Our legal system tired to make code[1] very exhaustive and complete in every respect but if court finds that the code has not made specific provision to meet the exigencies of any situation, the Court of law has inherent power to mould the procedure to enable it to pass such orders as the end of justice require.

                      The main objectives while exercising inherent power recognised under Section 482 of Cr.PC and Section 151 of CPC are powers are to be exercised only for end of justice and to prevent abuse of the Courts.

Section 482 of Cr.PC:

Saving of Inherent power of High Court: Nothing in this code shall be deemed to limit or affect the inherent powers of high court to make such orders as may be necessary to give effect to any order under this code, or to prevent abuse of the process of any Courts or otherwise to secure the end of justice.

          Under section 482 of Cr.PC the High Courts of India have power to quash an FIR. Courts possessed this power even before the Criminal procedure code enacted. Added as section 482 by an amendment in 1923, it is a reproduction of the section 561(A) of the 1898 code. Under section 482 of Cr.PC only High Courts have power to quash the FIR. When High Courts satisfied that an order passed under the Code would be rendered ineffective or  that the process of any court would be abused or that the end of justice would not be secured that the High Court can and exercise its powers under section 482 of this Code.

Conditions for use of Inherent Power;

1.      The jurisdiction is not completely discretionary. The high court can refuse to use the power.

2.      The jurisdiction is not limited to cases that are pending before high Court. It can consider any case that comes to its notice (in appeal, revision or otherwise).

3.      This power can be invoked only in an event when the aggrieved party is being unnecessary harassed and has no other remedy open to it.

4.      The High Court has power to provide relief to accused even if he/she has not filed a petition under section 482

5.      The High Court under section 482 does not conduct a trial or appreciate evidence. The exercise of this power is limited to cases that compel it to intervene for preventing a palpable abuse of a legal process.

6.      This power cannot be exercised if the trial is pending before the apex court and it has directed the session judge to issue a non-bailable warrant for arresting the petitioners.

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

8.      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 case – 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 petitioner under section 482 0f Cr.PC.

9.      So long as inherent power of section 482 Cr.PC is in statue the exercised of such power not impermissible.

10.  In exercise of the power court would be justified to quash any proceeding if it finds that initiation or continuance of it amount to abuse of process of courts or quashing of these proceedings would otherwise serve the ends of justice.

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

12.  In proceedings instituted on complaint, exercise of inherent powers under section 482 of Cr.PC to quash the proceedings is called for only in case where the complaint dies not disclose any offence or is frivolous, vexations 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 access what the complaint has alleged and whether any offence is made out even if the allegations are accepted in there to.

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.

Judicial Decision;

In Prabatbhai Aahir & Ors. V. State of Gujarat & Anr. Cr. Appeal no.1723 of 2017, Supreme Court issue guidelines on quashing FIR /Criminal Proceeding on the ground of settlement between parties.

Section 151 0f Civil Procedure Code:

Saving of inherent powers of Courts; 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 end of justice, or to prevent abuse of the process of the Court.  

                      Section 151 gives no right to a party to make an application. It gives power to the Court to pass such orders as think fit.

Conditions of Inherent Power;

1.      To consolidate suits and appeals including appeals to the Supreme Court.

2.      To postpone the hearing of suits pending the decision of a selected action or where some of the issues are common in another pending suit.

3.      To stay cross suits on the ground of convenience.

4.      To allow a defence in forma pauperis.

5.      To entertain the application of a third person to be made a party.

6.      To stay the carrying out of a preliminary order pending appeal.

7.      To restrain by injunction a person from proceeding with a suit in another court.

8.      To apply the principles of res judicata to cases not falling within section 11 of the code.

Judicial Decision:

In K.K Velusamy v. N. Palanisamy, (2011) 11 SCC275, Section 151 of CPC is not a substantive provision which creates or confers any power or jurisdiction on Courts. It merely recognises the discretionary power inherent in every court as necessary corollary for rendering justice in accordance with law to do what is right and undo what is wrong, that is to do all things necessary to secure the ends of justice and prevent abuse of its process.

In Ram Chand and Sons Sugar Mills v. Kanhayalal (1961) S.C.R884 the Supreme Court held that court would not exercise its inherent power under section 151 of CPC if it was inconsistent with the powers expressly or impliedly conferred by other provision of the Code. It had opined that the court had an undoubted power to make a suitable order to prevent the abuse of the process of the Court.

The post The Inherent Power of Courts in Indian Judiciary appeared first on Legal Desire Media and Insights.

The Central Government shall, by notification, establish a Tribunal to be known as the Armed Forces Tribunal to exercise the jurisdiction, powers and authority conferred on it by or under this Act.[1]

Armed Force Tribunal consist of a chairperson such number of judicial and administrative members appointed by central government. The retired judges of the Supreme Court of India or retired chief justice of High courts are qualified for the appointment of chairperson. A bench consist of one judicial member and one administrative member. Retired judge of any High court is appointed as judicial member of Court. Any person who is at the position of Major general or above for a total period of at least three years in the army or equivalent rank in navy of air force can appointed as Administrative member. Judge advocate general in army or the air force not below the rank of Major General Commodore and Air Commodore can also be appointed as Administrative member. The President of India can appoint all the members after the consultation of Chief Justice of India.[2]

AFT has its Principal bench at New Delhi and eight regional benches at Jaipur, Chandigarh, Lucknow, Guwathati, Kolkata, Chennai, Kochi and Mumbai.

POWER AND PROCEDURE OF ARMED FORCE TRIBUNAL

The Armed Force Tribunal deals with all matter related to service except the Supreme Court or High Court exercising jurisdiction under article 226 and 227 of Constitution of India. The tribunal exercise all the jurisdiction, powers and authority, exercisable in AFT.

Any person aggrieved by an order, decision, finding or sentence passed by a court martial may prefer an appeal in such form, manner and within such time as may be prescribed. The Tribunal shall have power to grant bail to any person accused of an offence and in military custody, with or without any conditions which it considers necessary: The Tribunal shall allow an appeal against conviction by a court martial where the finding of the court martial is legally not sustainable due to any reason whatsoever; or the finding involves wrong decision on a question of law; or there was a material irregularity in the course of the trial resulting in miscarriage of justice, but, in any other case, may dismiss the appeal where the Tribunal considers that no miscarriage of justice is likely to be caused or has actually resulted to the appellant. The Tribunal may allow an appeal against conviction, and pass appropriate order thereon. The Tribunal may have the powers to substitute for the findings of the court martial, a finding of guilty for any other offence for which the offender could have been lawfully found guilty by the court martial and pass a sentence afresh for the offence specified or involved in such findings or if sentence is found to be excessive, illegal or unjust, the Tribunal may (i) remit the whole or any part of the sentence, with or without conditions; (ii) mitigate the punishment awarded (iii) commute such punishment to any lesser punishment or enhance the sentence awarded by a court martial:[3]

A person aggrieved by an order pertaining to any service matter may make an application to the Tribunal in such form and accompanied by such documents or other evidence and on payment of such fee as may be prescribed. On receipt of an application relating to service matters, the Tribunal can if satisfied after all due inquiry, as it may deem necessary, that it is fit for adjudication by it, admit such application; but where the Tribunal is not so satisfied, it may dismiss the application after recording its reasons in writing. For the purpose of adjudicating an application, the Tribunal have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit in respect of the following matters:

• Summoning and enforcing the attendance of any person and examining him on oath;
• Requiring the discovery and production of documents;
• Receiving evidence on affidavits;
• Subject to the provisions of sections 123 and 124 of the Indian Evidence Act,1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office;
• Issuing commissions for the examination of witnesses or documents;
• Reviewing its decisions;
• Dismissing an application for default or deciding it ex parte;
• Setting aside any order of dismissal of any application for default or any order passed by it ex parte; and
• Any other matter which may be prescribed by the Central Government.

The AFT has power to decide question of law and question of fact raised before the court.

In Lt. Col. Prithi Pal Singh Bedi etc v. Union of India & Others the Supreme Court of India observed that absence of even one Appeal from the order of Courts Martial is a glaring lacuna in the country regarding the rights of the Armed forces personnel. In the light of this Judgment, The Army Act was amended in 1992 but it could not fully implement those observations.

Any remedy available under the Army act, 1950 or Navy act, 1957 or Air Force Act, 1950 are settle by Armed Force Tribunal. AFT provide adjudication or trial of disputes and complaints with respect to commission, appointments, enrolment and conditions of services in respect of persons subject to the Army Act, 1950 or Navy act, 1957 or Air Force Act, 1950.

AFT provide provision for appeals arising out of the orders, finding or sentences of court-material held under the said act and for matters connected therewith or incidental thereto. Armed Force Tribunal is a forum of professionals with judicial and military background, a perfect platform to handle legal issues of the military.

[1] Section 4 of Armed Force Tribunal Act, 2007.

[2] Section 7 of AFT Act,2207

[3] http://aftdelhi.nic.in/index.php?option=com_content&view=article&id=4&Itemid=9

The post Scope of Armed Force Tribunal appeared first on Legal Desire Media and Insights.

The Supreme Court of India in Shayara Bano vs. Union of India & Others declared triple talaq as unconstitutional by 3:2 majorities. The judgment was delivered by five judges bench i.e.Justice Kurian Joseph, Justice UU Lalit, Justice RF Nariman, Justice Abdul Nazeer and Chief Justice Khehar Singh. Justice Nariman and Justice Lalit set triple talaq as unconstitutional, Justice Joseph set it aside on the ground of that it is against the teachings of Quran. While Chief Justice Khehar Singh and Justice S Abdul Nazeer were in favour of putting on hold for six months the practice of triple talaq and ask government to come out with a law in this regard.

After six days of continuous hearing the constitutional bench had reserved its verdict on several petitions which challenging the constitutional validity of triple talaq. Apart from petitions filed by Shayara Bano, Afreen Rahman, Ishrat Jahan, Gulshan Parveen and Farha Faiz the bench also refer the October 2015 references from the bench of Justice Anil R Dave and Adarsh Kumar Goelwho while dealing with Muslim Divorce cases. During the summer vacation Judges had examined the whether the practice of triple talaq among Muslim is fundamental to their religion or not. The Supreme Court set aside triple talaq saying the it was violative of Article 14 and 21 of the Constitution of India. After hearing the whole pleas filed by Muslim women who had challenged the practice of instant triple talaq where a man divorces his wife by uttering talaq thrice the bench considering the issue very carefully. The Supreme Court of India held that the practice of triple talaq is unconstitutional by 3:2 majority. “In view of different opinions recorded, by majority of 3:2 the practice of talaq-e-biddat- triple talaq set aside”.

After this historic decision many Muslim communities welcome the judgment and termed as “one of the best reforms” in the country after independence. Patronin-in-chief of Muslim Rashtriya Manch, Indresh Kumar termed this judgment historic. He said “It had shunted the mouth of Islamic fundamentalist” and proper law should be framed for it. Union Minister of India Arun jaitley said “Supreme Court’s judgment is victory for all who believed personal law must also be progressive and complainant with constitutional guarantees.” Senior BJP leader Sushil Kumar Modi compared the Supreme Court judgment on triple talaq to Sati Pratha ban on 1829 in British India. President of All India Majilis-e-Ittehadul said “We have to respect the judgment of Supreme Court. It is going to be a great Herculean task to implement this ground.”

The Supreme Court of India had given a historic judgment which gives the right to crores of women to live with equality and dignity. We have to salute the courageousness and fearlessness of women whom fight against triple talaq.

The post Ban on Triple Talaq: A great relief to Muslim women appeared first on Legal Desire Media and Insights.