Focus Areas and Considerations for Bail in POCSO ACT

Focus Areas and Considerations for Bail in POCSO ACT

POCSO is a special act enacted with the objective to protect children from sexual assault and to ensure that the person accused of crime under the POCSO Act, should not get away with the accusations as easily’, therefore section 30 was incorporated in the Act, which presumes culpable mental state of the accused unless rebutted in accordance with the law.

Because of the sensitivity of the matter (child being the victim) and stringent provisions involved (presumption against the accused), it is very difficult to seek bail in POCSO ACT, in my this column I will be sharing some focus areas and considerations, wherein the accused persons were granted Bails’ in POCSO Act.

  1. Delay without reasonable explanation in lodging complaint or even not disclosing the matter to her mother for a period of 4 years gives benefit to the accused and bail was granted. (Anu Devi Vs State of Himachal Pradesh Crl MP 187 of 2019).
  2. Material difference in victims statement recorded under section 161, 164 Cr.P.C gives benefit to the accused and bail was granted (Amarjeet Panday Vs State of NCT of Delhi Bail Appln. 2340/2017).
  3. Substantial improvement in victims statement, unexplained delay in lodging an FIR gives benefit to the accused and bail was granted (Bhusan Malik Vs State of NCT of Delhi Bail Appln. 1545/2018).
  4. Victim frequent changing her stand gives benefit to the accused and bail was granted (Dilshad Khan Vs State Bail Appln. 2350/2018).
  5. Friendly relation between the accused and prosecutrix established , no independent witness stating anything incrimination against the petitioner, investigation complete and chargesheet already filed, benefit to accused and bail was granted (Jatin Sethi Vs State Bail Appln. 1995/2018).
  6. Victim and accused already got married, victim do not support the case of the prosecution in her statement recorded under section 164 Cr.P.C and victim is blessed with a daughter from accused, benefit to accused and bail was granted (Manoj Kumar Vs State Bail Appln. 2552/2019).
  7. Victim is aged 17 years and 11 months, was in friendship with the accused since 3-4 years, was in touch with the accused on social media and even on the date of alleged incident the victim and the accused were touch on social media, FIR was merely registered on the pressure of the family members of the victim, benefit to the accused and bail was granted (Shashank Vs State of NCT of Delhi Bail Appln. 692/2019).
  8. Since the accused is in custody for more than four years, whereas section 35 of the Act postulates the trail to be concluded within one year from the date of court taking cognizance, benefit to the accused and bail was granted ( Sanjay Mahawal Vs State of NCT of Delhi Bail Appln. 18/2020).
  9. Victim already aged 21 years, no material to corroborate except bald statement made by the victim, forensic or medical report does not support forcible relationship with the victim, prosecutrix already examined and cross-examined and as such there is no possibility that the victim be influenced, benefit to accused is given and bail is granted (Paramdeep Vs State of NCT of Delhi Bail Appln. 656/2019).
  10. Prosecutrix herself stated that there was a quarrel that took place between her family on one side and between the family of the accused on the other side, to which no enquiry was made by the police rather “ at the instance of the police, she was made to write the present complaint”, also in her statement U/S 164 Cr.P.C before the Magistrate the prosecutrix informed the Court that “ Whatever she stated was told by the police and neighbors”, keeping the abovementioned facts,benefit to accused and bail was granted (Rajeev Chauhan Vs State of NCT of Delhi Bail Appln. 284/2018).
  11. Prosecutrix does not object to grant of bail, also keeping in mind that the accused is only 25 years of age, his subsequent conduct as well as the assurances given by the family of the accused, benefit to accused and bail was granted (Rajeev Ghaloth Vs State of NCT of Delhi Bail Appln. 2116/2018).
  12. Testimony of the prosecutrix before the trial court has already been recorded and there is no possibility that the prosecutrix can be influenced, benefit to accused and bail was granted (Ramkishan @ Sonu Vs State of NCT of Delhi Bail Appln. 599/2018).
  13. There was friendship between the petitioner as well as the complainant for the last four years and the complaint has been lodged at the behest of her parents, Call Details Record (CDR) obtained by the Investigating Officer shows that even after the incident as late 9 pm in the evening of 07.11.2017 and on the following day, i.e. on 09.11.2017, there were calls made by the complainant to the phone of the petitioner, lasting in one instance for 1105 seconds, benefit to accused was given and bail was granted (Sohan Kumar @ Sonu Tomar Vs State of NCT of Delhi Bail Appln. 1294/2018).
  14. Prosecutrix was a friend of the petitioner, used to roam around with the petitioner and had written several love letters to the petitioner, which are available with the petitioner including a letter in which she has used her own blood to write “sorry, I love you”, the complaint has been lodged at the behest of the family members, chargesheet has already been filed, benefit to accused and bail was granted (Sunny Vs State of NCT of Delhi Bail Appln. 2558/2017).
  15. Allegation against the petitioner for sexually assaulting the minor girl were false, as the complainant party demanded money from the petitioner that he refused to give. From the medical report also, the allegation was not proved. Also the charge sheet was not filed against the petitioner on expiry of 90 days. Therefore, default bail was granted to the petitioner (Paras Ram v. State of Rajasthan, 2019(3) Cri.CC 487: 2019(4) Crimes 455).
  16. The ingredients of offence are not made out against the applicant, since the victim herself left her house and went to the applicant. She was not enticed away by him and she also married the applicant on her sweet will. Also the applicant has no criminal history to his credit and he is languishing in jail since 13.11.2019. Thus, court agreed to grant bail under certain conditions (Kamlesh Kumar vs State Of U.P., CRIMINAL MISC. BAIL APPLICATION No. – 13901).
  17. Since in view of the restricted working of the Courts due to pandemic COVID-19 situation, the trial was likely to take some time and in view of the facts that the petitioner herein has been in custody since 08.06.2019 and that the statements of the material witnesses have been recorded, no useful purpose would have been served in keeping the petitioner behind bars. Thus, petitioner was released on bail on certain conditions (Ajaib Singh Alias Naibu vs State Of Punjab, CRM-M-11469-2020).

Though it is difficult to seek bail in POCSO Act, but if we focus on the parameters basis which bails were already granted to accused persons, the courts can grant bail by imposing certain conditions in the interest of Justice.

Right To Travel Abroad: Fundamental Right To Dignity & Personal Liberty

Right To Travel Abroad: Fundamental Right To Dignity & Personal Liberty

Generally the courts in India, while granting bail to an accused imposes a condition that the accused should surrender his passport and will not leave the jurisdiction of the court without prior permission of the court or if the need arises may issue a look out notice to ensure that the accused is available at all times to join investigation and to face the charges against him.

Now question arises is if there is a look out circular issued against an accused or such condition imposed by the court, the accused cannot travel outside India?

For the first time Hon’ble Supreme Court in Satwant Singh Sawhney vs D. Ramarathnam, Assistant … on 10 April, 1967 has held that Right to travel and to go outside the country is included in the right to personal liberty within the meaning of Article 21 of the Constitution of India and no person can be deprived of that right except according to the procedure established by law.

Hon’ble Supreme Court in Maneka Gandhi vs Union Of India on 25 January, 1978 has held that:

The ‘right to life’ as embodied in Article 21 is not merely confined to animal existence or survival but it includes within its ambit the right to live with human dignity and all those aspects of life which go to make a man’s life meaningful, complete and worth living. It also ruled that the expression ‘Personal Liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights that go to constitute the personal liberties of a man.

In the case of Kharak Singh vs The State Of U. P. & Others on 18 December, 1962 the Supreme Court quoted and held that:

The term “life” as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by amputation of an armored leg or the pulling out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world.

In Francis Coralie Mullin vs The Administrator, Union … on 13 January, 1981, Hon’ble Supreme Court has observed that:

“The right to live includes the right to live with human dignity and all that goes along with it, viz., the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings and must include the right to basic necessities the basic necessities of life and also the right to carry on functions and activities as constitute the bare minimum expression of human self.”

In Parvez Noordin Lokhandwalla vs State Of Maharashtra on 1 October, 2020, Hon’ble Supreme Court has allowed the appellant accused of serious offences to travel to United States for a period of eight weeks saying that:

“We find, on the basis of the previous record of the appellant, that there is no reason or justification to deny him the permission which has been sought to travel to the US for eight weeks. The appellant is an Indian citizen and holds an Indian passport. While it is true that an FIR has been lodged against the appellant, that, in our view, should not in itself prevent him from travelling to the US, where he is a resident since 1985, particularly when it has been drawn to the attention of the High Court and this Court that serious consequences would ensue in terms of the invalidation of the Green Card if the appellant were not permitted to travel.”

And finally Hon’ble Supreme Court recently in Satish Chandra Verma Vs Union of India in 2020 has held that the right to travel abroad is an important basic human right and also extends to private life, the Supreme Court held in its recent order.

While hearing an appeal filed by IPS Officer Satish Chandra Verma, who was denied permission to travel abroad on account of a pending departmental inquiry against him, the Supreme Court Bench of Justices L Nageswara Rao and MR Shah held that:

“The right to travel abroad is an important basic human right for it nourishes independent and self-determining creative character of the individual, not only by extending his freedoms of action, but also by extending the scope of his experience. The right also extends to private life; marriage, family and friendship are humanities which can be rarely affected through refusal of freedom to go abroad and clearly show that this freedom is a genuine human right. ”

.

Hon’ble Special & Sessions Court at Rouse Avenue allowed Robert Vadra to travel abroad for a period of six weeks on account of his health reasons in an Enforcement Directorate Case pending against him.

Hon’ble Delhi’s Rouse Avenue allowed congress leader and former Shashi Tharoor to travel abroad to UAE, France and Norway, who is facing trail in Sunanda Pushkar’s death case and is currently on bail.

Hon’ble Special Court in Delhi allowed businessman CC Thampi to travel to UAE, who is currently out on bail in connection with a money laundering case pertaining to the overseas properties related to Robert Vadra, to travel abroad with certain conditions including not to tamper with evidence.

Hon’ble Special Court in Delhi allows Congress MP Karti Chidambaram to travel to the UK and France. He will, however, have to provide a copy of his itinerary to the Central Bureau of Investigation (CBI) before leaving the country.

Conclusion:

Hon’ble Supreme Court time and again has confirmed that Right to travel abroad is the most cherished Fundamental Right as envisaged in Article 21 of the Constitution of India and the same cannot be taken away except according to procedure established by law.

However before allowing the accused to travel abroad the courts have to be satisfied that:

A. The accused seeking permission to travel is only for genuine and bonafide purpose.

B. The Courts can impose reasonable conditions in terms of asking the accused to furnish his itinerary and address of stay.

C. Seek sufficient surety to ensure that the accused does not flee away from the country and come back to face the trail.

D. Impose reasonable restrictions in the form of an undertaking that the accused will not approach or influence the witnesses in any manner.

Supreme Court on Land Acquisition, Loss of Livelihood and Compensation

Supreme Court on Land Acquisition, Loss of Livelihood and Compensation

Supreme Court on Land Acquisition, Loss of Livelihood and Compensation

In India, typically 60-70 people are linked with agricultural related activities and we have Agricultural based economy. Though we have sufficient fertile land to not only support ourselves but can give support to other countries as well as we belive in sustianable growth of development. A farmer’s connection with the land where he works is unique and special. Agriculture sector contributes to around 17-18 percent of the country’s GDP. In the Indian context, the archaic Land Acquisition Act of 1894, based on the principle of ‘eminent domain’ and has given discretion to government on this matter to acquire any land/property whether it is commercial or residential or agricultural or used for any other purposes for sustainable development. Land is used for residence, shops, buildings, commercial complex, government buildings, offices and big chunks of land is required mostly importantly for agricultural and industrial purposes.

In areas where there is less rates for land having low fertility and high availability will brings lesser compensation in compare to the land situated at places where there is high density of population, high fertility, heavy constructions took places in those area where land is set to be acquired. However, in initial era, there is not much awareness about the land acquisition law but with the advent of time, and increase with value of land, people are more aware of the land acquisition and compensation in lieu of that acquisition. It is be clearly prove from the fact, the area within Haryana, Punjab and borders of Delhi or NCR area which when acquired by the Government to bring sustainable development, proportionally it brings higher compensation.

That process of acquisition starts from notification issued by Govt. of any State u/s 4 of Land Acquisition Act, in which particulars of proposed land which may be acquired is mentioned. After that objection were called from the landowners whose land would be acquired and then objections were decided whether their landfalls in any Govt. policy as to release that land from criteria of acquisition. Thereafter after deciding all objections, another notification u/s 6 will be issued by State Govt. that particular area of land will be finally acquired. Thereafter Award is passed by Collector, who will decide the amount of compensation will be provided to landowners. Afterward, if landowners were not satisfied with the Award passed by Land Acquisition Collector, then reference petition was filed before the District Court, who will, in turn, decided to apply the judicial principles of law. Thereafter if any aggrieved party either it may be landowners or State Govt. is not satisfied with the amount of compensation, they will file the First Appeal before Hon’ble High Court and then finally before Hon’ble Supreme Court.

That litigation in Land Acquisition matters raises various issues like ‘public purpose’, ‘lapse of acquisition’, ‘’colorable exercise of power, ‘no deposit of compensation’ ‘determination of the market value of compensation’ etc.

The power of eminent domain has three essential attributes of sovereignty. First, the power of the state to take over private land; second, this power is to be exercised for public ground; and third, it is the obligation on the State to compensate those whose lands are taken over. In the 2011 Supreme Court case of Dev Sharan vs. State of Uttar Pradesh, the Apex Court itself had critiqued the state’s efforts at diluting the said clause by pointing out that, Any attempt by the State to acquire land by promoting a public purpose to benefit a particular group of people or to serve any particular interest at the cost of the interest of a large section of people especially of the common people defeats the very concept of public purpose.  In Soorma Pratap Reddy and others v. District Collector, Ranga Reddy Dist and others, Supreme Court stated that “public purpose” includes any purpose wherein even a fraction of the community may be interested or by which it may be benefited. As such Special Economic Zones (SEZs), mines, shopping malls, factories, dams, and other large scale projects have been facilitated by expropriation of land under the Land Acquisition Act.  However, landmark judgments in R L Aurora v. State of Uttar Pradesh wherein Supreme Court held that the government could not justify acquiring land for a textile machinery manufacturer as a ‘public purpose’. It further declared that the ‘Land Acquisition Act’ did not contemplate that the government should be made a general agent for companies to acquire lands for them for their private profit”

Although the power to determine what constitutes public purpose is primarily with the government ultimately Court has the power to review such decisions. However, in practice the courts have generally placed limitations on themselves in Sooram Pratap Reddy and others v. District Collector, Ranga Reddy Dist and others, Supreme Court articulated the grounds of review as follows:

  1. Malice exercise of power
  2. A public purpose that is only apparently public purpose but it is, in reality, private purpose or other collateral purpose.
  3. An acquisition without following the procedure established under the Act
  4. When the acquisition is unreasonable or irrational
  5. When acquisition is not a public purpose at all and the fraud on the state is apparent.

Justiciability as to the purpose of acquisition may be challenged before the Courts, if prima-facie evidence is available on the grounds inter alia, that:

  1. The acquisition is mala-fide, since the purpose as disclosed in section 4 of the Land Acquisition Act, 1894 notification is not really a public purpose.
  2. The power exercised by the Government in the acquisition of land is colorable in nature.
  3. The intended acquisition is to benefit a particular individual, firm or company.
  4. The notification is vague and does not either disclose the purpose or is not clear about the purpose of acquisition
  5. Provisions of part VII are not complied with as per the Act.
  6. The activities of the agency on whose behalf the acquisition is sought are not really related to public purpose.

Acquisition of Religious properties: That Allahabad High Court while deciding a matter concerning the acquisition of land of the church by government, the Divisional Bench of V.K. Shukla and Mahesh Chandra Tripathi, JJ. held that land belonging to religious bodies can be acquired by the government if the purpose for which it is acquired is a public purpose.

Non-Deposit of Compensation in Court viz a viz Act 2013. In section 24(2) of the Act of 2013 in the expression ‘paid,’ it is not necessary that the amount should be deposited in court as provided in section 31(2) of the Act of 1894. Non-deposit of compensation in court under section 31(2) of the Act of 1894 does not result in a lapse of acquisition under section 24(2) of the Act of 2013. Due to the failure of deposit in court, the only consequence at the most inappropriate cases may be of a higher rate of interest on compensation as envisaged under section 34 of the Act of 1894 and not lapse of acquisition.

Determination of Market Value of Acquired land

While fixing the market value of the acquired land, the Land Acquisition Officer is required to keep in mind the following factors:

  1. existing geographical situation of the land;
  2. existing use of the land;

iii. already available advantages, like proximity to National or State Highway or road and/or developed area and

  1. the market value of other land situated in the same locality/village/area or adjacent or very near to the acquired land.

It can be broadly stated that the element of speculation is reduced to the minimum if the underlying principles of fixation of market value with reference to comparable sales are made:

(i) when the sale is within a reasonable time of the date of notification under Section 4(1);

(ii) It should be a bona fide transaction;

(iii) It should be of the land acquired or of the land adjacent to the land acquired; and

(iv) It should possess similar advantages.

It is only when these factors are present, it can merit consideration as a comparable case (Special Land Acquisition Officer v. T. Adinarayan Setty)

The fairness of market value herein reflects the estimated price for the transfer of property between willing parties who have the respective interests of those parties. The best method to determine the same is to consider the prices obtained by contemporaneous sale deeds whether of the same land or of lands in the vicinity. Various factors may be taken into consideration, namely the size and shape of the land, the locality and its situation, the tenure of the property, the user, the potential value and the rise or depreciation of valuation of the land in the locality. Where sale instances of comparable lands are available on record, the court can safely take into consideration such sale instances and make the award relying on such sale transactions. It is also a settled law that where there are several exemplars with reference to similar lands the highest exemplars should be taken into consideration for determination of compensation.”

Kapil Chandna Advocate

Practicing in Supreme Court of India

Advocate.kapilc@gmail.com

Why, When & Where to Apply For Anticipatory Bail

Why, When & Where to Apply For Anticipatory Bail

Question as to why, when and where to apply for Anticipatory Bail , comes to the mind of every person who never had faced any such situation in their life. Now before we start, I want everyone to understand from stage one before they apply for a Anticipatory Bail.

Immediately after a receipt of a complaint, the police is bound to register an FIR (First Information Report) if the offence is a cognizable one or issue a non-cognizable report if the offence is non-cognizable. Since there is no particular definition of cognizable offence or non-cognizable offence, but The Indian Penal Code, 1860 had categorized the offences accordingly.

After the registration of an FIR, the police starts the investigation to ascertain the truth of the allegations, and for that reason, the police may call any person acquainted with the facts (including the accused) to join investigation (by issuing a notice U/S 41A Cr.P.C) and record their statement.

What is Anticipatory Bail

 

Now comes the question of Anticipatory Bail, where FIR registered against the accused is of Non-bailable offences (as classified in The Indian Penal Code,1860), the accused or accused persons have to immediately apply for Anticipatory Bail, before joining the investigation otherwise there is every possibility that he or they can be arrested at the joining of investigation. But if the offences are Bailable (as classified in The Indian Penal Code,1860) the police can release the accused on his executing a personal bond or surety bond and there is no need to apply for Anticipatory Bail in bailable offences.

First Anticipatory Bail is applied before the Sessions Court within the jurisdiction of the Police Station where the FIR has been registered and while arguing with the first bail application of Anticipatory Bail, the bail application should cover the following point specifically:-

a. That the accused will join the investigation as and when required or in the cases where the investigation is complete and the charge-sheet has been filed, the accused will make himself available before the court on each and every date

b. That the accused will not tamper any document while he is on Anticipatory Bail, where the case is primarily based on documents and the documents were already in the possession of the investigation agency, the possibility of tampering becomes impossible.

c. That the accused will not influence or threaten any witness while he is on Anticipatory Bail, on this aspect the courts are governed by the conduct, social status or influence of the accused to threaten or influence any witness, where the accused is a normal person with no background or influence, the possibility of influencing or threatening is ruled out.

d. That the accused has deep roots in the society, is staying at a particular place since a long period and was not involved in any case in past.

e. That the bone-fide intention of the accused can also be justified by his giving surety to the court to ensure his presence before the courts in the Interest of Justice.

f. That the accused will not get involved in any activity which will hamper the investigation or proceedings before the courts, a further condition which can help accused in seeking Bail.

g. Where the investigation is complete and charge sheet is filed, the courts are not very reluctant to grant Anticipatory Bail or even Regular Bail, however, the courts need to be satisfied as well as convinced on all the above-mentioned aspects before the courts exercise their discretion to grant Bail.

Consult Lawyer in Delhi India
Kapil Chandna
9811099450

Supreme Court on Parameters of Anticipatory Bail

Supreme Court on Parameters of Anticipatory Bail

When any person apprehends that police is going to arrest him/her on false or motivated charges then before arrest he has the right to move the court of Session or the High Court under section 438 of the code of Criminal Procedure for grant of bail in the event of his arrest, and the court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail and anticipatory bail can be granted by Sessions Court and High Court.

The provision of anticipatory bail has many dimensions but in practice, a large number of undertrials are languishing in jail for a long time even for allegedly committing very minor offences because section 438 Cr.P.C. has not been allowed its full play. However, the scope of power under section 438 CrPC was dealt with in detail by Hon’ble Supreme Court Constitution Bench in Gurbaksh Singh Sibbia and Ors. v. State of Punjab [(1980) 2 SCC565] where the scope of judicial discretion in the matter of anticipatory bail and its importance was emphasized by the bench courts, in general, used to erroneously invoke such power only in exceptional or rare cases. No general guidelines have been laid down by Hon’ble Supreme Court for invoking power under section 438 CrPC for releasing accused but it has been held in various cases to consider below factors before granting benefit of bail to accused.

It all depends upon whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; nature of allegations- Severity/gravity of the allegations or severity of the punishment in the event of conviction; further chances of the accused absconding from the processes of law or whether the accused has roots in the society; whether habitual offender; chances of the accused creating hurdles in the fair investigation or the trial; chance of witness or evidence tampered; case required custodial interrogation. Another fact about likelihood of the offence being repeated; nature of evidence, which has been gathered by the investigating agency and if the offence is proved the maximum sentence, which it may entail and last but not least about frivolity in prosecution should always be considered.

It was held by  Apex Court in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. That Constitution Bench of Honourable Apex Court in the case of Gurbaksh Singh Sibbia and Others v. the State of Punjab -(1980) 2 SCC 565 emphasized that provision of anticipatory bail enshrined in Section 438 of the Code is conceptualised under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for a liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution.

The proper course of action ought to be that after evaluating the averments and accusation available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the public prosecutor and after hearing the public prosecutor the court may either reject the bail application or confirm the initial order of granting bail. During this, the court would certainly be entitled to impose conditions for the grant of bail and public prosecutor or complainant would be at liberty to move the same court for cancellation or modifying the conditions of bail any time if liberty granted by the court is misused.

In case of refusal of Anticipatory bail by Session Court then petition before High Court lies and in case both courts reject the petition for anticipatory bail, then against the rejection order by Hon’ble High Court, the remedy lies by filing Special leave petition under Article 136 of Constitution of India before Apex Court. The recent decision of the Supreme Court in the case of P Chidambaram v. Directorate of Enforcement yet again gives rise to the extensive debate between custodial interrogation and anticipatory bail. The most comprehensive analysis of the nature and scope of Section 438 is contained in the Constitution Bench judgment of Gurbaksh Singh Sibbia (supra). This decision emphasises that Section 438 has to be interpreted that principle of presumption of innocence in favour of the accused and power exercised under Section 438 cannot be interpreted in a manner that creates fetters or unnecessary restrictions. It is common knowledge that custodial interrogation is the weapon wielded by investigating agencies to secure clinching evidence against an accused. On the other hand, anticipatory bail is the shield deployed by an accused to avoid the inclemency of arrest and custody. In short, anticipatory bail is an important shield given to innocent to protect themselves from false and motivated cases to protect their personal liberty as set forth under Article 21 of the Constitution of India.

HOW, WHEN & WHERE TO FILE A WRIT OF MANDAMUS

HOW, WHEN & WHERE TO FILE A WRIT OF MANDAMUS

HOW, WHEN & WHERE TO FILE A WRIT OF MANDAMUS

A writ of mandamus is a court order issued by a judge at a petitioner’s request compelling someone to execute a duty that they are legally obligated to complete. A writ can also be issued when the authority of a higher court is required to order a lower court or government agency to complete a duty https://kapilchandna.legal/author/vasoya/to uphold the law or to correct an abuse of discretion.

The party requesting a writ of mandamus to be enforced should be able to show that they have a legal right to compel the respondent to do or refrain from doing the specific act.

The duty sought to be enforced must have two qualities :

It must be a duty of public nature and the duty must be imperative and should not be discretionary. Furthermore, mandamus will typically not be granted if adequate relief can be obtained by some other means, such as an appeal.”

The purpose of mandamus is to remedy the defects of justice. It lies in the cases where there is a specific right but no specific legal remedy for enforcing that right. Generally, it is not available in anticipation of any injury except when the petitioner is likely to be affected by an official act in contravention of a statutory duty or where an illegal or unconstitutional order is made.

 

The grant of mandamus is, therefore, an equitable remedy; a matter for the discretion of the court, the exercise of which is governed by well-settled principles.

 

Mandamus is a discretionary remedy, the application for it must be made in good faith and not for indirect purposes. Acquiescence cannot, however, bar the issue of mandamus. The petitioner must, of course, satisfy the Court that they have the legal right to the performance of the legal duty as distinct from mere discretion of the authority. A mandamus is normally issued when an officer or an authority by compulsion of the statute is required to perform a duty and that duty, despite demand in writing, has not been performed. In no other case will a writ of mandamus be issued unless it is to quash an illegal order.

Only the Supreme Court and High Courts are empowered to exercise Writ Jurisdiction, under Art. 32 and 226 of Constitution. No other courts are empowered to issue writ- mandamus:- It means the Court can ask common people, authorities to do or not to do some task.

 

The sine qua non for mandamus is the existence of a statutory public duty incumbent upon the person or body against whom the mandamus is sought. There must equally co-exist a corresponding right in the petitioner, entitling him to claim the enforcement of such public duty. These two preconditions form the foundation for the issue of mandamus.

The primary scope and function of mandamus are to “command” and “execute” rather than to “enquire” and “adjudicate.” It cannot be issued to change the decision of a body so as to suit the petitioner. Obligations which are not statutory cannot be enforced by mandamus.

 

Writ of mandamus is available against any public authority, including administrative and local bodies, and it would lie against any person who, under a duty imposed by a statute or by the common law, is obliged (and is duty-bound) to do a particular act.

In order to obtain a writ or an order (or direction) in the nature of mandamus, the applicant has to satisfy (the court of law) that he has a legal right towards the performance of a legal duty by the party (or person) against whom mandamus is sought and such right must be subsisting on the date of the petition.

Courts in India have always maintained that a writ of mandamus is not a writ of right and is not granted as a matter of course. Its grant (or refusal) is at the discretion of the court. Courts can refuse mandamus, unless it is shown that there is a clear legal right of the applicant or statutory duty of the respondent, and there is no alternative remedy available to the applicant.

In the case of, Praga Tools Corporation v. C.A. Imanualix, the Supreme Court of India observed that an order of mandamus is, in form, a command directed to a person, corporation or inferior tribunal requiring him (or them) to do a particular thing therein specified, which appertains to his (or their) office and is in the nature of a public duty. It is, however, not necessary that the person or body on whom such public duty is imp2osed needs to be a public official or statutory authority.

 

In the case of Union of India v. S.B. Vohraxi, the Supreme Court of India held as follows: A writ of mandamus may be issued in favor of a person who establishes a legal right in himself. It may be issued against a person who has a legal duty to perform but has failed or has neglected to do so. Such a legal obligation emanates by operation of law.

The writ of mandamus is most extensive regarding its remedial nature. The object of mandamus is to prevent disorder emanating from the failure of justice. It is required to be granted in all cases where the law has established no specific remedy.

The Court has power, by the prerogative writ of mandamus, to amend all errors which tend to oppress the subject (resulting in misgovernment) and ought to be used, when the law has provided no specific remedy, and justice and good government require that there ought to be one for the execution of the common law or the provisions of a statute.

Instead of being astute to discover reasons for not applying this tremendous constitutional remedy for error and misgovernment, we think it our duty to be vigilant to use it in every case to which, by any reasonable construction, it can be made applicable.

Mandamus takes the shape of a command to an inferior court, governmental body, public officer, executive (or administrative) body for doing something, or for abstaining from doing something, that which is in the nature of public duty. The doing or forbearance of that which is sought is to be enforced as a must,‟

under any law for the time being in force, and it should be incumbent on the officer or authority concerned, in its public character. It does not lie to enforce a private right, neither to enforce a duty of a purely religious nature (which the officer is bound to perform under the orders of the competent authority) nor in regards to matters which are pure of discretionary quality.

Interference by the court is warranted when an executive authority is not exercising its power bona fide for the purposes contemplated by law or is influenced by extraneous (and irrelevant) consideration or is acting arbitrarily.

The prerogative remedy of mandamus has long provided the ordinary means of enforcing the performance of public duties by public authorities of all kinds. Like the other prerogative remedies, it is generally granted on the application of a private litigant, though it may equally well be used by one public authority against another. The most ordinary employment of mandamus is as a weapon in the hands of the ordinary citizen

 

When a public authority fails to do its duty, Certiorari, and prohibition deal with wrongful action, mandamus deals with illegal inaction.

In a case, Comptroller & Auditor General of India v. K.S. Jagannathan, the Supreme Court of India held that the High Courts of India exercising their jurisdiction under Article 226 have the power to issue a writ like a mandamus,

To pass orders (and to give necessary directions) where the government (or a public authority) has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant factors and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such option has been conferred.

In all such cases and any other fit and the proper fact a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus to give directions to compel the performance lawfully and adequately of the discretion conferred upon the government or public authority, and in a proper case,

To prevent injustice resulting to the parties concerned, the court may itself pass a law which the government (or the public authority) should have passed (or given) had it properly and lawfully exercised its discretion.

Though, the primary function of mandamus is to compel action. Writ of mandamus neither creates nor confers power to act, for it only commands the exercise of power already existing, when it is the duty of the person or authority proceeded against- to work. Although mandamus may require the performance of public tasks, its command is never to act in a particular manner.

It is not possible to lay down the standard- as to in what situations a writ of mandamus will be issued and in what conditions it should not be issued.

It depends on the nature of the right sought to be protected; duty sought to be enforced; scheme of the statute; injury likely to be caused; consequences likely to ensue; consequent effect of the exercise (or non-exercise) of the power and other similar considerations.