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Gujarat High Court Telegram Channel for High Court Advocates, Litigants & other stake holders

High Court of Gujarat, starts its own Telegram Channel

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To make it more convenient for high court advocates, litigants & other stake holders, High Court of Gujarat has started its official Telegram Channel.

Gujarat High Court Telegram Channel for High Court Advocates, Litigants & other stake holders

Gujarat High Court Telegram Channel for High Court Advocates, Litigants & other stake holders

In its official press release, they mention that “Updates like Daily Notices, Circulars, Press Releases, Youtube Live Streaming Links, Complete Causelists, Miscellaneous, Notifications and other important updates being uploaded on the website of the High Court will also be simultaneously shared on this Telegram Channel, starting from 1st March, 2021”

 

You can join the Gujarat High Court telegram channel here : High Court of Gujarat Telegram Channel

Also Read: Gujarat High Court had recently started live streaming of proceedings on its youtube channel

 

Bhatt & Joshi Associates, High Court Lawyers, High Court Advocates - Quashing Lawyers

Legal provisions for Quashing of FIR, High Court

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Background of legal provisions for Quashing of FIR, by High Court Advocate

The legal term quash has been derived from the Anglo- French word casser meaning “to annul” and ultimately from Latin cassus, meaning void. The court has the power to quash unreasonable or irregular or oppressive subpoenas, injections, indictments and orders. When a judge is unable to deliver a judgement in a criminal matter case, in vague of a defective indictment, the courts typically quash the indictment. 

Under section 482 of the Code of criminal Procedure the power of quashing is defined. The section reads as:

482. Saving the inherent powers of the High Court. 

Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

This section closely resembles section 151 of the Code of Civil procedure. In a case of CBI v. Maninder Singh, it was held that the power under section 482 of CrPC must be used very sparingly  and especially in economic offences, merely because the party had reached a settlement with the bank cannot be a ground for quashing criminal proceedings. But this section doesn’t enhance the power of the High Court. Rather protects the inherent powers of the court. It does not give any new powers. The jurisdiction of the High court has a vast scope, but it is the practice that this section should be used only in exceptional cases. 

The Supreme Court has laid down some principles which would help to govern the inherent jurisdiction of the court given under the section are as follows: 

  1. the power is not to be resorted to if there is a specific provision in the code for the redress of the grievance of the aggrieved party; 
  2. it should be exercised very sparingly to prevent abuse of the process of any court or otherwise to secure the ends of justice; 
  3. it should not be exercised as against the express bar of the law engrafted in any other provision of the code. Whenever the court has inherent power, the court does not function as a court of appeal or revision. 

Inherent powers cannot be exercised to review judgement. 

In a case N Naveen Kumar v. State of AP, the accused was convicted in this case for bribery. Some of his property was directed to be sold by auction. That was in addition to the sentence of imprisonment and fine. An appeal against this was dismissed. An application was made by the legal heirs of the accused for permission to deposit certain sums in lieu of auction sale of property. This was held to be not tenable before the Appellate Court. The bar under section 397(2) of the code is applicable to the revisional powers only not to inherent powers. Even under section 341 of the code, the inherent power overrides the express bar against revision.

Under what circumstances the powers of Quashing are exercised by the High Court 

Inherent power under Section 482 in a matter of quashing of FIR has to be exercised sparingly and with caution and when and only when such exercise is justified by the test specifically laid down in the provision itself. The power under section 482 is very wide and conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court and the said power is not to be used to choke or smother a legitimate prosecution. 

The high court can quash an FIR or a complaint in exercise of its powers under article 26 of the Constitution of India or under section 482 CrPC:

  1. Where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused.
  2. Where the allegations in the FIR and other materials accompanying FIR do not disclose a cognizable offence justifying an investigation under section 156(1) of CrPC except an order of a magistrate under section 155(2) CrPC.
  3. Where uncontroverted allegations in the FIR or the complaint and the evidence collected in support do not disclose the commission of any offence and make out a case against the accused.
  4. Where the allegations made in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence.
  5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
  6. Where there is an express legal bar engrafted in the CrPC or the concerned act to the institution of criminal proceeding or where there is a specific provision in the CrPC or concerned act providing efficacious redress.
  7. Where a criminal proceeding is manifestly attended with mala fide or where proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

The Supreme Court also has settled that the High Court should not entertain writ petitions under Article 226 and 227 and petitions unde section 482 for granting or rejecting request for bail which is the function of lower court. The High Court’s power under section 482 is not affected by the provision in section 497(3). The Supreme Court said:

Even if it is an interlocutory order, the High court’s inherent jurisdiction under section 482 is not affected by the provisions of section 497(3) CrPC. That The High Court may refuse to exercise its jurisdiction under section 482 on the basis of self-imposed restriction is a different aspect. It cannot be denied that for securing the ends of justice, the High court can interfere with the order which causes miscarriage of justice or is palpably illegal or is unjustified.

Need help with Quashing and FIR?  Reach out to us now

Appeals before the High Court

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Appeals before the High Court:

The High Court has appellate jurisdiction over both civil and criminal cases. There is a hierarchy of Civil and Criminal Courts in every state subordinate to their respective High Courts to administer civil and criminal law disputes.  It can hear appeal on civil cases tried by the Courts of Munsifs and District Judges. In criminal cases, the jurisdiction extends to cases tried by the Sessions and Additional Sessions Judges. The Courts in hierarchy below to High Courts are called as Trial Courts. Appeals before the High Court

Appeals before the High Court

In what cases an Appeal lies before the High Court?

Right of appeal is a creature of the statute and it is for the legislature to decide whether the right of appeal should be unconditionally given to an aggrieved party or it should be conditionally given. The right to appeal which is a statutory right can be conditional or qualified.[1] So it is the statutory provision which shall determine where an appeal shall lie and whether it shall lie before High Court or any other forum. Further that, right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications.[2] The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant.[3]

Statutory Appeals that lie before High Court :

  • Section 389 of the Code of Criminal Procedure, 1973
  • First Appeal: Sections 96 to 99A; 107 to 108 & Order 41 of the Code of Civil Procedure, 1908
  • Second Appeal: Section 100 of Code of Civil Procedure
  • Section 260A of the Income-Tax Act, 1961
  • Section 173 of Motor Vehicles Act
  • Section 130 of the Customs Act, 1962.

(List is not exhaustive)

APPEALS BEFORE HIGH COURT IN CRIMINAL MATTERS:

An appeal can be filed against the decision of a Session Judge if the accused has been sentenced for 7 years or more. Capital punishment given by a sessions judge cannot be executed unless it is confirmed by the High Court.

APPEALS BEFORE HIGH COURT IN CIVIL MATTERS:

Appeals arising out of Civil matters are called as Civil Appeals. The Civil Appeals are basically governed by Code of Civil Procedure. Further the High Court may also frame rules and procedures for conducting Civil Appeals. Appeals could be filed either against an order or Judgment.

SECOND APPEAL BEFORE HIGH COURT:

The decree/judgment passed by any appellate Civil Court in the first appeal can be challenged by way of a second appeal before the High Court. If the case involves a substantial question of law, the second appeal can be filed even against an ex parte decree/judgment of the first appellate court.

NO APPEAL:

No appeal can be filed against a decree/judgment which has been passed by the court with the consent of the parties. Again, no appeal can be filed, except on a question of law, from a decree in any suit of the courts of small causes, when the value of the subject matter of the suit is less than Rs. 3000/-.

Furthermore, where a decree/judgment is passed by a single judge of the High Court in second appeal, the said decree/judgment is not appealable.

Further, that 42nd Amendment, 1976 disallowed the High Court to hear appeals against Tribunals and the decisions of various Corporations established under the law of the state. But this restriction on the High Court’s appellate jurisdiction was removed by the 43rd Amendment.

GROUNDS OF APPEAL:

The basis of an appeal must be a reversible error in the application of the law, or appreciation of fact, at the trial court level (i.e., based on the facts, the court clearly misapplied the law). In criminal cases, an appeal can target the conviction itself or just the sentencing portion of the decision without regard to the underlying conviction.  An appeal may be filed only after a final judgment or order has been reached by the trial court.

  1. A judgment/decree can be challenged in the first appeal on varied grounds both on basis of facts of the case and as well the legal interpretation of various legal provisions involved.
  2. For instance a party may raise objections as regards the territorial and pecuniary competence of a court passing the challenged judgment and decree.
  3. If there has been a failure of justice on account of such incompetence.
  4. Equally, in case all the necessary parties were not joined in the original suit, a challenge to the judgment decree of such a court can be maintained.
  5. An appeal may be as well to challenge the interpretation of law as the legal provisions applied by the subordinate court while making the judgment/ decree any error, defect as irregularity in any proceeding before the subordinate court affecting the merits of the case as the jurisdiction of such a court may as well be a sustainable ground while making an appeal.
  6. The second appeal can be filed only if there exists a substantial question of law. In the case the question of law would be substantial if it is of general public importance or which directly and substantially affects rights of the parties.

How are writs and appeals of High Court different?

Writs are extraordinary court orders and only issued when a moving party (the one seeking the writ) has no other options. A writ petition is filed to protect constitutional rights, Legal Rights or fundamental rights. Whereas, an appeal is a motion filed before a judge on which a previous lower court has passed an order or orders as the case may be and the orders are unsatisfactory to the person filing the appeal and so he she files appeal in a higher court. Usually writ petitions are filed first, whereas, appeals are filed after orders or judgment of lower courts. To read more about writs, click here.

I lost my trial because my law made stupid mistakes, can’t I rely on an appeal before High Court to correct them?

Don’t count on appeals to make up for any real or perceived deficiencies at trial. You should put all of your energy into the trial itself, which includes finding the right lawyer to try the case. Successfully appealing a verdict because you had a deficient attorney is an extremely difficult proposition. You can’t appeal because you simply had a bad lawyer. But, we may firstly understand some of the basic concepts pertaining to Appeal.

What is an appeal, when is it filed ?

At the conclusion of a proceeding in a lower court, the party who lost may want to have that decision reviewed by a higher court i.e. District Court, High Court or Supreme Court or concerned Tribunal depending upon the Legislative Scheme, in the hope that it might be reversed or changed.What an appeal is not

An appeal is not:

  • a new trial;
  • a hearing with witnesses or a jury;
  • a chance to present new evidence or new witnesses to a new judge, except in exceptional circumstances; or
  • a way to avoid complying with the trial court’s order.

Does an appeal constitute a new trial?

No. In an appeal there are no new issues presented or witnesses called to testify. The appellate court will only review the Trial Court’s Judgment and evidence presented during the trial to determine whether there were errors in either procedure or application of the law. Even if there were errors, if they’re deemed minor — legally called “harmless error” – the judgment is generally not overturned, nor is a new trial be granted. You must understand that an appeal is not a new trial or a rehearing of your case. The Court of Appeal will not hear an appeal of every case. In some cases, you must ask the permission of the Court to appeal through a process called “leave to appeal”. Even if the Court of Appeal hears your appeal, it will not:

  • re-hear your case from start to finish;
  • change the decision because it seems unfair; or
  • change the decision just because the Court of Appeal disagrees with it. (The decision must be incorrect due to a factual or legal error.)

What is a possible outcome of an Appeal :

  1. Affirm the decision;
  2. Modify the ruling in some way;
  3. Consider new facts or evidence (seldom); or
  4. In extremely rare cases, may throw out the case entirely.

References:

  1. In Anant Mills Co. Ltd. v. State of Gujarat [(1975) 2 SCC 175]
  2. Shri Shyam Kishore and Ors. v. Municipal Corporation of Delhi and Anr. as reported in J.T. 1992 (5) SC 335 at page 351
  3. Gujarat Agro Industries Co. Ltd. v. Municipal Corpn. of the City of Ahmedabad [(1999) 4 SCC 468] and Vijay Prakash D. Mehta v. Collector of Customs [(1988) 4 SCC 402]