The Supreme Court in a recent decision on March 19, 2021, rendered in Govt. of Maharashtra v. Borse Brothers Engineers and Contractors Pvt Ltd, clarified certain aspects of the application of Limitation Act to appeals under section 37 of the Arbitration and Conciliation Act. Read More »
The Supreme Court had earlier released Arnab Goswami on interim bail during the pendency of his petition before the Bombay High Court thereby setting aside the judgment of the High Court denying the relief to him. In the judgment released recently, the Supreme Court strikes the cord of personal liberty as a justification to set aside the impugned judgment. In doing so, the Court holds that the FIR, prima facie, does not meet the requirements of law, i.e., section 306 read with 107, IPC. The Court notes that the High Court ought to have dealt with the merits of the FIR at this stage and ought to have come to a prima facie conclusion which should have then formed the basis for interim release of the accused/applicant. I beg to differ with the judgment of the Supreme Court in the analysis done below.Read More »
The Bombay High Court denied the interim relief of bail as prayed for by Arnab Goswami in his Writ Petition. It was principally argued by the petitioner that the detention of the petitioner was illegalRead More »
I recently read a judgment of the Bombay High Court which thew some light on the question of filing of documents in a civil suit at a stage later than filing of the plaint or written statement, as the case may be. The High Court was faced with the question as to whether a party to a civil suit produce documents before the court at the time of cross examination of the other party. Such a question arises in light of provisions contained in order 7 rule 14 of the Civil Procedure Code read with Order 13 rule 1 thereof. Order 7 rule 14 of CPC essentially states that documents relied upon by a plaintiff to a civil suit cannot, generally, be filed at a stage later than filing of plaint. However, the rule carves out an exception for a document produced during the cross examination of witness of the other party. Order 13 rule 1 States that originals of documents find along with the plaint have to be produced on or before the settlement of issues by the trial court. Such original documents produced before the court at this stage are usually seen and returned by the court after inspection by the other party. Order 13 rule 1 also states that nothing in this rule shall apply to Documents produced during cross examination of witnesses of the other party. Now, assume a hypothetical scenario where a plaintiff does not file any document along with the plaint and chooses to produce documents in support of plaint only during cross examination of the defendant’s witness. Going by the aforesaid rules, he can do that subject to rules of the Evidence Act. However, can he also produce documents while cross examining the defendant himself who has stepped into the witness box as a witness? If that is found to be correct, then least in theory, a plaintiff may not file any document along with the plaint in a given case, and may simply choose to produce them during cross examination of the defendant who enters the witness box. Of course, this is subject to the rules of Evidence Act, particularly section 145, wherein only those statements can be confronted to a witness during the cross examination which are made by him in writing or reduced into writing. However, assuming that the class of document otherwise satisfies the rules of Evidence Act, is the plaintiff at liberty to produce the document for the first time during the cross examination of the defendant without having produced it at the time of filing of the plaint? The High Court in the case at hand, when faced with this question, relied upon prior judgements of the same High Court to hold that the term ‘witness’ in order 13 rule 1 CPC cannot be held to include a party to a civil suit in witness box as it will render provisions of order 7 rule 14 and order 8 rule 1A CPC otiose. It is a standard rule of interpretation that a provision should not be construed in isolation and should be read along with other provisions of the statue and any interpretation that will render any other provision of the statute redundant should be avoided. Going by the said rule of interpretation, if the Court holds that order 13 rule 1, insofar as it permits a document to be produced for cross examination of other party’s witness, is held to include a party itself as a witness, then a party to the suit may be taken by surprise during the cross examination as that particular document need not be filed at the time of filing of plaint. To prevent such an anomaly, the court held that the term ‘witness’ appearing in order 13 rule 1 will only include a witness called by a party to the suit and not the party itself appearing as a witness in that suit. This would essentially mean that a party to a suit will not be taken by surprise by the other party during the cross examination. So, the law stands, at least in Maharashtra, that a plaintiff or defendant, during the cross examination, cannot be confronted with a document which has not been filed along with the plaint or written statement, as the case may be. So essentially, if a party to a suit seeks to produce certain document which has not been produced at the time of filing of plaint or written statement then it will have to seek leave of the court to file that particular document under Order 7 rule 14 instead of directly confronting the plaintiff or the defendant, as the case may be, with that document in cross examination. It will be interesting to see if other high courts have also held on similar line with respect to the issue at hand.
© 2020 Harshvardhan Pandey
Arnab Goswami’s petition for bail filed in the Bombay High Court has gained much traction in the media recently.
The primary question before the court as argued by the petitioner was that the court has, under the article 226 of the constitution, the necessary powers to enlarge the petitioner on bail even during the pendency of the petition, as those powers are inherent and extraordinary in nature and are not limited by any statute. The Court, however, has been reticent in accepting that argument as there already lies a remedy in the code of criminal procedure in the form of section 437 and 439 which can be pressed into service by the petitioner to seek bail before the magistrate or the sessions court. The peculiar point in the matter is that the petitioner had already moved an application for bail before the magistrate but this application was later withdrawn and thereafter the petition came to be filed before the High Court. The high court naturally posed the question as to why the petitioner was not willing to explore the remedy of bail under section 437 especially when the application was already filed. To this the petitioner replied that by way of the petition filed before the high court, petitioner was actually seeking the relief of quashing of the investigation and prosecution because they are illegal and also that the arrest made by the police is itself illegal. The petitioner also argued that since the police had no power to re- investigate the matter as the closure report was already filed in this case and it was also accepted by the magistrate. Therefore, arrest of the petitioner in pursuance of the illegal investigation was bad in law, making the detention of the petitioner illegal. Therefore bail was not necessary to be sought before the lower courts and the High Court could intervene in the matter to put an end to the illegal detention. However in the course of hearing of the petition, the petitioner had also filed an interim application seeking the relief of release of the petitioner from the detention during the pendency of the petition before Bombay High Court. The court was not inclined to grant the said relief primarily because the provisions exist in law for the petitioner to apply for bail before the lower courts.
The only point that interests me in the arguments advanced by the petitioner is as to what is the fate of detention carried out in pursuance of an investigation which is illegal. As the petitioner had argued before the court, would that not make the arrest also illegal. If that be the case why cannot the High Court while dealing with the matter for remedying illegal prosecution and investigation also grant relief of release of an accused? There are judgements which were also pointed out by the Counsel for the petitioner that if an action is illegal then the fruits of that action or whatever is done in pursuance of that action will also be illegal. Therefore, if it is really a matter of discretion for the court exercising extraordinary jurisdiction or inherent powers under the constitution then certainly the discretion can be exercised in a given case when the Court comes to a conclusion that the arrest itself is illegal because of it having been carried out in pursuance of an illegal investigation. However, that certainly will not be the case if the court is not giving a finding upon the illegal arrest based upon an illegal investigation. It is also quite possible that the court may not be willing to give such a finding even though a plea has been raised before the High Court to that effect. The Bombay High Court had clarified, while reserving its judgment upon the application for interim relief, that the petitioner could approach the lower courts under the provisions of code of criminal procedure. This I think, takes care of the urgency expressed by the petitioner. Now, the question of exercise of powers of High Court in a given case apropos the aforesaid discussion remains to be an academic question. In the articles to come, we will perhaps discuss the instances where High Courts and the supreme court have exercised powers under the constitution to enlarge a person on bail upon a finding of the detention itself being illegal. For now, let’s wait for order of the Bombay High Court to be uploaded.
The Supreme Court’s five judges’ bench, in Sushila Aggarwal v. State of NCT of Delhi (decided on 29th Jan 2020), has decided the conflict of opinions among its different previous benches of varying strengths. The question is regarding the time limit of protection from arrest afforded to an accused/applicant while granting anticipatory bail to them. Read More »
With the advent of the Commercial Courts Act, lot of confusion has cropped up regarding the construction of certain provisions of the Act. Read More »
One of the important legal questions which arise frequently in civil courts in India is regarding the refund of court fees pursuant to settlement between the parties. Read More »
The Maharashtra Control of Organised Crime Act, 1999, is a special penal statute enacted to curb the activities of organised crime syndicates. It seeks to penalise the offence of organised crime defined under Act. However, an interesting issue arises as to the application of the Act vis-a-vis the previous offences committed by an accused. Let’s understand.Read More »