Guest Post by Manish G.
On 22.08.2013, the Supreme Court Registry issued a notice listing certain pending matters before a Constitution Bench that will commence hearings w.e.f. 03.09.2013. The list is nearly ten pages long and broadly involves five sets of cases. This post takes a look at these and briefly summarises the points of law involved in each.
The first set of cases (Hardeep Singh v. State of Punjab, Crl. A. No. 1750/2008 and others) turn on the interpretation of s. 319 of the Code of Criminal Procedure, 1973 (Cr.P.C.), which deals with the trial court’s power to proceed against any person other than the accused, if it appears from the evidence that such person has committed the offence. These matters arise out of a reference from a three-judge Bench (way back in December 2011), which noted a conflict between the views of various earlier three-judge Benches regarding the interpretation of s. 319 [Dharam Pal v. State of Haryana, (2004) 13 SCC 9; Ranjit Singh v. State of Punjab, (1998) 7 SCC 149; Kishun Singh v. State of Bihar (1993) 4 SCC 392], and framed the following questions for reference to a larger Bench:
(i) What is the stage at which power under Section 319 of the Code of Criminal Procedure,1973 can be exercised?
(ii) Whether the word "evidence" used in Section 319(1) of the Code of Criminal Procedure, 1973 could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?
(iii) Whether the word "evidence" used in Section 319(1) of the Code of Criminal Procedure, 1973 has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?
(iv) What is the nature of the satisfaction required to invoke the power under Section 319 of the Code of Criminal Procedure to arraign an accused? Whether the power under Section 319(1) of the Code of Criminal Procedure, 1973 can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?
(v) Does the power under Section 319 of the Code of Criminal Procedure, 1973 extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?
(ii) Whether the word "evidence" used in Section 319(1) of the Code of Criminal Procedure, 1973 could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?
(iii) Whether the word "evidence" used in Section 319(1) of the Code of Criminal Procedure, 1973 has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?
(iv) What is the nature of the satisfaction required to invoke the power under Section 319 of the Code of Criminal Procedure to arraign an accused? Whether the power under Section 319(1) of the Code of Criminal Procedure, 1973 can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?
(v) Does the power under Section 319 of the Code of Criminal Procedure, 1973 extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?
It should be noted that question (v) above has already been answered (in the affirmative) by another Constitution Bench in Dharam Pal v. State of Haryana (July 2013), where the Bench affirmed that it was Kishun Singh and not Ranjit Singh that espoused the correct position of law in this regard. While this question is thus rendered redundant, it will be interesting to note the effect, if any, that decision has on the present Bench, given that the correctness of Kishun Singh vis-a-vis Ranjit Singh is also in question here.
The second set of cases (Lalita Kumari v. Govt of U.P., W.P. (Crl.) No. 68/2008 and others) is of critical importance in clarifying the position on whether an officer in charge of a police station, upon receiving information regarding a cognisable offence, is mandated to register an FIR under s. 154 of the Cr.P.C., or whether the officer has the discretion to conduct a preliminary enquiry before registering an FIR. The case arose out of a reference from a three-judge Bench which noted inconsistencies between several earlier Benches, and directed that “In view of the divergent opinions in a large number of cases decided by this Court, it has become extremely important to have a clear enunciation of law and adjudication by a larger Bench of this Court for the benefit of all concerned - the courts, the investigating agencies and the citizens.” The pronouncement of the Court in this matter is sure to be eagerly watched by prosecutors, defence lawyers and the police.
The third matter (Sarah Mathew v. Institute of Cardiovascular Diseases, Crl. A. No. 829/2005) is a single case on the issue of computation of the limitation period in criminal cases. The case arises out of a reference from a three-judge Bench which doubted the correctness of the decision in Krishna Pillai v. T.A. Rajendran, 1990 (Supp.) SCC 121, and also raised the issue of its non-consideration by later two-judge Benches [Bharat Damodar Kale v. State of A.P., (2003) 8 SCC 559; Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394]. The view taken in the latter two cases, which has been referred to the Constitution Bench for affirmation, is essentially that “for the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of complaint or the institution of prosecution and not the date of taking cognizance by a Magistrate or issuance of process by a Court”.
The fourth matter (Swasthya Raksha Samiti Rati Chowk v. Chaudhary Ram Harakh Chand, C.A.No.1391/1999) is also a single case, the oldest of all the matters under consideration by the present Bench. It arises out of a 2002 judgment of a three-judge Bench, which was itself a reference from an earlier two-judge Bench. The issue turns on the nature of enquiry to be conducted by the Collector under Rule 4(2)(iii) of the Land Acquisition (Companies) Rules, 1963, in cases where land is being compulsorily acquired for a company under Chapter VII of the Land Acquisition Act, 1894 (LAA). In view of the conflicting views expressed in earlier cases (Shyam Nandan Prasad v. State of Bihar, 1993 (4) SCC 255, State of Gujarat v. Patel Chaturbhai Narsibhai, 1975 (1) SCC 583; Babu Barkya Thakur v. State of Bombay, 1961 (1) SCR 128] as to whether such an enquiry was mandatory or whether it could be subsumed by the regular enquiry to hear objections under s. 5A of the LAA (which takes place in all land acquisition proceedings), the matter has been placed before the Constitution Bench. The case is expected to have ramifications on pending land acquisition proceedings all over the country.
The fifth and final set of cases (Kone Elevator India Pvt. Ltd. v. State of T.N., W.P.(C). No. 232/2005 and others) are a series of service tax matters involving the determination of whether sale and installation of lifts constitutes a contract of sale or a works contract for the purposes of taxation. The view of a three-judge Bench in State of Andhra Pradesh v. Kone Elevators (India) Ltd. (February 2005), which held that these were contracts of sale and not works contracts since the installation was incidental to the sale, appears to have been called into question in all these cases. Clearly, this case will be critical in determining what regime of taxation appears to transactions involving the sale and installation of lifts across the country.
The composition of the Bench is not yet known. Given that the cases involve diverse aspects of law (three criminal, one land acquisition and one taxation), it will probably be as interesting to observe the Judges who form part of this Bench, as much as the deliberations and judgments on these critical matters.
Manish G. is a Researcher at the National Law University, Delhi
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