Uttarakhand High Court
Jagdish Chander Kohli vs State Of Uttarakhand And Others on 6 March, 2017
Author: Rajiv Sharma
Bench: Rajiv Sharma
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application No. 475 of 2014
(under Section 482 of Cr.P.C.)
Jagdish Chander Kohli ....Petitioner
Versus
State of Uttarakhand & others ....Respondents
Mr. Kanta Prasad, Advocate for the petitioner.
Mr. Nandan Arya, Dy.A.G. for the State.
Mr. Rajendra Singh, Advocate for the respondent no.3.
Reserved on - 01.03.2017
Date of Judgment - 06.03.2017
Hon'ble Rajiv Sharma,J.
This petition is directed against the order dated 23.11.2013 rendered by Lok Adalat.
2. "Key facts" necessary for adjudication of this petition are that an FIR was lodged by the petitioner- applicant on 13.04.2009 at P.S. Kotwali, Gangnahar, Roorkee initially against some unknown persons. In the instant case, notices were issued to the respondents, but they have chosen not to file the reply.
3. The applicant was badly injured. His backbone was fractured and he was referred to Delhi where he was operated upon. The applicant remained hospitalized for a period of one month at Delhi.
4. The trial of the case started as Case No.2287 of 2013 under Section 279/338 of I.P.C. The case was transferred to the Court of learned Judicial Magistrate (IInd), Roorkee.
5. The petitioner-applicant was present before the learned Court on 31.10.2013 and the next date was fixed on 20.12.2013 for calling the objections of both the parties. However, surprisingly, the case bearing no.2287/2013 was preponed and decided on 23.11.2013 by the Lok Adalat. The accused was 2 ordered to pay Rs.800/- towards fine, as per Annexure No.3.
6. It is evident from the order dated 31.10.2013 that the matter was originally fixed for 23.11.2013. It is not discernible from the record why the date was preponed from 20.12.2013 to 23.11.2013 before the Lok Adalat. Lok Adalat has no jurisdiction to compound the offences under Section 279 of I.P.C.
7. Section 19 (5) of the Legal Services Authorities Act, 1987 reads as under:
"(5) A Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of--
(i) any case pending before; or
(ii) (ii) any matter which is falling within the jurisdiction of, and is not brought before, any court for which the Lok Adalat is organised :
Provided that the Lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offence not compoundable under any law."
8. Lok Adalat had no jurisdiction to compound any non-compoundable offence. Lok Adalat has committed gross illegality by compounding the offences under Section 279 of IPC. The impugned order is without jurisdiction. The petitioner-applicant has never given his consent to compound the matter. The procedure adopted by the Lok Adalat was illegal and the order passed by Lok Adalat was also against the principle of equity and fair play. Lok Adalat could not go beyond the ambit of Sub-section (5) of Section 19 of the Legal Services Authorities Act, 1987 (hereinafter referred to as "the Act, 1987")and the proceedings dated 23.11.2013 are nullity.
9. Learned counsel appearing on behalf of respondent no.3 has referred to Section 21(2) of the 3 Act, 1987 and argued that this Court has no jurisdiction to entertain the present petition.
10. In AIR 1952 Allahabad 783, in the case of "Jodhey & others vs. State through Ram Sahai", learned Single Judge has explained the entire gamut of Article 227 of Constitution of India as under:
"14. A reading of the entire Article 227 of the Constitution of India in the light of the antecedent law on the subject leads one to the irresistible conclusion that the purpose of the constitution makers was to make the High Court responsible for the entire administration of justice and to vest in the High Court an unlimited reserve of judicial power which could be brought into play at any time that the High Court considered it necessary to draw upon the same. Springing as it does from the Constitution, which is the parent of all Acts and Statutes in India, the fact that the judgment or order of a Court or tribunal has been made final by an Act or the fact chat the body performing judicial functions is special tribunal constituted under a Statute cannot be set up as a bar to the exercise of this power by the High Court. The prohibited area is to be found within the four corners of the constitution itself and nowhere else.
15. The fact that these unlimited powers are vested in the High Court should, however, make the High Court more cautious in its exercise. The self-imposed limits of these powers are established and laid down by the High Courts themselves. It seems to me that these powers cannot be exercised unless there has been an unwarranted assumption of jurisdiction not possessed by Courts or a gross abuse of jurisdiction possessed by them or an unjustifiable refusal to exercise a jurisdiction vested in them by law. Apart from matters relating to jurisdiction, the High Court may be moved to act under it when there has been a flagrant abuse of the elementary principles of justice or a manifest error of law patent on the face of the record or an outrageous miscarriage of justice which calls for remedy. Under this power, the High Court will not be justified in converting itself into a Court of appeal and subverting findings of fact by a minute scrutiny of evidence or interfering with the discretionary orders of Court. Further, this power should not be exercised, if there is some other remedy open to a party. Above all, it should be remembered that this is a power possessed by the Court and is to be exercised at its discretion and cannot be claimed as a matter of right by any party."
11. In 1997 (3) SCC 261, in the case of "L. Chandra Kumar vs. Union of India & others", Their Lordships of the Hon'ble Supreme Court have held that jurisdiction conferred on the High Courts under Articles 226/227 and on the Supreme Court under Article 32, held, is a 4 part of the basic structure of the Constitution of India. Their Lordships have further held that the power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and tribunals within their respective jurisdiction is also part of the basic structure of the Constitution. Their Lordships have held as under:
"78. The legitimacy of the power of Courts within constitutional democracies to review legislative action has been questioned since the time it was first conceived. The Constitution of India, being alive to such criticism, has, while conferring such power upon the higher judiciary, incorporated important safeguards. An analysis of the manner in which the Framers of our Constitution incorporated provisions relating to the judiciary would indicate that they were very greatly concerned with securing the independence of the judiciary. These attempts were directed at ensuring that the judiciary would be capable of effectively discharging its wide powers of judicial review. While the Constitution confers the power to strike down laws upon the High Courts and the Supreme Court, it also contains elaborate provisions dealing with the tenure, salaries, allowances, retirement age of Judges as well as the mechanism for selecting Judges to the superior courts. The inclusion of such elaborate provisions appears to have been occasioned by the belief that, armed by such provisions, the superior courts would be insulated from any executive or legislative attempts to interfere with the making of their decisions. The Judges of the superior courts have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations. It is equally their duty to oversee that the judicial decisions rendered by those who man the subordinate courts and tribunals do not fall foul of strict standards of legal correctness and judicial independence. The constitutional safeguards which ensure the independence of the Judges of the superior judiciary, are not available to the Judges of the subordinate judiciary or to those who man Tribunals created by ordinary legislations. Consequently, Judges of the latter category can never be considered full and effective substitutes for the superior judiciary in discharging the function of constitutional interpretation. We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Articles 226 and in this Court under Article 32 of 5 the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded.
79. We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided."
12. In 1997 (7) SCC 622, in the case of "Mansukhlal Vithaldas Chauhan vs. State of Gujarat", Their Lordships of the Hon'ble Supreme Court have held as under:
"34. Learned Counsel for the State of Gujarat contended that the judgment passed by the High Court cannot be questioned in these proceedings as it had become final. This contention is wholly devoid of substance. The appellant has questioned the legality of "sanction" on many grounds one of which is that the sanctioning authority did not apply its own mind and acted at the behest of the High Court which had issued a mandamus to sanction the prosecution. On a consideration of the whole matter, we are of the positive opinion that the sanctioning authority, in the instant case, was left with no choice except to sanction the prosecution and in passing the order of sanction, it acted mechanically in obedience to the mandamus issued by the High Court by putting the signature on a pro forma drawn up by the office. Since the correctness and validity of the 'sanction order' was assailed before us, we had necessarily to consider the High Court judgment and its impact on the "Sanction".
The so-called finality cannot shut out the scrutiny of the judgment in terms of actus curies neminem gravabit as the order of the Gujarat High Court in directing the sanction to be granted, besides being erroneous, was harmful to the interest of the appellant, who had a right, a valuable right, of fair trial at every stage, from the initiation till the conclusion of the proceedings."
13. In 2002 Criminal Law Journal 1523 in the case of "Sukhal & others vs. State of U.P. and another", learned Single Judge has held that Lok Adalat has no jurisdiction to pass order in case involving non-
6compoundable offence. Learned Single Judge has held as under:
"11) It is clear from the said Section that if the offence in respect of which the applicants were being tried, was not compoundable under any law, the Lok Adalat had no jurisdiction to decide the said case. It is not disputed that the offences for which the applicants were being tried were not compoundable. Therefore, Lok Adalat had no jurisdiction to pass any order in the case. The decision of the Magistrate was therefore without jurisdiction."
14. In 2004 (7) SCC 555, in the case of "State of Punjab & others vs. Phulan Rani & another", Their Lordships of the Hon''ble Supreme Court have explained the terms "Compromise", "settlement". Their Lordships have held as under:
"7. The specific language used in Sub-section (3) of Section 20 makes it clear that the Lok Adalat can dispose of a matter by way of a compromise or settlement between the parties. Two crucial terms in Sub-sections (3) and (5) of Section 20 are "compromise" and "settlement". The former expression means settlement of differences by mutual concessions. It is an agreement reached by adjustment of conflicting or opposing claims by reciprocal modification of demands. As per Terms de la Ley, "compromise is a mutual promise of two or more parties that are at controversy. As per Bouvier it is "an agreement between two or more persons, who, to avoid a law suit, amicably settle their differences, on such terms as they can agree upon". The word "compromise" implies some element of accommodation on each side. It is not apt to describe total surrender. (See Re NFU Development Trust Ltd. (1973) 1 AER 135(C.D). A compromise is always bilateral and means mutual adjustment. "Settlement" is termination of legal proceedings by mutual consent. The case at hand did not involve compromise or settlement and could not have been disposed of by Lok Adalat. If no compromise or settlement is or could be arrived at, no order can be passed by the Lok Adalat. Therefore, the disposal of the Writ Petition No. 13555/1994 filed by respondent No. 1 is clearly impermissible."
15. In 2006 (8) SCC 364, in the case of "State of Punjab and others vs. Ganpat Raj", Their Lordships of the Hon'ble Supreme Court have held that if no compromise or settlement is or could be arrived at, no order can be passed by the Lok Adalat. Their Lordships have held as under:
7"34. The specific language used in Sub-section (3) of Section 20 makes it clear that the Lok Adalat can dispose of a matter by way of a compromise or settlement between the parties. Two crucial terms in Sub-sections (3) and (5) of Section 20 are "compromise" and "settlement". The former expression means settlement of differences by mutual concessions. It is an agreement reached by adjustment of conflicting or opposing claims by reciprocal modification of demands. As per Terms de la Ley, "compromise is a mutual promise of two or more parties that are at controversy. As per Bouvier it is "an agreement between two or more persons, who, to avoid a law suit, amicably settle their differences, on such terms as they can agree upon". The word "compromise" implies some element of accommodation on each side. It is not apt to describe total surrender. (See Re NFU Development Trust Ltd. (1973) 1 AER 135(C.D). A compromise is always bilateral and means mutual adjustment. "Settlement" is termination of legal proceedings by mutual consent. The case at hand did not involve compromise or settlement and could not have been disposed of by Lok Adalat. If no compromise or settlement is or could be arrived at, no order can be passed by the Lok Adalat. Therefore, the disposal of the Writ Petition No. 13555/1994 filed by respondent No. 1 is clearly impermissible."
16. In the present case, the order passed by Lok Adalat is without jurisdiction which has caused serious injuries to the petitioner-applicant. The impugned order would also adversely affect the case of the petitioner-applicant before the Motor Accident Claims Tribunal.
17. The petitioner has never compromised with the respondent no.3, as argued by learned counsel appearing on behalf of respondent no.3. The petitioner was not even informed about the preponement of the case. The principles of natural justice are also applicable to court proceedings.
18. The Lok Adalat is a creation of a statute and gets jurisdiction from it. Thus, the High Court is competent to go into an order passed without jurisdiction by any statutory tribunal. The High Court can also see whether the order in question is valid in law.
819. Accordingly, the petition is allowed. The impugned order dated 23.11.2013 is hereby set aside. The Trial Court is directed to restore the Criminal Case No.2287 of 2013 to its original number and to proceed with the matter in accordance with law.
Date: 06.03.2017 (Rajiv Sharma, J.) NISHANT