List of Current Affairs

Source: Bombay High Court

Why in News?

Recently, the Bombay High Court in the matter of Arun P. Gidh v. Chandraprakash Singh and Ors., has held that a Court in its revisional jurisdiction cannot quash an FIR registered pursuant to the magistrate's order to police under Section 156(3) of the Criminal Procedure Code, 1973 (CrPC) to investigate a cognizable offence.

What was the Background of Arun P. Gidh v. Chandraprakash Singh and Ors. Case?

• In this case, the petitioner, a former Municipal Councilor of Kalyan Dombivali Municipal Corporation, lodged a complaint purportedly espousing the cause of the tenants of Manek Colony, which was under re-development.
• The substance of the accusation was that the officers of the Municipal Corporation in connivance with the developer committed various acts of omissions and commission resulting in grave prejudice to the eligible occupants of the Manek Colony and wrongful gain to the developer.
• The Judicial Magistrate, First Class, Kalyan, directed the police to investigate the complaint under Section 156(3) of the CrPC.
• Following this, an FIR was registered.
• However, the accused filed a revision application challenging the magistrate's order. The Additional Sessions Judge allowed the revision application, dismissing the complaint.
• Thereafter, writ petitions were filed before the Bombay High Court challenging the Sessions Court order.
• The Single Judge noted conflicting views in previous judgments regarding maintainability of revision against orders under section 156(3) CrPC and referred the matter to a larger bench.
• The larger bench court identified a conflict arising when writ petitions and applications for quashing of FIR are declined on the basis that revision under Section 397 of CrPC is an alternative remedy against an order under Section 156(3).
• The High Court directed that the petitions be now placed before the respective benches for decision in accordance with law.

What were the Court’s Observations?

• A bench comprising of Justices Revati Mohite-Dere, NJ Jamadar and Sharmila U Deshmukh observed that a court in its revisional jurisdiction cannot quash an FIR registered pursuant to the magistrate's order to police under section 156(3) CrPC to investigate a cognizable offence.
• It was also stated that the FIR is a statutory power of the investigating agency and would not stand quashed if the revision court sets aside the magistrate's order.
• It was further stated that revision under Section 397 of CrPC is not an efficacious remedy against an order of the magistrate directing investigation under Section 156(3) after the registration of an FIR.

What are the Relevant Legal Provisions Involved in it?

Section 156(3) of CrPC

About:

• Section 156(3) of CrPC states that a Magistrate who is empowered to take cognizance under Section 190 of Code may order investigation for the cognizable offence.
• An application under section 156(3) of CrPC discloses the cognizable offence, then it is the duty of the concerned Magistrate to direct registration of the FIR, which is to be investigated by the Investigation Agency, in accordance with law.
• If the information received does not disclose the commission of cognizable offence apparently, but indicates necessity for inquiry, the preliminary inquiry may be conducted in order to ascertain whether the cognizable offence is disclosed or not.
• Any judicial magistrate may order an investigation under Section 156(3) of CrPC before taking notice of the offence.

Case Laws

• Har prasad v. State of U.P (2006), the Supreme Court held that if the application under Section 156(3) CrPC. discloses the commission of cognizable offence and at the stage of Section 156(3) CrPC, which is the cognizable stage, once the cognizable offence is disclosed through an application, it was the duty of the concerned Court to order for registration and investigation of the offences, as crime detection and crime prevention are the foremost duty of the police and not of the Court.
• Lalita Kumari v. Govt. of U.P (2014), the Supreme Court held that if the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

Section 397 of CrPC

• This Section deals with the calling for records to exercise powers of revision. It states that -

(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself; to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling, for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record.

Explanation. —All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398.

(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

Source: Supreme Court

Why in News?

Recently a bench of Justices Bela M Trivedi and Pankaj Mithal held that “The easementary right by necessity could be acquired only in accordance with Section 13 of the Indian Easement Act, 1882 which provides that such easementary right would arise if it is necessary for enjoying the Dominant Heritage.”.

• The court gave this observation in the case of Manisha Mahendra Gala v. Shalini Bhagwan Avatramani.

What was the Background of Manisha Mahendra Gala v. Shalini Bhagwan Avatramani Case?

• The Appellant owned the land bearing Survey No. 48 Hissa No. 15, which is the dominant heritage.
• The Respondent owned the land bearing Survey No.=57 Hissa No. 13A/1, on which the disputed 20 ft. wide road exists. This land is the servient heritage.
• The Appellant claimed an easementary right over the road (servient heritage) for the beneficial enjoyment and access to their land (dominant heritage).
• The Appellant argued that they had no alternative way to access their dominant heritage except through the disputed road on the Respondent's servient heritage.
• The trial court decreed in favor of the Appellant, but the appellate court and the High Court reversed the decision and dismissed the suit.
• Hence, the Appellant approached the Supreme Court.

What were the Court’s Observations?

• The Supreme Court held that the Appellant failed to prove that she had acquired any valid easementary right over the servient heritage (Respondent's land with the disputed road) for the beneficial enjoyment of their dominant heritage (their own land).
• The court found that the pleadings and evidence did not establish that the Appellant or her predecessor-in-interest had enjoyed the easementary right over the servient heritage for the statutory period of 20 years, as required for acquisition by prescription.
• Regarding the claim of easement of necessity, the court noted that since there was an alternative way to access the dominant heritage, the requirement of necessity for enjoying the dominant heritage was not satisfied.
• The court rejected the argument that the Appellant acquired easementary rights over the servient heritage under the Sale Deed dated 17^th September 1994, as there was no evidence that their predecessor-in-interest had perfected any such rights, which could be transferred.
• The court upheld the decisions of the lower courts, which had decreed that the Respondent was not obligated to allow the Appellant any easementary rights over the disputed road on their land.

How Court Explained the Legal Provisions Involved in the Case?

The main legal provisions disputed and explained by the Supreme Court in this case relate to the acquisition of easementary rights under the Indian Easements Act, 1882. The key provisions discussed are:

• Section 4 - Definition of 'Easement'
  • The court explained that an easement is a right which the owner or occupier of land possesses for the beneficial enjoyment of his land over another's land, to do or continue to do something, or to prevent something from being done.
• Section 15 - Acquisition of Easementary Rights by Prescription
  • The court discussed that to acquire an easementary right by prescription, it must have been peaceably enjoyed without interruption for 20 years.
  • The court found that the Appellant's pleadings and evidence did not establish the use of the road for 20 years or more.
• Section 13 - Easement of Necessity
  • The court explained that an easement of necessity arises when it is necessary for the enjoyment of the dominant heritage.
  • However, the court noted that since there was an alternative way to access the Appellant's land, the easement of necessity could not be claimed.
• Transfer of Easementary Rights
  • The court discussed whether the Appellant acquired easementary rights under the Sale Deed dated 17^th September 1994.
  • It held that since there was no evidence that their predecessor-in-interest (Joki Woler Ruzer) had perfected any easementary rights over the disputed road, no such right could be transferred to the Gala's under the Sale Deed.

What is Dominant and Servient Heritage under Easement Act, 1882?

Section 4 of Indian Easement Act, 1882:

• An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own.
• Dominant and servient heritages and owners.--The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.
• Explanation.--In the first and second clauses of this section, the expression "land" includes also things permanently attached to the earth; the expression "beneficial enjoyment includes also possible convenience, remote advantage, and even a mere amenity; and the expression "to do something" includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage or anything growing or subsisting thereon.

Source: High Court of Jammu and Kashmir and Ladakh

Why in News?

Recently, the High Court of Jammu and Kashmir and Ladakh has held that the inherent power of the High Court under Section 151 of the Civil Procedure Code, 1908 (CPC) is not affected by the express power conferred upon the Court under Order XVIII Rule 17 of CPC to recall any witness and elicit clarifications.

• The aforesaid observation was given in the matter of Vineeta Jamwal v. Col (Retd.) Vijay Singh.

What was the Background of Vineeta Jamwal v. Col (Retd.) Vijay Singh Case?

• The case involved a suit for mandatory injunction filed by Col (Retd.) Vijay Singh (respondent) against the petitioner, Col (Retd.) Dalbir Singh (since deceased) for possession of land.
• The trial court framed issues and called upon the parties to lead their respective evidence, whereupon both the parties filed the affidavits of their respective witnesses.
• After the initial rounds of evidence exchange, Col Dalbir Singh's legal heirs, Vineeta Jamwal and Purnima Pathania, were brought on record. The trial court allowed the petitioners to file fresh affidavits with new witnesses.
• The petitioners then produced witnesses and completed their examination-in-chief.
• However, the plaintiff, Col Vijay Singh, did not cross-examine them due to a pending petition before the High Court challenging the order permitting fresh witnesses.
• After the High Court dismissed the plaintiff's petition, he filed an application before the trial court seeking permission to cross-examine the defendants' witnesses.
• The trial court allowed the application, leading the petitioners to challenge this order in the High Court of Jammu and Kashmir and Ladakh.
• The High Court dismissed the petition.

What were the Court’s Observations?

• Justice Javed Iqbal Wani observed that the rigour under Order XVIII Rule 17 of CPC would not affect the inherent power of the High Court to pass required orders for ends of justice to reopen the evidence for the purpose of further examination or cross examination or for production of fresh evidence authorizing the Court to exercise power at any stage of the suit, even after closure of evidence.

What are the Relevant Legal Provisions Involved in it?

Section 151 of CPC

About:

• This section deals with the saving of inherent powers of Court.
• It states that nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
• This section does not confer any substantive rights on parties but is meant to get over the difficulties arising from rules of procedure.

Case Law

• In Ram Chand v. Kanhayalal (1966), the Supreme Court held that the inherent powers under Section 151 of CPC can also be exercised to prevent the abuse of the process of court.

Order XVIII Rule 17of CPC

• Order XVIII of CPC deals with the hearing of the suit and examination of witnesses.
• Rule 17 of Order XVIII of CPC deals with the recalling and examining of witnesses by the Court.
• Rule 17 states that the Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit.