LAW ON PRINCIPLES OF DOMINUS LITUS, MIS JOINDER AND NON JOINDER

 

LAW ON Principles of dominus litus, mis joinder and non joinder

 

A recent judgment of Supreme Court captioned as Asian Hotels (North) Ltd Vs Alok Kumar Lodha & Ors, Civil Appeal No. 3703-3750 of 2022 has set at rest as regards the applicability of principles of dominus litus, addition of parties, non joinder or mis joinder as also the scope of amendment in plaint. Generally, a plaintiff to the suit claims its right to array such parties as defendant that it chooses to contest and the omission of parties and including the parties are generally perceived to be the domain of plaintiff. The Supreme Court in the above case, however has put fetter to that right and has held that principles of dominus litus is not sacrosanct and arraying parties cannot always be at the whims of a plaintiff and shall only be available subject to clear right to sue and cause of action available. If the parties are arrayed mechanically, and without any right to sue, principles of dominus litus shall not apply. Moreover, if a party is neither necessary nor a proper party to a lis, the principles of Order 1 Rule 10(2) of Code of Civil Procedure could be invoked and the name of such unnecessary party may be deleted, notwithstanding the opposition by the plaintiff. The amendments, if sought by the plaintiff, in such a scenario shall have to be dealt with in accordance with law and mere assertion that the suit is in initial stage shall be of no aid to the plaintiff.     

Merely because, appropriate parties were not included in the suit, the suit shall not be bad for non-joinder but, if the parties who are necessary parties, and yet not arrayed as the parties in the suit, then, in their absence, no final adjudication could be made. Thus, a suit without arraying necesasry party has to be held bad for non-joinder of necessary parties and the plaintiff has to face the legal consequences including prospect of dismissal of the suit.

It is now clear that two tests are to be satisfied for determining the question as to who is a necessary party. The tests stipulated are –

(1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings;

(2) no effective decree can be passed in the absence of such party.

In a matter captioned as Moreshar Yadaorao Mahajan Vs.  Vyankatesh Sitaram Bhedi (D) thr. L.Rs. and Ors MANU/SC/1251/2022 the Supreme Court has held as under:

“20. It can thus be seen that what has been held by this Court is that for being a necessary party, the twin test has to be satisfied. The first one is that there must be a right to some relief against such party in respect of the controversies involved in the proceedings. The second one is that no effective decree can be passed in the absence of such a party”.

In Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and Ors. MANU/SC/0427/2010 : (2010) 7 SCC 417, The Supreme Court has held in para no. 15 that:

“15. A "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a "necessary party" is not impleaded, the suit itself is liable to be dismissed. A "proper party" is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the Plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the Plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance”.

The Code of Civil Procedure in Order 1 Rule 9 contains principles of mis-joinder and non-joinder of parties. What is worth mentioning is that till 1977 the principles contained revolved around the premise that a suit cannot be defeated for non joined of necessary parties, however, a proviso was added by Act 104 of 1976 vide Section 52 of the Code, w.e.f 1.2.1977 whereunder the suit could be defeated for the reason of non joined of necessary parties. It is only after amendment that proviso was added to the effect that "Provided that nothing in this rule shall apply to non-joinder of necessary party."

 

In Asian Hotels (Supra), the Supreme Court has held:

 

9. From the impugned order passed by the High Court, it appears that what has weighed with the High Court is that plaintiffs, is the dominus litus and heavy reliance is placed in the case of Kasturi v. Iyyamperumal & Ors reported in (2005) 6 SCC 733. However, the principle that the plaintiffs is the dominus litus shall be applicable only in a case where parties sought to be added as defendants are necessary and / or proper parties. Plaintiffs cannot be permitted to join any party as a defendant who may not be necessary and / or proper parties at all on the ground that the plaintiffs is the dominus litus.

 

9.1. Even otherwise, High Court has materially erred in relying upon the decision in the case of Kasturi (Supra) before this Court the suit was for specific performance of the agreement to sell and the subsequent purchasers purchased the very property for which decree for specific performance was sought. Therefore, on facts said decision is not applicable to the facts of the case on hand.

 

The Madras High Court in Rathinaswamy Vs Achi Kannu SA No. 1698 of 2003 (decided on 04.03.2020) in para no. 21 has succinctly held as under:

“21. When proper parties were not included in the Suit, the Suit is not bad for non-joinder, but if the parties who are not on the array of the parties in the Suit who are necessary parties in whose absence no final adjudication cold be made, then the Suit has to be held bad for non-joinder of necessary parties. If proper parties are not added, the Court may allow further time affording opportunity to the Plaintiff to include them. But if the necessary parties were omitted to be included in the Suit, then the Plaintiff has to face the legal consequence of dismissal of the Suit. In the absence of necessary party, no effective decree could be passed. In short, non-joinder of proper party is not fatal, while non-joinder of necessary party is fatal to the case. When the Court sees that a particular party, who has been ignored by the Plaintiff in the suit, there is no option for the Court except to dismiss the same”.

The earlier precedence shall also be worth mentioning. The Supreme Court in Dr Subramanian Swamy vs Ramkrishna Hegde 1990 AIR 113, SC has held that If the ends of justice so demand, the case may be transferred under this provision notwithstanding the  right  of dominus litus to choose the forum  and  considerations  of plaintiff's convenience, etc. cannot eclipse the requirement of justice. Justice must be done at all costs, if necessary by the transfer of the case from one Court to another.

Thus, what is clear from the above is that in an original suit, unless statutorily provided, it is the discretion of the plaintiff to implead any person as party or who may be joined as defendants for that matter. The provision of Rule 10 (2) could be exercised by the court either on application of either of the parties or suo moto if it deems fit to the effect that any party is a necessary or proper party to the suit. The principle of “necessary party” is a strict one and this entails that a necessary party shall be a person, who ought to have been joined as a party and in their absence no effective decree could be passed by the court. No doubt, in a suit for eviction or injunction, it is the discretion of the plaintiff to choose the person against whom he wishes to litigate as the grievances shall be spelt out against such parties, the plaintiff is aggrieved of and therefore, he cannot be compelled to sue a person against whom he does not seek any relief. Conversely, in a suit for partition non joinder of necessary party could be fatal. There are enactments, though, where it could be prescribed that in a suit certain party or parties shall be necessary party, as the same may have been statutorily provided and the necessary party is usually either the State or any other statutory authority and not a private person. As already discussed, plaintiff is the dominus litis in a suit between the private parties and depending on nature of suit, however, it has been left on the discretion of the court under Order 1 Rule 10 (2) CPC that the court may strike out or add parties. Even this discretion is to be exercised judiciously and not merely on whims or on mere asking of a party. A satisfaction is to be recorded by the court that addition of a party is for effectual and complete adjudication of all the questions involved in the suit. Thus, as narrated above, in a suit for eviction or injunction it is the discretion of the plaintiff to choose the person against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief.

The principle of dominus litus is therefore an established doctrine, but the same are not absolute and it cannot be stretched beyond a point. The principle shall not subjugate discretion of court and a court can add the parties or delete, even if that is objected by the plaintiff. As elucidated above, the twin test of necessary and proper party are to be satisfied, if parties to the lis are allowed to continue as array of party or some parties are to be added for the purpose of proper and effective adjudication of the case. Necessary parties cannot be omitted and unnecessary party cannot be left to face the rigour of trial. As regards transfer of case also, the same principles applies in as much as though a case or set of cases could be instituted in a court of competent jurisdictions and respective locations as law ordains, still, for the purpose of effective adjudication, the power of transfer is vested in District courts and High Court for transfer of the case or cases. The Supreme Court in any case has similar power as also the plenary power in this regard as well. Therefore, principles of dominus litus is though a well recognized concept, but the same is not absolute and unfettered.  

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                                    Anil K Khaware

Founder & senior Associate

Societylawandjustce.com

SECTION 185 OF COMPANIES ACT 2013-FETTER TO GRANTING LOAN TO INDIVIDUALS

 

Section 185 of Companies act 2013-Fetter to granting loan to individuals

 

The Companies Act, 2013 (“Act”) encapsulates details code for regulation of company affairs. Section 185 of the Act stipulates the provisions as regards granting of loans to the directors or to such entity where the directors are directly or indirectly related or associated. The loans cannot be granted in violation of Section 185-186 of Companies Act 2013. In case of violation of the provisions, penalty to the company, Directors and its officer in default who grant loans in contravention are prescribed.

The object of the company is also laid down in Memorandum of Association ands Article of Association. Clearly, the company cannot function, contrary to the object laid down in the Article of Association. The company that deals in financing such as Non Banking Finance company (NBFC) clearly spells out it subject in the Article of association and subject to approval of Reserve Bank of India shall be entitled to provide loan for the purposes envisaged in the Article and as per the license so obtained. However, there are clear fetter in granting loan by a company to its own Directors or relatives of Directors’ as per section 185 of Companies Act 2013. The advancing of loan by way of inter corporate deposit has to be in sync with the object of the company as per article. It clearly appears that a company which is not a NBFC cannot provide individual loan even to a third party who may or may not have a linkage with Director or Directors’ of the company. In case, loan is advanced to an individual, that may not have a legal mandate and may face obstacle in processing that through the courts of law. The endeavour herein is to find out the nuances in this regard.   

The terms of Section 185 of the Companies Act 2013, shall be worthy of perusal before going further:

 

185. Loans to directors, etc.—

(1) No company shall, directly or indirectly, advance any loan, including any loan represented by a book debt to, or give any guarantee or provide any security in connection with any loan taken by,—

(a) any director of company, or of a company which is its holding company or any partner or relative of any such director; or

(b) any firm in which any such director or relative is a partner.

(2) A company may advance any loan including any loan represented by a book debt, or give any guarantee or provide any security in connection with any loan taken by any person in whom any of the director of the company is interested, subject to the condition that—

(a) a special resolution is passed by the company in general meeting: Provided that the explanatory statement to the notice for the relevant general meeting shall disclose the full particulars of the loans given, or guarantee given or security provided and the purpose for which the loan or guarantee or security is proposed to be utilised by the recipient of the loan or guarantee or security and any other relevant fact; and

(b) the loans are utilised by the borrowing company for its principal business activities.

Explanation.—For the purposes of this sub-section, the expression “any person in whom any of the director of the company is interested” means—

(a) any private company of which any such director is a director or member;

(b) any body corporate at a general meeting of which not less than twenty-five per cent. of the total voting power may be exercised or controlled by any such director, or by two or more such directors, together; or

(c) any body corporate, the Board of directors, managing director or manager, whereof is accustomed to act in accordance with the directions or instructions of the Board, or of any director or directors, of the lending company.

(3)  Nothing contained in sub-sections (1) and (2) shall apply to—

(a) the giving of any loan to a managing or whole-time director—

(i) as a part of the conditions of service extended by the company to all its employees; or

(ii) pursuant to any scheme approved by the members by a special resolution; or

(b) a company which in the ordinary course of its business provides loans or gives guarantees or securities for the due repayment of any loan and in respect of such loans an interest is charged at a rate not less than the rate of prevailing yield of one year, three years, five years or ten years Government security closest to the tenor of the loan; or

(c) any loan made by a holding company to its wholly owned subsidiary company or any guarantee given or security provided by a holding company in respect of any loan made to its wholly owned subsidiary company; or

(d) any guarantee given or security provided by a holding company in respect of loan made by any bank or financial institution to its subsidiary company:

Provided that the loans made under clauses (c) and (d) are utilised by the subsidiary company for its principal business activities.

(4) If any loan is advanced or a guarantee or security is given or provided or utilised in contravention of the provisions of this section,—

(i) the company shall be punishable with fine which shall not be less than five lakh rupees but which may extend to twenty-five lakh rupees;

(ii) every officer of the company who is in default shall be punishable with imprisonment for a term which may extend to six months or with fine which shall not be less than five lakh rupees but which may extend to twenty-five lakh rupees; and

(iii) the director or the other person to whom any loan is advanced or guarantee or security is given or provided in connection with any loan taken by him or the other person, shall be punishable with imprisonment which may extend to six months or with fine which shall not be less than five lakh rupees but which may extend to twenty-five lakh rupees, or with both.]

Section 185(2) of the Companies act 2013 stipulates exemptions in granting loan or guarantee in connection to a loan in certain conditions, such as:

(i)            If company passes a special resolution in a general body meeting;

(ii)          The loan should be utilized for company’s principal business activities;

(iii)         The notice for general body meeting should contain an explanatory statement and in that meeting a resolution for granting of loan should be passed while disclosing complete particulars of loans given or provided along with detailing the purpose for which the loan or security is provided ;

To buttress the issue further, it may be apt to refer to a judgment of NCLAT Chennai. The NCLAT Chennai (Company Appeal (AT) No. 68 of 2019) TA No. 129 of 2021 (Filed under Section 421 of the Companies Act, 2013) dealt with a matter arising out of the Impugned Order dated 20.12.2018 in CP No. 615 / BB / 2018, passed by the `National Company Law Tribunal’, Bengaluru Bench, Bengaluru) captioned as Som Prakash Satsangi  Vs Registrar of Companies, Bangalore, Karnataka & Ors. While upholding the orders of NCLT Bengaluru, the NCLAT has held as under:

 

“In the light of foregoing deliberations, on a careful consideration of contentions advanced, on behalf of the respective sides, taking into account of the facts and circumstances of the present case, in a `holistic and conspectus manner’, keeping in mind that the `Default’, remained for one year and six days, this `Tribunal’, comes to a consequent conclusion, that in as much as the `Appellant’, is liable for the `Violations’, and `Non-compliances’ committed by it, by means of Section 185 of the Companies Act, 2013, the `impugned order’, dated 20.12.2018, in CP No. 615 / BB / 2018, passed by the `National Company Law Tribunal’, Bengaluru Bench, to the extent of `imposing Compounding Fee’ on the `Appellant’ and its `Directors’, and `Prosecution’ against `Former Directors’, is free TA No. 129 of 2021 from any `Legal Infirmities’. Accordingly, the `Appeal’ is devoid of merits and it fails”.

 

It needs emphasis to point out that the section 185 of Companies Act 2018 was amended on 03.01.2018 with effect from 07.05.2018, pursuant to which, the `liability’, for non-compliance of Section 185 was `imposed’, on `every officer’ in `Default’, in addition to the `liability’ on the concerned `Company’. Initially, the liability was only of a company. The liability of every officer finds mention after 2018 amendment.

 

It may be mentioned that as per `Pre-amended Section 185 (2) of the Companies Act, 2013’, the `Company’ in `Default’, was liable for `Fine’, which shall not be less than Rs.5,00,000/-, but which may extend to Rs.25,00,000/- and the `Director’ or other `Person’, to whom the `Loan’ is advanced, is `Punishable’ with `Imprisonment’ or `Fine’, which shall not be less than Rs.5,00,000/-, but which may extend to Rs.25,00,000/- or with both.

The word Loan has not been defined under Companies Act, 2013 and in order to ascertain the import whereof the dictionary meaning of the term “Loan” mean a sum of money or other valuables or consideration that any individual or entity borrows from another individual entity, individual etc with a condition that it be returned or repaid at a later date generally with interest, but may also be returned as per the conditions laid down, without interest.

As per section 185 of Companies Act 2013, any loan or finances by a company is prohibited, unless exempted as per section 185(2) of the Companies Act 2013.

That it is no res integra as held by the Hon’ble Supreme Court of India in Central Board of Trustees v. Indore Composite Private Limited, (2018) 8 SCC 433, that, if an `Order’ is passed by an `Adjudicating / Judicial Authority’, without taking into account, the `Applicable Law’ or without providing sufficient reasons on the facts of the case shall not reflect the conscious application of mind and in such a situation the Order passed  shall be `Bad in Law’  and such an order it is `liable’ to be set aside.

What therefore follows that a professionally, managed `Company’ is expected to comply with the requirements of `Law’.  A “Company”  is a separate `Juristic Entity’ vis-à-vis its `Director’, and therefore, can neither seek `reliefs’ nor `plead’ on their behalf. It is to be borne in mind that even un-amended Section 185 (1) & (2) of the Companies Act, 2013 clearly stipulates `contravention of Section 185 (1) would make the erring Company liable with a fine which may extend to Twenty-Five Lakh Rupees.’

If there is “violations and non compliance” committed by it, by means of Section 185 of the Companies Act, 2013, necessary order to the effect that Compounding Fee’ could be imposed as per above.

Therefore, NCLAT after taking note of law laid down Central Board of Trustees (Supra) has held on the facts and law on the aforesaid aspect i.e section 185 of the Act in a holistic manner and has upheld order of NCLT “Bengaluru”. It was held that the `Default’ was committed and continued for one year and six days. The NCLAT thus came to a consequent conclusion and the order passed  by NCLT cannot be faulted and levying of `imposing Compounding Fee’ on the `Appellant’ and its `Directors’, and `Prosecution’ against `Former Directors’, is free from any `Legal Infirmities’. The `Appeal’ was dismissed as devoid of merits.

CRIMINAL PROS$ECUTION

What is evident is that section 185 of the Companies Act, 2013 clearly prohibits extending of any loan directly or indirectly by a company including any loan represented by a book debt to any of his Directors or any other person in whom the Director is interested or giving of any guarantee or providing of any security in connection with any loan taken by him or such other person and the punishment prescribed is of imprisonment which may extend to six months or with fine which shall not be less than Five (5) Lakh rupees or which may extend to Twenty Five (25)  Lakh or with both.

 

Another dimension to it could be that a parallel prosecution could be lodged as per section 447 of the Companies Act that renders culpable any person found to be guilty of fraud punishable with imprisonment for a term which shall not be less than Six (6) years but which may extend to ten years and shall also be liable to fine not less than the amount involved in the fraud but three times of the amount involved in the fraud. The Section 452 of the Companies Act also comes in play, where punishment is prescribed for the offence including imprisonment which may extend to two years. Section 468 Cr.P.C relates to limitation period, however, where the offence is punishable with fine only or with imprisonment not exceeding one year or three years, then any prosecution is required to be launched within Six Months to one year as the case may be, depending on quantum of punishment prescribed. Where the summoning is issued by a criminal court in respect of commission of offence punishable for imprisonment which may extend upto ten years, the bar under Section 468 CrPC is not attracted and criminal prosecution could be launched without any fetter.

 

The Section 185 of the Companies Act 2013, therefore, clearly prohibits granting of loan to any entity or corporate and if the same is granted the pre-conditions as per Section 185(2) has to be complied with. The shareholders in general annual meeting has to be taken in confidence while following all requites as per law. It also appears that no loan to any individual/third person is envisaged as per section 185 of the Companies Act 2013. A company which is incorporated for the purpose other than financing and granting of loan cannot possibly grant loan to any individual/third party, as per the trap of Section 185 of the Act. Even as regards granting of loan to corporate and even to a sister concern there are stringent pre-conditions that has to be adhered to for the purpose of granting of loan. The another dimension to it is that in case of violation of the provisions in granting loan shareholders of the company can initiate complaint against the Board of Directors and the company granting loan. The complaint could also be raised before Registrar of Companies and upon inquiry, if prima facie satisfied, even registrar of Company can launch a criminal prosecution against the company granting loan and its erring directors and even the other corporate entity to whom the loan is granted can also be roped in. 

 

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                                   Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

SECTION 138 NEGOTIABLE INSTRUMENTS ACT: CONDONATION OF DELAY IN FILING COMPLAINT

 

SECTION 138 NEGOTIABLE INSTRUMENTS ACT: CONDONATION OF DELAY IN FILING COMPLAINT

With a view to lend credibility to cheque transactions Negotiable Instruments Act 1881 was amended in 1988 and penalty clause was inserted in the form of banking , Public Financial Institutions and Negotiable Instruments law (Amendment) Act 1988 and that was further amended vide Negotiable Instruments (Amendment & Miscellaneous Provisions) Act 2002.

At the very onset the provision as contained in Section 138 of Negotiable Instruments Act may be perused. The same is as under:

138. Dishonour of cheque for insufficiency, etc. of funds in the account—

“Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for 3 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply, unless—

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the Cheque, within thirty days of the receipt of information by him from the bank regarding the return of the Cheque as unpaid; and

(c) the drawer of such Cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the Cheque, within fifteen days of the receipt of the said notice.”

 

In the Negotiable Instruments Act, Section 142 of the Act was inserted vide amendment in 2002 and that also puts a limitation on the power of the Court to take cognizance of the offences, which reads as under:

142. Cognizance of offences—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

(a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;

(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138:

Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making a complaint within such period.

(c) No Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under Section 138.

The proviso to Section 142(b) of the Act facilitates condonation of delay if the complainant satisfies the Court that he had cogent reasons for not making the complaint within the limitation period.

In retrospect what is of significance is that section 142(b) of the Act the proviso appended to clause (b) was inserted by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 and the legislative intent was, no doubt, in order to overcome the technicality of limitation period. The Statement of Objects and Reasons appended to the Amendment Bill, 2002 suggests that the introduction of this proviso was to provide discretion to the Court to take `cognizance of offence even after expiry of the period of limitation. This was done with a view to obviate the difficulties on the part of the Complainant, Parliament inserted the proviso to clause (b) of Section 142 of the Act in the year 2002. It confers a jurisdiction upon the Court to condone the delay.

Thus, section 142 (b) of the Act relates to the power of the Courts of Magistrate to condone the delay in filing complaint, which is deliberated herein. It is also worth mentioning that the condonation shall only revolve around delay in filing complaint and not for delay in sending notice etc.

 

SUPREME COURT ON CONDONATION OF DELAY IN FILING COMPLAINT U/S 138 OF NEGOTIABLE INSTRUMENTS ACT

(1) Birendra Prasad Sah Vs State of Bihar (2019) 7 SCC 273

The Supreme Court has held in above case that the Magistrate is empowered to condone delay in preferring complaint u/s 138 of the NI Act. It is further held that the very fact that in complaint itself the necessary averments with regard to delay and reasonable cause for its condonation was specified, the delay was condoned taking note of that and rightly so even in absence of a separate application to that effect.

2.      PAWAN KUMAR RALLI  VERSUS MANINDER SINGH NARULA CRIMINAL APPEAL NO. 1684 OF 2014

The Supreme Court had permitted the complainant to file the application for condonation of delay in advanced stage. In the first instance and at the time of instituting the complaint no application for condonation of delay was preferred. Still, the Supreme Court permitted the complainant to file the application to that effect even in the subsequent stage. Though, it was made clear that the same was being done on the peculiar facts of the case and should not be treated as precedent.

3.      A corollary can also be drawn from a F.I.R case reported as Rakesh Kumar Jain Vs. State (Through CBI) (2000) 7 SCC 656,

The Supreme Court in the above case had considered the provisions of Section 473, Cr.P.C. and held that the accused shall not be entitled to seek his discharge on the ground of delay in preferring complainant. The operative paragraph are as under:

“The mere fact that the complaint was filed 25 days after the expiry of the period of limitation did not entitle the accused to seek his discharge under Section 245, Cr.P.C because the complainant has, under law, a right to seek for extension of time under Section 473 Cr.P.C. The complainant could satisfy the Magistrate on the facts and circumstances of the case that the delay was explainable which was occasioned on account of their bona fide belief to obtain the sanction for the purpose of filing the complaint”.

 

4.      In Subodh S. Salaskar Vs. Jayprakash M. Shah (2008) 13 SCC 689] the Supreme Court has held :

“21. It is no doubt true that at the time of filing the complaint, the Magistrate has to take cognizance of the complaint when it is within limitation and in case of delay in filing the complaint, the complaint has to come up with the application seeking condonation of delay”.

                                    HIGH COURTS

In a matter reported as 2017 ALL MR (Cri) 3025 and captioned as Dharrmaraj Vs State of Maharashtra & Anr, Bombay High Court has held in para 6 that:

“6. Condonation of delay is within the discretion of the Magistrate. Nothing could have been achieved by the complainant by not filing complaint in time. He filed the complaint within eight days from the date of receipt of information from the post office. Thus, even if it is presumed that the complaint was not filed within 30 days from the date of expiry of period of 15 days given to the accused under section 138 of the Act, the fact remains that the delay of around 2 months was caused due to aforesaid circumstances. There is the record and the law is amended in view of the aforesaid probabilities and power is given to the Magistrate to condone the delay. In view of the possibility mentioned, the Court is expected to use this provision liberally. This Court holds that the Sessions Court has not committed any error in holding that there was sufficient cause for condonation of delay.”

In a matter reported as A seating Vs Nandini Modulars 2022 SCC OnLine kar 725 it is held by Karnataka High Court that the issue of delay in preferring complaint can be raised even in the appellate stage, but the same should be remanded to the Courts of Magistrate for deciding the issue in accordance with law. The power of condonation of delay is vested in the courts of Magistrates as per the Act, therefore, the apt course shall be that only the Magistrate should exercise that discretion and not the appellate courts. What is of relevance herein is that the magistrate is equipped with the power of condoning the delay in terms of Section 142(b) and as per the proviso contained therein. Therefore, if reasonable cause is shown for the delay caused in preferring complaint u/s 138 of Negotiable Instruments Act, the Magistrate is empowered to condone the delay.

Therefore, what is clear from the above discussion is that after the amendment in the Negotiable instruments Act and in terms of Section 142 (b) of the Act along with the appended proviso therein the Magistrate is empowered to condone the delay in preferring complaint and the delay can be condoned, if reasonable cause is shown to the satisfaction of Magistrate. It also emerges that before condoning delay, the notice is required to be issued to the opposite party/accused. Further, if discretion is applied by the Magistrate in condoning delay in sync with the provision of law, the complaint could be proceeded with in accordance with law. The aforesaid discussion also leads to another aspect i.e whether the application for condonation of delay is required to be filed along with the complaint? The Supreme Court in Birendra Sah (Supra) has held that even mention in the complaint about delay and cause for delay should be construed as enough. Yet another dimension of it is to a situation as regards not filing of application for seeking condonation of delay in preferring complaint and not raising the plea of condonation of delay by the accused, whether such plea could be raised in the appellate stage? It transpires on the basis of judgment/precd4ensts that even in appellate stage the issue of delay in filing complaint u/s 138 of the NI Act and its condonation could be raised, however, since the Magistrate is empowered to deal with that aspect, it is only the Magistrate who should look into that and therefore, the complaint may not be quashed on that premise and it is only the Magistrate, who may hear the plea of condonation of delay in preferring complaint upon remand from the appellate courts, since that is what is the scheme of the law.

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Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com    

POCSO: HOW TO SETTLE AGE CONTROVERSY

 

 

POCSO: HOW TO SETTLE AGE CONTROVERSY

 

As per POCSO (Protection of Children From Sexual Offences Act) 2012 (In short POCSO) cases, age of the victim often comes to centre stage, in as much as, in order to attract the provision of POCSO, the requisites are to be fulfilled and one of the pre-requisite being age of the victim. Even age of the delinquent shall also have significance in certain cases.

Before delving further it is necessary to point out that a delinquent juvenile on the date of incident has certain statutory protection under the provisions of The Juvenile Justice (Care & Protection of Children) Act, 2015 JJ Act, 2015( In short JJ Act). Similarly, whether POCSO Act 2012 shall be attracted if the victim is a child within the meaning of the POCSO Act and therefore age of the victim is also important.

The Juvenile Justice (care & Protection of Children) Act, 2000 was enacted with a view to consolidate law and also provide for amendment in respect of juvenile in conflict with law. It was felt necessary to provide safeguard and care by adopting child friendly approach, not only in abstract, but also during the process of adjudication of case related to a child with underlying object of rehabilitating the children.

As the present discussion revolves around the age of the delinquent and victim in POCSO cases, therefore, the focus shall be on that aspect. In this context, JJ Act 2000 and amended JJ Act of 2015 shall be of much significance.

The Supreme Court judgment captioned as Rishipal Singh Solanki vs The State Of Uttar Pradesh bearing criminal appeal no. 1240/2021 arising out of SLP (Crl) No. 6223/2021 shall provide insight on several issues in this regard with a view to come to conclusion.             

                        

     

                        PRESUMPTION OF AGE

Section 94 of the Juvenile Justice Act, 2015 raises a presumption regarding juvenility of the age of the child brought before the JJ board or the Committee. But in case, the Board or Committee has reasonable grounds for doubt about the person brought before it is a child or not, it can undertake the process of determination of age by seeking evidence. Thus, in the initial stage a presumption that the child brought before the Committee or the Juvenile Justice Board is a juvenile has to be drawn by the said authorities. However, the said presumption should not be arbitrary and if there is reasonable grounds of doubt regarding the person brought before it is a child or not, the Board can undertake the process of age determination by the evidence which can be in the following form:

(i) Date of birth certificate from the school or the Matriculation certificate from the concerned board, if available or in the absence thereof;

(ii) The birth certificate given by a corporation or by a municipal authority or a panchayat and in the absence of the above;

(iii) Age has to be determined by an ossification test or any other medical age determination test conducted on the orders of the committee or the board.

Ossification test

The Ossification test is a test related to bone for determination of proximate age of the person. The said test may determine the age of a person based on degree of fusion of bone since birth and up to 25 years of age. The process of ossification is also called as osteogenesis. This is an indicator of skeletal and biological age of a person and may help in determining the age of the concerned. The radiography of wrist and hand is relevant till around age of Eighteen (18) years and beyond that i.e up to 22 years of age, the medial age of clavicle is relevant. Though, ossification test is often used in case of doubt and in absence of any corresponding documentary proof, still, for determining the age, the ossification test cannot be held to be a conclusive proof, in itself. Moreover, the said test is relevant when the individual is young and the same may not be useful, when the individual is say around 40-45 years of age. In fact, after 30 years of age the ossification test is not generally resorted to by the courts. (Ref: Vinod katara Vs State of Uttar Pradesh 2022 SCC OnLineSC 1204.

It is significant to point out that The deeming provision in sub-section (3) of section 94 of the Juvenile Justice Act, 2015 sets at rest the controversy or the doubt regarding the age of the child brought before the Committee or the JJ Board at the level of the JJ Board or the Committee itself.

The moot point in this context are as under:

Whether the JJ Board has blanket authority in the above reference and in the teeth of section 94 of the JJ Act, 2015?

Whether the Juvenile Justice Board( JJB) shall be entitled to declare that Matriculation certificate is a conclusive document for determining the age of the juvenile irrespective of other material discrepancies in the oral testimony of the witnesses or other documents being produced?

          The law on this point is as under:

(i)         Parag Bhati Vs State of Uttar Pradesh (2016) 12 SCC 744 The Supreme Court in para 34 has held as under: 

              "34.It is no doubt true that if there is a clear and unambiguous case in favour of the juvenile accused that he was a minor below the age of 18 years on the date of the incident and the documentary evidence at least prima facie proves the same, he would be entitled to the special protection under the JJ Act. But when an accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the Courts are enjoined upon to perform their duties with the object of protecting the confidence of common man in the institution entrusted with the administration of justice”.

(ii)        Sanjay Kumar Gupta Vs State of Uttar Pradesh & Anr  (2019) 12 SCC 370;

(iii)      Abuzar Hossain Vs State of West Bengal  (2012) 10 SCC 489.

In the above judgments it is held that age shown in the Matriculation certificate cannot be accepted on its face value if there is other evidence which contradicts the same.

However in Ashwani Kumar Saxena Vs State of M.P (2012) 9 SCC 750,it is held that the Matriculation certificate is a document on which full reliance could be placed for determination of the age of the juvenile accused.

(i)   In Babloo Pasi Vs State of Jharkhand  (2008) 13 SCC 133

(ii)   State of MP Vs Anoop Singh (2015) 7 SCC 773

  In (i) & (ii) above, even ossification test is held to be not conclusive for determination of age.

We know that the Juvenile Justice (Care and Protection of Children) Act 2000 has since been repealed and comprehensively changed new Act in the name of JJ Act 2015 is now in place. In the 2000 Act, an amendment was made by Act 33 of 2006 with effect from 22.8.2006 under which Section 7 A was inserted which reads as under:

             “7A. Procedure to be followed when claim of juvenility is raised before any court.—

      (1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:

      Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.

      (2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect.” Section 49 of the said Act reads as under:

                “49. Presumption and determination of age.

      (1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be.

      (2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile or the child, and the age recorded by the competent authority to be the age of person so brought before it, shall for the purpose of this Act, be deemed to be the true age of that person.”

Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the ‘JJ Rules, 2007’) prescribed the procedures for determination of age.

Rule 12 reads as under –

“12. Procedure to be followed in determination of Age.

(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -

(a)   (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b)  and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

While passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7A , Section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.”

                                            JJ ACT 2015

As per JJ Act, 2015, the procedure to be followed when a claim of juvenility is raised before any court, other than a Board is stipulated under Section 9 (2) & (3).The same is as under:

                “2) In case a person alleged to have committed an offence claims before a court other than a Board, that the person is a child or was a child on the date of commission of the offence, or if the court itself is of the opinion that the person was a child on the date of commission of the offence, the said court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) to determine the age of such person, and shall record a finding on the matter, stating the age of the person as nearly as may be:

     Provided that such a claim may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such a claim shall be determined in accordance with the provisions contained in this Act and the rules made thereunder even if the person has ceased to be a child on or before the date of commencement of this Act.

     (3) If the court finds that a person has committed an offence and was a child on the date of commission of such offence, it shall forward the child to the Board for passing appropriate orders and the sentence, if any, passed by the court shall be deemed to have no effect.” There is no corresponding Rule to determine juvenility akin to Rule 12 of the JJ Rules, 2007.

As per Section 94 of the JJ Act, 2015, a presumption is raised when a person is brought before the JJ Board or the Child Welfare Committee (‘Committee’ for short) (other than for the purpose of giving evidence) and the said person is a child, the JJ Board or the Committee shall record such observation stating the age of the child as nearly as may be, and proceed with the inquiry under Section 14 or Section 36, as the case may be, without waiting for further confirmation of the age.

The age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of the Act, be deemed to be the true age of that person. For immediate reference section 94 of JJ Act, 2015 is extracted as under:

The distinction between provisions of JJ Act, 2015 in the absence of requisite documents as mentioned in Sub-section (2) of Section 94 (a) & (b)  on the one hand and provisions under Rule 12 of the JJ Rules, 2007 for determination of the age of the juvenile or child is worth mentioning.

There are following differences in the procedure under the two enactments:

JJ Act 2000 (2007 Rules)	JJ Act 2015
(i)    Under Rule 12 of the JJ Rules, 2007, in the absence of relevant documents, a medical opinion had to be sought from a duly constituted Medical Board which would declare the age of the juvenile or child	(ii)                  (i) In absence of documents relating to age, There is provision for determination of the age by an ossification test or any other medical age related test to be conducted on the orders of the Committee or the JJ Board as per Section 94 of the said Act
(ii) The documents to be provided as evidence under Rule 12 of the JJ Rules, 2007	(iii)               (ii) Under Section 94(2) the same are provided as substantive provision.
(iii) The age of person so brought before it, for the purpose of the Act, be deemed to be the true age of that person, irrespective of any subsequent proof to the contrary.	(iii)             Also deals with presumption and determination of age, the Committee or the JJ Board has to record such observation stating the age of the child as nearly as may be and proceed with the inquiry without waiting for further confirmation of the age. It is only when the Committee or the JJ Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, it can undertake the process of age determination, by seeking evidence. Thus, there is a finality attached to the determination of the age recorded and it is only in a case where reasonable grounds exist for doubt as to whether the person brought before the Committee or the Board is a child or not, that a process of age determination by seeking evidence has to be undertaken.

In Rishipal Singh Solanki  (Supra) in para 39.5, the Supreme Court has held:

             “The Court where the plea of juvenility is raised for the first time should always be guided by the objectives of the 2000 Act and be alive to the position that the beneficent and salutary provisions contained in the 2000 Act are not defeated by the hyper technical approach and the persons who are entitled to get benefits of the 2000 Act shall get such benefits. The Courts should not be unnecessarily influenced by any general impression that in schools the parents/guardians understate the age of their wards by one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered prima facie on the touchstone of preponderance of probability”.

          

What therefore clearly emerges from the above discussions and as per the dicta of Rishipal (Supra) is that the Supreme Court has held that the age recorded by the Committee or the Board to be the age of the person so brought before it shall for the purpose of the JJ Act, 2015 be deemed to be the true age of the person. The deeming provision in sub-section (3) of section 94 of the JJ Act, 2015 is also significant inasmuch as the controversy or the doubt regarding the age of the child brought before the Committee or the JJ Board is sought to be set at rest at the level of the JJ Board or the Committee itself, if there is no other document indicating the date of birth of the person concerned, contrary to what has been indicated in the matriculation certificate. If any evidence to the contrary is produced, then other evidences could be necessary such as ossification test. The very fact that section 94 of JJ act 2015 itself is a deeming provision, the finality of its finding is made inbuilt, unless, contrary is proved by rebuttal evidence. The ossification test in isolation is not a conclusive proof as regards the age, but still, in the case of doubt the ossification test also could also be conducted. The hyper technicalities in this regard is not recommended as per the dicta of Supreme Court.      

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                                            Anil K Khaware

                                            Founder & Senior Associate

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