Constitutional Laws | Writ Petition, PIL & SLP

The Constitution of India is the supreme law of India. It is a living document, an instrument which makes the government system work. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers and duties of government institutions and sets out fundamental rights, directive principles and the duties of citizens. It is the longest written constitution of any sovereign country in the world, containing 448 articles in 25 parts, 12 schedules, 5 appendices and nearly 100 amendments.

The constitution of India imparts constitutional supremacy and not parliamentary supremacy as it is not created by the Parliament but created by a constituent assembly and adopted by its people with a declaration in the preamble to the constitution. The constitutional institutions such as Parliament, President, Judiciary, Executive, etc are created by the constitution.

The Supreme Court of India and the High Courts of various High Courts in India have been made the protector and guarantor of these Rights, as provided in the Constitution. A person whose right is infringed by an arbitrary administrative action may approach the Court for appropriate remedy. The Constitution of India, under Articles 32 and 226 confers writ jurisdiction on Supreme Court and High Courts, respectively, for enforcement/protection of fundamental rights of an Individual. The Supreme Court of India has Original, Appellate and Advisory jurisdiction. Article 32 of the Constitution gives an extensive Original jurisdiction to the Supreme Court in regard to enforcement of Fundamental Rights. The Supreme Court has been conferred with power to direct transfer of any Civil or Criminal case from one State High Court to another State High Court or from a Court subordinate to another State High Court. The Supreme Court may, if satisfied that cases involving the same or substantially the same questions of law are pending before it and one or more High Courts or before two or more High Courts and that such questions are substantial questions of general importance, withdraw a case or cases pending before the High Court or High Courts and dispose of all such cases itself. Under the Arbitration and Conciliation Act, 1996, an International Commercial Arbitration can also be initiated in the Supreme Court. Almost identical powers are commanded by the High Courts Of Various States under Article 226 of the Constitution.

The Writ is an instrument or order of the Court by which the Supreme Court or High Courts directs an Individual or official or an authority to do an act or abstain from doing an act. The Supreme Court and the High Courts have ample inherent power to issue directions or orders or writs of any sort including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of rights, as provided in the Constitution. The Writ Petitions under Article 32 or Art-226 of the Constitution filed before the Supreme Court of India or High Courts are not refused on technical grounds. The Courts are rather pleased to entertain simple letters written to the Courts as Writ Petition. At times, the Courts even proceed suo moto based on the information received by them through electronic and print media. Writ jurisdiction of the High Courts of various states & the Hon’ble Supreme Court of India can be classified as the following- Original, Extra Ordinary, Constitutional & Inherent; & Appellate Jurisdiction. Maintainability of a writ is a very big legal question. One can do more harm than good to an individual or public cause if the maintainability issue has not been properly looked into before taking up a writ. As per the law of the land a writ does not lie against an individual. It lies only against the Govt. & Its Limbs, both, state govt. all over India & the Union Government. Writ matters are generally filed seeking directions against the competent govt. authorities. Writ matters can be categorised as follows: Writ Petitions [Criminal & Civil]: Writ Petitions relating To Constitutional Functionaries; Writ seeking dissolution, appointment & removal Of Boards, Corporation, Members, Directors, Chairman, Vice-Chairman, Etc.; Tender Writs in regard to Mines, Minerals & Mining Leases; Forest & Wildlife matters; Environment; Academic Institutions; Crimes Against Women/SC/ST/OBC; Wakf Board & their Property; Commissions Of Enquiry; Pension Matters; Election Matters; Land Acquisition; Etc.

Likewise, a Public Interest Litigation [PIL] can also be filed before the Supreme Court under Article 32 of the Constitution or before the High Court of a State under Article 226 of the Constitution. Public Interest Litigation can can be categorised as follows:: PIL relating to Detaining Authorities; Women & Children; Environment Compensation; Mines, Minerals & Mining Leases; Forest & Wildlife; Environment;

Special Leave petition [SLP] is also a constitutional remedy. Under this jurisdiction, the Supreme Court may in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. Article 136 of the Constitution is however, not a regular forum of appeal at all. The Hon’ble Supreme Court of India observed in the case, N. Suriyakala Vs. A. Mohandoss and Others (2007) 9 SCC 196, that the Article 136 is a residual provision which enables the Supreme Court to interfere with the judgment or order of any court or tribunal in India in its discretion.” A Case titled as Mathai @ Joby Versus George, Special Leave Petition(C)No. 7105 Of 2010 is pending before the Constitution Bench of the Hon’ble Supreme Court of India in which the Bench is likely to frame some concrete guidelines to exclude a category of the cases from the ambit of SLP.

Eminent NGOs & Individuals who have been spearheading the cause of justice invoking the writ jurisdiction of the Courts all over India are as follows: Common Cause, etc.

Select Case Law on the constitutional matters is as follows: (i) Subrata Roy Sahara Versus Union Of India And Others, Writ Petition (Criminal) No. 57 OF 2014, Order dated-06.05.2014, Bench- K.S. Radhakrishnan, J & Jagdish Singh Khehar [Full PDF Judgment].

Legislations governing the Constitutional Matters: Constitution Of India & various other allied Legislations involved in the particular Case, for example, Army Act 1950; All India Institute of Medical Sciences Act, 1956; Airports Authority of India Act, 1994; Central Vigilance Commission Act, 2003; Disaster Management Act, 2005; Essential Services Maintenance Act, 1968; Food Corporations Act, 1964; etc.

We, at, Hello Counsel, represent causes for public good. A commitment to public service has always been deeply ingrained in our firm culture.

Vital Features Of Constitutional Law

• Curative Petition- Under Order-XLVIII Of Supreme Court Rules, 2013.- In The Supreme Court Of India

• Equality [Right to equality]: “utter disregard of the right to equality”.

• Public Interest Litigation [PIL]

• Special Leave Petition [SLP]- Under Article-136 Of Constitution Of India, 1950- Supreme Court of India

• Writ Petition [Civil]– Challenging virus & seeking striking down of Acts, Statutes, Statutory Rules, & By-Laws, Etc.; Seeking damages & compensation.

• Writ Petition [Criminal]– Against Preventive Detention, Etc.

• Writ Of Habeas Corpus

• Writ Of Certiorari

• Writ Of Quo-Warranto

• Writ Of Prohibition

• Writ Of Mandamus

Constitutional Courts

[In Hierarchical Order]

• Supreme Court of India

• High Courts Of Various States

Other Foras

• Indian Govt. Limbs & Foreign Missions

Governing Constitutional Provisions

• Constitution Of India, 1950

Prime Legal Provisions, As Provided In The Constitution Of India

• Agreements & Treaties- Bar to interference by courts in disputes arising out of certain treaties, agreements, etc. [Art.363/Part-XIX]

• Agricultural- Agricultural income [Art.366(1)/Part-XIX]/ Organisation of agriculture and animal husbandry [Art.48/Part-IV]

• Amendment- Power of Parliament to amend the Constitution and procedure therefore [Art.368/Part-XX]

• Anglo-Indian [Art.366(2)/Part-XIX]

• Arrest & Detention- Protection against arrest and detention in certain cases [Art.22/Part-III]

• Attorney-General for India [Art.72/Part-V/Chapt.-I]- Rights of Ministers and Attorney-General as respects Houses [Art.88/Part-V/Chapt.-II]

• Bar & Disqualification- Disqualification for appointment on remunerative political post [Art.361B/Part-XIX]

• Borrow [Art.366(4)/Part-XIX]

• Citizenship- Rights of citizenship of certain persons of Indian origin residing outside India [Art.8/Part-II]/ Persons voluntarily acquiring citizenship of a foreign State not to be citizens [Art.9/Part-II]/ Continuance of the rights of citizenship [Art.10/Part-II]/

• Committee [Art.243S/Part-IXA]

• Comptroller and Auditor-General of India [Art.148/Part-V/Chapt.-V]

• Corporation tax [Art.366(6)/Part-XIX]/

• Debt [Art.366(8)/Part-XIX]

• Directive Principles of State Policy- Application of the principles contained in the Constitution [Art.37/Part-IV]/ Certain principles of policy to be followed by the State [Art.39/Part-IV]

• District [Art.243(a)/Part-IX]

• Duties- Fundamental duties [Art.51A/Part-IVA]

• Equality, Right To- Laws inconsistent with or in derogation of the fundamental rights [Art.13/Part-III]/ Equality before law [Art.14/Part-III]/ Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth [Art.15/Part-III]/ Equality of opportunity in matters of public employment [Art.16/Part-III]- Justice & Legal Aid- Equal justice and free legal aid [Art.39-A/Part-IV]

• Education- Right to education [Art.21-A/Part-III]/ Right to work, to education and to public assistance in certain Cases[Art.41/Part-IV]/ Provision for free and compulsory education for children[Art.45/Part-IV]

• Emergency- Emergency & Financial Emergency- Proclamation of Emergency [Art.352/Part-XVIII]/ Effect of Proclamation of Emergency [Art.353/Part-XIII]/ Provisions in case of failure of constitutional machinery in States [Art.356/Part-XIII]/ Exercise of legislative powers under Proclamation issued under article 356 [Art.357/Part-XIII]/ Suspension of provisions of article 19 during emergencies [Art.358/Part-XIII]/ Suspension of the enforcement of the rights conferred by Part III during emergencies [Art.359/Part-XIII]/ Provisions as to financial emergency [Art.360/Part-XIII]

• Environment, Forest & Wildlife- Protection and improvement of environment and safeguarding of forests and wild life [Art.48-A/Part-IV]

• Estate duty [Art.366(9)/Part-XIX]

• Existing law [Art.366(10)/Part-XIX]

• Federal Court [Art.366(11)/Part-XIX]

• Goods [Art.366(12)/Part-XIX]

• Gram Sabha [Art.243(b)/Part-IX]/ Gram Sabha [Art.243A/Part-IX]

• Guarantee [Art.366(13)/Part-XIX]

• High Court [Art.366(14)/Part-XIX]- The High Courts In The States [Articles-214 To 231]/ High Courts to be courts of record [Art.225/Part-VI/Chapt.-V]/ Power of superintendence over all courts by the High Court [Art.227/Part-VI/Chapt.-V]/

• Human Trafficking, Forced Labour, Child Labour- Prohibition of traffic in human beings and forced labour [Art.23/Part-III]/ Prohibition of employment of children in factories, etc. [Art.24/Part-III]

• Intermediate level [Art.243(c)/Part-IX]

• International- Promotion of international peace and security [Art.51/Part-IV]

• Interpretation [Art.367/Part-XIX]- General Clauses Act, 1897.

• Life & Liberty- Protection of life and personal liberty [Art.21/Part-III]

• Metropolitan area [Art.243P(c)/Part-IXA]

• Minorities- Protection of interests of minorities [Art.29/Part-III]/ Right of minorities to establish and administer educational Institutions [Art.30/Part-III]

• Money Bills [Art.110/Part-V/Chapt.-II]- Special procedure in respect of Money Bills [Art.109/Part-V/Chapt.-II]/ Special provisions as to financial Bills [Art.117/Part-V/Chapt.-II]/ Rules of procedure [Art.118/Part-V/Chapt.-II]/ Restriction on discussion in Parliament [Art.121/Part-V/Chapt.-II]

• Monuments, Etc.- Protection of monuments and places and objects of national Importance [Art.49/Part-IV]

• Municipality [Art.243Q/Part-IXA]- Municipal area [Art.243P(d)/Part-IXA]/ Municipalities- Elections to the Municipalities [Art.243-ZA/Part-IXA]/ Bar to interference by Courts in electoral matters [Art.243-ZG/Part-IXA]/ Finance Commission [Art.243-Y/Part-IXA]/

• Panchayat [Art.243(d)/Part-IX]- Panchayat- Organisation of village panchayats [Art.40/Part-IV]/ Panchayat area [Art.243(e)/Part-IX]/ Constitution of Panchayats [Art.243B/Part-IX]/ Composition of Panchayats [Art.243C/Part-IX]/ Reservation of seats [Art.243D/Part-IX]/ Bar to interference by courts in electoral matters [Art.243-O/Part-IX]

• Parliament- Joint sitting of both Houses in certain cases [Art.108/Part-V/Chapt.-II]/ Courts not to inquire into proceedings of Parliament [Art.122/Part-V/Chapt.-II]

• Pension [Art.366(17)/Part-XIX]

• Population [Art.243(f)/Part-IX]/ [Art.243P(a)/Part-IXA]

• Ports and Aerodromes- Special provisions as to major ports and aerodromes [Art.364/Part-XIX]

• President- Power of President to promulgate Ordinances during recess of Parliament [Art.123/Part-V/Chapt.-III]/ Power of President to consult Supreme Court [Art.143/Part-V/Chapt.-IV]

• Proclamation of Emergency [Art.366(18)/Part-XIX]

• Protection- Protection of President and Governors and Rajpramukhs [Art.361/Part-XIX]/ Protection of publication of proceedings of Parliament and State Legislatures [Art.361A/Part-XIX]

• Public notification [Art.366(19)/Part-XIX]

• Railway [Art.366(20)/Part-XIX]

• Religion- Freedom of conscience and free profession, practice and propagation of religion [Art.25/Part-III]/ Freedom to manage religious affairs [Art.26/Part-III]

• SC & ST- Scheduled Castes [Art.366(24)/Part-XIX]- Scheduled Tribes [Art.366(25)/Part-XIX]/ Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections[Art.46/Part-IV]

• Securities [Art.366(26)/Part-XIX]

• Sentence- Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases [Art.72/Part-V/Chapt.-I]/ Power of Governor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases [Art.161/Part-VI]

• Service- Recruitment and conditions of service of persons serving the Union or a State [Art.309 /Part-XIV/Chapt.-I]/ Tenure of office of persons serving the Union or a State [Art.310 /Part-XIV/Chapt.-I]/ Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State [Art.311 /Part-XIV/Chapt.-I]/ All-India services [Art.312 /Part-XIV/Chapt.-I]/ Power of Parliament to vary or revoke conditions of service of officers of certain services [Art.312A /Part-XIV/Chapt.-I]/ Transitional provisions [Art.313 /Part-XIV/Chapt.-I]

• SLP- Special leave to appeal by the Supreme Court[Art.136/Part-V/Chapt.-IV]

• Speaker and Deputy Speaker of the House of the People [Art.93/Part-V/Chapt.-II]

• Speech, Freedom of- Protection of certain rights regarding freedom of speech, etc. [Art.19/Part-III]/

• State [Art.12/Part-III]/[Art.366(15)/Part-XIX]- – Three organs of the state- Executive, Legislative & Judiciary- Separation of judiciary from executive [Art.50/Part-IV]/ Saving of existing laws and laws providing for State monopolies [Art.305 /Part-XIII]/

• Supreme Court & Its Original & Appellate Jurisdiction- Supreme Court to be a court of record [Art.129/Part-V/Chapt.-IV]/ Original jurisdiction of the Supreme Court [Art.131/Part-V/Chapt.-IV]/ Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases[Art.132/Part-V/Chapt.-IV]/ Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to Civil matters[Art.133/Part-V/Chapt.-IV]/ Appellate jurisdiction of Supreme Court in regard to criminal matters [Art.134/Part-V/Chapt.-IV]/ Certificate for appeal to the Supreme Court [Art.134-A/Part-V/Chapt.-IV]/ Review of judgments or orders by the Supreme Court [Art.137/Part-V/Chapt.-IV]/ Enlargement of the jurisdiction of the Supreme Court[Art.138/Part-V/Chapt.-IV]/ Conferment on the Supreme Court of powers to issue certain writs [Art.139/Part-V/Chapt.-IV]/ Transfer of certain cases [Art.139-A/Part-V/Chapt.-IV]/ Ancillary powers of Supreme Court [Art.140/Part-V/Chapt.-IV]/ Law declared by Supreme Court to be binding on all courts [Art.141/Part-V/Chapt.-IV]/ Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc. [Art.142/Part-V/Chapt.-IV]

• Taxation [Art.366(28)/Part-XIX]

• Tax on income [Art.366(29)/Part-XIX]

• Tax on the sale or purchase of goods [Art.366(29A)/Part-XIX]

• Trade & Commerce- Freedom of trade, commerce and intercourse [Art.301 /Part-XIII]/ Restrictions on the legislative powers of the Union and of the States with regard to trade and commerce [Art.303 /Part-XIII]/ Restrictions on trade, commerce and intercourse among States [Art.304 /Part-XIII]

• Tribunals- Administrative tribunals [Art.323A /Part-XIVA]/ Tribunals for other matters [Art.323B/ Part-XIVA]

• UTs- Union territory [Art.366(30)/Part-XIX]- Administration of Union territories [Art.239/Part-VIII]/ Creation of local Legislatures or Council of Ministers or both for certain Union territories [Art.239A/Part-VIII]/ Special provisions with respect to Delhi[Art.239AA/Part-VIII]/ Provision in case of failure of constitutional machinery in UTs [Art.239AB/Part-VIII]/ Power of administrator to promulgate Ordinances during recess of Legislature [Art.239AB/Part-VIII]/ Power of President to make regulations for certain Union Territories [Art.240/Part-VIII]/ High Courts for Union territories [Art.240/Part-VIII]

• UOI- Union Of India- Effect of failure to comply with, or to give effect to, directions given by the Union [Art.365/Part-XIX]/ Extent of executive power of the Union [Art.73/Part-V/Chapt.-I]

• Village [Art.243(g)/Part-IX]

• Welfare of the People- Social Order- State to secure a social order for the promotion of welfare of the people [Art.38/Part-IV]/ Duty of the State to raise the level of nutrition and the standard of living and to improve public health[Art.47/Part-IV]

• Work & Workplace- Provision for just and humane conditions of work and maternity Relief [Art.42/Part-IV]/ Participation of workers in management of industries [Art.43-A/Part-IV]

• Writ- Right to Constitutional Remedies- Fundamental rights- Remedies for enforcement of fundamental rights conferred by this Part [Art.32/Part-III]/ Power of High Courts to issue certain writs [Art.226/Part-VI/Chapter-V]

Other Allied Acts & Statutes

Bare Acts relevant for the matters of the following categories which are impugned more often than not under writ jurisdiction:- Human Rights, Environment, Birds & Animals, Govt. & Its Organs, Media & Press, Medicine & Pharmacy, Right To Information (RTI), Societies & Trust Matters

• Disaster Management Act, 2005.

• National Food Security Act, 2013.

• Protection of Human Rights Act, 1993.

• Prevention of Cruelty to Animal Act, 1960

• Right To Information Act, 2005

• Right of Children to Free and Compulsory Education Act, 2009.

Judgments

Art-21 Judgments- Right To Life, Liberty And Privacy- Right To Liberty- Right To Privacy:

• N. Raveendranadhan Vs Kerala State Electricity Board- Kerala High Court Judgment- 15.03.2021- Electricity is a basic amenity in life. Water and electricity are integral part of right to life within the meaning of Article 21 of the Constitution of India.

• Common Cause Vs UOI- 09.03.2018.

• Olga Tellis v State of Bombay (1985)- Laid down that right to livelihood is a part of right to life under Article 21 of the Constitution.

• Puttaswamy KS Vs UOI- 24.08.2017- 2015 (8) SCC 735- AIR 2017 SC 4161- (2017) 10 SCC 1- 9-Judge bench Supreme Court Of India Judgment Dated-Whether Rights To Life includes Right to Privacy too- Privacy is a constitutionally protected value- The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.

• R Rajagopal Vs State of Tamil Nadu- (1994) 6 SCC 632-Laid down that the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It mentioned that the right to privacy is a ‘right to be let alone.- A convicted criminal cannot claim right to privacy.

• Satyam Rai Vs Banaras Hindu University (BHU)- 02.12.2019- Delinquent students- Universities are a microcosm of the society. They are laboratories of social change, and also agents of social transformation- Right To Reform Is An Essential Part Of Right To Life

• Delhi Transport Corporation Vs DTC Mazdoor Congress- 04.09.1990-

• Mohini Jain v State of Karnataka (1992)– Laid down that right to education is an integral part of right to life.

• Chairman, Railway Board v. Chandrima Das (2000)- Laid down that right to life is also available to non citizens of India who visit India for tourism or otherwise.

• State Of Himachal Pradesh Vs. Umed Ram Sharma– 3JBSC-11.02.1986- 1986 AIR 847- 1986 SCC (2) 68- Writ- Constitution of India- Art- 226 & 32- Art-19(1)(d), 21 & 38- Basic Amenities- Water- Food- Road- Education- Articles- Right to life embraces not only physical existence of life but the quality of life – For residents of hilly areas Access to road, access to life itself – Roads for communication – Provision of – Constitutional obligation Court – Whether entitled to give directions in cases of executive inaction or slow action.

• Umesh Kumar Versus State of Andhra Pradesh-SC-06.09.2013-Criminal Appeal No.1305 of 2013- _______- Quashing- FIR- Chargesheet- Framing of charge- S-227, 228, 239, 240, 245 & 246 CrPC.- Framing of charge- S-227, 228, 239, 240, 245 & 246 CrPC- Sufficient ground for proceeding- At the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused-The court was not required to appreciate the evidence and arrive at the conclusion that the materials produced were sufficient or not for convicting the accused- The Court has to see whether a prima facie case is made out for proceeding further- The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. Held, “11. Allegations against any person if found to be false or made forging some one else signature may affect his reputation. Reputation is a sort of right to enjoy the good opinion of others and it is a personal right and an enquiry to reputation is a personal injury. Thus, scandal and defamation are injurious to reputation. Reputation has been defined in dictionary as “to have a good name; the credit, honor, or character which is derived from a favourable public opinion or esteem and character by report”. Personal rights of a human being include the right of reputation. A good reputation is an element of personal security and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property”.- “Therefore, it has been held to be a necessary element in regard to right to life of a citizen under Article 21 of the Constitution. International Covenant on Civil and Political Rights 1966 recognizes the right to have opinions and the right of freedom of expression under Article 19 is subject to the right of reputation of others. Reputation is “not only a salt of life but the purest treasure and the most precious perfume of life.” (Vide: Smt. Kiran Bedi & Jinder Singh v. The Committee of Inquiry & Anr., AIR 1989 SC 714; Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni & Ors., AIR 1983 SC 109; Nilgiris Bar Association v. TK Mahalingam & Anr., AIR 1998 SC 398; Dr. Mehmood Nayyar Azam v. State of Chattisgarh & Ors., AIR 2012 SC 2573; Vishwanath Sitaram Agrawal v. Sau Sarla Vishwanath Agrawal, AIR 2012 SC 586; and Kishore Samrite v. State of U.P. & Ors., (2013) 2 SCC 398).”- “Once criminal law is put in motion and after investigation the charge sheet is filed, it requires scrutiny in the court of law.”- “The scope of Section 482 Cr.P.C. is well defined and inherent powers could be exercised by the High Court to give effect to an order under the Cr.P.C.; to prevent abuse of the process of court; and to otherwise secure the ends of justice. This extraordinary power is to be exercised ex debito justitiae. However, in exercise of such powers, it is not permissible for the High Court to appreciate the evidence as it can only evaluate material documents on record to the extent of its prima facie satisfaction about the existence of sufficient ground for proceedings against the accused and the court cannot look into materials, the acceptability of which is essentially a matter for trial.”- Any document filed along with the petition labelled as evidence without being tested and proved, cannot be examined. Law does not prohibit entertaining the petition under Section 482 Cr.P.C. for quashing the charge sheet even before the charges are framed or before the application of discharge is filed or even during its pendency of such application before the court concerned. The High Court cannot reject the application merely on the ground that the accused can argue legal and factual issues at the time of the framing of the charge.”- Held, “It may be relevant in an appropriate case. My view is that entertaining the writ petitions against charge-sheet and considering the matter on merit on the guise of prima facie evidence to stand on accused for trial amounts to pre-trial of a criminal trial It is not to suggest that under no circumstances a writ petition should be entertained . The charge-sheet and the evidence placed in support thereof form the base to take or refuse to take cognizance by the competent Court. It is not the case that no offence has been made out in the charge sheets and the First Information Report.”- When the charges are framed, the court makes an endorsement till that stage. So charges are framed on the materials produced by the prosecution for framing the charges “at that stage”. Such indication is necessary otherwise the provisions contained in Sections 216, 323, 386, 397, 399, 401 etc. Cr.P.C., would be rendered nugatory and denuded a competent court of the powers under those provisions. The court cannot be restrained from exercising its powers either under Section 323 or Section 216 Cr.P.C.- Further held, “It is a settled legal proposition that even if a document is procured by improper or illegal means, there is no bar to its admissibility if it is relevant and its genuineness is proved. If the evidence is admissible, it does not matter how it has been obtained. However, as a matter of caution, the court in exercise of its discretion may disallow certain evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. More so, the court must conclude that it is genuine and free from tampering or mutilation.”- Further held, “30. Attestation of the undated affidavit is in utter disregard to the provisions of Section 139 of the Code of Civil Procedure, 1908. (Hereinafter referred to as the `CPC’). The Supreme Court Rules 1966 under Order XI, Rule 7 also require adherence to the provisions of Section 139 CPC. Hence, his reply is not worth taking on record and being undated, renders the same to be a piece of waste paper. The definition of ‘affidavit’ in Section 3(3) of the General Clauses Act 1897 provides that it “shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing” [Full PDF Judgments].

• Yash Thomas Mannully, Advocate Vs. Union Of India & Others, WP(C).No. 27960 of 2011 (S), Judgment Dated- 21.08.2015, Ashok Bhushan, CJ, A.M.Shaffique, J, Kerla High Court- Civil Liability For Nuclear Damage Act, 2010- Sections 3(1), 4(2) and proviso, 4(4), 5, 6, 9(2), 15(2),16(5), 18(b), 19, 20, 32(10), 35 and 38(1)- Constitutional Validity of the said procisions Challenged- The said provisions were alleged to be ultra vires the Constitution of India, further contending that the same interfere with the right to life of the citizens guaranteed under Article 21 of the Constitution, and are also violative of Article 14, being arbitrary and unreasonable. Also contended that the provisions vest with the authorities unbridled powers without appropriate checks and balance- HC upholds the Constitutional Validity of the Act, 2010- Judgment Citation: Yash Thomas Mannully, Advocate Vs. Union Of India & Others, WP(C).No. 27960 of 2011 (S), Judgment Dated- 21.08.2015, Ashok Bhushan, CJ, A.M.Shaffique, J, Kerla High Court [Full PDF Judgment].

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