Sunday 26 September 2021

Questions and answers on law Part 40

 Q 1:- Whether report under section 156 sub section 3 CR PC is binding on the Court?

 Ans: Report filed by police U/S 156 of CRPC is not binding on magistrate. He can disagree with police report and take cognizance against accused or drop prosecution against accused.
Supreme Court of India
Abhinandan Jha & Ors vs Dinesh Mishra on 17 April, 1967

Hon'ble Judges/Coram:
C.A. Vaidialingam and M. Hidayatullah, JJ

Citations: 1968 AIR 117, 1967 SCR (3) 668

Q 2:-  What are Types of Injunction?
Ans:  There are three main types of injunctions.
Temporary injunction,
perpetual injunction, 
mandatory injunction.

Q 3:- Whether police has right to conduct further investigation and under which provision?
Ans: Yes U/S 173(8) of CRPC.
Central Government Act
Section 173(8) in The Code Of Criminal Procedure, 1973
(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2).
Q 4:- Whether victim has right to ask for further investigation if he/she is not satisfied by investigation carried out by police?
Ans: Trial court can direct further investigation on prayer of victim if he convinced that it is in the interest of justice to direct further investigation. 

There is no good reason given by the Court in these decisions as to why a Magistrate’s powers to order further investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. 

Vinubhai Haribhai Malaviya  Vs  The State of Gujarat 

R.F. Nariman, J.
Dated:October 16, 2019.

5) In a civil suit compromise decree is passed but some of the parties were absent and trial court proceeded exparte against them. Whether compromise decree between parties present in the suit will be binding on those defendants who were proceeded exparte before compromise. If not ,then what will be the remedy for them to set aside that order?

Ans:- "Compromise" means settlement of differences by mutual concessions. It is an agreement reached by adjustment of conflicting or opposing claims by reciprocal modification of demands. A compromise is always bilateral and means mutual adjustment. "Settlement" is termination of legal proceedings by mutual consent (State of Punjab v. Ganpat Raj : AIR 2006 SC 3089). A compromise or settlement is nothing but an agreement between the parties . A compromise or settlement will not be binding on a person who is not a party to it (Arjan Singh v. Punitahluwalia : AIR 2008 SC 2718). A compromise between some parties alone cannot affect the position of the other parties to the suit. They are neither bound by it nor are entitled to enforce it.

In a given case a decree may be both preliminary and final. A decree may also be partly preliminary and partly final (Rachakonda Venkat Rao v. Satya Bai : AIR 2003 SC 3322 and Hasham Abbas Sayyad v. Usman Abbas Sayyad : AIR 2007 SC 1077).There can be more than one decree passed at different stages of the same suit.

Nothing precludes some of the parties to the suit to enter into a compromise (Bai Chanchal v. Syed Jalaluddin: AIR 1971 SC 1081).A partial compromise of a suit by a lawful agreement is permissible (Chintamani Dora v. Guntreddi Annamanaidu : AIR 1974 SC 1069). There may be two decrees in one suit, a consent or compromise decree and a decree on contest. The court can pass a decree based on a compromise arrived at with one set of defendants, followed by a separate decree vis-a-vis the other set of defendants (Krishna Ponnuswamy v. Punitha Anand : 2017 SCC OnLine Madras 36001).

A compromise to which some of the parties to the suit alone are parties, is not necessarily invalid. When the dispute between the plaintiff and one of the defendants is settled, other defendants cannot challenge the compromise or settlement unless such compromise or settlement prejudicially affects their interest (Shri Sachidanand Vidya Shankar Bharati v. Shri Vidya Narsinha Bharati : AIR 1927 PC 57).

However, a partial compromise prejudicial to the interests of other parties not joining the same cannot be recognized. There may be cases where a suit had been adjusted wholly or in part by certain of the parties and due to which the other parties may be affected by the recording of compromise by virtue of the nature of the suit, nature of the reliefs prayed for, the subject matter of the suit and the cause of action being joint and indivisible or for any other reason of the like nature. Similarly, where the interests of the several parties to a suit are inseparable, it is not open to some of them alone to compromise the matter.

It is possible for one or more of the several defendants in the suit to satisfy the plaintiffs without affecting the other defendants who are not co-operating.When there are more than one defendant in a suit, the plaintiff can have settlement with any number of them and such a settlement can always be recorded. In such a case, decree can be passed against those defendants who have entered into the compromise or settlement with the plaintiff. The suit shall proceed in respect of the rest of the defendants. The trial court should have continued the proceedings in the suit as against the defendants who had not joined the compromise without being influenced in any manner by the terms of the compromise. If an ex parte decree has been passed against them, they can make application to set aside the ex parte decree.

Print Page

No comments:

Post a Comment