Wednesday, June 9, 2021

Application under Section 19 of the Administrative Tribunals Act, 1985

DISTRICT: DARJEELING

BEFORE THE WEST BENGAL ADMINISTRATIVE TRIBUNAL, BIKASH BHABAN, SALT LAKE CITY, KOLKATA – 700 091.

Application under Section 19 of the Administrative Tribunals Act, 1985

Details of the application:

1. Particulars of the applicant: -

(i) Name of the Applicant	Dhruba Jung Tewari
(ii) Name of Father	Late Dal Bahadur Tewari
(iii) Designation and office in which employed	Lecturer in the Darjeeling Polytechnic, Kurseong,
(iv) Office Address	Darjeeling Polytechnic, Kurseong, P. O. and P. S. Kurseong, District Darjeeling, Pin 734 201
(v) Address of service of all notices	Ashok Kumar Singh, Advocate, Bar Association, Room No. 15, high Court, Calcutta
2. Particulars of the Respondents
(i) Name and/or designation of the respondents	1) State of West Bengal, Service through the Secretary, Department of Education, Government of West Bengal (Technical Education), Bikash Bhawan, 10^th Floor, Salt Lake City, Kolkata 700 091, District North 24-Parganas;
	2) The Deputy Secretary, Department of Technical Education and Training, Bikash Bhawan, 10^th Floor, Salt Lake City, Kolkata 700 091, District North 24-Parganas;
	3) The Director of Technical Education and Training, Department of Technical Education and Training, Bikash Bhawan, 10^th Floor, Salt Lake City, Kolkata 700 091, District North 24-Parganas;
	4) The Joint Secretary to the Government of West Bengal, Department of Technical Education and Training, Bikash Bhawan, 10^th Floor, Salt Lake City, Kolkata 700 091, District North 24-Parganas;
	5) The Principal, Darjeeling Polytechnic Kurseong, P. O. and P. S. Kurseong, District Darjeeling, Pin 734 201.
(ii) Designation and particulars of office	As stated in item 2 (i)
(iii) Office address of the respondents	As stated in item 2 (i)
(iv) Address of service of all notices	Upon the offices of the Respondents

3. Particulars of the Order against which application is made.

(i) Order No.	Memo No. 323-TET/1C-20T/2011
(ii) Date	29^th January, 2013
(iii) Passed by	Respondent No. 3
(iv) Subject in brief

The applicant was appointed as a Lecturer on in Civil Engineering of Government Polytechnic on a purely temporary basis on 6^th October, 1994 under the rewspondent no. 1, which was extended from time to time and by way of a subsequent Order dated 15^th December, 2009, his service was confirmed with effect from 1^st January, 2004 along with some other candidates in the respondent no. 5 college. The applicant was accorded approval to a vacant regular post of lecturer on 20^th February, 2002 with effect from 1^st January, 2001. Some candidates who were junior to the applicant were confirmed instantly within 1 year of joining service, while the applicant’s regularisation was kept in abeyance for 7 year and extended from time to time for reasons best known to the respondent authorities. The applicant sent several representations to the respondent authorities for antecedent effect of his service benefit with effect from 2001 and due to non-consideration of his representations, he was compelled to move This Hon’ble Tribunal, being O. A. No. 1213 of 2011 and on contested hearing, The Hon’ble Tribunal was pleased to dispose of the application filed by the applicant directing the respondent authorities to consider the grievances of the petitioner and treat the application as a representation and dispose of the same within a period of 4 months from the date of communication of The Order after giving opportunity of hearing to the applicant and pass a reasoned Order accordingly. That the matter was heard by the respondent no. 3 on 3^rd January, 2013 and was pleased to pass an Order on 29^th January, 2013 and was pleased to reject the prayer of the applicant without assigning any cogent reason. Challenging The impugned Order dated 29^th January, 2013, the applicant has moved This Hon’ble Tribunal for redressal of his grievances.

4. Jurisdiction of The Tribunal:

The applicant declares that the subject-matter of the inaction on part of the respondent authorities against which the applicant wants redressal is within the jurisdiction of The Tribunal.

5. Limitation:

The applicant further declares that the application is within the limitation prescribed in Section 21 of the Administrative Tribunals Act, 1985.

6. Facts of the case:

The facts of the case are given below: -

a) the applicant is a citizen of India and is permanently residing at the address mentioned in the Cause Title;

b) that the applicant states he was appointed on 6^th October, 1994 as lecturer in Civil Engineering of Government Polytechnic on a purely temporary basis by virtue of an Order dated 27^th September, 1994 vide vide Memo No. _{678-TET(Poly)}under the Government of West

^{4A – 10/94}

Bengal, Department of Technical Education and Training and Polytechnic Branch;

A Xerox copy of the appointment letter is annexed herewith and marked as Annexure “A” to the instant application.

c) that the applicant states that his initial appointment of 1994 was extended subsequently vide Orders dated 20^th February, 1995, 10^th July, 1995, 8^th February, 1996, 21^st June, 1996, 25^th February, 1997, 8^th June, 1998, 20^th May, 1999 and finally on 20^th February, 2002;
Xerox copies of the subsequent extended Orders are annexed herewith and collectively marked as Annexure `B` to the instant petition.

d) that the applicant states that Your applicant was designated as Senior Lecturer and he was to act as Officer-in-Charge of the Dargeeling Polytechnic, Kurseong vide Order dated 18^th June, 2003 vide Memo No. 656-TET (Poly)/4A-7/2000 with effect from 2^nd June, 2003.

A Xerox copy of said appointment letter, whereby he was appointed as Officer-in-Charge of Darjeeling Polytechnic vide Memo No. 656-TET (Poly)/4A-7/2000 dated 18^th June, 2003 is annexed herewith and marked as Annexure ‘C’ to this application.

e) that the applicant states that on the basis of The Order issued vide Memo No. 811-TETT(Poly)/16C-06/09 dated 15^th September, 2009, which was issued in pursuance of Finance Department Memo No. 6060-F dated 25^th June, 1979, it was stated that the applicant joined his service on 1^st January, 2001 and his date of confirmation of his service is with effect from 1^st January, 2004;
A Xerox copy of the said Order dated 15^th September, 2009 vide Memo No. 811-TETT(Poly)/16C-06/09 is annexed herewith and marked as Annexure “D” to this petition.

f) that the applicant states that he was flabbergasted to receive such type of Order as his first appointment was way back in 1994 and he was curious how his 7 years of service to the respondent authorities has gone down the drain;

g) that Your applicant states that the persons on the same fooring and similarly placed circumstances with that of Your applicant, who joined on temporary ad hoc basis even after the applicant and junior to him in service have been regularised and confirmed instantly without any delay within one year while the applicant’s regularisation was kept in abeyance for about 7 years and extended from time to time at the sweet will of the respondent authorities;

h) that Your applicant submits that Your applicant had brought the issue time and again to the knowledge of the authority but the respondent authorities kept the prayers in abeyance for indefinite period without sympathetically considering the prayer of the applicant for proper placement in the group of seniority and service benefits for his length of service since 1994, the initial appointment since it culminated into regular appointment and confirmation. Had there been no culmination into regular appointment and confirmation, then the prayer for consideration, then the prayer for consideration would not be solicited as a natural consequence;

i) that the applicant states that he made several representations before the respondent authorities for redressal of his just and legitimate grievances for getting the desired relief and as the respondent authorities chose neither to take any action nor giving any reply to the applicant’s prayer, the applicant had no other option but to approach This Hon’ble Tribunal due to non-consideration of the applicant’s prayer, being O. A. No. 1213 of 2011;
Your applicant craves leave to produce the copy of the application being O. A. No. 1213 of 2011 at the time of hearing, if required.

j) that the matter was taken up for hearing, by Sri S. K. Chakrabarti, The Hon’ble Member, West Bengal Administrative Tribunal on 26^th July, 2012;

k) that on contested hearing, The Hon’ble Sri S. K. Chakrabarti was pleased to dispose of the application by directing the respondent, particularly the respondent no. 3 to consider the grievances of the applicant regarding seniority as made out in the instant application, which may be treated as a representation along with all enclosures and t dispose of the same within a period of 4 months from the date of communication of This Order after giving opportunity of hearing to the applicant or his representative and pass a reasoned Order accordingly and the decision so taken shall be communicated to the applicant within following 2 weeks.
A Xerox copy of The Order dated 26^th July, 2012 passed by Sri S. K. Chakrabarti, The Hon’ble Member, West Bengal Administrative Tribunal in O. A. No. 1312 of 2011 is annexed herewith and marked as Annexure `E`.

l) that Your applicant states that in pursuance of The Order passed by The Hon’ble Tribunal, Your applicant duly communicated The Order to the respondent no. 3, which was received by the respondent no. 3 on 17^th October, 2012.
A Xerox copy of the communication letter of The Order of This Hon’ble Tribunal is annexed herewith and marked as Annexure ‘F’.

m) That Your applicant states that the respondent no. 3 duly communicated a letter to the applicant, a copy of which was sent to the Assistant Director of Technical Education and Training, West Bengal and the respondent no. 5 on 1^st December, 2012 vide Memo No. 2900/1(3)-tet/1C-20T/2011, whereby it was stated that pursuant to The Solemn Order dated 26^th July, 2012 passed by This Hon’ble Tribunal, hearing of the applicant has been fixed at 11.30 hrs. on 3^rd January, 2013 in the office chamber of the respondent no. 3;

A Xerox copy of the said letter 1^st December, 2012 vide Memo No. 2900/1(3)-tet/1C-20T/2011 is annexed herewith and marked as Annexure “G” to the instant application.

n) that the applicant states that he duly attended the hearing on the stipulated dated, i.e., 3^rd January, 2013;

o) that the applicant states that on contested hearing, the respondent no. 3 was pleased to reject the prayer of the application, with a vexatious reason stating inter alia that on scrutinising all the office records of the Department of Technical Education and Training, West Bengal, it is observed that no ad-hoc period of service of lecturers (who had been absorbed from ad-hoc service in terms of the above mentioned G. O.) were treated as regular service by the Technical Education and Training Department as there is no such Rules/Orders of the government for treating ad hoc service as regular service;

p) that the applicant states that the instant Order was passed in consonance with Rule 4 of West Bengal Services (Determination of Seniority) Rules, 1981 but the applicant submits that the Rule is violative of Article 14 of the Constitution of India and as such the same ought to be declared ultra vires as per the law laid down by The Hon’ble Apex Court;

q) that the applicant states that challenging The Order vide Memo No. 323-TET/1C-20T/2011 dated 29^th January, 2013, the applicant has approached the doorstep of This Hon’ble Tribunal, whereby the respondent no. 3 has rejected the claim of the petitioner for not giving his desired benefit since the date of joining his service in 1994, but the same was given with effect from 2001.

7. Reliefs sought:

In view of the facts mentioned in Paragraph 6 above, the applicant prays for the following reliefs:

(a) a Direction upon the concerned respondents to take into consideration the applicant’s prayer for appropriate service benefit with effect from the year 6^th October, 1994, i.e. date of first appointment;

(b) a Direction upon the respondent authorities to give all retrospective benefits to the applicant;

(c) a Direction that Proviso Clause of Rule 4 of the West Bengal (Determination of Seniority) Rules, 1981 be declared ultra vires Article 14 of the Constitution of India in view of the law laid down by The Hon’ble Apex Court;

(d) a Direction that The Order vide Memo No. 323-TET/1C-20T/2011 dated 29^th January, 2013 be set aside;

(e) a direction upon the concerned respondents to transfer and transmit the entire records of the case before This Learned Tribunal.

G R O U N D S F O R R E L I E F

(i) For that the respondent authorities acted illegally in not conforming to the principles of Natural Justice;

(ii) For that in view of the settled legal position laid down by The Hon’ble Apex Court that the applicant ought to be given retrospective benefit from 6^th October, 1994, i.e., the date of first appointment of service;

(iii) For that the Proviso Clause of Rule 4 of the West Bengal (Determination of Seniority) Rules, 1981 is ultra vires Article 14 of the Constitution of India in view of the law laid down by The Hon’ble Apex Court;

(iv) For that impugned vide Memo No. 323-TET/1C-20T/2011 dated 29^th January, 2013 is not tenable in law and liable to be set aside.

(v) For that the inaction on part of the respondent authorities is tainted due to lack of fairness, good faith bias and is against the safe-guards provided by the statute;

(vi) For that the grisly attitude on part of the respondent authorities is capricious and without any rational principle or guideline;

(vii) For that The Learned Tribunal has power to interfere in the instant case.

(viii) For that the applicant has been a victim of executive fiat.

8. Interim Order, if prayed for:

Pending final decision of the application, the applicant seeks issues of the following Interim Order: -

a Direction upon the concerned respondents to give the applicant appropriate service benefit with retrospective effect from the year 6^th October, 1994, i.e. date of first appointment.

9. Details of the remedies exhausted:

The applicant declares that he has availed of all the remedies available to him under the relevant Service Rules.

10. Matter not previously filed or pending with any Court.

The applicant further declares that the matter regarding which this application has been made is not presented before any Court of Law or any other authority or has not been rejected by any Court of Law of other authority.

11. Details of Index:

An index in duplicate containing the details of the documents to be relied upon is enclosed and given in details in the cover page of the application.

12. List of Enclosures

Xerox copy of the appointment letter	Annexure “A”
Xerox copies of the subsequent extended Orders	Annexure `B`
Xerox copy of appointment letter, whereby he was appointed as Officer-in-Charge of Darjeeling Polytechnic vide Memo No. 656-TET (Poly)/4A-7/2000 dated 18^th June, 2003	Annexure ‘C’
Xerox copy of the Order dated 15^th September, 2009 vide Memo No. 811-TETT(Poly)/16C-06/09	Annexure `D`
Xerox copy of The Order dated 26^th July, 2012 passed by Sri S. K. Chakrabarti, The Hon’ble Member, West Bengal Administrative Tribunal in O. A. No. 1312 of 2011	Annexure ‘E’
Xerox copy of the communication letter of The Order of This Hon’ble Tribunal	Annexure “F”
A Xerox copy of the letter dated 1^st December, 2012 vide Memo No. 2900/1(3)-TET/1C-20T/2011	Annexure `G`

V E R I F I C A T I O N

I, Sri Dhruba Jung Tewari, son of Late Dal Bahadur Tewari, age about 53 years, working as Lecturer in the Darjeeling Polytechnic, Kurseong, P. O. and P. S. Kurseong, District Darjeeling, Pin 734 201, do hereby verify that the contents of Paragraphs 1, 2, 3, 6, 8 and 11 are true to my personal knowledge and paragraphs 4, 5, 7, 9 and 10 are believed to be true on legal advice and that I have not suppressed any material fact.

Prepared in my office Signature of the applicant

and signed before me Identified and attested by me

at my Chamber

Advocate Advocate

Date:

Place:

The Registrar,

West Bengal State Administrate Tribunal,

Bikash Bhaban, Salat Lake,

Kolkata – 700 091

DISTRICT: DARJEELING

BEFORE THE WEST BENGAL ADMINISTRATIVE TRIBUNAL, BIKASH BHABAN, SALT LAKE CITY, KOLKATA – 700 091

An Application Under Section 19 Of The Administrative Tribunals Act, 1985.

O. A. No. of 2013

B E T W E E N

Dhruba Jung Tewari … Applicant

a n d

The State Of West Bengal And Others

…… respondents

Ashok Kumar Singh,

Advocate,

Bar Association, Room No. 15

High Court, Calcutta

Mobile No. 98368 29666

98830 70666

Administration of Criminal Justice System in India

Introduction

The essential object of criminal law is to protect society against criminals and law-breakers. For this purpose the law holds out threats of punishments to prospective lawbreakers as well as attempts to make the actual offenders suffer the prescribed punishments for their crimes. Therefore, criminal law, in its wider sense, consists of both the substantive criminal law and the procedural (or adjective) criminal law. Substantive criminal law defines offences and prescribes punishments for the same, while the procedural law administers the substantive law.

Therefore the two main statues which deals with administration of criminal cases in our country are criminal procedure code i.e. Crpc and Indian penal code i.e. Ipc being procedural and substantive respectively. However with the changing times the societal norms also change and people who are part of this society have to accept this change either by way of compromise or any other way in order to adjust and make them still the part of the very same society. In earlier days there was no criminal law in uncivilized society. Every man was liable to be attacked in his person or property at any time by any one. The person attacked either succumbed or over-powered his opponent. "A tooth for a tooth, an eye for an eye, a life for a life" was the forerunner of criminal justice [1] . As time advanced, the injured person agreed to accept compensation, instead of killing his adversary. Subsequently, a sliding scale came into existence for satisfying ordinary offences. Such a system gave birth to archaic criminal law.

For a long time, the application of these principles remained with the parties themselves, but gradually this function came to be performed by the State. The germs of criminal jurisprudence came into existence in India from the time of Manu. In the category of crimes Manu has recognized assault, theft, robbery, false evidence, slander, criminal breach of trust, cheating, adultery and rape. The king protected his subjects and the subjects in return owed him allegiance and paid him revenue. The king administered justice himself, and, if busy, the matter was entrusted to a Judge. If a criminal was fined, the fine went to the king's treasury, and was not given as compensation to the injured party. [2]

Later with the advent of western jurisprudence and passing of various charters and commissions and the advent of British rule the Indian society succumbed or we can probably say adjusted or adapted and aligned itself to the adversarial system of justice dispensation which prevails even today but with a lot of changes which have been time and again being made to it to suit to the needs of the changing times. In today’s world one needs to have a receptive, broad and open mind in order to solve various problems which are discussed in chapter one being faced by our justice system. Since it is evident that a change is required in our criminal justice system and there is a need to adhere to recourse to alternative methods of dispute resolution even in criminal cases instead of making a major change we firstly have to see the common features of a trial and the procedure which is followed by our courts or system for the administration of criminal justice and its flaws which is discussed as further. [3]

At the outset of this chapter the researcher would like to state that owing to paucity of time and nature of topic selected the researcher has limited his scope of study to a certain specific offences only and would be dealing with them and the lacuna which exists in the administration procedure followed and which particular technique of ADR can be used to curb the said problems and side by side would result in a fair and expeditious trial.

Procedure for Administration of Criminal Justice

The procedure of administration of criminal justice in our country is divided into three stages namely investigation, inquiry and trial. The Criminal procedure code 1973 provides for the procedure to be followed in investigation, inquiry and trial, for every offence under the Indian Penal Code or under any other law. Now before discussing the procedure of administration there are certain basic terms one should be aware of these being;

Cognizable offences.

Non cognizable offences.

Inquiry.

Investigation.

Section 2(c) of the Code defines ‘Cognizable Offence’ and ‘Cognizable case’ as follows: -

“Cognizable Offence" means an offence means an offence for which, and “Cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant".

Whereas section 2(l) defines “Non-cognizable offence" means an offence for which, and “non-cognizable case" means a case in which, a police officer has no authority to arrest without warrant"

Section 2 (g) defines “Inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or court; and section 2 (h) defines "Investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf,

Therefore for a dispute to be resolved the said case has to go through the three stages i.e. inquiry investigation and trial and after this process is completed the judgement of the court is passed by the judge who decides the case and its outcome. Although the said process appears to simple and plain on paper but in practicality is cumbersome and time consuming which is defeating the main essence of a criminal system i.e. fair and expeditious justice and hence warrants a change now.

The three stages: namely investigation, inquiry and trial are as follows

Investigation is a preliminary stage conducted by the police and usually starts after the recording of a First Information Report (FIR) in the police station. Section 154 [4] provides that any information received in the police station in respect of a cognizable offence shall be reduced into writing, got signed by the informant and entered in the concerned register. Section 156(1) requires the concerned officer to investigate the facts and circumstances of such a case without any order from the Magistrate in this behalf. If Magistrate receives information about commission of a cognizable offence he can order an investigation. In such cases citizen is spared the trouble and expense of investigating and prosecuting the case.

Section 157 [5] of the code provides for the procedure for investigation which is as; if the officer-in-charge of a police station suspects the commission of an offence, from statement of FIR or when the magistrate directs or otherwise, the officer or any subordinate officer is duty-bound to proceed to the spot to investigate facts and circumstances of the case and if necessary, takes measures for the discovery and arrest of the offender. It primarily consists of ascertaining facts and circumstances of the case, includes all the efforts of a police officer for collection of evidence: proceeding to the spot; ascertaining facts and circumstances; discovery and arrest of the suspected offender; collection of evidence relating to the commission of offence, which may consist of the examination of various persons including the accused [6] and taking of their statements in writing and the search of places or seizure of things considered necessary for the investigation and to be produced at the trial; formation of opinion as to whether on the basis of the material collected there is a case to place the accused before a magistrate for trial and if so, taking the necessary steps for filing the charge-sheet. The investigation procedure ends with a submission of a police report to the magistrate under section 173 of the code this report is basically a conclusion which an investigation officer draws on the basis of evidence collected.

Now the second phase is, Inquiry dealt under sections 177-189 of the code which consists of a magistrate, either on receiving a police report or upon a complaint by any other person, being satisfied of the facts. Lastly, the third stage is trial. Trial is the judicial adjudication of a person’s guilt or innocence. Under the Crpc, criminal trials have been categorized into three divisions having different procedures, called warrant, summons and summary trials.

Section 2(x) of the Crpc defines Warrant-case i.e. “Warrant-case" means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years; A warrant case relates to offences punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Trial of warrant cases is dealt under sections 238-250 of the code.

The Crpc provides for two types of procedure for the trial of warrant cases i.e. By a magistrate, triable by a magistrate, viz., those instituted upon a police report and those instituted upon complaint. In respect of cases instituted on police report, it provides for the magistrate to discharge the accused upon consideration of the police report and documents sent with it. In respect of the cases instituted otherwise than on police report, the magistrate hears the prosecution and takes the evidence. If there is no case, the accused is discharged. If the accused is not discharged, the magistrate holds regular trial after framing the charge, etc. In respect of offences punishable with death, life imprisonment or imprisonment for a term exceeding seven years, the trial is conducted in a session’s court after being committed or forwarded to the court by a magistrate.

A summons case means a case relating to an offence not being a warrant case, implying all cases relating to offences punishable with imprisonment not exceeding two years. In respect of summons cases, there is no need to frame a charge. The court gives substance of the accusation, which is called “notice", to the accused when the person appears in pursuance to the summons. The court has the power to convert a summons case into a warrant case, if the magistrate thinks that it is in the interest of justice. The provisions regarding the procedure to be followed in summons case is dealt under section 251-259 of the Crpc.

Summary trials are dealt under section 260 – 265 of the Crpc the procedure is as provided; the high court may empower magistrates of first class to try certain offences in a summary way where as second class magistrates can summarily try an offence only if it is punishable only with a fine or imprisonment for a term not exceeding six months. In a summary trial no sentence of imprisonment for a term exceeding three months can be passed in any conviction. The particulars of the summary trial are entered in the record of the court and in every case which is tried summarily in which the accused does not plead guilty the magistrate records the substance of the evidence and a judgment containing a brief statement of the reasons for the finding.

The common features of the trials in all three of the aforementioned procedures may be roughly broken into the following distinct stages:

1. Framing of charge or giving of notice.

This is the beginning of a trial. At this stage, the judge is required to weigh the evidence for the purpose of finding out whether or not a prima facie case against the accused has been made out. In case the material placed before the court discloses grave suspicion against the accused that has not been properly explained, the court frames the charge and proceeds with the trial. If, on the contrary, upon consideration of the record of the case and documents submitted and after hearing the accused person and the prosecution in this behalf, the judge considers that there is not sufficient ground for proceeding, the judge discharges the accused and records reasons for doing so. [7]

The words “not sufficient ground for proceeding against the accused" mean that the judge is required to apply a judicial mind in order to determine whether a case for trial has been made out by the prosecution. It may be better understood by the proposition that whereas a strong suspicion may not take the place of proof at the trial stage, yet it may be sufficient for the satisfaction of the court in order to frame a charge against the accused person.

The charge is read over and explained to the accused. If pleading guilty, the judge shall record the plea and may, with discretion convict him however if the accused pleads not guilty and claims trial, then trial begins. Trial starts after the charge has been framed and the stage preceding it is called inquiry. After the inquiry, the charge is prepared and after the formulation of the charge the trial of the accused starts. A charge is nothing but formulation of the accusation made against a person who is to face trial for a specified offence. It sets out the offence that was allegedly committed.

2. Recording of prosecution evidence

After the charge is framed, the prosecution is asked to examine its witnesses before the court. The statement of witnesses is on oath. This is called examination-in-chief. The accused has a right to cross-examine all the witnesses presented by the prosecution [8] .

Section 309 of the Crpc further provides that the proceeding shall be held as expeditiously as possible and in particular, when the examination of witnesses has once begun, the same shall be continued day-to-day until all the witnesses in attendance have been examined.

3. Statement of accused

The court has powers to examine the accused at any stage of inquiry or trial for the purpose of eliciting any explanation against incriminating circumstances appearing before it. However, it is mandatory for the court to question the accused after examining the evidence of the prosecution if it incriminates the accused. This examination is without oath and before the accused enters a defence. The purpose of this examination is to give the accused a reasonable opportunity to explain incriminating facts and circumstances in the case.

4. Defence evidence

If after taking the evidence for the prosecution, examining the accused and hearing the prosecution and defence, the judge considers that there is no evidence that the accused has committed the offence, the judge is required to record the order of acquittal [9] .However, when the accused is not acquitted for absence of evidence, a defence must be entered and evidence adduced in its support. The accused may produce witnesses who may be willing to depose in support of the defence. The accused person is also a competent witness under the law. The accused may apply for the issue of process for compelling attendance of any witness or the production of any document or thing. The witnesses produced by him are cross-examined by the prosecution [10] .

The accused person is entitled to present evidence in case he so desires after recording of his statement. The witnesses produced by him are cross-examined by the prosecution. Most accused persons do not lead defence evidence. One of the major reasons for this is that India follows the common law system where the burden of proof is on the prosecution, and the degree of proof required in a criminal trial is beyond reasonable doubt.

5. Final arguments

This is the final stage of the trial. The provisions of the Crpc provide that when examination of the witnesses for the defence, if any, is complete, the prosecutor shall sum up the prosecution case and the accused is entitled to reply. The same is provided for under section 234 of the code [11] .

6. Judgment

After conclusion of arguments by the prosecutor and defence, the judge pronounces his judgment in the trial [12] . Here it is relevant to mention that the Crpc also contains detailed provisions for compounding of offences. It lists various compoundable offences under table 1 of the Indian Penal Code which may be compounded by the specified aggrieved party without the permission of the court and certain offences under table 2 that can be compounded only after securing the permission of the court compounding of offences also brings a trial to an end [13] .

Under the Crpc an accused can also be withdrawn from prosecution at any stage of trial with the permission of the court. If the accused is allowed to be withdrawn from prosecution prior to framing of charge, this is a discharge, while in cases where such withdrawal is allowed after framing of charge, it is acquittal [14] .

The above described is the process how a trial takes place for dispensation of a criminal case although this six stepped procedure looks plain and simple it suffers from many inherent lacunas which become the reasons for delay and hampers an expeditious trial and not to forget the option of appeal is again there where the state or the criminal has option to appeal to appellate court and as well as seek a permission to file a special leave petition to the supreme court where in again all this process is repeated except for the fact that the supreme court only deals with cases where there is a question of law involved.

The following are some of the problems of our trial procedure which pose as hurdles to speedy dispensation of cases;

Investigation though is the foundation of the Criminal Justice System but is unfortunate that it is not trusted by the laws and the courts themselves the same can be explained by a perusal of sections 161 and 162 of the Criminal Procedure Code which provides that the statements of the witnesses examined during investigation are not admissible and that they can only be used by the defence to contradict the maker of the statement, the confession made by accused is also not admissible in evidence. The statements recorded at the earliest stage normally have greater probative value but can't be used in evidence.

It is common knowledge that police often use third degree methods during investigation and there are also allegations that in some cases they try to suppress truth and put forward falsehood before court for reasons such as corruption or extraneous influences political or otherwise. Unless the basic problem of strengthening the foundation is solved the guilty continue to escape conviction and sometimes even innocent persons may get implicated and punished.

Secondly the police officers face excessive work load due to lack of manpower and the public at large is non co-operative because of the public image of the police officers and there is lack of coordination with other sub-system of the Criminal Justice System in crime prevention to add to the agony there is a lot of misuse of bail and anticipatory bail provisions, more over due to Political and executive interference police is directed for other tasks which are not a part of police functions. It may be apt to point out that the rank of the IO investigating a case also has a bearing on the quality of investigation. The minimum rank of a station house officer (SHO) in the country is sub inspector (SI). However, some of the important police stations are headed by the officers of the rank of Inspector. It has been observed that investigations are mostly handled by lower level officers, namely, HC and ASI etc.

The senior officers of the police stations, particularly the SHOs generally do not conduct any investigations themselves. This results in deterioration of quality of investigations. It is therefore necessary to address ourselves to the problems and strengthen the investigation agency. Furthermore the common citizen is not aware of the distinction between cognizable and non-cognizable offences. There is a general feeling that if anyone is a victim of an offence the place he has to go for relief is the police station. It is very unreasonable and awkward if the police were to tell him that it is a non-cognizable offence and therefore he should approach the Magistrate as he cannot entertain such complaint.

Thirdly, the investigation of a criminal case, however good and painstaking it may be, will be rendered fruitless, if the prosecution machinery is indifferent or inefficient. One of the well-known causes for the failure of a large number of prosecutions is the poor performance of the prosecution. In practice, the accused on whom the burden is little engages a very competent lawyer, while, the prosecution, on whom the burden is heavy to prove the case beyond reasonable doubt, is very often represented by persons of poor competence, and the natural outcome is that the defence succeeds in creating the reasonable doubt on the mind of the court.

Fourthly, the most notorious problem in the functioning of the courts, particularly in the trial courts is the granting of frequent adjournments on most flimsy grounds. This malady has considerably eroded the confidence of the people in the judiciary. Adjournments contribute to delays in the disposal of cases. They also contribute to hardship, inconvenience and expense to the parties and the witnesses. The witness has no stake in the case and comes to assist the court to dispense justice. He sacrifices his time and convenience for this. If the case is adjourned he is required to go to the court repeatedly. He is bound to feel unhappy and frustrated. This also gives an opportunity to the opposite party to threaten or induce him not to speak the truth therefore the right to speedy trial is thwarted by repeated adjournments.

Fifthly, one of the major causes for delay even in the commencement of trial of a criminal case is service of summons on the accused. The Code of Criminal Procedure provides for various modes of service. Section 62 of the Code provides that summons shall be served by a Police Officer, or subject to such rules being framed by the State Government, by any officer of the Court or other public servant. Unfortunately rules have not been framed by many State Governments to enable service otherwise than through police officers. Since the Criminal Procedure Code itself provides for other means of service namely through registered post in the case of witnesses, it should also provide for service on accused through facilities of courier service, fax where available.

Lastly our country suffers from low judge population ratio because of which the pendency of work increases therefore the judges take a long time in delivering judgments this again adds to enlargement of the time frame of a case to be decided from its intuition point because of which the litigants feel that litigation is a time consuming and lengthy procedure the two areas which need special attention for improving the quality of justice are prescribing required qualifications for the judges and the quality of training being imparted in the judicial academics.

Since the above problems curb the speedy dispensation of cases the researcher in order to provide or seek a solution for remedying and trying to move away from the old colonial shackles has undertaken to research upon this topic where the main research ground would be whether introduction ADR techniques in certain criminal cases would lead to speedy dispensation of cases without calling in for a major infrastructural change for this very same purpose the researcher has chosen six particular sections which would be dealt further where each section would be explained along with a its classification and which method of trial is followed and by using a certain technique of ADR in trial of that particular offence would lead to expeditious and fair trial as when compared to the traditional litigation method ,

The researcher owing to paucity of time and since compulsory compromise is not possible all criminal cases the researcher has undertaken to propose the following;

Adding more offences under section 320(1) table from the table under section 320(2) i.e. offence which are to be compounded with the permission of the court should now be allowed to be compounded without eh permission of the court where both the parties agree to settle the matter and refer the said matters for mediation instead of normal trial procedure.

Sending all maintenance and family discord matters under section 125 Crpc for mediation using family group conferencing method instead of normal court trial.

Using victim offender mediation method for cases under section 323 IPC i.e. HURT.

Using victim offender mediation method for cases under section 379 IPC i.e. Theft.

Using victim offender mediation method or early neutral evaluation method for cases of Criminal breach of trust dealt under section 405-408 IPC.

Sending cases of defamation dealt under section 499 IPC for mediation.

For the sake of brevity the researcher would divide the scope of introducing ADR techniques into two chapters being scope of ADR in Code of Criminal procedure where in section 320 and section 125 would be dealt with and the next following chapter would be discussing about introducing ADR techniques in the substantive criminal law i.e. IPC and would deal each section as a sub part of the next chapters where in the following would be its sub –sub parts;

Content of the section and its explanation.

Which technique of ADR to be used for resolution of that dispute and matching the dispute resolution process which would lead fair and expeditious trial.

A case law showing delay caused due to following of normal trial procedure with reference to that particular section and how usage of a particular technique of ADR would resolve the said problem or where already such changes are being incorporated or have been recommended by the Courts.

Now further we would move to the next chapter where in the researcher would discuss about introducing ADR techniques in the Code of criminal procedure, 1973.

Advocates ground in Limitation - Judgment summarize

The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the “sufficient cause” which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6974 of 2013

Basawaraj & Anr.

Versus

The Spl. Land Acquisition Officer

Citation;(2013) 14 SCC 81 1.

1. These appeals have been preferred against the common
impugned judgment and order dated 10.6.2011 passed by the High
Court of Karnataka at Gulbarga in MFA Nos.10765 and 10766 of
Page 2
2007 by which the appeals of the appellants under Section 54 of the
Land Acquisition Act, 1894 (hereinafter referred to as `the Act’) have
been dismissed on the ground of limitation.
2. For the purpose of convenience, the facts of C.A. No. 6974 of
2013 are taken, which are as under:
A. The land of the appellants in Survey No.417/2 admeasuring 4
acres and Survey No.418 admeasuring 23 acres, 1 guntha; and 5 acres,
23 gunthas of phut kharab situated in the revenue estate of village
Mahagaon, Tehsil and Distt. Gulbarga was acquired in pursuance of
notification dated 23.4.1994 under Section 4(1) of the Act.
B. After completing the formalities as required under the Act, an
award under Section 11 of the Act was made on 23.10.1997 fixing the
market value of the land at the rate of Rs.11,500/- per acre and
Rs.100/- per acre in respect of phut kharab land.
C. The appellants preferred references under Section 18(1) of the
Act for enhancement of compensation and the reference court vide
award dated 28.2.2002 fixed the market value of the land from
Rs.31,500/- to Rs.70,000/- per acre depending upon the quality and

geographical situation of the land. For phut kharab land, assessment
was made at the rate of Rs.1,000/- per acre.
D. Aggrieved, the appellants filed appeals under Section 54 of the
Act before the High Court on 16.8.2007 with applications for
condonation of delay. The applications for condonation of delay
stood rejected as the High Court did not find any sufficient cause to
condone the delay.
Hence, these appeals.
3. Shri Basava Prabhu S. Patil, learned senior counsel appearing
on behalf of the appellants, has submitted that the High Court
committed an error in not condoning the delay as there was sufficient
cause for not approaching the High Court within time. One of the
appellants was suffering from ailments and it was in itself a good
ground for condonation of delay. The High Court ought to have kept
in view that in a large number of identical matters, huge delays had
been condoned on the condition that the claimant would not be
entitled for interest of the delay period, thus, the High Court itself has
given discriminatory and contradictory verdicts which itself is a good

ground for interference by this Court. The appeals deserve to be
allowed.
4. Per contra, Shri Naveen R. Nath, learned counsel appearing on
behalf of the respondent, has opposed the appeal contending that the
delay can be condoned keeping in mind the provisions contained in
Section 5 of the Limitation Act, 1963 (hereinafter referred to as the
‘Act 1963’). The order of condonation of delay is to be based on
sound legal parameters laid down by this Court. No condition can be
imposed while condoning the delay. The question whether a claimant
should be awarded interest or not would arise at the time of final
hearing of the appeal and such condition cannot be imposed for
admitting a time barred appeal. If the High Court has committed such
a grave error in other cases, that cannot be a ground for interference
by this Court as it is a settled legal proposition that doctrine of
equality does not apply for perpetuating an illegal and erroneous
order. The appeals before the High Court were hopelessly time barred
as the same had been preferred after about 5-1/2 years and no
satisfactory explanation could be furnished in the applications for
condonation of delay for not approaching the court in time. Thus, the
appeals lack merit and are liable to be dismissed.

5. We have considered the rival submissions made by the learned
counsel for the parties and perused the record.
6. Admittedly, there was a delay of 5-1/2 years in filing the said
appeals under Section 54 of the Act before the High Court. The only
explanation offered for approaching the court at such a belated stage
has been that one of the appellants had taken ill.
7. Shri Patil, learned senior counsel, has taken us through a large
number of judgments of the High Court wherein delay had been
condoned without considering the most relevant factor i.e. “sufficient
cause” only on the condition that applicants would be deprived of
interest for the delay period. These kinds of judgments cannot be
approved. The High Court while passing such unwarranted and
uncalled for orders, failed to appreciate that it was deciding the
appeals under the Act and not a writ petition where this kind of order
in exceptional circumstances perhaps could be justified.
8. It is a settled legal proposition that Article 14 of the
Constitution is not meant to perpetuate illegality or fraud, even by
extending the wrong decisions made in other cases. The said

provision does not envisage negative equality but has only a positive
aspect. Thus, if some other similarly situated persons have been
granted some relief/ benefit inadvertently or by mistake, such an order
does not confer any legal right on others to get the same relief as well.
If a wrong is committed in an earlier case, it cannot be perpetuated.
Equality is a trite, which cannot be claimed in illegality and therefore,
cannot be enforced by a citizen or court in a negative manner. If an
illegality and irregularity has been committed in favour of an
individual or a group of individuals or a wrong order has been passed
by a Judicial forum, others cannot invoke the jurisdiction of the higher
or superior court for repeating or multiplying the same irregularity or
illegality or for passing a similarly wrong order. A wrong
order/decision in favour of any particular party does not entitle any
other party to claim benefits on the basis of the wrong decision. Even
otherwise, Article 14 cannot be stretched too far for otherwise it
would make functioning of administration impossible.
(Vide: Chandigarh Administration & Anr. v. Jagjit Singh & Anr.,
AIR 1995 SC 705, M/s. Anand Button Ltd. v. State of Haryana &
Ors., AIR 2005 SC 565; K.K. Bhalla v. State of M.P. & Ors., AIR

2006 SC 898; and Fuljit Kaur v. State of Punjab, AIR 2010 SC
1937).
9. Sufficient cause is the cause for which defendant could not be
blamed for his absence. The meaning of the word "sufficient" is
"adequate" or "enough", inasmuch as may be necessary to answer the
purpose intended. Therefore, the word "sufficient" embraces no more
than that which provides a platitude, which when the act done suffices
to accomplish the purpose intended in the facts and circumstances
existing in a case, duly examined from the view point of a reasonable
standard of a cautious man. In this context, "sufficient cause" means
that the party should not have acted in a negligent manner or there was
a want of bona fide on its part in view of the facts and circumstances
of a case or it cannot be alleged that the party has "not acted
diligently" or "remained inactive". However, the facts and
circumstances of each case must afford sufficient ground to enable the
Court concerned to exercise discretion for the reason that whenever
the Court exercises discretion, it has to be exercised judiciously. The
applicant must satisfy the Court that he was prevented by any
“sufficient cause” from prosecuting his case, and unless a satisfactory
explanation is furnished, the Court should not allow the application for condonation of delay. The court has to examine whether the

mistake is bona fide or was merely a device to cover an ulterior
purpose. (See: Manindra Land and Building Corporation Ltd. v.
Bhootnath Banerjee & Ors., AIR 1964 SC 1336; Lala Matadin v.
A. Narayanan, AIR 1970 SC 1953; Parimal v.Veena @ Bharti AIR
2011 SC 1150; and Maniben Devraj Shah v. Municipal
Corporation of Brihan Mumbai AIR 2012 SC 1629.)
10. In Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993 this
Court explained the difference between a “good cause” and a
“sufficient cause” and observed that every “sufficient cause” is a good
cause and vice versa. However, if any difference exists it can only be
that the requirement of good cause is complied with on a lesser degree
of proof that that of “sufficient cause”.
11. The expression “sufficient cause” should be given a liberal
interpretation to ensure that substantial justice is done, but only so
long as negligence, inaction or lack of bona fides cannot be
imputed to the party concerned, whether or not sufficient cause has
been furnished, can be decided on the facts of a particular case and no
straitjacket formula is possible. (Vide: Madanlal v. Shyamlal, AIR

2002 SC 100; and Ram Nath Sao @ Ram Nath Sahu & Ors. v.
Gobardhan Sao & Ors., AIR 2002 SC 1201.)
12. It is a settled legal proposition that law of limitation may
harshly affect a particular party but it has to be applied with all its
rigour when the statute so prescribes. The Court has no power to
extend the period of limitation on equitable grounds. “A result
flowing from a statutory provision is never an evil. A Court has no
power to ignore that provision to relieve what it considers a distress
resulting from its operation.” The statutory provision may cause
hardship or inconvenience to a particular party but the Court has no
choice but to enforce it giving full effect to the same. The legal maxim
“dura lex sed lex” which means “the law is hard but it is the law”,
stands attracted in such a situation. It has consistently been held that,
“inconvenience is not” a decisive factor to be considered while
interpreting a statute.
13. The Statute of Limitation is founded on public policy, its aim
being to secure peace in the community, to suppress fraud and
perjury, to quicken diligence and to prevent oppression. It seeks to

bury all acts of the past which have not been agitated unexplainably
and have from lapse of time become stale.
According to Halsbury's Laws of England, Vol. 24, p. 181:
"330. Policy of Limitation Acts. The courts have
expressed at least three differing reasons
supporting the existence of statutes of limitations
namely, (1) that long dormant claims have more of
cruelty than justice in them, (2) that a defendant
might have lost the evidence to disprove a stale
claim, and (3) that persons with good causes of
actions should pursue them with reasonable
diligence".
An unlimited limitation would lead to a sense of insecurity and
uncertainty, and therefore, limitation prevents disturbance or
deprivation of what may have been acquired in equity and justice by
long enjoyment or what may have been lost by a party's own inaction,
negligence' or laches.
(See: Popat and Kotecha Property v. State Bank of India Staff
Assn. (2005) 7 SCC 510; Rajendar Singh & Ors. v. Santa Singh &
Ors., AIR 1973 SC 2537; and Pundlik Jalam Patil v. Executive
Engineer, Jalgaon Medium Project, (2008) 17 SCC 448).

14. In P. Ramachandra Rao v. State of Karnataka, AIR 2002 SC
1856, this Court held that judicially engrafting principles of limitation
amounts to legislating and would fly in the face of law laid down by
the Constitution Bench in A. R. Antulay v. R.S. Nayak, AIR 1992
SC 1701.
15. The law on the issue can be summarised to the effect that where
a case has been presented in the court beyond limitation, the applicant
has to explain the court as to what was the “sufficient cause” which
means an adequate and enough reason which prevented him to
approach the court within limitation. In case a party is found to be
negligent, or for want of bonafide on his part in the facts and
circumstances of the case, or found to have not acted diligently or
remained inactive, there cannot be a justified ground to condone the
delay. No court could be justified in condoning such an inordinate
delay by imposing any condition whatsoever. The application is to be
decided only within the parameters laid down by this court in regard
to the condonation of delay. In case there was no sufficient cause to
prevent a litigant to approach the court on time condoning the delay
without any justification, putting any condition whatsoever, amounts

to passing an order in violation of the statutory provisions and it
tantamounts to showing utter disregard to the legislature.
16. In view of above, no interference is required with impugned
judgment and order of the High Court. The appeals lack merit and
are, accordingly, dismissed.
….………………..........J.
(DR. B.S. CHAUHAN)
…...................................J.
(S.A. BOBDE)
NEWDELHI;
August 22, 2013