CS Professional:Draft,Pleads and Appearances [Ch-1 Judicial and Administrative Framework]

 ADMINISTRATION-Legislative Functions 

The administration is burdened with the legislative functions,i.e. making laws and regulations for general and specific matters. so,administration is supposed to deliberate the secondary workings and details to the executive. this supplementary legislation is called "Delegated Legislation" or "Subordinate Legislation".

Limitations of Parliament's Legislation

• sits and deliberates only for a limited time and is not able to act immediately at a call-to-action basis.
• burden has substantially increased and evolved in recent decades
• rule-making might sometimes require a technical touch or a specialized opinion
• cannot foresee various hurdles faced in execution or other hurdles based on numerous causes.
• if legislation remains rigid, it cannot be quickly moulded as per the requirements
• increased governmental functions and complexity

delegated legislation has been justified under various cases like: Delhi laws Act case (AIR 1961 SC 332);Vasantlal Magan Bhai v. Sate of Bombay (AIR 1961 SC 4);S. Avatar Singh v. State of Jammu and Kashmir (AIR 1977 J&K 4)

Inherent Risks of Delegation:not lay a policy;declare the policy vague;not set any standard for guidance;confer arbitrary power on the executive without reserving control over subordinate legislation;only the substitute duties or the secondary duties shall be delegated and not the primary ones.

Forms of Delegated Legislation

• Skeletal legislation:enabling statutes set broad principles and empowers executive to make rules for execution purposes.
• Machinery Type:power conferred on the respective department for Forms/Publication/Returns/Other Admin. Details.
• Removal of Difficulty Clause:power to modify a provision within a time limit without travelling beyond,counter or without changing the act's essential features/identity/structure/policy.

Requirements for delegated authority

1. prior consultation via interested regulatory bodies so to represent their cases stating field-level problems and conditions.
2. antecedent publicity of rules and regulations to let those know affected by it of their rights and duties.
3. publication of delegated legislation to avoid any surprises and get our affairs in order for smooth execution.
4. laying the said rules and regulation before the parliamentary houses for inspection.

Modes of Delegated Legislation

• Procedural
• an apt procedure followed by respective delegates.
• comprising of following above requirements to listen to objections and consider representations.
• the statutes must be clear in their intention of directory OR mandatory directives so that clear procedures shall be followed and therefore judged-in determining their nature, the courts shall consider 
• the scheme of the legislation
• provision correlating to object of legislation
• subject matter
• Parliamentary
• discretionary powers as to legislation
• parliamentary debate
• scrutiny by parliamentary committee-"committee on subordinate legislation" oversees the overall structure of delegation
• laying before both houses of parliament in daily agenda
• Judicial
• challenged as unconstitutional in courts of law
• improper exercise of power
• Article 13(3)(a)
• inquiry by courts
• ultra vires-invalid: Substantive OR Procedural ULTRA VIRES

TRIBUNALS/QUASI-JUDICIAL BODIES

1. part of the executive branch to act in judicial capacity.
2. Part XIV of the Constitution
3. Less formal and less expensive plus a speedy case disposal
1. Central Administrative Tribunal (CAT)
2. Income Tax Appellate Authority (ITAT)
   
3. National Company Law Tribunal (NCLT)
   
4. Customs,Excise and Service Tax Appellate Tribunal (CESTAT)
5. National Green Tribunal (NGT)
6. Securities Appellate Tribunal (SAT)
7. Debt Recovery Tribunals (DRT)
8. Consumer Forum 
9. Motor Accident Claims Tribunal (MACT)
4. added in constitution by 42nd amendment act in 1976 viz. articles 323-A/B

Types of Courts and Jurisdictions

• Civil and criminal
• Constitutional courts
• SUPREME COURT at the top tier
• disputes between central and state govt.
• original but not exclusive right for enforcing fundamental rights
• extraordinary jurisdiction to hear appeal for matters previously decided by special leave petition except armed forces tribunal
• power to withdraw/transfer any court for high courts
• review any verdict ordered
• High Courts with district and sessions judges
• Article 226 to issue different writs for enforcing fundamental right
• Article 227-superintendence over subordinate courts/tribunals within regional jurisdiction
• pronounce punishment for contempt of court
• court of district judge=highest civil court in district
• second class magistrates and civil judge (junior division) at the bottom
• Revenue courts
• escalation from lower to higher courts as judgements are challenged

Civil Procedure Code 1908

Procedural aspects of Civil courts

1. Jurisdiction
• try all suits except those barred from cognizance
• lack of jurisdiction not even cured by parties' consent
• onus of proving no jurisdiction borne by party disputing jurisdiction
• PECUNIARY:max. monetary limits
• TERRITORIAL:defendant's residence,location of subject matter,cause of action arising within jurisdiction
• SUBJECT MATTER: such as prescription of special tribunals
2. Stay: preventing courts of current jurisdiction simultaneously trying two parallel suits.application of stay maintainable at any stage of suit.
3. Res Judicata and bar to further suits: litigation conclusion is conclusive and constitutes a bar against subsequent action involving same claim. applied when-
• matter in issue has been in a former suit between same parties or between whom they claim litigation under the same title.
• matter is in the court in which the same issue has been raised,heard and finally decided.
• Former Suit relates to the suit decided first irrespective of institution
4. Plaint
• actual starting point of all pleadings
• annexed list of documents
• document not in possession,plaintiff will state in whose possession it is
• doc mandatory to be produced, if not produced with plaint can't be received in evidence at the hearing without court's permission.
• if after submission,court finds the plaint should be submitted to another court, then plaint returned and intimation given to plaintiff.
• court has power to reject under following grounds-
• doesn't disclose cause of action
• relief claimed is undervalued and plaintiff fails to correct within given time-frame
• insufficient court fee/stamp paid and plaintiff fails to make good such amount
• suit barred by law
• rejection doesn't bar plaintiff from presenting a fresh plaint
5. Summons
• issued to defendant to make representations
• instrument used by court to commence civil proceedings
• process directed to proper officer for them to notify the concerned parties
• defendant may appear in person or by a pleader or accompanied by person able to answer all questions
• expedition ordered by requiring a written statement at appearance and failure to oblige=ex-parte judgement.
• substituted service when summon not served by court bailiff under normal circumstances.
• if court believes the defendant to be purposely dodging summon, affixed to a conspicuous part of house OR service by an AD.
6. Appearance of Parties
• if summon not served due to  plaintiff's failure to pay court fee/postal charges OR if neither party shows up;court may dismiss the suit.
• defendant appears and doesn't admit plaintiff's claim, plaintiff doesn't appear' court shall order dismissal.
7. Adjournments:
• at court's discretion
• rules considerably strict if applied in true spirit
8. Ex-Parte Decrees 
• when a written statement was required of a party and they fail to oblige,decree drawn as court thinks fit.
• defendant hasn't filed a pleading, court judges based on plaint facts excepts against persons with disability.
• plaintiff appears but defendant doesn't and summons is properly served.
• if defendant proves sufficient causes for delay, they may:
• prefer appeal against decree
• apply for review
• apply for setting aside decree by same court
9. Interlocutory Proceedings 
• STATUS QUO=reverting to things as they were
• provisional,interim and temporary
• doesn't determine cause of action but decides some intervening matter
• separate application for interim relief at any stage with court deciding ex-parte or directing to show cause notice.
• INJUNCTION-common interlocutory relief
10. Written Statement 
• at/before first hearing plus document list
• if defendant disputes suit maintainability OR takes plea that transaction is void;specifically stated.
• specific denial and not an evasive one but must be on point of substance
• every fact allegation in plaint not denied specifically/by necessary implication/stated to be not admitted in pleading=DEEMED ADMITTED.
11. Examination of Parties
• at first hearing,court ascertains whether fact allegations are accepted/denied mentioned in plaint/written statement and such recorded.
• may be oral.
• if admitted, court may make orders/judgements as it thinks fit.
12. Production of Documents
• at/before issue settlement intended to be relied upon and which hasn't been filed shall be filed.
• no doc which ought to be produced shall be subsequently admitted.
• objection to proof made at the time it is ought to be produced and not at the final stage.
• every doc not denied specifically/by necessary implication/stated to be not admitted in pleading=DEEMED ADMITTED.
• court at its discretion and recorded reasons, may require a doc be proved other than admission.
13. Framing of Issues
• at first hearing,after reading plaint and written statement,ascertain matters of variance.
• require judgement on all issues
• issues framed from allegations OR in answer to interrogatories OR from documents.
• court may first try dispose issues of law like jurisdiction or bar by law.
14. Summoning/Attendance of Witnesses
• not later than 15 days after which issues are settled,parties present a witnesses list.
• memorandum of substance of witness deposition recorded.
• witness examined on commissioned also
• no signature doesn't lead to invalidity
• court may inspect any property/thing concerned and recall witnesses
• court may suo moto summon and examine any witness
• if absence without a legal excuse after being served summon and their deposition/production is material,court may issue orders for arrest with/without bail.if witness appears, such orders may be withdrawn.
15. Affidavits
• for proving something
• contains only matter that the deponent can prove on his their own accord except in the case of interlocutory applications in which beliefs are admitted with grounds.
• properly verified or renders invalid
• rejected or opportunity to file proper affidavits
• even after evidence accompanies affidavit, the concerned can still be cross-examined
16. Final Argument
• both sides present their cases after considering submissions of opposite witnesses
• summary of case/defence presented
17. Judgement
• judge's statement=grounds for decree passed
• pronounced within a month of argument completion or as soon as practicable;day fixed in advance.
• delay reasons recorded if judgement not given within 30 days of hearing conclusion
• last paragraph to state relief
• expeditious decree and certainly within 15 days of judgement
• court may also award costs such as delay costs OR compensatory costs for false/vexatious claims
18. Decree & Execution
• actual implementation of court order

Code of Criminal procedure 1973

• usually set in motion with FIR registration
• Indian Penal Code=primary penal Indian law applicable to all offences
• Indian evidence act also utilized

• TYPES OF CRIMINAL TRIALS

WARRANT CASES

1. Section 2(x) of CrPC -- relating to offences punishable with death, life imprisonment, imprisonment for more than 2 years.
2. starts with FIR or complaint to magistrate and sent to sessions court for trial or "committing it to sessions court".
3. Important features:
• charges mentioned
• personal appearance of accused mandatory
• can't be converted into summons case
• accused can examine/cross-examine witnesses multiple times
• Section 207 complied-supply of copies to accused
4. stages mentioned in Section 238-250 of CrPC namely:

• First Info Report (FIR) under Section 154 puts the case into motion;by any aggrieved to police
• Investigation by investigating officer for conclusion filing to magistrate as police report
• Charges framed for trial framed in writing in warrant cases,if accused not discharged after considering above
• under Sec.241 accused given chance to plead guilty and judge ensures intentional nature of plea and charges as required
• if accused plead not guilty, court requires prosecution (accuser) to evidence guilt supporting it with statements and witnesses also called "Examination in Chief";magistrate possesses powers to issue summons
• under Sec.313 accused can be heard and their statements aren't recorded under oath and can be used against them in trial. OPPORTUNITY OF BEING HEARD
• Defense's Evidence with oral and/or documentary evidence
• Final Judgement with reasons supporting acquittal/conviction.
• Acquitted;prosecution given time to appeal against court order
• Convicted;both sides invited to give arguments on punishment to be awarded for life imprisonment/capital punishment.

• Stages in a warrant case when case instituted by private complaint

• when police refuses to register an FIR,directly approach criminal court under Sec.156 of CrPC
• court examines complainant and witnesses
• magistrate orders police inquiry for police report
• insufficient evidence for conviction,court dismisses complaint with reasons recorded
• sufficient evidence for charge,magistrate issues warrant/summon as required.

SUMMONS CASE

1. Section 2(w) of CrPC -- offence punishable with imprisonment of 2 years or less
2. doesn't require evidence preparation
3. Important Features
• can be converted into warrants case
• accused need not be present
• accused should be informed charges orally
• no need to frame charges in writing
• witnesses cross-examined only once by accused
4. Different stages under Sec.251-259 of CrPC
• Pre-Trial:FIR/investigation
• Charges stated orally
• accused asked if he pleads guilty and magistrates records such to convict him as per his/her discretion.
• for petty offences, where accused wishes to plead guilty without court appearance, letter sent accepting guilt along with amount provided in summons
• simple procedure and elaborate procedure eliminated. if accused doesn't plead guilty, trial process starts.
• prosecution & defence asked to produce evidence
• when sentence pronounced, parties need not argue on punishment quantum. sentence=Final Judgement and discretion of judge

SUMMARY TRIAL

1. only 1 OR 2 hearings to decide matters
2. reserved for small offences to reduce court's burden and save time/money
3. offence punishable with imprisonment of less than 6 months
4. if tried as this kind of case, punishment awarded not for more than 3 months
5. procedure (Sec.260-265 of CrPC)
6. Stages:
• similar procedure to summons case
• imprisonment up-to 3 months
• in judgement-judge records evidence substance and brief statement of court finding with reasons.

APPELLATE FORUM

• appeals are an important constitution of a judiciary system as appeals let the aggrieved be heard and correct judicial orders.
• under the CPC,1908 appeal may be appeal from order/decree
• appeal-able orders in order 43
• prescribed within limitation period (for ex:90 days for high court and 30 days for district court)
• or else with an application for condonation of delay.
• under CrPC,1973 appeals to high court and sessions court
• supreme court is the appellate authority of last resort with wide plenary and discretionary powers.
• different tribunals under certain laws can also be appealed to and after them some matters could directly go to supreme court thereby skipping the high court.
• appeal not a stay of proceedings except otherwise directed by appellate court; execution of decree passed by lower court not stayed just because an appeal is preferred.

REFERENCES AND REVISION UNDER CrPC,1973

1. REFERENCES
• Section 395-courts subordinates to High Court (HC) make references to HC if:
• pending case involves a real and substantial question of act,ordinance or regulation.
• court should believe that such act,ordinance or regulation is invalid/inoperative but has not been declared so.
• while making reference,refer opinions and reasons with respect to a case
• reference not to resolve conflict of authority of HC
2. REVISION
• Section 397-401
• revisions can be done for pending as well as decided cases before a HC/Court of Sessions with wide discretionary powers given to them.
• for a paternal/supervisory jurisdiction for correcting miscarriage of justice,law misconception,procedural irregularity,neglect of proper precautions of apparent harsh treatment.
• Sec. 397 empowers to call for records and examine manually
• the HC/sessions judge have the power to interfere at any stage of proceeding
• Sec. 397 is attracted when:
• wrong/non-exercise of jurisdiction
• improper appreciation of evidence
• proceedings must be of an inferior court situated within local limits of the revisional court
• HC's revisonal jurisdiction doesn't extend to civil/revenue courts acting under Sec.340
• Sessions judge<HC
3. PROCEEDINGS
• if held in an inferior court, revisonal jurisdiction extends to such proceedings.
• power to order offender's release on bail/bond
• dismissal of revision without assigning reasons is unsustainable and may be remitted for reconsideration.
4. INTERLOCUTORY ORDER
• Sec.397(2) bars revision on an interlocutory order for eliminating inordinate delay in disposal.
• order which isn't final but provisional/temporary but the true test is if that order finally disposes parties rights or leaves case alive/undecided.
• Supreme Court (SC) has held that revision can be given to not entirely pure intermediate/quasi-final orders
5. NO SECOND REVISION
• for ex: if application made to sessions judge and he considers to refer to HC, then fresh application must be made.
• no multiple applications with HC/sessions judge as in case of concurrent jurisdiction,lower courts must be approached first
• Sec.398-revision court make order for further inquiry (wider ambit than Sec.397)
• Session judge revision powers (Sec.399)
• all powers as of HC,in case of proceedings' record called for by the court
• revision commenced;Sec.401(2,3,4,5) applicable to such proceedings and references
• decision shall be final and no further revisional proceeding entertained by HC
• if went before sessions judge and revision application rejected,can't go before HC still.
• Sec.401-HC powers as a court of revision and can direct tender of pardon to accused as under Sec.307
• either suo moto or on a petition from the aggrieved party subject to:
• where application made to sessions judge under Sec.399
• appeal lies but unavailed,appeal-able party can't apply for revision. but HC can still suo moto call for records.
• can't usually re-appreciate evidence
• HC can reverse an acquittal order into conviction [except if acquittal is based upon compounding and the compounding is legally invalid] and vice versa but can't do so in revision.
• in appeal,HC can interfere for guilt of accused but in revision, interfere only for justice miscarried.
• appeal can't be dismissed if accused/pleader aren't heard but in revision accused is heard only when a prejudicial order is made.
• appeal abatement on accused's death doesn't apply to revision petition.
• HC can redirect/order a re-trial in matters of public interest and patent illegality.
• 401(5) revision may be treated as an appeal where appeal lies but wasn't filed due to belief that appeal doesn't exist.
6. SENTENCE ENHANCEMENT/REDUCTION
• no such interfering powers except when sentence passed is manifestly and grossly inadequate.
• no limit regarding enhancement to max prescribed by IPC except in cases tried by magistrates.
• reduction not below the statutory prescribed limit under IPC
7. FACT FINDING
• jurisdiction restricted to questions of law
• won't go into question of material sufficiency
• ensure that natural justice principles not violated

REFERENCES,REVIEW AND REVISION UNDER CPC

• REFERENCES
• Sec.113 and Order XLVI
1. reference only made to HC when a presiding judge has a reasonable doubt on the point of law/usage having force of law referred ant not on pleader's importunity.
2. if a statute is deemed to be invalid or inoperative, court shall lay down the matter for HC's opinion.
• reasonable doubt on point of law not to be entertained by an inferior court if ruled by an HC except when SC throws doubt on the same.
• Reference Requirements by Presiding Judge
1. drawing up a fact statement
2. stating the point of doubt
3. stating own opinion
4. all above to be precise and clear
• Rule 7 reference only when a subordinate commits any of the following errors:
1. failed to exercise jurisdiction
2. wrongly exercised jurisdiction
3. discretionary until required by a party to do so
4. a sub-judge should submit the case record to district judge with a reason statement for reference
• parties to the suit given an opportunity of hearing and show cause and concerned court shall certify it and place on record such objections.
• notice to parties stating attendance is not mandatory and if they wish to attend then,they must enter an appearance at the deputy registrar's office. the court shall certify it.
• date fixed for appearance shall provide reasonable time and shall be not less than 1 month in advance of making reference.
• court making reference shall forward necessary records
• if HC hasn't replied,intimidated a date within 2 months of making reference, registrar's attention shall be drawn.

• REVIEWS
• Sec.114
1. re-examination/reconsideration of own decision. application necessitated by invoking the doctrine actus curiae neminem gravabit = act of court shall prejudice no man.another maxim is lex non cogit ad impossibillia = law doesn't compel a man to do what he can't possibly perform.
2. substantive review powers
3. subject as aforesaid, any person considering himself aggrieved-
• by decree/order from which appeal is allowed but not preferred
• by decree/order from which appeal disallowed
• by decision on court's reference from court of small causes
• may apply for review of judgement
• Condition Precedent to invoke 114
1. discovery of new/important matter or evidence
• available and of undoubted character
• so material that absence might cause justice collapse
• couldn't be presented with reasonable care and due diligence at the time of decree
2. mistake/error apparent on record
• so manifest/clear that no court would permit such error/mistake
• not required to look into other evidence for such as it should appear in order itself or from any other document referred in order.
• mistake may be of fact/law but seen by a mere perusal of records without reference to extraneous matters
• patent error; ordinary error of law OR failure of interpretation not an error apparent on record
• failure to consider SC's decision/contrary view=error/mistake apparent on record but failure to consider HC's decision=not an error/mistake.
• subsequent decision of SC/larger bench taking a contrary view=not error/mistake apparent on record
3. any other sufficient reason as specified in case law Chajju Ram v. Neki

check out the video below for DIFFERENCE BETWEEN APPEAL,REVIEW AND REVISION:

SOME RULES UNDER ORDER XLVII

1. Rule 4:no application for review granted without previous notice to opposite party for appearing and opposing and also not granted on grounds of new matter/evidence which the applicant alleges wasn't within his knowledge at the time of passing decree/order without strict proof of such allegation.
2. Rule 6:if review application heard by more than 1 judge and the court is equally divided; application shall be rejected or as the majority convenes.
3. Rule 7:court order rejecting application shan't be appealable except when application rejected on applicant's failure to appear, application can be restored if court is satisfied that sufficient cause subsists.
4. Rule 9: no application entertained which is made to review an order made on application for review of decree/order/review.

• REVISION
• Section 115
1. HC may call for record of any decided case by a subordinate court and in which no appeal lies thereto and if:
• jurisdiction exercised illegally
• jurisdiction not correctly exercised
2. HC may make order as it thinks fit but it can't vary or reverse any order/order deciding an issue except where the order had been made in favor of applicant and would have finally disposed of the suit.
3. can't vary/reverse decree or order against which an appeal lies
4. revision shall not operate as a stay of suit except when such stayed by HC
5. applies to JURISDICTION alone and that:
• subordinate court's order is within it's jurisdiction
• jurisdiction is exercisable
• court hasn't acted illegally in exercising jurisdiction breaching law/regularity by committing an error of procedure
6. Conditions for Sec.115
• order impugned=case decided
• order impugned isn't directly liable to be challenged by appeal 
• order impugned suffers from jurisdictional error
7. not HC's duty to enter into merits of evidence
• Imp case law:Major S.S. Khanna v. F.J. Dhillon, A.I.R. 1964 S.C. 497- jurisdiction exercise is discretionary and court can't interfere only because Sec.115 conditions are satisfied.
• HC can also act suo moto
• case includes an order affecting the parties' rights and includes a civil proceeding. it is of a wider amplitude.
• illegal/material irregularity don't cover error of fact/law but refer to the manner in which a decision is reached. but where there is wilful disregard/conscious violation of rule of law it will lead to calling for interference in revision.