RiGhTcLiCk

मराठी कॉर्नर सभासद

Sunday, December 6, 2009

SPECIFIC PERFORMANCE OF CONTRACT

WHEN SPECIFIC PERFORMANCE OF CONTRACT

SHOULD BE GRANTED AND WHEN SHOULD IT BE REFUSED.

EXTENT OF DISCRETION AND MANDATORY

PROVISIONS RELATING TO DAMAGES AND

COMPENSATION

Specific Relief Act was originally embodies in 1877. The Act of 1877 is not exhaustive. For many decades the Act of 1877 was subjected to judicial interpretation revealing in that process many deficiencies and lacunae and giving rise in several instances to divergencies and cleavages of judicial opinion. The Law Commission appointed by the President of India after the advert of the New Constitution addressed itself to his task at its very first meeting held on 17th September, 1955. The recommendation of the commission were embodied in its Ninth Report which was forwarded to the Government of India on 19th July, 1958. They culminated in the passing of the Specific Relief Act of 1963 which came into force from 1st day of March, 1964.

As observed by Pollock and Mulla in “the Specific Relief Act” the law of Specific Relief in its essence part of the law of procedure, for specific relief is a form of judicial process. Such right is discretionary for a court to grant an interest in land to be recognised cannot be at the discretion of the court nor be taken away by it.

The basic principle embodied in the Specific Relief Act as regards grant and refusal of specific performance is a matter of discretion of the court. It is to be exercised on sound judicial principles.

Section 10 – Cases in which specific performance contract enforceable :- Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced --

a when there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed, be done; or

b when the act agreed to be done in such that compensation in money for its non-performance would not afford adequate relief.

Explanation :- Unless and until the contrary is proved, the court shall presume -

(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and

(ii) that the breach of a contract to transfer movable property can be so relieved except in the following cases :-

(a) where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market;

(b) where the property is held by the defendant as the agent or trustee of the plaintiff.

The very foundation of the jurisdiction to decree specific performance of contracts is that an award of damages does not afford the aggrieved party a complete remedy and put his in a situation as beneficial as if the contract is specifically enforced. If in the opinion of the Court damages will be an adequate remedy, specific performance of the contract cannot be decreed.

Section 14 :- Contracts not specifically enforceable – (1) The following contracts cannot be specifically enforced, namely -

(a) a contract for the non-performance of which compensation in money is an adequate relief;

(b) a contract which runs into such minute or numerous details or which is so dependant on the personal qualifications or violation of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms;

(c) a contract which is in its nature determinable;

(d) a contract the performance of which involves the performance of a continuous duty which the court cannot supervise.

As per section 20 the jurisdiction to decree the specific performance is discretionary and the court is not bound grant such relief merely because it is lawful to do so; but the discretion but sound and reasonable guided by judicial principle and capable of correction by a court of appeal. Section 20 (2) contemplates the contingencies in which discretion not to decree a specific performance can be exercised.

Section 20 - Discretion as to decreeing specific performance -

(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or

(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff;

(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.

Hon'ble Supreme Court in case M.Meenaxi & others -versus- Metadin Agrawal (decased) by LR's reported in 2006 (8) SCJ 509, has held that,

“Section 20 of the Specific Relief Act, confers a discretionary jurisdiction upon the courts. Undoubtedly such discretion cannot be refused to be exercised on whims and caprice; but when the passage of time contract becomes frustrated or in some cases increase in the prices of land takes place, the same being relevant factors can be taken into consideration for the said purpose while refusing to exercise it's jurisdiction courts are not precluded from taking into consideration the subsequent events. Only because the plaintiff respondents ready and willing to perform their part of contract and even assuming that the defendant was not entirely vigilant in protecting their rights same cannot be ground for granting a specific performance”.

As per section 21 of the Specific Relief Act, the courts are empowered to award compensation in certain cases .

On plain reading of the section it appears that a compensation may be awarded only when following three conditions are satisfied.

1) The court must decide that specific performance ought not to be granted;

2) There must be a contract between the parties which must have been broken by the defendant against whom the compensation is to be granted; and

3) The plaintiff must have proved his right to the compensation to be awarded.

A claim for damages in lieu of specific performance is different from a claim to damages for breach of the contract. If it is in lieu of specific performance the plaintiff has to allege and prove readiness and willingness on his part to perform his part of the contract. This remedy cannot be granted if the remedy of specific performance is abandoned. The claim for damages for breach of contract is different and may be enforced even if the claim to specific performance is abandoned. The Court has jurisdiction to grant the relief of damages for breach of contract even if the plaintiff has abandoned the relief of specific performance. In addition to granting specific relief, court has power to grant some compensation. Where the claim to damages is based upon the breach of the contract and recession by the plaintiff, the plaint should make allegations appropriate to such an action.

CONCLUSION

Grant of specific performance by the court is purely discretionary relief and therefore court must adhered to the facts and circumstances of each case with sound judicial principles.

Issue of Process

Issue of Process by Criminal Court, Postponement of it far holding an inquiry and When can a cognizance be said to be taken

Chapter XII of the Code of Criminal Procedure 1973 deals with information to the Police, and their powers to investigate. Section 156(1) vests in an officer in charge of a Police Station the power to investigate any cognizable case, without the order of a Magistrate, Section 156(3) authorities a Magistrate, empowered under section 190, to order an investigation as mentioned in Section 156(1). The provisions from section 157 onwards are concerned with the power and procedure for investigation.

Chapter XIV of the code deals with conditions requisite for initiation of the proceedings. Section 190 authorise the Magistrate to take cognizance (a) upon receiving the complaint of facts which constitutes such offence, (b) upon a police report of such facts and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

Chapter XV (Section 200 to 203) of the Code deals with “complaints to Magistrates”. A Magistrate taking cognizance of an offence on complaint is required by S.200 to examine upon oath the complainant and the witnesses present, if any. Section 202 provides that a Magistrate taking cognizance of a case upon complaint, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Section 203 empowers the Magistrate to dismiss the complaint, if, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is on the opinion that there is no sufficient ground for proceeding.

Chapter XVI deals with “commencement of proceedings before Magistrate” and Section 204 enables a Magistrate to issue summons or a warrant as the case may be to secure the attendance of the accused if in the opinion of the Magistrate taking cognizance of the offence there is sufficient ground for proceeding.

It is seen from the provisions referred to above, on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under section 200.

Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under section 203. If in his opinion there is sufficient ground for proceeding he may issue process under section 204. However, if he thinks fit, he may postpone the issue of process and either inquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is not sufficient ground for proceeding.

On the other hand, in the first instance, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under section 156(3). The police will then investigate and submit a report under section 173(1) of the code.

On receiving the police report the Magistrate may take cognizance of the offence under section 190(1)(b) and straightway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The police report under section 173 will contain the facts discovered or unearthed by the police and the conclusions drawn by the police and he may decide to issue process even if the police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the police report may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under section 200 of the code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under section 156(3) and received a report under section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from the proceeding under section 200, 203, 204 of the code.

Thus a Magistrate who on receipt of a complaint orders an investigation under section 156(3) and receives police report under section 173(1) may thereafter do one of three things:-

1 He may decide that there is no sufficient ground for proceeding further and drop action.

2 He may take cognizance of the offence under section 190(1)(b) on the basis of police report and issue process, this he may do without being bound in any manner by conclusion arrived at by the police in their report,

3 He may take cognizance of the offence under section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complaint and his witnesses under section 200. If he adopts the third alternative he may hold or direct an inquiry under section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process as the case may be.

When the offence complained of is triable exclusively by court of session he has no other way but to call upon the complainant to produce all his witnesses and examine them on oath.

INJUNCTION INTERIM

INJUNCTION INTERIM

WHEN TO BE REFUSED OR GRANTED

Interlocutory injunction are those issue at any time during the pendancy of the litigation for the short term purpose of preventing irreparable injury to the petitioner prior to the time that the court will be in a position to either grant or deny permanent relief on the merit. In accordance with their purpose, interlocutory injunction are limited in duration to some specified length of time, or at the very outside, to the time of conclusion of the case on the merits. Within the category of interlocutory injunction there are two distinct types which must be considered individually. The first is generally referred to as a preliminary injunction, and includes any interlocutory injunction granted after the respondents has been given notice and opportunity to participate in a hearing on whether or not that injunction should issue. The second is generally referred to as a temporary restraining order and differs from preliminary injunction primarily in that it is issued exparte, with no notice or opportunity to be heard granted to the defendant. Temporary restraining order supply the need for relief in those situation in which the plaintiff will suffer irreparable injury if relief is not granted immediately, and time simply does not permit either the delivery of the notice or the holding of a hearing.

In general sense every order of the court which command or forbids is a injunction; but in its accepted legal sense, an injunction is a judicial process or mandate operating in personam by which, upon certain established principles of equity a party is required to do or refrain from doing a particular thing. An injunction has also been defined as a writ framed according to the circumstances of the case commanding an act which the courts regards as essential to justice or restraining an act which it estimes contrary to equity and good conscience; as a remedial writ which court issues for the purpose of enforcing their equity jurisdiction; and as a writ issuing by the order and under the seal of a court of equity.

The general rule in India litigation is that a party gets no relief till he has gone to trial and persuaded to the court that he has a right which has been infringed. He is not entitled to an interlocutory injunction, just because he has a strong case. He is only so entitled if it is shown that there could be injustice if the defendant is left unfettered and that there is a serious risk of irreparable damage to the plaintiff. In the first place the plaintiff should show that there is some serious need for the defendant to be restrained.

Following from this, the three classic requirements or deciding factors before an injunction can be granted are

(a) prima facie case

(b) balance of convenience

(c) irreparable injury caused to the affected party.

(a) PRIMA FACIE CASE

The aggrieved party must be able to establish that he has a prima facie case in support of the right claimed by him, that is the court must be satisfied that there is a bona fide dispute raised by the applicant, that there is a strong case for trial which needs investigation and a decision on merits. Courts have pointed out that at the stage of granting interim relief,

(a) they should avoid a mini-trial and

(b) should only look at whether the applicant's case is not vexatious or frivolous and whether it deserves to go to trial or not. the applicant is not required to also prove that he has a good chance of winning the case altogether when the case reaches the stage of trial. And to determine if there is a prima facie case, the court must make reference to all the documents available such as plaint, affidavits, applications and other material placed at its disposal and see whether the applicant has a better chance of success or not as compared to the other party's chances of success.

(b) DOCTRINE OF BALANCE OF CONVENIENCE

The court must also be satisfied that the balance of convenience is in the applicant's favour. The balance of convenience will tilt in favour of that party which is put to greater inconvenience; if injunction is refused/granted and later the suit is decreed/dismissed respectively. In balancing the comparative conveniences/inconveniences from granting/refusing injunction, the court will take into consideration what means it has of putting the party who may be ultimately successful in the position he would have stood if his legal rights had not been interfered with.

The governing principle is to first consider if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant;s continuing to do what was sought to be enjoined between the time of the application and the time of the trial.

(c) IRREPAIRABLE INJURY

The applicant must further satisfy the court that he is bound to suffer irreparable damage if injunction is not granted and that there is no other remedy available to him and it is of such nature that cannot be simply monetarily compensated. Therefore, if injunction is not granted and later the suit is decreed, the court will ask the defendant to compensate the applicant for whatever loss was caused to the plaintiff by being barred from exercising his right. But it may so happen, that the defendant will be in no position to compensate that loss, arising either out of his own inability to pay or due to the nature of the injury caused.

Thus, the extent to which the disadvantages to each party would be incapable of being compensated in damages in the even of his succeeding at the trial is always a significant factor in assessing where the balance of convenience lies; and if the extent of the uncompensatable disadvantage to each party would not differ widely, it may not be improper to take into account in tipping the balance the relative strength of each parti's case as revealed by the affidavit evidence adduced on the hearing of the application.

EXCEPTIONAL CIRCUMSTANCES

Mostly, the courts are reluctant to conduct a mini-trial at the stage of granting injunction. But depending upon the particular circumstances of individual cases exceptions have been created. In case of industrial disputes, where there is a strike,with picketing, blocking etc., the plaintiff;s business is greatly injured; the courts invariably assess the relative strength of each party's case and grant or refuse an injunction accordingly.

The apex court in Dalpat Kumar -vs- Prahlad Singh reported in AIR 1993 Supreme Court 276, laid down that the existence of the prima facie right and infraction of the enjoyment of property or the right is a condition for the grant of temporary injunction. Prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. the court further has to satisfy that non-interference by the court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction. Thirdly, the court should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties.

CONCLUSION

For a considerable period of time, primal facie case was given undue importance. It assisted the parties to arrive at an earlier view on prospects and thus reduce costs of litigation based on the logic that the petitioner was very likely to succeed at the end of the day, it will be convenient to grant interim interdict and prevent the defendant from infringing his rights.

PLEA OF ADVERSE POSSESSION

PLEA OF ADVERSE POSSESSION

WHAT IS REQUIRED TO BE PROVED

Possession is a branch of law of property. Acquisitiveness and possessiveness are basic instincts of man which are founded on economic needs, amongst others. Possession has always been a means of acquiring title to property. It was the earliest means recognized by mankind of appropriation of anything tangible by one person for his own use to the exclusion of others, and legislators and publicists have always acknowledged its efficacy in confirming and creating title.

nec vi, nec clam, nec precario” is the basic principle which says that the possession must be a peaceful, open and continuous possession.

The Courts in India, have held that the intention to claim exclusive possession in hostility against the possession of true owner makes said possession adverse. Thus animus possidendi must be evidence by the manner of occupancy which again depends upon the nature of the property. The trespasser must be in actual physical possession of the property over a sufficiently long period; that possession must be to the knowledge, either express or implied of the owner or without any attempt at concealment and which contains an element of animus possidendi. It is such possession which becomes juridical possession, that is protected by law, even against the true owner. “Legal Possession”, “Juridical Possession”, “Possession in law”, means the same thing.

Trespasser in settled possession has the same protection of law, though his possession is wrongful in its origin. A tenant whose tenancy has been determined, though in the contemplation of law he is a trespasser, in as much as he is in possession without the owner's consent, has clear protection of law in retaining possession, till he is evicted in due course of law, through the machinery of the Courts. His possession is not like that of a squatter, but legal or juridical.

Possession is single and exclusive. It is indivisible. Two persons cannot, at the same time, have possession of a thing, except jointly or in common. In the case of joint owners there is unity of title and unity of possession. In the case tenants in common there is unity of possession but the titles are according to individual rights of each co-sharer.

Law of limitation and prescription are founded on the reasons of public policy. In nearly every system of law it is recognized that, if a person has been in possession of a thing, for a considerable time, defects in his title and manner of acquiring ownership are cured. The justification for this institution is to be found in inconvenience and hardship of disturbing a possession which has been long enjoyed.

Mere possession however long does not necessarily means that it is adverse to true owner and adverse possession means hostile possession which is expressly or impliedly in denial of title of true owner.

Hon'ble Supreme Court in T.Anjanappa & others -v- Somalingappa & another, reported in 2006(3) CCC 328, has held that,

“The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to e adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property.


Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.

It is well recognized proposition in law that mere possession however long does not necessarily means that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the formers hostile action.

CONCLUSION :

Adverse possession implies that it commenced in wrong, and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to contract, it cannot be adverse. Mere possession for howsoever length of time does not result in converting the permissible possession into adverse possession. Intention to dispossess on the part of the adverse possessor is essential to prove adverse possession.

Section 34, 109, 120-B and 149 of Indian Penal Code

Section 34, 109, 120-B and 149

of Indian Penal Code,

Its Scope, Distinction and Applicability.

Section 34 :- Acts done by several persons in furtherance of common intention :-

When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons, is liable for that act in the same manner as if it were done by him alone.

Object :- The section is framed to meet a case in which it may be difficult to distinguish between the act of individual members of a party or to prove exactly what part was played by each of them. The reason why all are deemed guilty in such cases is, that the presence of accomplices gives encouragement, support and protection to the person actually committing the act.

Scope :- The section is restricted to common intention and does not embrace any knowledge. It does not require proof that any particular accused was responsible for the commission of the actual offence. It is not restricted to meed a case in which it may be difficult to distinguish between the acts of individual members of a party or to prove exactly what part was taken by each of them. It can well applied to cases in which offence is committed by only one or two or three persons who all had a common intention.

Facts to be established for common intention :-

a) That there was the meeting of all accused prior to the incident.

b) That all the persons who participated in the said meeting held on particular date and place intended to commit the crime.

c) That all the accused participated in the commission of crime.

d) That criminal act was accordingly done. ( If so established then each of the accused will be liable to punishment for the main offence charged).

Section 109 :- Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment :-

Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this code for the punishment of such abetment, be punished with the punishment provided for the offence.

Explanation :- An act of offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.

Scope :- Under this section the abettor is liable to the same punishment which may be inflicted on the principal offender, (1) if the act of the later is committed in consequence of the abetment, and (2) no express provision is made in the CODE for the punishment of such an abetment. This section lays down nothing more than that if the CODE has not separately provided for the punishment of an abetment an as such then it is punishable with the punishment provided for the original offence.

Facts to be established for abetment :-

(a) that abetment was made either by instigation, conspiracy or aiding; and

(b) that act or offence abetted or committed

Section 120-B :- Punishment of criminal conspiracy :-

Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment of life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

Whoever is a party to criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine, or with both.

Scope :- The punishment for a criminal conspiracy is more severe if the agreement is one to commit a serious offence, it is less severe if the agreement is to commit an act, which although illegal, is not an offence punishable with death, imprisonment for life or rigorous imprisonment for more than two years.

This section applies to those who are the members of the conspiracy during the continuance. Conspiracy has to be treated as a continuing offence and whoever is a party to the conspiracy during the period for which he is charged is liable under this section.

Facts to be established for conspiracy :-

a) that there was an existence of a design to commit an offence

b) that such offence was punishable with imprisonment.

c) that accused concealed existence of such design.

i) by his act or illegal omission or

ii) by his knowingly making false representation.

d) that he did voluntarily

e) that he thereby intended to facilitate, or know that he would thereby facilitate commission of such offence.

Hon'ble Supreme Court in case of Noor Mohammad -versus- State of Maharashtra, reported in AIR 1971 SC 885, has discussed about the distinction between section 34, 109 and 120-B of IPC in the following words,

“Section 34 embodies the principle of joint liability in the doing of a criminal act, the essence of that liability being the existence of a common intention. Participation in the commission in the offence in furtherance of common intention invites its application. Section 109 on the other hand may be attracted even if the abettor is not present when the offence abetted is committed provided he has instigated the commission of the offence or has engaged with one or more other person in a conspiracy to commit an offence and pursuant to that conspiracy some act or illegal omission takes place or has intentionally added the commission of an offence by an act or illegal omission. Criminal conspiracy differs from other offences in that mere agreement is made an offence even if no step is taken to carry out the agreement. Though there is close association of conspiracy with incitement and abetment the substantive offence of criminal conspiracy is somewhat wider in amplitude then abetment by conspiracy as contemplated by section 107 of I.P.C. A conspiracy from its very nature is generally hatched in secrets. It is therefore extremely rare that direct evidence in proof of conspiracy can be forthcoming from wholly disinterested quarters or from utter strangers. But like other offences, criminal conspiracy can be proved by circumstantial evidence”

Section 149 :- Every member of unlawful assembly guilty of offence committed in prosecution of common object :-

If an offence is committed by any member of unlawful assembly in prosecution of common object of that assembly, or such as the members of that assembly knew to be likely to committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.

Object :- This section is not intended to subject a member of an unlawful assembly to punishment for every offence which is committed by one of its members during the time they are engaged n the prosecution of the common object.

Scope :- Section 149 of the Indian Penal Code is declaratory for the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly and for such offences as the member of unlawful assembly knew to be likely to committed in prosecution of that object.

Facts to be established for common object :-

a) the ingredients of section 143 of I.P.C.

b) that offence was committed by any member of the unlawful assembly; and

c) that such an offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed.

CONFESSION AND ADMISSION


CONFESSION

(JUDICIAL & EXTRA JUDICIAL)

AND ADMISSION

Admissions

All confessions are admissions but every admission may not be a confession. To be a confession, admission should contain an acknowledgment of the guilt. Therefore, all confession are admissions, but every admission may not be a confession.

Now let us see what is meant by ADMISSION.

Section 17 of the Indian Evidence Act defines admission which means a statement (oral or documentary or contained in electronic form) which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the person and under the circumstances mentioned in section 18 to 23 of the Indian Evidence Act.

An admission must be clear, precise, unequivocal, categorical,not vague or ambiguous . An admission ,is the best evidence that an opposite party can rely upon, though not conclusive, it is nevertheless decisive on the point unless proved erroneous or is validly allowed to be withdrawn.

Evidentiary Value of ADMISSION

Admissions though not conclusive proof of matters admitted, but they are relevant under section 21 of the Indian Evidence Act. An admission is not conclusive unless it amounts to estoppal. It may be proved to be wrong but unless proved it is a very strong piece of evidence against the maker thereof and is decisive of the matter, though not conclusive.

In Bhogilal Pandya v/s State AIR 1959 S.C. 356, it is discussed by the Apex Court,“The first group of sections in this Act in which the word statement occurs, are section 17 to 21, which deals with admissions. Section 17 defines the word admission. Section 18 to 20 lay down what statement are admissions against persons making them. The words used in section 18 to 21 in this connection are statements made by. It is not disputed that statements made by persons may be used as admissions against them even though they may not have been communicated to any other person. For eg. Statements in the account books of a person showing that he was indebted to another person are admissions which can be used against him even though these statements were never communicated to any other person.”

The provision that “admission is not conclusive proof” is to be considered in regard to two features of evidence :

1 The weight to be attached to an admission, would depend upon whether the admission is clear, unambiguous and relevant evidence; and

2 Even a proved admission sought to be used against its maker who as a witness is under cross-examination, he should be given an opportunity, if the admission is to be used against him to offer his explanation and to clear up the point of ambiguity or dispute.

Hon'ble Supreme Court, in case of State of Maharashtra -versus- Sukhdeo Singh, reported in 1992 (3) SCC 700, has held that, “The answer given by the accused in response to his examination u/s 313 of Cr.P.C. can be taken into consideration in such inquiry or trial. This much is clear on a plain reading on the above sub-section. Therefore, though not strictly evidence, sub-section permits that it may be taken into consideration in the said inquiry or trial”.

Hon'ble Apex Court, in case of Narain Singh -versus- State of Punjab, reported in 1964 (1) Cr.L.J. 730, has held that, “It is not open to the court to dissect the statement and to pick out a part of the statement which may be incriminative and then to examine whether the explanation furnished by the accused for his conduct is supported by the evidence on the record. If the accused admits to have done an act which would be the explanation furnished by him be an offence, the admission cannot be used against him divorced from explanation”.

ADMISSIONS in CIVIL CASES

Section 23 of the Indian Evidence Act, deals with relevancy of admissions in civil cases, which provides that --

no admission is relevant in civil cases if is made either upon an express condition that evidence of it not be given, or under circumstances from which the court can infer that the parties agreed together that evidence of it should not be given.

Confession

Confession is a statement made by accused which either admits in terms of offence or at any rate substantiate all the facts which constitute the offence.

The Hon'ble Apex Court in case of Sahib Singh -versus- State of Haryana reported in 1997 Cri.L.J. 3956, while defining the word confession, has observed that, “ a confession must either be an express acknowledgment of guilt of the offence charged, certain and complete in itself, or it must admit substantially all the facts which constitute the offence”.

Confession is defined in Black's Dictionary

A voluntary statement made by person charged with commission of crime, communicated to another wherein he acknowledges himself to be guilty of the offence charged.

Confession may be divided in two classes :

1 Judicial

2 Extra judicial

Judicial confessions are those which are made before magistrate or court in the course of judicial proceedings.

Extra judicial confessions are those which are made by the party elsewhere than before magistrate or court. Extra judicial confessions are generally those made by a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a magistrate who is not especially empowered to record confession under section 164 of the Code of Criminal Procedure or a magistrate so empowered but receiving the confession at a stretch when section 164 of the Code of Criminal Procedure does not apply.

Evidentiary Value of Confessions :

It must be established that a confession is voluntary and also it is true. For the purpose of establishing its truth it is necessary to examine the confession and compare it with the rest of the prosecution evidence and the probabilities of the case.

Extra Judicial Confessions:

An extra judicial confession, if voluntary and true and made in a fit state of mind can be relied upon by the court. The confession will have to be proved like any other fact. In the process of proof of Extra Judicial confession, the court is to be satisfied that it is not the result of inducement , threat or promise. Extra judicial confession possess a high probative value as it emanates from the person, who committed the crime, provided it is free from suspicion.

While appreciating the Extra judicial confession, the court has to consider the relevant factors like-

i. to whom it is made,

ii. the time and place of making it;

iii. the circumstances, in which it was made and the court has to look for any suspicious circumstances.

Evidentiary Value of Extra Judicial Confession :

It is not open to any court to start with the presumption that extra judicial confession is a weak type of evidence. If the evidence relating to extra judicial confession is found credible after being tested on the touchstone of credibility and acceptability, it can solely form the basis of conviction. However, section 25 and 26 provides exception to this general rule.

Section 25 to 27 of Indian Evidence Act are related to confession made by accused in custody before police.

Section 25 – Confession to police officer not to be proved :-

No confession made to police officer shall be proved as against the person accused of any offence.

Section 26 – Confession by accused while in custody of police not to be proved against him :-

No confession made by any person whilst he is in custody of a police officer, unless it be made in the immediate presence of a magistrate shall be proved as against such person.

In order to apply section 25 and section 26, it is desirable to consider as to who is a “POLICE OFFICER”.

Unless an officer who is invested under any special law with the powers of investigation under the code, including the power to submit the report under section 173 of Code of Criminal Procedure, he cannot be described as a police officer under section 25 of the Evidence Act.

The Hon'ble Apex Court in various cases has described as to who is a POLICE OFFICER under various acts, within the ambit of section 25 of the Evidence Act. The various cases includes

1 State of Punjab -vs- Barkat Ram AIR 1962 SC 276

2 Rajaram -vs- State of Bihar AIR 1964 SC 828

3 Badaku -vs- State of Mysore AIR 1966 SC 1746

4 Ramesh -vs- State of W.B. AIR 1970 SC 940

5 Illias -vs- Collector of Custom AIR 1970 SC 1065

6 State of U.P. -vs- Durgaprasad AIR 1974 SC 2136

7 Balkishan -vs- State of Mah AIR 1981 SC 379

8 Rajkumar -vs- Union of India AIR 1991 SC 45

Hon'ble Supreme Court, in case of State of Rajasthan v/s Ajit singh and other reported in (2008) 1 SCC 601 has held that, section 15 of T.A.D.A. 1987, is a clear departure from the general law that a statement made to a police officer is not permissible in evidence.

Section 15 of the TADA Act 1987 and section 18 of the Maharashtra Control of Organized Crime Act 1999, provides that, certain confessions made to police officer to be taken into consideration. The police officer recording the confession should not be below the rank of the Superintendent of Police.

Under both the acts it is mandatory to send the recorded confessions forthwith to the Chief Judicial Magistrate or the Chief Metropolitan Magistrate having the local jurisdiction over the area in which such confession is recorded, and such Magistrate shall forward the recorded confession so received to the designated/ special court which may take cognizance of the offence.

Hon'ble Supreme Court, in case of Kanhaiyyalal v/s Union of India reported in AIR 2008 SC 1044, has held that, “An officer vested with the powers of an officer in charge of a police station under sec. 53 of the NDPS Act is not a police officer with the meaning of section 25 of the Evidence Act. Thus it is clear that a statement made under sec. 67 of NDPS act is not the same as a statement made under section 161 of Cr.P.C. unless made under threat or coercion. It is this vital difference which allows a statement made under section 67 of the NDPS act to be used as a confession against the person making it and excludes it from the operation of section 24 to 27 of the Evidence Act”.

Section 164 of Code of Criminal Procedure, 1973 deals with recording of confessions and statements.

The conjoint reading of section 26 of Indian Evidence Act and section 164 of Code of Criminal Procedure, 1973 gives the exact meaning to record the confession of accused.

Section 164 of Code of Criminal Procedure, 1973 further speaks that, “A Metropolitan or Judicial Magistrate, may whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this chapter or under any law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial”. It further provides that – No confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.

Exception to Section 25 and 26 of Indian Evidence Act.

Section 27 – How much of information received from accused may be proved – Provided that, when any fact is deposed to as discovered in consequences of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to confession or not, as relates distinctly to the fact thereby discovered, may be proved.

Various requirements of this section :

1 The fact of which evidence is sought to be given must be relevant to the issue.

2 The fact must have been discovered.

3 The discovery must have been in consequence of some information received from the accused and not by accused's own act.

4 The person giving the information must be the accused of any offence.

5 He must be in the custody of a police officer.

6 The discovery of a fact in consequence of information received from the accused in custody must be deposed to.

7 Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is in-admissible.

Confession before the Magistrate:

Section 164 of Cr.P.C. deals with the provision of recording of the confessions and statements by the Magistrate. Confession of a person is also made before the Magistrate or Court in the course of judicial proceedings

Following is the prescribed procedure for recording confession.

1 Confession should ordinarily be recorded in open court and during court hours.

2 Police officer should be removed from the court room unless in the opinion of the Magistrate, the duty of ensuring the safe custody of the accused cannot be left to the other attendants.

3 Court should impress upon accused that he is no longer in police custody.

4 There must be inquiry by the court to the accused about ill-treatment on improper conduct or inducement on the part of police and in spite the alleged ill-treatment, misconduct or inducement, he adheres to his intention of making a confessional statement, the Magistrate should give the accused a warning that he in not bound to make confession and that if he does so, it will be taken down and may thereafter be used as evidence against him. A note of the warning given to the accused should be kept on record.

5 The Magistrate should give accused a reasonable time not less than 24 hours for reflection.

6 After accused is produced again, he be ascertained as to whether he is willing to make a confession. If the accused expresses his desire to confession, all the police officer should be removed from the court room unless his safe custody entrusted to other attendants. In that case minimum police officer should be allowed to remain in the court room.

7 Magistrate then inquire the accused about the length of time during which he has been in custody of police.

8 Provisions of section 163, 164 of Cr.P.C. should be scrupulously followed.

9 Court has to satisfy that impression caused by any such inducement, threat or promise has been fully removed.

10 Before recording confession, the Magistrate is bound to question the accused person unless upon that questioning he has reason to believe that the confession is voluntary, he cannot make the memorandum at the foot of the record.

11 Before recording a confession, the Magistrate should question the accused with a view to ascertaining the exact circumstances in which his confession is being made and the connection of the police with it under clause iv, vi, x of the criminal manual.

Hon'ble Supreme Court in case of Babubhai versus State of Gujrat, reported in 2007 Cr.L.J. 786, has held that, “while recording the confession oath should not be administer to the person while making the confession”.

12 Magistrate should add to the certificate, the ground on which he believes that the confession is genuine , the precaution which he took to remove accused from influence of police and the time , if any given to accused for reflection.

13 It is mandatory on the part of Magistrate as per sec. 164 (4) that the confession shall be recorded in the manner provided in section 281 for recording the examination of an accused and it has to be signed by the person making the confession and to make a memorandum at the foot of such record to the following effect-

“ I have explained to --------- ,that he is not bound to make a confession, and that if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him”

Magistrate.

Confession should also be recorded in question answer form.

It is mandatory on the part of the Magistrate that while recording the confession of a person he should follow section 163, 164 of the code of criminal procedure scrupulously.

Hon'ble Supreme Court, in case of Ramsingh v/s Sonia reported in 2007 Cr.L.J 1642, has held that, “If magistrate failed to question about voluntariness of confession to the person making confession, but in evidence before court he states that he had asked such question to the person making confession and also certificate as mentioned in section 164 of Cr.P.C is appended to the confession then such confession cannot be discarded on the ground of such irregularity in view of section 463 of the Cr.P.C.

If the First Information of an offence is given by the accused to a Police Officer, and that information admits his own guilt, it is a confession which cannot be proved under section 25 of the Indian Evidence Act against the accused.

Hon'ble Supreme Court, in case of Aghnoo Nagesia -versus- State of Bihar, reported in AIR 1966 SC 119, has observed that, “(18) If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by S.25. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of Section 25 is lifted by Section 27”.