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Confessions – CrPC Notes

  • 164 prescribes the means by which people can make confessions and statements to magistrates provided there is no inducement or pressure to do so.

S. 17 of the IEA, S. 281, S. 463 of CrPC

  • Made to the police – only statement
  • Made to magistrate after procedure is followed – binding upon the confessor
  • “A statement must be given directly to the police officer and not be overheard or mistakenly read.
  • A statement made to the police by the accused is barred by S.162 and is completely inadmissible evidence. Statements falling under 32(1) and S.27 are exceptions to this rule.
  • Section 163 – no inducement
  • Section 164 – magistrate must record the confession in accordance to the Judges Rules
  • Section 463 – The magistrate must also ask why the accused wants to confess otherwise it will be in violation of Section 463 of the CrPC
  • Article 22(1) and Section 303 – Consult a lawyer before confessing
  • Section 281- Confession must be recorded in the manner given here
  • Section 80 – Confessions are presumed to be genuine
  • Section 24

 

 

Course of investigation” implies that the statement must be made as a step in a pending investigation. It is different from the “period of investigation”

Baleshwar Rai v. State of Bihar

Facts:

There were the Darogah whose name was called in the middle of the night. The name was called by some goons who had committed a murder. They were caught and consequently identified by several. However, some corroborating evidence was obtained, i.e. the letter by the deceased saying that one of the accused was going to kill him. This was got by the Sub-Inspector.

Issue:

  • What is during ‘period of investigation’ or ‘in the course of investigation’?
  • The question was whether the letter could be used as an Exhibit as it was obtained by the Sub-Inspector and whether it was in contravention of Section 162.

Decision:

  • ‘Course of investigation’ would be when the statement is being taken and nothing else. The ‘period of investigation’ is the entire period of the investigation. Therefore, Section162 prohibits evidence only of what has been acquired in the ‘course of investigation’.

The letter which was received was merely received during the period of investigation and not in the ‘course of investigation’. The letter was not received as a statement and hence can be used as an Exhibit.

Dying Declarations

  • Admissible under Section 32 of the Evidence Act in view of the exemption provided by 162(2).

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Statements To Police – Self Incrimination – CrPC Notes

  1. 160, S. 161, S.162, S. 163, S. 161 A, S. 164 of CrPC
  2. 24, S.27 of the IEA
  • 160 deals with the power of the police to require attendance of witnesses.

Examination of Witnesses by the Police

  • 161 and S.162 deal with the oral examination of witnesses by the police, the record to be made of the statements and their use subsequently.
  • 161 aims at obtaining evidence which may later be produced at trial. In case of a trial of a warrant case or before a sessions court, a charge may be framed against the accused on the basis of such statements.
  • A statement of a person recorded by the police may be used for contradiction under S.145 of the Evidence Act for purposes of contradiction if the person is called as a prosecution witness.
  • “Any person” in 161(1) includes any person who may be accused of the crime subsequently. “Any person supposed to be acquainted with the facts and circumstances of the case” includes the accused.
  • 161(2) and Article 20(3) cover the same area and the accused is protected by the right against self-incrimination in light of the requirements of S.161(2).
  • 161(3) gives the police a wide discretion to decide whether or not to record statements. If he does so, he must furnish a copy to each person whose statements he records.
  • 162(1) says that there is no requirement for the person giving the statement to sign it and S.161(3) doesn’t require the same.
  • Delays in the taking of statements by the police could render the evidence unreliable if there is a suggestion of unfair practice by the investigating agency.
  • Recording of one joint statement of all witnesses is in contravention of S.161(3). It will not make their statements inadmissible but just affect the weight of the evidence.\
  • Non-compliance of S.161(3) will not vitiate the entire trial unless it causes prejudice to the accused in his defence and that resulted in a failure of justice.
  • “Statement” includes all written, oral statements and signs and gestures. S.161(3) and S.162 mean all that is stated by a witness to the police during the course of the investigation.

Evidentiary Value of Statements made to the Police

  • A statement recorded by the police officer during investigation is not given on oath or tested by cross examination. According to the law of evidence, this is not evidence of facts stated and so cannot be substantive evidence.
  • 162 bans the use of the statements collected by the police in the course of the investigation for corroboration. However, the proviso says that if the person giving the statement is called as a witness in court, the statement can be used to corroborate his testimony.
  • The expression “statement or any part of a statement” in S.162 is not confined to a single statement given by a witness to a police officer but includes the statements given by him/her on different dates at different stages to the same or different IO.
  • Evidence of a witness in court becomes inadmissible if it is established that the statement was signed by the witness at the instance of the police officer.
  • Defence witnesses cannot be contradicted using such statements. The proviso only applies to prosecution witnesses.
  • The bar in S.162 applies only to “an inquiry or trial in respect of any offence under investigation at the time when such statement was made”.

Inducement or Pressure

  • 163 prohibits the offering of inducement to witnesses to obtain statements.
  • 164(4) overrides this.

Kathi Kalu said that self incrimination is the conveying information based upon the personal knowledge of the given and does not include the mere mechanical process of producing documents in court which do not contain’ any statement of the accused based on his personal knowledge;

Aghnoo Nagesia v. State of Bihar

Facts:

The appellant was tried for murder. The principal evidence against him consisted of a first information report containing a full confession of the crime. The appellant was convicted under s. 302 Indian Penal Code by the trial court and the High Court upheld the conviction, by special leave he appealed to the Supreme Court.

The question before the court was whether the whole confessional statement in the first information report was banned by s. 25 of the Evidence Act or only those portions of it were barred which related to the actual commission of the crime.

Decision:

A confession may consist of several parts and may reveal not only the actual commission of the crime but also the motive, the preparation, the provocation etc. If the confession is tainted the taint attaches to the whole statement of the accused. [140 B-C]. If a statement contains an admission of an offence, not only that admission but also every other admission of an incriminating fact contained in the statement is part of the confession. Little substance and content would be left in ss. 24, 25 and 26 if proof of admissions of incriminating facts in confessional statement is permitted.

The appellant’s first information report was a confessional statement to a police officer and as such no part of it could be admitted into evidence on account of the ban in s. 25 except in so far as the ban was lifted by s. 27 and except in so far as it identified the appellant is the maker of the report.

The custody may also mean constructive custody. Therefore, in the current case though the person was technically not in the custody of the police while filing the FIR, it was held that the statement was self-incriminatory.

M.P. Sharma v. Satish Chandra

Issue: Search and seizure of documents under ss. 94 and 96 of the Code of Criminal Procedure. Whether compelled production of items acquired under Section 94 and 96 is within the meaning of Art. 20(3)?

Decision:  Held, that the provision for the search warrants under the first alternative of a. 96(1) of the Code of Criminal Procedure does not offend art. 19(1)(f) of the Constitution. A search and seizure is only a temporary interference with the right to hold the property searched and the articles seized. Statutory recognition in this behalf is a necessary and reasonable restriction and cannot per se be considered to be unconstitutional.

A compelled production of incriminating documents by a person against whom a First Information Report has been made is testimonial compulsion within the meaning of Article 20(3) of the Constitution. But a search and seizure of a document under the provisions of as Section 94 and 96 of the Code of Criminal Procedure is not a compelled production thereof within the meaning of Article 20 (3) and hence does not offend the said Article.

A power of search and seizure is, in any system of jurisprudence, an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of the fundamental right to privacy, analogous to the American Fourth Amendment, there is no justification for importing into it, a totally different fundamental right by some process of strained construction.

V.S. Kuttan pillai v. Ramakrishnan & anr.

Facts:  A search warrant was issued by the magistrate in favor of the petitioner to search the office premises and seize the books, documents etc. described in the application. The office premises is the HDMP Sabha.

Issue:  Whether the documents obtained by manner of search and seizure lead to self-incrimination of the individual?  Whether the Sabha could be searched?

Decision: The court held that the allowing of the search in itself cannot be considered as an act of self-incrimination. The reason being that during the search one does not have to be a party to the search. It is a mere passive submission and not a compulsion on the person being searched. Therefore, the documents therein acquired cannot be said to be inadmissible.

Additionally, the Sabha can be searched as it is a public place within the ambit of Section 93(1)(c) .

Nandini Satpathy v. P. L. Dani

Holding:

The appellant shall undertake to answer all questions put to her which do not materially incriminate her in the pending or imminent investigations or prosecutions. If she claims immunity regarding any questions she will, without disclosing details, briefly state in which case or offence in the offing makes her reasonably apprehend self- incrimination by her refused answers. If, after the whole examination is over, the officer concerned reasonably regards any refusal to answer to be wilful violation under pretence of immunity from self-incrimination, he will be free to prosecute the alleged offender after studying the refusal to answer in the light of the principles earlier set out, Section 179 I.P.C. should not be unsheathed too promiscuously and teasingly to tense lay people into vague consternation and covert compulsion although the proper office of Section 179 I.P.C. is perfectly within the constitutional limits of Art. 20(3).

161(2) meaningfully uses the expression ‘expose himself to a criminal charge’. Obviously, these words mean, not only cases Where the person is already exposed to a criminal charge but also instances which Will imminently expose him to criminal charges. In Art. 20(3) the expression (accused of any offence’ must mean formally accused in present not in future-not even imminently as decisions now stand. The expression “to be witness against himself” means more than the court process, Any giving of evidence, any furnishing of information, if likely to have an incriminating impact ensures the description of being witness against himself. Not being limited to the forensic stage by express words in Art. 20(3) the expression must be construed to apply to every stage where furnishing of information and collection of materials takes place. That is to say, even the investigation at the police level is embraced by Art. 20(3).

The right to consult an advocate of his choice shall not be denied to any person who is arrested. This does not mean that persons who are not under arrest or custody can be denied that right. The spirit and sense of Art. 22(1) is that it is fundamental to the rule of law that the service of a lawyer shall be available for consultation to any accused person tinder circumstances of near-custodial interrogation. Moreover, the observance of the right against self-incrimination is best promoted by conceding to the accused the right to consult a legal practitioner of his choice. Lawyer’s presence is a constitutional claim in some circumstances in our country also, and, in the context of Art. 20(3), is an assurance of awareness and observance of the right to silence.

Murray v. UK

M was arrested after being found in a house in which an IRA informer, L, had been held captive. On being taken for police questioning M was refused access to a solicitor for 48 hours. M chose to remain silent during a number of police interviews, despite being warned that adverse inferences might be drawn at trial from his silence. He was convicted of aiding and abetting the false imprisonment of L and sentenced to eight years’ imprisonment. The trial judge exercised his discretion under the Criminal Evidence (Northern Ireland) Order 1988 Art.4 and Art.6 to draw adverse inferences from the fact that M refused to account for his presence at the house. When M’s appeal against conviction was dismissed he lodged an application with the European Commission of Human Rights who referred the case to the European Court of Human Rights.

Held, that (1) by 14 votes to five, an accused’s right to silence was not absolute in the sense that no adverse inferences could ever be drawn at trial from that silence. It was a matter for the court in every case to determine what weight should be given to the fact that an accused had chosen not to offer an explanation of the circumstances of his case and to determine whether there had been improper compulsion on the part of the authorities. Having regard to all the evidence in the instant case, it could not be concluded that the drawing of reasonable inferences infringed M’s rights under the European Convention on Human Rights 1950 Art.6(1) and Art.6(2) and (2) by 12 votes to seven, having regard to the scheme under the 1988 Order, it was imperative in the interests of fairness for an accused to have access to a lawyer at the initial stages of police questioning. The refusal of the police to grant M access to a solicitor during the first 48 hours of his detention was therefore in breach of Art.6(1) read with Art.6(3)(c).

State of Bombay v. Kathi Kalu

Issue:

Whether handwriting and fingerprints would amount to self-incrimination?

Decision:

Section 73, Evidence Act also contemplates the obtaining of specimen handwriting. If a person gives the specimen handwriting voluntarily ,it cannot be said that he was compelled to give it. If the police merely requests the accused, then it does not amount to compulsion, but if it directs the

“To be a witness” means imparting knowledge in respect of relevant fact, by means of oral statements or statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation.

When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a ‘personal testimony’. The giving of a “personal testimony’ must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression to be a witness’.

A specimen handwriting or signature or finger impressions by themselves are no testimony at all being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable.They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of ‘testimony’.

Smt. Selvi v. State of Karnataka

Polygraph test, narco-tests etc are considered to be self-incriminations. This is unless it is done voluntarily. Even then, it can be used only as directive evidence.

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Investigation – CrPC Notes

Investigation includes all the proceedings under the CrPC for the collection of evidence conducted by a police officer or any person, other than a Magistrate, who is authorised by a Magistrate.

The Supreme Court has viewed an investigation as consisting of:

  1. Proceeding to the spot
  2. Ascertaining facts and circumstances of the case
  • Discovery and arrest of the suspected offender
  1. Collection of evidence related to the offence – examination of persons related to the case including the written statements; search and seizure of things that may be necessary for the investigation or at the trial stage
  2. Forming an opinion about whether there is a case that can be presented before a Magistrate for trial based on the materials collected.

 

FIR – Section 154 of CrPC

Contradiction–  Section 157 of IEA

Corroborations– Section 145 of IEA

Cross- examination – Section 145 of IEA

Dying declaration – Section 32 of IEA

The basic objective of the FIR is to set criminal law in motion through the agency of the police and to furnish to the police early information of any alleged criminal activity.

 

The characteristics of an FIR are:

  • It must disclose the commission of a cognizable offence
  • It should be given to the officer-in-charge of a police station
  • It should be at the earliest point in time

If the above conditions are satisfied, the information lodged with the police and recorded under Section 154 CrPC can be treated as an FIR.

 

Other features of FIRs:

  • In writing
  • If orally given, reduced to writing by the police officer
  • Signed by the person giving it
  • A copy should be delivered to the informant free of charge
  • It can be made by any person irrespective of whether he/she has first-hand knowledge of the crime (except in certain cases)
  • Any delay in making the FIR must be mentioned and explained in the FIR itself
  • Telegrams and telephonic messages cannot be treated as an FIR because they are not given in writing signed by the informant; neither are they reduced to writing by the police and read back to the informant. There is also no guarantee of their authenticity.

 

The value of the FIR can be explained in the following:

  • Gives the earliest version of the occurrence
  • Not a substantive piece of evidence
  • It can be used for corroboration under Section 157 of the Evidence Act
  • If the maker is if a witness, it can corroborate his testimony (FIRs are recorded before the investigation and so do not come under the purview of Section 162 of the CrPC.)
  • It can be used to contradict the author under Section 145 of the Evidence Act.

 

Special uses of an FIR:

  • As a conduct under 8 of the Evidence Act if lodged by the accused
  • As an admission under 21 of the Evidence Act if lodged by the accused
  • As a dying declaration, if lodged by the deceased whose death is in the issue
  • As an entry by a public servant in the discharge of his official duties under 35 of the Evidence Act

S.180 of the IPC punishes refusal by the informant to sign the FIR.

If the police refuses to record the FIR, the remedy is provided by S.154(3) of the CrPC.

Tapinder Singh v. State of Punjab

Facts: Tapinder Singh fired 5 shots of bullets on his wife’s sister’s husband. The man was taken to a hospital. There was a phone call made to the police station (anonymous). A dying declaration was also taken from the deceased.

Issue:

  • Whether the telephonic conversation was the FIR
  • Whether the dying declaration was the FIR

Decision:

  • The telephonic conversation is not an FIR as it did not in terms clearly specify a cognizable offense and cannot be treated as an FIR. The conversation merely informed the police about the happening of an event, so that further action can be taken.
Dying declaration can be recorded by the Executive Magistrate or any other person in a particular format. Even if it is not in a particular format it would not be in violation to § 162.
  • The dying declaration was taken as the FIR. The importance of it being taken as an FIR is that now it could be corroborated with other evidence. Thus, making the case stronger. 

Aphren Joesph v. State of Kerala

The principal contention on behalf of the appellants (accused) was that there was a major delay in the lodging of the FIR and therefore that itself was sufficient to destroy the credibility of the prosecution case. Therefore, they also alleged that the complaint was not lodged as the prosecution witnesses took that time to concoct the story and they were not actually present at the sight of the crime.

Ratio of the case (majority opinion):

FIR, relating to the commission of an offence, is not a condition precedent to setting in motion of a criminal investigation. Nor does the statute provide that such information report can only be made by on eyewitness. F.I.R. is not even considered a substantive piece of evidence. It can only be used to corroborate or contradict the informant’s evidence in court. But this information when recorded is the basis of the case set up by the informant. It is very useful if recorded before there is time and opportunity to embellish, or before the informants’ memory fades.

Undue or unreasonable delay lodging the F.I.R., therefore, gives rise to suspicion, which put the Court on guard to look for the possible motive and the explanation for the delay and consider its effect on the trustworthiness of the prosecution version. No duration of time in the abstract can be fixed as reasonably for giving information of a crime to the police, the question of reasonable time being a matter for determination by the court in each case.

In the present case, the eye-witnesses were afraid to go to the police station during night time and their evidence could not be shaken in cross-examination Keeping in view the local tense atmosphere and the effect of the ghastly murder on the eye-witnesses, their strong disinclination to go and lodge the report during the night after the alleged occurrence, which seems quite normal, cannot by itself arouse any suspicion about the prosecution case. Further, both the Courts below have also accepted the prosecution version as a whole, for reasons, which cannot be said to be unsound or implausible. Therefore, the delay in making the F.I.R. has reasonably been explained by the prosecution witnesses.

Conclusion: There is no automatic presumption of lack of credibility of prosecution’s case in the event of a delay in lodging of an FIR. FIR is an important start to the investigatory process, but not the only one (the level of it’s importance has been elucidated above in the ratio). If a delay has occurred, the prosecution has the leeway to establish reasons for the delay and the Court can assess it’s credibility on a case to case basis.

State of Haryana v. Bhajan Lal

Irregularities in the investigation do not vitiate the proceedings.

Ramsinh Bavaji Jadeja v. State of Gujarat

Facts:

There were two brothers who wanted to watch a movie. The cycle stand owner, the appellants, in the theatre was charging a higher rate of 40ps. when compared to the price of other stands of 30ps hence the deceased decided to park their vehicles in a hotel adjacent to the theatre. This angered the appellants who then refused to let them enter the theatre. This led to a quarrel in which the deceased was hit.

Issue:

  • Whether the telephonic conversation may be treated as an FIR (as in the case of Soma Bhai State of Gujurat)?

Decision:

However, it was held that in the current case, unlike in the Soma Bhai case, there was no information with regard to who the accused was amongst other details. This case is in furtherance of the Tapinder case, which held that a telephonic conversation since it did not provide proper information cannot be treated as an FIR and it was a mere information to the police of the happening of the event.

Babubhai v. State of Gujarat

Facts:   FIR 1 (7/7/2008) – There is a fight which ensues between two communities. This fight further leads to massive brawl. By the time the police was informed, the crowd had dispersed.   FIR 2 (8/7/2008) – At about 5.30 pm the same fight continued leading to the murder of 3 people and extensive rioting between the two communities. Some of the conspirators were common in both the FIR and the object of conspiracy in both the cases was not the same.

Issue: This Court while considering the question as to whether investigation and further proceedings on the basis of both the FIRs was permissible held that no straightjacket formula can be laid down in this regard. The only test whether two FIRs can be permitted to exist was whether the two conspiracies were identical or not.

Held:  After considering the facts of the said case, the Court came to the conclusion that both conspiracies were not identical. Therefore, lodging of two FIRs was held to be permissible.

Reasoning:  In T.T. Antony Vs. State of Kerala, the investigating agency has to proceed only on the information about commission of a cognizable offence which is first entered in the Police Station diary by the Officer In-charge under S.158 of CrPC and all other subsequent information would be covered by S.162 CrPC.

This is for the reason that it is the duty of the Investigating Officer not merely to investigate the cognizable offence report in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and the Investigating Officer has to file one or more reports under

S.173 CrPC.

Even after submission of the report under S.173(2) CrPC., if the Investigating

Officer comes across any further information pertaining to the same incident, he can make further investigation, but it is desirable that he must take the leave of the court and forward the further evidence, if any, with further report ounder S.173(8) CrPC.

There cannot be any controversy that Clause (8) of S.173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report to the Magistrate. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under S.173(2) CrPC.

It would clearly be beyond the purview of S.154 and 156 CrPC if a case of abuse of the statutory power of investigation in a given case. In the Court’s view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under S.173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under S.482 CrPC which deals with the powers of HC to give an order necessary for securing means of justice or under Articles 226/227 of the Constitution.

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Cognizance – CrPC Notes

Firstly, Section 2(c) and Section 2(l) define cognizable and non-cognizable offences.

  • Cognizable: The police, for a cognizable offence/cognizable case, may arrest without a warrant.
  • Non-cog: Police has no authority to arrest without a warrant.

*Whether an offence is cognizable or not is provided in the First Schedule of the CrPC.

Understand this – two types of people may take cognizance under the CrPC – a police officer and a magistrate. The information may be given to either of the two and the informant has the freedom to approach either one.

Under Section 154 and Section 156, what a police officer must do when the offence is cognizable is given.

  • Under 154 -If information is received by the officer of a cognizable offence, then he will put the information down into writing, read it over to the informant and makes sure he signs the same.
  • Under 156 – he now has the power to launch an investigation, without an order of a magistrate, into the cognizable case.

Under Section 155, what a police officer must do when he is approached with a non-cognizable offence is given. He is to enter the information of the case into a book and refer the informant to a Magistrate. He does not have the power to investigate without the approval of the Magistrate. If he receives the approval, he is to proceed with investigation as if he had powers under Section 156.

*If a case has two or more offences, in which on is cognizable, the entire case shall be deemed to be a cognizable one and the police can investigate without warrant.

Section 2(d) defines a complaint – allegation of an offence made to a Magistrate (does not include a police report)

Section 2(r) defines a police report – a report made a police officer to a magistrate under Section 173(2) of the Code – it is the report forwarded after the completion of the investigation.

What is ‘taking cognizance’ has not been defined in the Code, but it simply means to be aware and when taken in context of a judge it means “to take judicial notice”.

  • The Magistrate takes cognizance when he applies his mind to a suspected commission of an offence with the purpose of proceeding to take steps under Sections 200, 202 or 204 towards inquiry or trial.
  • The Magistrate does not take cognizance when he applies his mind for the purpose of some other kind eg. Ordering an investigation under Section 156(3) or issuing a search warrant for the purpose of investigation.
  • The presumption under Section 156(3) is that the information of a cognizable case has come directly to the Magistrate. He can now do two things. He can send it for investigation by the police, the inference of which is that he has not taken cognizance of the complaint. If he chooses to apply his mind and go through the processes mentioned under Sections 200 -204e. dealing with examination of the complainant, postponement of the issue of process etc.
  • Under Section 156(3) – the police will then submit a report to the Magistrate and he can THEN choose to take cognizance of the report, under Section 190 (1) (b) and issue directions for the process to begin. His conclusion does not depend on what the police have recommended. He can take cognizance of the information in the police report under Section 190 (1)(b) even if the police themselves recommend that there is no grounds for proceeding.
  • The Magistrate can even decide not to take cognizance of the police report, but instead go back to the original complaint and initiate examinations under Section 200 etc (which can be tagged as direct cognizance by the Magistrate).
  • Section 190 (1) (c) – purpose here is to not inhibit the Magistrate from delivering justice just because he has not seen the offence or has not been given a police report. He can act on any source of information.

 

No cognizance can be taken by the Magistrate in the following offenses : Unless :
Offences involving contempt of lawful authority of public servant (Sec. 172 – 188 of the IPC) On the written complain of the  concerned public servant (Section 195 of the CrPC)
Offences against public justice (Section 193- 196, 199, 200 205- 211 of IPC) On the written complain of the concerned court (Section 195 of the CrPC)
Offences relating to documents produced in court (Section 463, 471, 475, 476 of IPC) On the written complain of the concerned court (Section 195 of the CrPC)
Offences against State etc. (Section 121 – 130, 153 A, 153 B, 295 A, 505 of IPC) With the previous sanction of the appropriate Governemnt or, in certain case, of the Dist. Magistrate (Section 196 of the CrPC)
Offences of criminal conspiracy to commit an offence punishable with less than two years’ imprisonment 9Section 120 B of IPC_) With the written consent of the State Govt. or in certain cases of the District Magistrate (Section 196 of the CrPC)
Offences committed by judge or public servants acting in the discharge of their official duties With the previous sanction of the appropriate Government (Section 197 of the CrPC)
Offences committed by the members of the armed forces acting in the discharge of official duties With the previous sanction of the appropriate Government (Section 197 of the CrPC)
Offences against marriage (Section 493- 498 of IPC) On a complain of the person aggrieved (Section 198 of the CrPC)
Rape by husband against his minor wife (Section 376 of IPC) When the complaint is filed within one year (Section 198(6) of the CrPC)
Offence of defamation etc (Section 499 – 502 of IPC) Upon a complain of some person aggrieved (Section 199 of the CrPC)

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Hierarchy of Criminal Courts & Jurisdiction

The relevant sections for understanding the hierarchy of criminal courts:

 S.6, s.227, s.26, s.28, S. 16, 20, 28 of the Crpc.

The relevant sections for understanding jurisdiction:

S.1, s.177 of Crpc.

The functionaries discharging duties under the Code of Criminal Procedure are many, of which the roles of magistrates and courts is pivotal. The rest are accessories to the process (like the police, public prosecutors, defence counsels, prison authorities etc.)

The Constitution already establishes the SC and HC’s in every State and clearly defines their powers and jurisdictions. Section 374 and 379 of the CrPC allow for appeals to the Supreme Court under certain circumstances and also provides for the transfer of cases from one HC to another or one subordinate court to another, in the interests of justice.

Apart from the SC and the HC’s, Section 6 of the CrPC has specified certain classes of criminal courts:

  • Courts of Session
  • Judicial Magistrates of the First Class and in any metropolitan area – Metropolitan Magistrates.
  • Judicial Magistrates of the Second Class
  • Executive Magistrates.

Every sessions division in the State will have a Court of Session, to be presided over by a judge appointed by the HC. There may be Additional or Assistant Session judges whose exercise of powers of the Court of Session itself, and not a separate Court. They shall be subordinate to the Sessions judge – Section 9.

Section 227 of the CrPC deals with power of the Sessions Court to discharge a case after hearing both sides and viewing all documents.

Section 26 – courts by which offences are triable. (self explanatory)

Section 28: Clearly states that the HC may pass any sentence authorised by the law. However, a Sessions/Additional Sessions Judge may pass any sentence except the death sentence, which requires confirmation by the HC. Similarly, the Assistant Sessions Judge can pass any sentence except for death sentence and life imprisonment (or imprisonment exceeding 10 yrs).

Section 16: specifies the establishment of Metropolitan Magistrates in every metropolitan area. Jurisdiction and power shall extend throughout the metro.

Section 11: Courts of Judicial Magistrates to be established in districts that are not metropolitans. Parallel function to that of Metro judges. Two types – first and second class.

Section 20: Executive Magistrates – as many as the State government thinks is fit – one of them will be the District Magistrate. When an executive magistrate is placed in charge of a particular sub-division, he is known as a Sub-Divisional Magistrate. Both Judicial Magistrates and Executive Magistrates have jurisdiction over a district (if not specified otherwise limited). However, executive magistrates perform the magisterial functions of the executive.

Section 177: the ordinary place of inquiry and trial shall be in the Court in whose jurisdiction the act was committed.

Hierarchy of Criminal Courts & Jurisdiction

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Code of Criminal Procedure – CrPC Notes

Contributed by Nisha Raman, JGLS

Contributed by Nisha Raman, JGLS

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Emergency Provisions – Indian Constitution

S R BOMMAI V UNION OF INDIA (1994) (A NINE-JUDGE BENCH DECISION)

Facts

S R Bommai was sworn in as the Chief Minister of Karnataka on August 30 1988. On 17th April 1989 one legislator presented a letter to the Governor withdrawing his support to the Ministry. On 18th April 1989 he presented to the Governor 19 letters allegedly written by 19 legislators withdrawing their support to the Ministry.

The Governor called the Secretary of the Legislature Department and got the authenticity of the signatures on the said letters verified.

On April 19 1989 the Governor sent a report to the President stating therein that there were dissensions in the Janata Party which had led to the resignation of Shri Hegde and even after the formation of the new party headed by S R Bommai there were dissensions and defections. In support the Governor referred to the 19 letters received by him. He further stated that in view of the withdrawal of the support by 19 legislators, the Chief Minister S R Bommai did not command a majority in the Assembly and it was inappropriate to have the State administered by an Executive, consisting of Council of Ministers which did not command the majority in the House. He also added that no other political party was in apposition to form the Government. He therefore recommended to the President that he should exercise his powers under Article 356(1).

The Governor did not ascertain the view of S R Bommai either after the receipt of 19 letters or before making his report to the President

On April 20 1989 7 out of 19 legislators who had allegedly sent the letters to the Governor complained that their signatures were obtained on the earlier letters by misrepresentation and affirmed their support to the Ministry.

The State Cabinet met on April 20 1989 and decided to convene the Session of the Assembly on April 27 1989

The Chief Minister and the Law Minister met the Governor on April 20 1989 and informed him about the decision to summon the Assembly Session. The Chief Minister offered to prove his majority on the floor of the House even by pre-poning the Assembly Session if needed.

On April 20 1989 itself the Governor sent another report to the President referring to the letters of 7 legislators pledging their support to the ministry and withdrawing their earlier letters. The Governor however opined that the letters from 7 legislators were obtained by the Chief Minister by pressuring them and that horse trading was going on and the atmosphere was getting vitiated.

In the end he reiterated his opinion that the Chief Minster had lost the confidence of the majority in the House.

On April 20 1989 the President issues proclamation under Article 356(1) dissolving the House. The proclamation was thereafter approved by the Parliament as required by Article 356(3).

A writ petition challenging the validity of dissolution was dismissed by the High Court of Karnataka on the ground that the Governor’s report was not irrelevant and had to be accepted and the satisfaction of the President cannot be faulted

The Supreme Court declared the proclamation dissolving the Assembly as unconstitutional and observed:

“ It was improper on the part of governor to have arrogated to himself the task of holding firstly, that the earlier 19 letters were genuine and were written by the said legislators of their free will and volition. He had not even cared to interview the said legislators but had merely got the authenticity of the signatures verified through the Legislature Secretariat. Secondly he also took upon himself the task of deciding that the seven out of 19 legislators had written the subsequent letters on account of the pressure from the Chief Minster and not out of their free will. Again he had not cared even to interview the said legislators. Thirdly it is not known from where the Governor got the information that there was a horse trading going on between the legislators. Even assuming that it was so, the correct and proper course for him to adopt was to await the test on the floor of the House which test the Chief Minister had willingly undertaken to go through on any day the Governor chose.”

“We are of the view that this is a case where all canons of proprietary were thrown to wind and the undue haste made by the Governor in inviting the President to issue proclamation under Article 356(1) clearly smacked of mala fide.”

“The proclamation issued by the President on the basis of the said report of Governor equally suffered from mala fide”

“The Proclamation having been based on the said report and so-called information which is not disclosed was therefore liable to be struck down”

“The assessment of the strength of the Ministry is not a matter of private opinion of any individual be he the Governor or the President.”

“There cannot be any presumption of allurement or horse trading.”

“Since the “facts” stated by the Governor in his report contained his own opinion on unascertained material they could hardly be said to form an objective material on which the President could have acted. The proclamation issued was therefore invalid”

Principles laid down in Bommai on the scope of judicial review of President’s Rule

  1. President’s rule can be subject to judicial review to examine whether it was issued on the basis of any material at all or whether the material was relevant or whether proclamation was issued in mala fide manner
  2. Article 74(2) is not a bar against the scrutiny of the material on the basis of which President had arrived at his satisfaction. Advice and material are different
  3. Proclamation should be approved by both Houses of Parliament. If not approved the proclamation lapses
  4. Legislative Assembly should be kept in suspended animation and should not be dissolved. Legislative Assembly can be dissolved after the Proclamation has been approved by both Houses of Parliament
  5. President’s satisfaction is subjective but must be based on objective facts
  6. Proclamation can be struck down if is based on irrelevant consideration or is mala fide
  7. The Union government has obligation to produce the material before the Court
  8. If President’s action is unconstitutional the dismissed government can be revived and Assembly could be reactivated
  9. Pending the final disposal of a challenge the court can stay holding the elections
  10. Secularism is a part of the basic structure of the Constitution. The acts of a State government which are calculated to subvert or sabotage secularism can lawfully be deemed to give rise to a situation in which the government cannot be carried on in accordance with the provisions of the Constitution

(The Supreme Court in Bommai upheld the validity of the President’s rule in Madhya Pradesh, Rajasthan, and Himachal Pradesh as these governments had acted against secularism. The dismissal of these governments was a consequence of violent reactions in India and abroad as well as in neighbouring countries where some temples were destroyed as a result demolition of Babri Masjid on December 6th 1992. The proclamations  were issued on January 15, 1993. These governments were run by BJP. The President had relevant material based upon Governor’s report that these political parties were fomenting communal tension by campaigning for the demolition of Babri Masjid .)

 

Improper exercise of power under Article 356 according to Sarkaria Commission Report which has been incorporated in S R Bommai judgment

  1. President rule cannot be imposed on the ground of break-down of law and order or maladministration
  2. President rule cannot be imposed unless the Governor has explored all possibilities of installing an alternative government in case of resignation or dismissal of a government
  3. The removal of a government which has not been defeated on the floor of the House and which has not been given an opportunity to prove its majority by floor would be unconstitutional
  4. The assessment of the strength of the Ministry is not a matter of private opinion of the Governor or President. The strength of the Ministry can be known only by a floor test.
  5. Massive defeat of a political party in Lok Sabha elections such as in 1977 or 1980 cannot be a ground for exercising power under Article 356
  6. Internal disturbance not amounting to internal subversion or physical break down cannot be ground for President’s Rule
  7. Allegation of corruption against the Ministers cannot be ground for invoking 356.
  8. The use of this power to sort out internal differences or intra-party problems of the ruling party would be constitutionally incorrect
  9. Article 356 should be used very sparingly in extreme cases as a measure of last resort when all available alternatives failed to prevent the breakdown of government machinery

RAMESHWAR PRASAD V UNION OF INDIA (2005) 7 SCC 625

ISSUE: CAN DISSOLUTION OF ASSEMBLY UNDER ARTICLE 356 (1) BE ORDERED TO PREVENT STAKING OF CLAIM BY A POLITICAL PARTY ON TH GROUND THAT THE MAJORITY HAS BEEN OBTAINED BY ILLEGAL MEANS?

This was a peculiar case where even before the first meeting of the Assembly its dissolution was ordered on the ground that attempts were made to cobble a majority by illegal means

FACTS

In Bihar general elections were held in February 2005. Names of elected candidates were notified on March 4, 2005. No party or coalition was in a position to secure 122 seats so as to have majority out of total 243 seats in the Assembly

Governor’s report recommending Presidents rule in Bihar made on March 7 2005. The Presidential proclamation was approved by Lok Sabha on March 19 2005 and by Rajya Sabha on March 21 2005.

Governor again sent a report on April 27 2005 and May 21 2005 to President Buta Singh stating that some legislators were being induced with offers of money and other allurements and the Governor recommended the dissolution of the Legislative Assembly

On May 23 2005 Prime Minister Man Mohan Singh convened a meeting in the mid-night and obtained the assent of the President who was abroad and the Assembly was dissolved

The Supreme Court struck down the proclamation applying the ratio of S R Bommai case and held that the proclamation dissolving the Assembly was unconstitutional. However the Assembly was not restored as the election was in process.

The report of the Governor referred to (1) serious attempts to cobble a majority (2) winning over MLA’s by offering money, posts and other allurements (3) targeting parties for a split (4) horse trading among the legislators.

The petitioners alleged that the notification dissolving the Assembly was illegal as it was based on the report of the Governor which suffered from serious legal and factual infirmity and were tainted with pervasive mala fides. The object of the report was to prevent political party led by Nitish Kumar to form the Government.

The Supreme Court held

In the absence of relevant material much less due to verification the Governor’s report had to treated ipse dixit (his own perception or opinion) of the Governor. The drastic action was taken on the whims and fancies of the Governor.

The Supreme Court criticized the Union Government for recommending the dissolution of the Assembly without verifying the facts reported by the Governor. The Governor had misled the Central government and his action to forestall the formation of new government led by  Nitish Kumar was a mala fide exercise of power. There was no material at all to support the Governor’s perception that money and other allurements were being offered to the legislators.

The Supreme Court relying on nine judge bench decision in Bommai observed:

  1. It is well settled that if the satisfaction is mala fide or is based on wholly extraneous or irrelevant grounds the courts would have jurisdiction to examine it because in that case no satisfaction of the President in regard to that matter on which he is required to be satisfied. The proclamation under Article 356(1) is subject to judicial review to the extent of examining that the condition precedent for the issue of proclamation have been satisfied or not. This examination will involve the scrutiny of the material for satisfaction of the President
  2. While considering the question of material it is not the personal whim, wish, opinion or view of the President but a legitimate inference drawn from the material placed before him which is relevant for the purpose.
  3. In this case the Union Council of Ministers should have verified the facts stated in Governor’s report before hurriedly accepting it as a gospel truth. Clearly the Governor had misled the President.
  4. The case in hand is squarely covered against the Government by the majority decision in Bommai’s case There cannot be any assumption of allurement or horse trading.
  5. The assessment of the strength of a ministry is not a matter of private opinion of President or Governor. The proper course for a Governor was to test the strength of the ministry on the floor of the House which was not done by the Governor of Bihar.
  6. In the present case like in Bommai there was no material whatsoever except the ipse dixit (personal perception or opinion) of the Governor. His main object was to prevent a political party to stake claim to form government after elections and this object was destructive to the democratic fabric.
  7. Without highly cogent material it was irrational for the Governor to deny claim made by majority to form the government on the ground that the majority was obtained by offering allurements and bribe.

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FREEDOM OF TRADE COMMERCE AND INTERCOURSE- Indian Constitution

FREEDOM OF TRADE COMMERCE AND INTERCOURSE

The Constitution-makers desired to promote free flow of trade and commerce in India as they fully realized that economic unity and integration of the country provided the main sustaining force for the stability and cultural unity of the federal polity and that the country should function as one single economic unit without barriers on internal trade.

The origins of Article 301 which states “Trade commerce and intercourse throughout the territory of India shall be free” may be traced directly to Section 92 of the Australian Constitution which states: Trade Commerce and intercourse among the States shall be absolutely free:  but there are some significant differences between the two provisions

  1. Section 92 immunizes interstate trade only whereas Article 301 includes inter-state as well intra-State trade
  2. Section 92 makes freedom of trade’ absolutely ‘free but in India exceptions to Article 301 has been laid down in Article 302-304.

Meaning of trade, commerce and intercourse

Trade means buying and selling with intention to earn profit. Business is synonymous for trade – a systematic and organized activity with intention to gain.

Commerce means transmission or movement in which profit may not be the intention. Bringing a commodity for personal consumption is commerce. Commerce includes all transportation by land, air or water. It includes telephone telegraph or wireless or e-commerce which causes movement

Intercourse means commercial as well as non-commercial intercourse. Trade is a species of intercourse where the dominant element is to earn profit. Intercourse would include movements and dealings even of non-commercial in nature. It would include travel and all forms dealings with others. Such dealings may be by speech, music, radio or television.

The content of Article 301

Freedom under Article 301 means right to free movement of persons and things, tangible or intangible, commercial or non-commercial, unobstructed by barriers, inter-State or intra-State. All obstructions to free flow of trade would offend Article 301. The object of this provision to break down any barrier between States and within the State so that India maintains economic unity for sustained economic growth.

Exceptions to Article 301

  1. Parliament can impose such restriction on freedom of trade as may be necessary in public interest (article 302). However Parliament cannot discriminate between one State and another nor can it give preference to one State over another (Article 303(1). There is one case where discrimination among the States is permissible: it is in the case of famine or scarcity of goods in any part of India (Article 303(2))
  2. A State may by law impose on goods imported from other States any tax to which similar goods manufactured in the State are subject( Article 304 (a)
  3. A State may by law impose reasonable restriction on the freedom of trade commerce and intercourse in public interest. But this power is restricted in two respects:

(a) a State legislature cannot make a law with respect to trade and commerce which discriminates between the States (Article 303 (1) and

(b) a Bill imposing restriction on trade and commerce or intercourse shall not be introduced in the State Legislature without the previous sanction of the President

THE TEST OF DIRECT AND IMMEDIATE RESTRICTION

ATIABARI TEA CO LTD v STATE OF ASSAM, AIR 1961 SC 232(  A five judge bench decision)

In this case the Supreme Court was concerned with the Assam Taxation (on goods carried by Roads and Inland Waterways) Act 1954 which was passed under Entry 56 of List II of the seventh Schedule of the Constitution. The appellants carried on the business of growing tea and exporting it to Calcutta via Assam. In the course of passing through Assam the tea was liable to tax under the Act.

The appellants contended that the Act had violated the freedom of trade guaranteed by Article 301as it had obstructed free flow of trade   and as it was not passed after obtaining the sanction of the President as required by Article 304 (b) it was ultra vires.

MEANING OF “FREE”

The Supreme Court held that the accent on Article 301 is on the movement aspect of trade. This Article requires that the flow of the trade throughout India shall run smooth and unhampered by any restriction on the free flow and movement of trade. It is the free movement and transport of goods from one part of the country to another part that is intended to be saved by Article 301 and if a law or tax imposes a direct restriction on the very movement of such goods, it attracts the provision of Article 301 and its validity can be sustained only if it satisfied the requirement of Article 304(b).

The Court declared:

“Our conclusion therefore is that when Article 301 provides that trade shall be free throughout the territory of India it means that the flow of trade shall run smooth and unhampered by any restriction either at the boundaries of the States or at any other points inside the States themselves. It is the free movement or transport of goods from one part of the country to the other that is intended to be saved, and if any Act imposes any direct restriction on the very movement of such goods it attracts the provisions of Article 301. The freedom of movement of trade cannot be subject to any restriction in the form of taxes imposed on carriage of goods or their movements. Such restriction can be imposed by the State legislatures only after satisfying the requirements of Article 304(b) of the Constitution”

 “Restriction freedom from which is guaranteed by Article 301 would be such restrictions as directly and immediately restrict or impede the free flow or movement of trade. Taxes may and do amount to restriction but it is only such taxes which directly and immediately restrict free movement of trade would fall within the purview of Article 301.”

However, such regulatory measures as traffic regulations, licensing of vehicles, marketing and health regulations, price control, economic and social planning , prescribing minimum wages only indirectly impeded the free flow of trade. These are regulatory measures which promote and facilitate trade and are permissible for an orderly society.

Since the impugned Act had not satisfied the requirement of obtaining previous assent to the Bill by the President as required by Article 304(b) it was struck down as unconstitutional.

THE COCEPT OF COMPENSATORY TAX

AUTOMOBILE TRANSPORT CO v STATE OF RAJASTHAN AIR 1962 SC 925(  A seven judge bench decision)

In Automobile case the Court held that regulatory measures or compensatory taxes for the use of trading facilities did not hamper trade, commerce and intercourse and therefore were not hit by Article 301.  Rajasthan Motor Vehicles Taxation Act 1951 provided that no one could use or keep for use a motor vehicle in Rajasthan without paying an appropriate tax.

Relying upon Atiabari case the appellants argued that since the previous sanction of the President was not obtained the Act was invalid

The Supreme Court held

The interpretation which was accepted by majority in the Atiabari case is correct, but subject to this clarification: Regulatory measures or measures imposing compensatory taxes for the use of trading facilities do not come within the purview of restrictions contemplated by Article 301 and such measures need not comply with the requirements of the proviso to Article 304(b) of the Constitution.

The Court found that in 1952-1953 the income from motor vehicle  taxation was about 34 lakhs and the expenditure on new roads and maintenance of old roads was about 60 lakhs. In 1954-55 the estimated income from tax on vehicles was 35 lakhs but the expenditure on maintenance of roads was 65 lakhs. The Supreme Court upheld the validity of the impugned Act as imposing compensatory tax which was permissible and not violative of freedom guaranteed by Article 301.

Thus the State was charging from the users of motor vehicles nearly 50% of the cost incurred by the State in maintaining and making roads

For the purpose of ascertaining whether a tax was a compensatory or not, it is necessary to inquire whether the traders were having the use of facilities for better conduct of their business and paying not patently much more that what was required for providing the facilities. It was explained by the Court that the State had to find  funds for making and maintaining roads and fund could only be raised through taxation, It was further clarified that tax so collected for providing trading facilities need not be kept in a separate fund.

A compensatory tax does not offend the freedom of trade, commerce and intercourse guaranteed by Article 301 and therefore such taxes need not meet the requirement of Article 304(b).

G K KRISHNAN v STATE OF TAMIL NADU (1975) 1 SCC 375

In this case the writ petition challenged the validity of a notification by Government of Tamil Nadu enhancing the  motor vehicle tax on omnibuses from Rs 30 per seat per quarter to Rs 100 per seat per quarter, The question for consideration was whether the tax was a compensatory tax? It was found that Rs 19.51 crores had been spent not only for maintenance of the roads but also for the construction of new ones and that the receipt from the vehicle tax was only 16.38 crores.

Following Autombile Transport Case (1962) the Supreme Court held that the impugned tax was a compensatory tax and did not violate Article 301. The Court observed that regulations like rules of traffic facilitate freedom of trade and commerce whereas restrictions impede that freedom. The collection of tax or toll for the use of roads, bridges, aerodromes, does not operate as barrier or hindrance to trade. For a tax to become a prohibited tax, it has to be a direct tax effect of which is to hinder the movement part of trade. If the tax is compensatory or regulatory it cannot operate as a restriction on the freedom of trade and commerce.  A compensatory tax need not satisfy the requirements of Article 304(b).

Working Test

The Court referred to the working test enunciated in Automobile case according to which the working test for deciding whether a tax is compensatory or not is to enquire whether the trades people are having the use of certain facilities for the better conduct of their business not patently paying much more than what is required for providing the facilities.

The very idea of a compensatory tax is service more or less commensurate with the tax levied

The Court therefore upheld the notification enhancing the tax on motor vehicles in Tamil Nadu as it was held to be a compensatory tax.

THE POWER OF STATE LEGISLATURES

CASES ON ARTICLE 304 (a)

VIDEO ELECTRONICS (PVT) LTD V STATE OF PUNJAB (1980) 4 SCC 134

In this case the petitioners who carried on the business of selling cinematographic films and other equipment like projectors, sound recording and reproducing equipment, industrial X ray films, graphic art films etc, had  challenged the notifications issued by the governments of Punjab and Uttar Pradesh which had provided temporary exemption to the new electronic local industries from paying sales tax. The UP notification stipulated that the said benefit shall be available only to those units who have commenced their production between the dates specified in the notification.

The Punjab notification provided that the rate of sales tax payable by an electronic manufacturer unit existing in Punjab would be one percent as against normal twelve percent applicable to units from other States

In the case of UP notification the Supreme Court held that in as much as it was a case of grant of exemption to a special class for a limited period on specified conditions and was not extended to all the products of those goods, it did not offend the freedom of trade guaranteed by Article 301 and 304 (a)

Similarly in the case of Punjab notification it was held that the exemption was for certain specified goods and overwhelmingly large number of local manufacturers of similar goods were subject to sales tax.

It could not be said that the local manufacturers were favoured as against outside manufacturers

The Supreme Court upholding the validity of the impugned notifications ruled:

“A state which is economically and technically weak on account of various factors should be allowed to develop economically by granting exemptions, concessions, subsidies to new industries”

Accordingly the impugned notifications were held not violative of Article 304(a).

Thus a temporary exemption from sales tax to specified goods made within the State with a view to giving incentives and encouragement to the local industry does not infringe Article 304(a) of the Constitution.

SRI MAHAVIR OIL MILLS LTD v STATE OF J&K (1996) 11 SCC 39

Under Jammu and Kashmir General Sales Tax Act the State government issued notifications   stating that as the cost of production of edible oil in the State of Jammu and Kashmir was higher than the cost of production of edible oil in the adjoining States the producers of edible oil in the State of Jammu and Kashmir will be exempted from paying sales tax on edible oil. But the manufacturers /producers of edible oil from other States were liable to pay tax at the rate of 8%.

The appellant challenged the constitutional validity of tax exemption as infringing the requirement of Article 301 and 304(a) of the Constitution.

In this case the Supreme Court invalidated the imposition of 8% sales tax by the State of J&K on the edible oil imported from other States from which the Edible Oil produced with in J&K was exempted. The Court rejected the State’s plea that such arrangement was necessary to encourage the State oil industry and to subsidize high cost of oil production within the State .By exempting unconditionally the edible oil produced within the State of J&K altogether from sales tax while subjecting the edible oil produced in other States to sales tax at 8%, the State of J&K has brought about discrimination by taxation prohibited by Article 304(a) of the Constitution.

It was held that the exemption granted from payment of sales tax to local manufacturers /producers of edible oil is unconstitutional and violative of Article301 and  304(a) of the Constitution.

Citing Video Electronics case the Supreme Court observed that a limited exception created in that case cannot be enlarged to eat up the main provision in Article 304(a) which totally prohibits discriminatory taxation by a State. By exempting unconditionally the edible oil produced within the State of Jammu and Kashmir altogether from sales tax the State had brought about discrimination by taxation prohibited by Article 304(a).

The notifications were held to be violative of Article 301 and Article 304(a)

CONCLUSION

The concept of compensatory tax has been evolved judicially in order to provide more autonomy to the States for raising revenue through taxes under Entries 56 and 57 of List II.  It has consistently been held that these taxes are by their very nature compensatory in character and are therefore outside the purview of Article 301.The power to impose tax under entry 56 or 57 List II is the power to impose taxes which are in the nature of compensatory or regulatory measures and when a tax is regulatory or compensatory in nature the measure of tax need not be proportionate to the expenditure incurred in the services provided to the traded people.

Thus regulatory measures or compensatory taxes do not offend Article 301 and such measures need not satisfy the requirement of Article 304(b).

Thus the test for adjudging the validity of law on ground of Article 301 may be stated in the following manner:

  1. A measure which operates on trade, commerce and intercourse indirectly or remotely is not violative of Article 301
  2. A measure which operates on trade, commerce and intercourse directly and immediately is violative of Article 301
  3. A measure which operates on trade, commerce and intercourse directly and immediately may not be violative of Article 301 if it is

(a) Regulatory or

(b) Imposes compensatory tax for the use of trading facilities.

Jindal Stainless Ltd. v. State of Haryana (2016)

  • Only such taxes which are non-discriminatory in nature are valid, those taxes which are discriminatory in nature are unconstitutional.
  • The factum as to whether an entry tax is discriminatory or not has to be examined by the respective benches hearing the same.
  • The concept of compensatory tax is flawed and has no legal basis.

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RESIDUARY POWER OF LEGISLATION – Indian Constitution

UNION OF INDIA V H S DHILLON (AIR 1972 SC 1061)

Note-This is a seven judge bench decision of the Supreme Court

Facts of Controversy

This case involved the definition of “net wealth” in the Wealth Tax Act 1957 a Central Law as amended by the Finance Act 1969. The amended definition of ‘net wealth’ included agricultural land in assets for the purpose of calculating tax on capital value of the net wealth.

The relevant entries are:

Entry 86 List I ‘taxes on capital value of assets, exclusive of agricultural land’

Entry 97 List I ‘any other matter not included in List II or List III’

Entry 49 List II ‘taxes on lands and buildings’

Article 248 states: (1) Parliament has exclusive power to make any law with respect to any matter not enumerated in Concurrent List or State List.

(2) Such power shall include the power of making any law imposing tax not mentioned in either of those lists

It was argued that the object and effect of exclusion of agricultural land from entry 86 List I was to take agricultural land out of the ambit of Entry 97 List I and Article 248 and therefore Wealth Tax Act as amended by Finance Act including agricultural land for calculating tax on capital value of assets was a law under Entry 49 List II.

Argument of M C Seetalvad for Government of India

The impugned Act is not a law with respect to Entry 49 List II and if this is so, it must necessarily fall within the legislative competence of Parliament under Entry 97 List I read with Article 248 or under Entry 86 List I read with Entry 97 List I. The words ‘exclusive of agricultural land’ in Entry 86 L I could not cut down the scope of Entry 97 List I or Article 248 .

He argued that the proper way of testing the validity of a Central law was first to see whether the Central law was with respect to a matter or tax mentioned in List II, if it was not, no other question would arise and Central law will be valid.

Argument of Palkiwala for the Respondents

It was the scheme of the Constitution to give States exclusive power to legislate in respect of agricultural land, income on agricultural land and taxes thereon. The object and effect of  excluding  agricultural land from the scope of Entry 86 I was take it out of the ambit of Entry 97 I and Article 248 and therefore the impugned law was a law with respect to Entry 49 L II

Decision of the Supreme Court

The best way of dealing with the question of validity of the Impugned Central Law to ask two question

  1. Is the impugned Act is a legislation with respect Entry 49 L II
  2. If it is not is it beyond the legislative competence of Parliament?

It is unthinkable that the Constitution makers had withheld certain matters or taxes beyond the legislative competence of the legislatures of this country.

“If on proper examination of Entry 49 List II read in the light of Entry 86 List I, it is held that tax on the capital value of agricultural land is not included with in Entry 49 List II or in Entry 86 I it would be arbitrary to say that it does not fall under Entry 97 I read with Article 97 List I. We do not read ‘any other matter in Entry 97 List I to mean that it has any reference to topics excluded in Entries 1-96. The words ‘any other matter’ have reference to matters on which Parliament has been given power to legislate by the enumerated entries 1-96. Accordingly we do not interpret the words ‘any other matter’ to mean a topic mentioned by way of exclusion.”

On the terms of Entry 97 List I read with Article 248 the only question to be asked is: Is the matter sought to be legislated or included in List II or List Iii or is the tax sought to be levied mentioned in List II or List III. No question has to be asked about List I. If the answer is in the negative then it follows that Parliament has the power to make laws with respect to that matter or tax.

It must be remembered that the function of the lists is not to confer powers; they merely demarcate the legislative fields.

(The Court explained that taxing power has been distributed between the Centre and the States and there no entry in the Concurrent List dealing with taxes)

Question

Whether the impugned Act is a law with respect to Entry 49 list II

Answer

The tax under Entry 49 II is not a personal tax but a tax on property whereas wealth tax is a personal tax. Therefore the impugned Act was not a law with respect to Entry 49 List II. Parliament had not encroached upon a legislative field assigned exclusively to State Legislatures.

Hence the impugned legislation is valid either under entry 86 List I read with Entry 97 List or under Entry 97 List I standing by itself.

The Supreme Court held that the Wealth Tax Act did not fall within either  Entry 86, List I or Entry 49 List II. If the impugned Act was not a law under entry 49 List II the Central Act was valid.

However even assuming that that the Wealth Tax Act as originally enacted was a legislation under Entry 86 List I nothing in the Constitution prevented Parliament from combining its powers under Entry 86 List I with its powers under Entry 97 List I. There was no principle which prevented Parliament from relying on the powers specified under entries 1-96 and supplementing them with powers under Entry 97 List I and Article 248.

Parliament could include agricultural land in the capital value of assets under Entry 86 List I but it could include it in the exercise of its power under Entry 97 List I because agricultural land was not a matter included in any of the entries 1-96 of List I.

The Court clarified that even if there were doubts in the acceptance of this interpretation they were removed by Article 248 which gave exclusive power to Parliament to make a law on any matter not enumerated in List II or List III. As tax on capital value of assets was not included I Lists II or List III, Parliament was competent to enact a law on that subject.

Conclusion

“If a Central Act is challenged as being beyond the legislative competence of Parliament it is enough to enquire if is a law with respect to matters or taxes in List II. If is not, no further question arises”

Comment: The interpretation given by the Supreme Court in Dhillons case on scope of residuary power of Parliament can be appreciated so as to avoid any vacuum in the area of legislative powers as would have happened had the Court adopted a restrictive view of the residuary power of Parliament. This interpretation gives a new dimension to power of the Centre.

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RULE OF REPUGNANCY – Indian Constitution

Article 254 of the Constitution makes provision, first what would happen in case of conflict between a Central and State law with regard to the subjects enumerated in the Concurrent List and secondly for resolving such conflict. Article 254 (1) enunciates the normal rule that in the event of conflict between a Union and State law in the Concurrent list the former prevails over the latter. Clause (1) lays down that if a State law relating to a Concurrent subject is repugnant to a Union law relating to that subject, then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall to the extent of such repugnancy, be void.

To the general rule laid down in clause (1), clause (2) engrafts an exception, viz, that if the President assents to a State law which has been reserved for his consideration, it will prevail notwithstanding its repugnancy to an earlier law of the Union, both laws dealing with a Concurrent subject. In such a case the Central law will give way to the State law only to  the extent of inconsistency between the two and no more.

The predominance of the State law may however be taken away if Parliament legislates under the proviso to clause (2). The proviso to clause (2) empowers the Parliament to repeal or amend a repugnant State law either directly or by itself enacting a law repugnant to State law with respect to the ‘same matter’. Even though the subsequent law made by Parliament does not expressly repeal a State law, even then the State law will become void as soon as the subsequent law of Parliament creating repugnancy is made.

A state law will be repugnant to the Union law when there is a direct conflict between the two laws. Such repugnancy may also arise when both laws operate in the same field and the two cannot possibly stand together.

HOECHST PHARMACEUTICALS V STATE OF BIHAR AIR 1983 SC 1019

Relevant Entries

List II Entry 54 —Taxes on sale and purchase of goods

List III   Entry 33 –Trade and Commerce and the production supply and distribution of the products of any industry where the control of such industry is declared by Parliament by law to be expedients in public interest.

Law passed by Parliament under entry 33 List III

Essential Commodities Act 1955 has been passed by Parliament under entry 33 List III providing for regulation production supply and distribution of essential commodities

Under this law the Central government passed an order by under section 3 of the Act which stated that manufacturers or producers of goods could pass on the tax liability (sales tax and excise duty) to the consumers. In other words the sales tax could be recovered from purchasers of goods and products by the manufacturers and producers.

The Central law was on the subject of Price Fixation of essential commodities under entry 33 List III

Law passed by Bihar Legislature under Entry 54 List II

Section 5 of Bihar Finance Act 1981 prohibited the dealers to recover surcharge ( sales tax) from the purchasers .This law interdicted that no dealer liable to pay a surcharge in addition to tax payable by him shall be entitled to collect the amount of surcharge from the purchaser.

Section 5 provided for the imposition of a surcharge at 10 percent of the amount of tax payable by a dealer whose gross turnover during a year exceeded rupees 5 lakhs, in addition to tax payable by him’

Messrs Hoechst Pharmaceuticals and Glaxo Laboratories challenged the Bihar Act on the ground that under the Central law they were allowed to pass on the tax liability to consumers but the Bihar Act denied them

Argument of Petitioners

Price fixation is an occupied field by Central law and State law is repugnant to Central Law and hence void under Article 254(1).

Argument of Bihar State

Central law and State law operated in different and distinct fields. Under entry 54 List II

Under Entry 54 the State while levying a tax on sale or purchase of goods is competent to prohibit the dealers liable to pay a surcharge from recovering the same from the purchaser.

Apparent Conflict

There was an apparent conflict between Central law which allowed manufacturers or producers of drugs to pass on the liability to pay sales tax to the purchaser and the State law which prohibits such manufacturers or producers to recover surcharge (sales tax) from purchasers

Argument of Petitioners

Since Parliament has chosen to occupy the field of price fixation under entry 33 List III the State legislature is not competent to pass a law under entry 54 List II prohibiting the passing of liability of tax to the purchasers, Hence the State law was repugnant to Central law and void under 254 (1)

The Supreme Court held

“The true principle in judging the constitutional validity of   section 5 of the Act is to determine whether in pith and substance it is a law relatable to Entry 54 of List II and not whether there is repugnancy between section 5 of the Act and Price Control order made by the Central government under Essential Commodities Act under entry 33 of List III.”

“The question of repugnancy under Article 254 (1) between a law made by Parliament and a law made by the State legislature can arise only in case both the legislations occupy the same field with respect to one of the matters enumerated in the Concurrent List, and there is a direct conflict between the two laws. It is when both these requirements are fulfilled that the State law will to the extent of repugnancy, become void.”

“Article 254(1) has no application cases of repugnancy due to overlapping found between List II  on the one hand and Lists I and III on the other. If such overlapping exists in any particular case the State law will be ultra vires because of the non-obstante clause in Article 246(1) read with the opening words “subject to” in Article 246(3). In such a case the State law will fail not because of repugnance to the Union law but due to want of legislative competence”

“The underlying principle is that the question of repugnancy arises only when both the legislatures are competent to legislate in the same field that is with respect to one of the matters enumerated in the Concurrent List. Article 254(1) cannot apply unless both the Union and State Law relate to a subject specified in the Concurrent List and they occupy the same field”

Decision

There cannot be any intrusion by a law made by Parliament under entry 33 List III into a forbidden field viz the State’s exclusive power to make a law with respect to levy and imposition of a tax on sale or purchase of goods relatable to Entry 54 List II. It follows that the two laws viz the price control order passed by the Central government under Essential Commodities Act passed under entry 33 List III and Section 5 of the Bihar Finance Act operate on two separate and distinct fields and both are capable of being obeyed. There is no question of any clash between the two laws and the question of repugnancy does not come into play

THE APPLICATION OF PROVISO TO ARTICLE 254(2)

Zaverbhai v State of Bombay (1954)

The Central Legislature passed Essential Supplies (Temporary Powers) Act in 1946. Section 7 of the Central Act provided for penalties for contravention of orders made under Section 3 of the Act. The punishment provided under Section 7 was imprisonment up to three years or with fine or both.

In 1947 the Bombay Legislature passed a law enhancing the imprisonment which may extend up to seven years and not less than six months plus fine.

Both the Central and State laws were on a matter enumerated in List III.

Since the State law was repugnant to Central law on the same matter the assent of Centre was obtained and under Article 254(2) the State law became operative in the State of Bombay despite being repugnant to Central Law

In 1950 Central Legislature enacted a new Section 7 and divided the offences in three categories in the Essential Supplies (Temporary Powers Act).

Section 7 of the Central Act also specified punishments separately for the three categories of offences. The Central law provided for imprisonment for three years or fine or both

Since the State Law had provided for imprisonment for 7 years and not less than six months plus fine there was an apparent repugnancy between the State law and Central law.

The Supreme Court held that the Bombay Act of 1947 was impliedly repealed by Section 7 which had amended the Central Act in 1950 and Section 2 of the Bombay Act cannot prevail as against Section 7 of the Essential Supplies (Temporary Powers) Act 1946 as amended in 1950.

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