A. Constitution of India, Article 21 – Right to life -- Access to justice -- Access to justice is and has been recognised as a part and parcel of right to life in India and in all civilized societies around the globe -- The right is so basic and inalienable that no system of governance can possibly ignore its significance, leave alone afford to deny the same to its citizens -- Supreme Court has by a long line of decisions given an expansive meaning and interpretation to the word ‘life’ appearing in Article 21 of the Constitution.

(i)    In Maneka Gandhi v. Union of India (1978) 1 SCC 248, Court declared that the right to life does not mean mere animal existence alone but includes every aspect that makes life meaningful and liveable.

(ii)   In Sunil Batra v. Delhi Administration (1978) 4 SCC 494 the right against solitary confinement and prison torture and custodial death was declared to be a part of right to life.

(iii)  In Charles Sobhraj v. Suptd. Central Jail (1978) 4 SCC 104 the right against bar fetters was declared to be a right protected under Article 21 of the Constitution.

(iv)   In Khatri II v. State of Bihar (1981) 1 SCC 627, the right to free legal aid was held to be a right covered under Article 21 of the Constitution.

(v)    In Prem Shankar Shukla v. Delhi Administration (1980) 3 SCC 526 the right against handcuffing was declared to be a right under Article 21.

(vi)   So also in Rudal Shah v. State of Bihar (1983) 4 SCC 141 the right to compensation for illegal and unlawful detention was considered to be a right to life under Article 21 and also under Article 14.

(vii)  In Sheela Barse v. Union of India (1988) 4 SCC 226, Court declared speedy trial to be an essential right under Article 21.

(viii) In Parmanand Katara v. Union of India (1989) 4 SCC 248, right to emergency, medical aid was declared to be protected under Article 21 of the Constitution.

(ix)   In Chameli Singh v. State of U.P. (1996) 2 SCC 549 and Shantistar Builders v. Narayan Khimalal Totame (1990) 1 SCC 520, right to shelter, clothing, decent environment and a decent accommodation was also held to be a part of life.

(x)    In M.C. Mehta v. Union of India (1997) 1 SCC 388, right to clean environment was held to be a right to life under Article 21.

(xi)   In Lata Singh v. State of U.P. (2006) 5 SCC 475, right to marriage was held to be a part of right to life under Article 21 of the Constitution.

(xii)  In Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1, right to make reproductive choices was declared as right to life.

(xiii) While in Sukhwant Singh v. State of Punjab (2009) 7 SCC 559 right to reputation was declared to be a facet of right to life guaranteed under Article 21.

(xiv) In the recent Constitution Bench Judgment decision of this Court in Subramanian Swamy v. Union of India [W.P (Crl.) No.184 of 2014], Court held reputation to be an inherent and inseparable component of Article 21.

Held, access to justice is indeed a facet of right to life guaranteed under Article 21 of the Constitution -- Article 21 of the Constitution apart, access to justice can be said to be part of the guarantee contained in Article 14 as well.

(Para 27,28)

B. Constitution of India, Article 21 – Access to justice -- Four main facets that constitute the essence of access to justice are:

i)     The State must provide an effective adjudicatory mechanism;

ii)    The mechanism so provided must be reasonably accessible in terms of distance;

iii)   The process of adjudication must be speedy; and

iv)   The litigant’s access to the adjudicatory process must be affordable.

(Para 29, 30)

C. Constitution of India, Article 21, 32, 136, 142 -- Access to justice – Right to life – Transfer of case from Jammu and Kashmir to other State -- Access to justice is a facet of the right to life guaranteed under Article 21 of the Constitution, a violation actual or threatened of that right would justify the invocation of this Court’s powers under Article 32 of the Constitution – There is no prohibition against use of power under Article 142 to direct transfer of cases from a Court in the State of Jammu and Kashmir to a Court outside the State or vice versa -- There is no enabling provision, the absence of an enabling provision, however, cannot be construed as a prohibition against transfer of cases to or from the State of Jammu and Kashmir – Extraordinary power available to this Court under Article 142 of the Constitution can, therefore, be usefully invoked in a situation where the Court is satisfied that denial of an order of transfer from or to the Court in the State of Jammu and Kashmir will deny the citizen his/her right of access to justice.

 (Para 36)

A. Constitution of India, Article 21 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 41, 41-A – Arrest of Advocate/ Doctor – Procedure of law violated – Life and liberty of accused -- Compensation to accused arrested -- Arrest of the petitioners was not made by following the procedure of arrest -- Dignity of the petitioners, a doctor and a practicing Advocate has been seriously jeopardized -- It is an assault on his/her identity – Said identity is sacrosanct under the Constitution – Article 21 has been violated and the petitioners were compelled to face humiliation – Not only there are violation of guidelines issued in the case of D.K. Basu (1997) 1 SCC 416, there are also flagrant violation of mandate of law enshrined under Section 41 and Section 41-A of Cr.PC -- A sum of Rs.5,00,000/- (rupees five lakhs only) towards compensation is awarded to each of the petitioners to be paid by the State of M.P. within three months hence -- It will be open to the State to proceed against the erring officials, if so advised.

(Para 22-27)

B. Indian Penal Code, 1860 (45 of 1860), 420 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Cheating – Civil Dispute -- On a perusal of the FIR, it is clear to us that the dispute is purely of a civil nature, but a maladroit effort has been made to give it a criminal colour – No ingredient of Section 420 IPC is remotely attracted -- Even if it is a wrong, the complainant has to take recourse to civil action – Not the case where cognizance of the offence can be taken by the court and the accused can be asked to face trial -- Entire case projects a civil dispute and nothing else – Prosecution initiated against the petitioners stands quashed.

(Para 28, 29)

A. Convict – Under-trial prisoner -- There is a difference between a ‘convict' and 'under-trial prisoner' -- A convict suffers his sentence after conviction when his guilt is proved, whereas an under-trial prisoner remains in jail and is presumed to be innocent till he is found guilty by the Court.

(Para 24)

B. Constitution of India, Article 21, 226 -- Undertrial-prisoner’s right to marry – Right to marry is a necessary concomitant of right to life guaranteed under Article 21 of the Constitution of India and if not a fundamental right, it is akin to it and so on and so forth -- An undertrial prisoner, being presumed to be innocent, has a right to marry with someone who is not an under-trial like him/her and/or a person can marry an under-trial prisoner, if he/she desires.

(Para 26-28)

C. Constitution of India, Article 21, 226 -- Undertrial-prisoner’s right to marry – Venue of marriage -- Whether the petitioner can be allowed to marry under-trial in jail premises? – Held, the marriage can only be performed outside the jail as the jails cannot be converted into marriage palaces.

(Para 29, 30)

A. Constitution of India, Article 226 -- Challenge to writ order by way of writ petition – Maintainability of -- A judgment passed in one writ petition cannot be challenged by filing another writ petition under Article 226 -- Under Article 226, High Court cannot issue a writ of certiorari to set aside the order/judgment passed by another writ Court, either in Single, or Division Bench, which had passed such judgment, in exercise of similar jurisdiction under Article 226.

(Para 23-28)

B. Constitution of India, Article 226 -- Writ order – Allegation of fraud played upon court – Challenge to writ order by way of writ petition, subsequently by way of LPA -- Pleadings were all before the learned Single Judge who decided earlier writ, including the amended written statement filed by the Chandigarh Housing Board and the same were also duly referred to by the learned Single Judge in his judgment -- Board had resisted private respondent’s claim for allotment on all the grounds now being given by the appellant – Appellant had, during pendency of that petition, made an application for impleadment therein which was dismissed and the order became final – Whether or not the judgment itself, after having considered all the points raised, is correct or otherwise, would have been a matter to have been decided in appeal -- If the petitioner himself was also aggrieved, he could also very well have availed of his remedies against the dismissal of his application for impleadment, as also the judgment itself -- Neither the Housing Board, nor the appellant availed of that remedy – No interference required in that judgment, when it has not been appealed against.

(Para 38-43)

A. Constitution of India, Article 226 – Concealment of facts -- Notice of motion was got issued on concealment of facts -- Petitioner has no right to be heard. Prestige Lights Ltd.’s case (2007) 8 SCC 449 relied.

(Para 9)

B. East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 42 – Review – Power of Director, Consolidation -- Director, Consolidation of Holdings has no power to review his previous orders.

(Para 10,11)

***

Double jeopardy – Conviction under Section 138 of NI Act – Subsequent prosecution under Section 420 IPC on the same facts – Barred by Section 300(1) Cr.P.C., which is wider in scope than Article 20(2) of the Constitution and applies even where the offences are different.

***

Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- Indian Penal Code, 1860 (45 of 1860), Section 420 -- Constitution of India, Article 20(1) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 300(1) -- Double jeopardy – Conviction u/s 138 of NI Act – Trial and punishment under Section 420 IPC – Permissibility of – Section 300(1) of Cr.P.C. is wider than Article 20(2) of the Constitution -- While, Article 20(2) of the Constitution only states that 'no one can be prosecuted and punished for the same offence more than once' -- Section 300(1) of Cr.P.C. states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts – Held in the case although the offences are different but the facts are the same -- Hence, Section 300(1) of Cr.P.C. applies -- Consequently, the prosecution u/s 420, IPC was barred by Section 300(1) of Cr.P.C.

(Para 7, 8)

***

Appeal/ Revision -- Remedies in Section 138 NI Act – After conviction by JMFC, appeal lies to the Sessions Court, revision to the High Court and special leave to appeal to the Supreme Court; after acquittal by JMFC, the complainant may appeal to the High Court and thereafter seek special leave before the Supreme Court.

***

Compounding of offence – Section 138 NI Act – Compounding may be permitted without costs at the first or second hearing; at later stages, costs of 10%, 15% and 20% of the cheque amount may be imposed before the Magistrate, Sessions/High Court and Supreme Court respectively.

***

Multiple complaints – Section 138 NI Act – A complainant must disclose on sworn affidavit that no other complaint relating to the same transaction has been filed; multiple complaints may be transferred to the first court.

***

Compounding guidelines – Sections 138, 147 NI Act – In view of the legislative gap regarding the procedure for compounding, courts may impose costs to discourage delay, with power to reduce such costs for recorded reasons.

***

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 143 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 374(3), 378(4), 397, 401 – Constitution of India, Article 136 -- Cheque bounce case – Remedies available -- Offence u/s 138 triable by a Judicial Magistrate First Class (JMFC) -- After trial, the progression of further legal proceedings would depend on whether there has been a conviction or an acquittal.

-- In the case of conviction, an appeal would lie to the Court of Sessions under Section 374(3)(a) of the CrPC; thereafter a Revision to the High Court under Section 397/401 of the CrPC and finally a petition before the Supreme Court, seeking special leave to appeal under 136 of the Constitution of India. Thus, in case of conviction there will be four levels of litigation.

-- In the case of acquittal by the JMFC, the complainant could appeal to the High Court under Section 378(4) of the CrPC, and thereafter for special leave to appeal to the Supreme Court under Article 136. In such an instance, therefore, there will be three levels of proceedings.

(Para 14)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 143, 147 -- Cheque bounce case – Framing of Guidelines for compounding of offence :

THE GUIDELINES

(a) That directions can be given that the Writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused.

(b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit.

(c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs.

(d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount.

Competent Court can of course reduce the costs with regard to the specific facts and circumstances of a case, while recording reasons in writing for such variance.

(Para 15, 17)

C. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- Cheque bounce case – Multiple complaints – Controlling of -- It should be mandatory for the complainant to disclose that no other complaint has been filed in any other court in respect of the same transaction -- Such a disclosure should be made on a sworn affidavit which should accompany the complaint filed u/s 200 of the CrPC -- If it is found that such multiple complaints have been filed, orders for transfer of the complaint to the first court should be given, generally speaking, by the High Court after imposing heavy costs on the complainant for resorting to such a practice. These directions should be given effect prospectively.

(Para 16)

D. Constitution of India, Article 142 -- Negotiable Instruments Act, 1881 (26 of 1881), Section 138, Section 147 – Code of Criminal Procedure, 1973 (2 of 1974), Section 320 -- Guidelines could be seen as an act of judicial law-making and therefore an intrusion into the legislative domain – It must be kept in mind that Section 147 of the Act does not carry any guidance on how to proceed with the compounding of offences under the Act -- Scheme contemplated u/s 320 of the CrPC cannot be followed in the strict sense -- In view of the legislative vacuum, no hurdle to the endorsement of some suggestions which have been designed to discourage litigants from unduly delaying the composition of the offence in cases involving Section 138 of the Act -- Competent Court can of course reduce the costs with regard to the specific facts and circumstances of a case, while recording reasons in writing for such variance.

(Para 17)

***

SICA proceedings – Maintainability of Section 138 NI Complaint –** Section 22 SICA does not bar institution or prosecution of a criminal complaint under Section 138 NI Act against a company or its Directors.

***

SICA proceedings – BIFR restraint order – Section 138 NI Complaint –** Where a BIFR restraint order under Section 22-A SICA precedes completion of the Section 138 offence, criminal prosecution may not be justified if non-payment was beyond the accused’s control; the issue depends on the facts of each case.

***

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 141 – Sick Industrial Companies (Special Provisions) Act (1 of 1986), Section 22 – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Constitution of India, Article 227 -- Dishonour of Cheque -- Prosecution of the Company/ Directors – SICA proceedings -- Maintainability of complaint u/s 138 of NI Act -- Section only creates an embargo against disposal of assets of the company for recovery of its debts -- Purpose of such an embargo is to preserve the assets of the company from being attached or sold for realisation of dues of the creditors -- Section does not bar payment of money by the company or its directors to other persons for satisfaction of their legally enforceable dues -- Section 22 SICA does not create any legal impediment for instituting and proceeding with a criminal case on the allegations of an offence u/s 138 of the NI Act against a company or its Directors.

(Para 18)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 141 – Sick Industrial Companies (Special Provisions) Act (1 of 1986), Section 22-A – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Constitution of India, Article 227 -- Dishonour of Cheque -- Prosecution of the Company/ Directors – Company declared Sick -- Maintainability of complaint u/s 138 of NI Act -- In a case in which the BIFR has submitted its report declaring a company as ‘sick’ and has also issued a direction u/s 22-A restraining the company or its directors not to dispose of any of its assets except with consent of the Board then the contention raised that a criminal case for the alleged offence u/s 138 NI Act cannot be instituted during the period in which the restraint order passed by the BIFR remains operative cannot be rejected outright -- Whether the contention can be accepted or not will depend on the facts and circumstances of the case -- For instance, before the date on which the cheque was drawn or before expiry of the statutory period of 15 days after notice, a restraint order of the BIFR u/s 22-A was passed against the company then it cannot be said that the offence u/s 138 NI Act was completed -- In such a case it may reasonably be said that the dishonoring of the cheque by the bank and failure to make payment of the amount by the company and/or its Directors is for reasons beyond the control of the accused -- In such circumstances it would be unjust and unfair and against the intent and purpose of the statute to hold that the Directors should be compelled to face trial in a criminal case.

(Para 19, 20)