Monthly Archives: February 2014

FIR vis-à-vis Preliminary Inquiry

In a recent Judgement of the Hon’ble Supreme Court it was held as under:
“(1) The registration of FIR is mandatory under Section 154 of the CrPC, if the information discloses commission of a cognizable offence and no preliminary enquiry is permissible in such a situation.
(2) If the Information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
(3) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
(4) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
(5) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
(6) As to what type and in which cases preliminary inquiry is to be conducted will depend upon the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial Offences
(c) Medical Negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over three months’ delay in reporting the matter without satisfactorily explaining the reasons for delay.
(7) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
(8) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, it was held that all information relating to cognizable offences, whether resulting in registering of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected. Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1.

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Filed under Criminal Law, FIR

Industrial Dispute – Words “at any time”

The real test is that the words “any industrial dispute exists or is apprehended” has to be read alongwith the words “at any time”. These words, under Section 4K of the U.P. Industrial Disputes Act are complimentary to each other. Consequently, the words “at any time” does not suggest that a dispute could be raised at any stage and that there is no period of limitation attached to it. All it means that so long as an industrial dispute exists or is apprehended, such dispute could be referred for adjudication before an appropriate Labour Court or Industrial Tribunal upon a reference being made by the State Government.
The crucial test is that an industrial dispute should be in existence or is apprehended on the date of reference. If there was no industrial dispute existing or if the industrial dispute was not apprehended, the State Government had no power to make a reference but if the dispute was existing or was apprehended, the State Government could refer the dispute even if the dispute was raised after a considerable period of time.
Further the reference of such dispute is to be made on such opinion being formed by the Government on the basis of the material placed before it. In appropriate cases, even without waiting for the conciliation report the State Government can “at any time” refer a dispute which is existing or is apprehended for adjudication. Dr. Jawahar Lal Rohatagi Memorial Eye Hospital, Kanpur v. State of U.P., (2014) 1 UPLBEC 158.

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Filed under Industrial Dispute, Labour Law

Equitable Set-off and Legal Set-off

“Set-off is defined in Black’s Law Dictionary (7th Edition, 1999) inter alia as a debtor’s right to reduce the amount of a debt by any sum the creditor owes the debtor; the counterbalancing sum owed by the creditor. The dictionary quotes Thomas W. Waterman from a Treatise on the Law of Set-off, Recoupment and Counter-claim as stating:
“Set-off signifies the subtraction or taking away of one demand from another opposite or cross-demand, so as to distinguish the smaller demand and reduce the greater by the amount of the less; or, if the opposite demands are equal, to extinguish both. It was also, formerly, sometimes called stoppage, because the amount to be set-off was stopped or deducted from the cross-demand.”
Equitable set-off is different than the legal set-off; that it is independent of the provisions of the Code of Civil Procedure; that the mutual debts and credits or cross-demands must have arisen out of the same transaction or to be connected in the nature and circumstances; that such a plea is raise not as a matter of right; and that it is the discretion of the court to entertain and allow such a plea or not. The concept of equitable set-off is founded on the fundamental principles of equity, justice and good conscience. The discretion rests with the court to adjudicate upon it and the said discretion has to be exercised in an equitable manner. An equitable set-off is not to be allowed where protracted enquiry is needed for determination of the sum due, as has been stated in Dobson and Barlow v. Bengal Spinning and Weaving Company, (1897) 21 Bom 126 and Girdharilal Chaturbhuj v. Surajmal Chauthmal Agarwal, AIR 1940 Nag 177. Jitendra Kumar Khan v. Peerless General Finance and Investment Company Ltd., 2013 (6) AWC 6359.

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Filed under Civil Law, Set-off