Substantial compliance of first appeal under section 96 of CPC

In H. Siddiqui (dead) by LRs. v. A. Ramalingam, AIR 2011 SC 1492, the apex court held as under:
“18. The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided
the case considering the material on record. It would amount to substantial compliance of the said provisions if the appellate court’s judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the  appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions.

(See also: Thakur Sukhpal Singh v. Thakur Kalyan Singh & Anr., AIR 1963 SC 146;
Girijanandini Devi & Ors. v. Bijendra Narain Choudhary, AIR 1967 SC 1124; G. Amalorpavam & Ors. v. R.C. Diocese of Madurai & Ors., (2006) 3 SCC 224; Shiv Kumar Sharma v. Santosh Kumari, AIR 2008 SC 171; and Gannmani Anasuya & Ors. v. Parvatini Amarendra Chowdhary & Ors., AIR 2007 SC 2380).

Constructive Resjudicata under Explanation IV to Section 11 of CPC

In Forward Construction Co. & Ors. v. Prabhat Mandal, Andheri & Ors., AIR 1986 SC 391 the Supreme Court explained the scope of constructive res judicata as envisaged in Explanation IV to Section 11 of CPC and observed that the High Court was not right in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition.

The Court held as under:
“Explanation IV to S.11, CPC provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental
to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same
thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force.”

Dr. Subramanian Swamy v. State of Tamil Nadu & Ors. (2014) 1 SCALE 79).
If the issue has been already decided on merit between the same parties in an earlier litigation, it cannot be decided again. Explanation (4) thereof, also provides or constructive res judicata which has to be read like the provisions of Order II Rule 2. It
also applies to the proceedings in the Suit.

Question of locus standi not having been raised before the High Court did not survive it amounted to an abandonment of the issue and cannot be raised before the Supreme Court

Constructive Res Judicata

In Tata Industries Ltd. v. Grasim Industries Ltd. (2008) 10 SCC 187. The  case deals with jurisdiction to appoint the arbitrator u/s 11(6) of Arbitration and Conciliation Act, 1996.  Supreme Court rejected the argument raised before the High Court and held – Question of locus standi not having been raised before the High Court did not survive – it
amounted to an abandonment of the issue and cannot be raised before the Supreme
Court.

Exceptions to Res Judicata

GENERAL

In Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar (2008) 9 SCC 54,

The Supreme Court laid down 3 exceptions to the rule of Res Judicata
(i) When judgment is passed without jurisdiction
(ii) When matter involves a pure question of law.
(iii) When judgment has been obtained by committing fraud on the Court.

Fatima Bibi Ahmed Patel v. State of Gujarat (2008) 6 SCC 789 – Res Judicata principle not applicable to criminal cases

LACK OF JURISDICTION

The doctrine would not apply if the judgment is by a Court lacking inherent jurisdiction or when the judgment is non-speaking. (Vide Union of India v. Pramod Gupta (Dead) by L.Rs. & Ors., (2005) 12 SCC 1).

DECISION WITHOUT MERIT

In State of Uttar Pradesh & Anr. v. Jagdish Sharan Agrawal & Ors., (2009) 1 SCC 689, the Apex Court held that where the matter has not been decided on merit earlier, the doctrine of res judicata is not applicable.

FRAUD

The principle of res judicata would not apply if the decree has been obtained by practicing misrepresentation or fraud on the court, or where the proceedings had been taken all together under a special Statute. More so, every finding in the earlier judgment would not operate as res judicata. Only an issue “directly” and “substantially”, decided in the earlier suit, would operate as res judicata. Where the decision has not been given on merit, it would not operate in case against the judgment and decree of the court below the appeal is pending in the appellate court, the judgment of the court below cannot be  held to be final, and the findings recorded therein would not operate as res judicata.
(See : Premier Cable Co. Ltd. v. Government of India, AIR 2002 SC 2418; Arm Group Enterprises Ltd. v. Waldorf Restaurant, (2003) 6 SCC 423; Mahila Bajrangi v. Badribhai, (2003) 2 SCC 464; Pondicherry Khadi & Village Industries Board v. P. Kulothangan, AIR 2003 SC 4701; Kiran Tandon v. Allahabad Development Authority, AIR 2004 SC 2006; T.P. Moideen Koya v. Govt. of Kerala, (2004) 8 SCC 106; State of Haryana v. State of Punjab, (2004) 12 SCC 673; Bhanu Kumar Jain v. Archana Kumar, (2005) 1 SCC 787; Sampat Co-operative Sugar Mills Ltd. v. Ajit Singh (2005) 3 SCC 516; and Swami
Atmananda & Ors. v. Sri Ramkrishna Tapovanam & Ors. AIR 2005 SC 2392).

Service Address of the Respondents [India]

UNION OF INDIA

Union of India, represented by Secretary to the Ministry of Electronics &
Information Technology, Govt. of India

Group Co-ordinator, Cyber Law Division, Department of Information
Technology, Ministry of Electronics and Information Technology, Govt. of
India.

STATE GOVERNMENTS

State of Kerala, represented by Secretary to the Department of Health and
Family Welfare,Govt.of Kerala, Secretariat, Thiruvananthapuram.

 Principal Secretary, Information Technology Department, Govt of Kerala,
Secretariat, Thiruvananthapuram.

SOCIAL MEDIA

Facebook through Facebook India Online Service Pvt.Ltd,
represented by its authorized representative, having office at Unit Nos. 1203
and 1204, Level 12, Building No.20, Raheja Mindspace, Cyberabad,
Madhapur, Hi Tech City, Hyderabad, A.P- 500081.

 YouTube through Google India Pvt Ltd,
represented by its authorized representative, having office at Unitech
Signature Tower-II, Tower B, Sector-15, Village Silokhera, Gurgaon,
Haryana 122001

 

Statutory provisions on reporting by media of the cases involving sexual offences

Children-min

PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012

Chapter V- Procedure for reporting of cases

Sec 23. Procedure for media-

  • No person shall make any report or present comments on any child from any
    form of media or studio or photographic facilities without having complete and authentic information, which may have the effect of lowering his reputation or infringing upon his privacy.
  1. No reports in any media shall disclose, the identity of a child including his name, address, photograph, family details, school, neighborhood or any other particulars which may lead to disclosure of identity of the child:

Provided that for reasons to be recorded in writing, the Special Court, competent to try the case under the Act, may permit such disclosure, if in its opinion such disclosure is in the interest of the child.

  1. The publisher or owner of the media or studio or photographic facilities shall be jointly and severally liable for the acts and omissions of his employee.
  1. Any person who contravenes the provisions of sub-section (1) or sub-section (2)
    shall be liable to be punished with imprisonment of either description for a period which shall not be less than six months but which may extend to one year or with fine or with both.

INDIAN PENAL CODE, 1860

Chapter XI- Of false evidence and offences against public justice

[228A. Disclosure of identity of the victim of certain offences etc.—

(1) Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under section 376, section 376A, section 376B, section 376C or section 376D is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.

(2) Nothing in sub-section (1) extends to any printing or publication of the name or any matter which may make known the identity of the victim if such printing or publication is—

(a) by or under the order in writing of the officer-in-charge of the police station or the police officer making the investigation into such offence acting in good faith for the purposes of such investigation; or

(b) by, or with the authorisation in writing of, the victim; or

(c) where the victim is dead or minor or of unsound mind, by, or with the authorisation in writing of, the next of kin of the victim: Provided that no such authorisation shall be given by the next of kin to anybody other than the chairman or the secretary, by whatever name called, of any recognised welfare institution or organisation.

Explanation.—For the purposes of this sub-section, “recognised welfare institution or organisation” means a social welfare institution or organisation recognised in this behalf by the Central or State Government.

(3) Whoever prints or publishes any matter in relation to any proceeding before a court with respect to an offence referred to in sub-section (1) without the previous permission of such Court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.

Explanation.—The printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this section.

In Motor Vehicle Accident involving death no release of uninsured vehicle without obtaining security

Cr.P.C. S.457 : Where there is no insurance cover for a vehicle, the owner should be directed to offer security or deposit an amount, adequate to satisfy the award that may be ultimately passed, as a condition precedent for release of the seized vehicle involved in the accident. If such security or cash deposit is not made, within a period of three months, appropriate steps may be taken for disposal of the vehicle and hold the sale proceeds in deposit until the claim case is disposed of. -Jai Prakash Vs. National Insurance Company, (2010) 2 SCC 607.

In case of post conviction bail under Section 389, Cr.P.C, it is mandatory that appellate Court gives an opportunity to public prosecutor for showing cause in writing against such release. 

Cr.P.C. S.389: Suspension of sentence and release on bail. Appellate Court may even without hearing public prosecutor, decline to grant bail. However, in case appellate Court is inclined to consider release of convict on bail, public prosecutor shall be granted opportunity to show cause in writing as to why appellant be not released on bail. Despite such opportunity being granted to public prosecutor, in case no cause is shown in writing, appellate Court shall record that State has not filed any objection in writing. This procedure is intended to ensure transparency, to ensure that there is no allegation of collusion and to ensure that Court is properly assisted by State with true and correct facts with regard to relevant considerations for grant of bail in respect of serious offences, at post conviction stage -Atul Tripathi Vs. State Of U.P., (2014) 9 SCC 177: 2014 AIR SCW 4326

Just compensation to the victim has to be fixed having regard to medical and other expenses, pain and suffering, loss of earning and other relevant factors.

Cr.P.C. S.357 & 357A:  At times, evidence  is not available in this regard. Some guess work in such a situation is inevitable. While punishment to accused is one aspect, determination of just compensation to the victim is the other. Compensation under S.357, Cr.P.C. is payable by convict. Section 357A, Cr.P.C. has to be invoked to make up the requirement of just compensation.-Monohar Singh Vs. State of Rajasthan, AIR 2015 SC 1124