ble the Apex Court and various judgments of this Court clearly laid down that the Magistrate is not always bound to pass an order to register a case and investigation when application under Section 156(3) Cr.P.C. is moved. It will not be proper to deal with this hypothetical position that if the Magistrate is of opinion that false and frivolous allegation has been made in application than he may reject the application or it is for the investigating officer to decide the truthfulness of the story and if found false then launch prosecution against the applicant. But it is discretion of the Magistrate to be used judiciously while disposing of the application.

Applications under Section 156(3) Cr.P.C. are now coming in torrents. Provisions under Section 156(3) Cr.P.C. should be used sparingly. They should not be used unless there is something unusual and extra ordinary like miscarriage of justice, which warrants a direction to the Police to register a case. Such applications should not be allowed because the law provides them with an alternative remedy of filing a complaint, therefore, recourse should not normally be permitted for availing the provisions of Section 156(3) Cr.P.C.

The reference is, therefore, answered in the manner that it is not incumbent upon a Magistrate to allow an application under Section 156(3) Cr.P.C. and there is no such legal mandate. He may or may not allow the application in his discretion. The second leg of the reference is also answered in the manner that the Magistrate has a discretion to treat an application under Section 156(3) Cr.P.C. as a complaint.