Relinquishment of Claim under Order II Rule 2 & 'Res Judicata' : The Law

Justice R.V. Raveendran
Supreme Court of India

The Supreme Court in Alka Gupta Vs. Narender Kumar Gupta dealt with the provisions of Order II Rule 2 of the Code of Civil Procedure, 1908 while also dealing with the concept of 'Res Judicata'. The Court further held that a suit cannot be dismissed by the Courts simply because they are dissatisfied with the conduct of the Plaintiff. The relevant extracts from this judgment are reproduced hereinbelow;

I. A suit cannot be dismissed as barred by Order 2 Rule 2 of the Code in the absence of a plea by the defendant to that effect and in the absence of an issue thereon. 

8. We may extract Order 2 Rules 1 and 2 of the Code for ready reference: 

"1. Frame of suit: Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. 2. Suit to include the whole claim: 

(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. 

(2) Relinquishment of part of claim: Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. 

(3) Omission to sue for one of several reliefs: A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted." 

The object of Order 2 Rule 2 of the Code is two-fold. First is to ensure that no defendant is sued and vexed twice in regard to the same cause of action. Second is to prevent a plaintiff from splitting of claims and remedies based on the same cause of action. The effect of Order 2 Rule 2 of the Code is to bar a plaintiff who had earlier claimed certain remedies in regard to a cause of action, from filing a second suit in regard to other reliefs based on the same cause of action. It does not however bar a second suit based on a different and distinct cause of action. 

9. This Court in Gurbux Singh v. Bhoora Lal [AIR 1964 SC 1810] held : 

"In order that a plea of a bar under O. 2, R. 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the latter suit is based there would be no scope for the application of the bar." 

Unless the defendant pleads the bar under Order 2 Rule 2 of the Code and an issue is framed focusing the parties on that bar to the suit, obviously the court can not examine or reject a suit on that ground. The pleadings in the earlier suit should be exhibited or marked by consent or at least admitted by both parties. The plaintiff should have an opportunity to explain or demonstrate that the second suit was based on a different cause of action. In this case, the respondent did not contend that the suit was barred by Order 2 Rule 2 of the Code. No issue was framed as to whether the suit was barred by Order 2 Rule 2 of the Code. But the High Court (both the trial bench and appellate bench) have erroneously assumed that a plea of res judicata would include a plea of bar under Order 2 Rule 2 of the Code. Res judicata relates to the plaintiff's duty to put forth all the grounds of attack in support of his claim, whereas Order 2 Rule 2 of the Code requires the plaintiff to claim all reliefs flowing from the same cause of action in a single suit. The two pleas are different and one will not include the other. The dismissal of the suit by the High Court under Order 2 Rule 2 of the Code, in the absence of any plea by the defendant and in the absence of an issue in that behalf, is unsustainable.

xxx

14. Res judicata means `a thing adjudicated' that is an issue that is finally settled by judicial decision. The Code deals with res judicata in section 11, relevant portion of which is extracted below (excluding Explanations I to VIII): 

"11. Res judicata.--No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court" 

Section 11 of the Code, on an analysis requires the following essential requirements to be fulfilled, to apply the bar of res judicata to any suit or issue: 

(i) The matter must be directly and substantially in issue in the former suit and in the later suit. 

(ii) The prior suit should be between the same parties or persons claiming under them. 

(iii) Parties should have litigated under the same title in the earlier suit. 

(iv) The matter in issue in the subsequent suit must have been heard and finally decided in the first suit. 

(v) The court trying the former suit must have been competent to try particular issue in question. To define and clarify the principle contained in Section 11 of the Code, eight Explanations have been provided. Explanation I states that the expression `former suit' refers to a suit which had been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II states that the competence of a court shall be determined irrespective of whether any provisions as to a right of appeal from the decision of such court. 

Explanation III states that the matter directly and substantially in issue in the former suit, must have been alleged by one party or either denied or admitted expressly or impliedly by the other party. Explanation IV provides that any matter which might and ought to have been made a 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. The principle of constructive res judicata emerges from Explanation IV when read with Explanation III both of which explain the concept of "matter directly and substantially in issue". 

15. Explanation III clarifies that a matter is directly and substantially in issue, when it is alleged by one party and denied or admitted (expressly or impliedly) by the other. Explanation IV provides that where any matter which might and ought to have been made a ground of defence or attack in the former suit, even if was not actually set up as a ground of attack or defence, shall be deemed and regarded as having been constructively in issue directly and substantially in the earlier suit. Therefore, even though a particular ground of defence or attack was not actually taken in the earlier suit, if it was capable of being taken in the earlier suit, it became a bar in regard to the said issue being taken in the second suit in view of the principle of constructive res judicata. Constructive res judicata deals with grounds of attack and defence which ought to have been raised, but not raised, whereas Order 2 Rule 2 of the Code relates to reliefs which ought to have been claimed on the same cause of action but not claimed. The principle underlying Explanation IV to Section 11 becomes clear from Greenhalgh v. Mallard [1947 (2) All ER 257] thus: 

"....it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them. (emphasis supplied) In Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra [1990 (2) SCC 715], a Constitution Bench of this Court reiterated the principle of constructive res judicata after referring to Forward Construction Co. v. Prabhat Mandal [1986 (1) SCC 100) thus: "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 decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence." 

In this case the High Court has not stated what was the ground of attack that plaintiff-appellant ought to have raised in the first suit but had failed to raise, which she raised in the second suit, to attract the principle of constructive res judicata. The second suit is not barred by constructive res judicata.

IV. A suit cannot be dismissed without trial merely because the court feels dissatisfied with the conduct of the plaintiff. 

16. Code of Civil Procedure is nothing but an exhaustive compilation- cum-enumeration of the principles of natural justice with reference to a proceeding in a court of law. The entire object of the Code is to ensure that an adjudication is conducted by a court of law with appropriate opportunities at appropriate stages. A civil proceeding governed by the Code will have to be proceeded with and decided in accordance with law and the provisions of the Code, and not on the whims of the court. There are no short-cuts in the trial of suits, unless they are provided by law. A civil suit has to be decided after framing issues and trial permitting the parties to lead evidence on the issues, except in cases where the Code or any other law makes an exception or provides any exemption. 

17. The Code enumerates the circumstances in which a civil suit can be dismissed without trial. We may refer to them (not exhaustive): 

(a) Dismissal as a consequence of rejection of plaint under Order 7 Rule 11 of the Code in the following grounds : 

(i) where it does not disclose a cause of action; 

(ii) where the relief in the plaint is undervalued and plaintiff fails to correct the valuation within the time fixed; 

(iii) where the court fee paid is insufficient and plaintiff fails to make good the deficit within the time fixed by court: 

(iv) where the suit appears from the statement in the plaint to be barred by law; 

(v) where it is not filed in duplicate and where the plaintiff fails to comply with the provisions of Order 7 Rule 9 of the Code. 

(b) Dismissal under Order 9 Rule 2 or Rule 3 or Rule 5 or Rule 8 for non- service of summary or non-appearance or failure to apply for fresh summons. 

(c) Dismissal under Order 11 Rule 21 for non-compliance with an order to answer interrogatories, or for discovery or inspection of documents. 

(d) Dismissal under Order 14 Rule 2(2) where issues both of law and fact arise in the same suit and the court is of opinion that the case or any part thereof may be disposed of on an issue of law only and it tries such issue relating to jurisdiction of the court or a bar to a suit created by any law for the time being in force first and dismisses the suit if the decision on such preliminary issue warrants the same. 

(e) Dismissal under Order 15 Rule 1 of the Code when at the first hearing of the suit it appears that the parties are not at issue on any question of law or fact. 

(f) Dismissal under Order 15 Rule 4 of the Code for failure to produce evidence. 

(g) Dismissal under Order 23 Rules 1 and 3 of the Code when a suit is withdrawn or settled out of court. 

18. The following provisions provide for expeditious disposal in a summary manner : 

(i) Order V Rule 5 of the Code requires the court to determine, at the time of issuing the summons, whether it shall be for the settlement of issues only, or for the final disposal of the suit (and the summons shall have to contain a direction accordingly). In suits to be heard by a court of small causes, the summons shall be for the final disposal of the suit. 

(ii) Order 15 Rule 3 of the Code provides where the parties are at issue on some question of law or of fact, and issues have been framed by the court as hereinbefore provided, if the court is satisfied that no further argument or evidence than the parties can at once adduce is required upon such of the issues as may be sufficient for the decision of the suit, and that no injustice will result from proceeding with the suit forthwith, the court may proceed to determine such issues, and, if the finding thereon is sufficient for the decision, may pronounce judgment accordingly, whether the summons has been issued for the settlement of issues only or for the final disposal of the suit. (But where the summons has been issued for the settlement of issues only, such a summary course could be adopted only where the parties or their pleaders are present and none of them objects to such a course). 

(iii) Order 37 Rule 1 read with Rules 2& 3 of the relating to summary suits.

19. But where the summons have been issued for settlement of issues, and a suit is listed for consideration of a preliminary issue, the court cannot make a roving enquiry into the alleged conduct of the plaintiff, tenability of the claim, the strength and validity and contents of documents, without a trial and on that basis dismiss a suit. A suit cannot be shortcircuited by deciding issues of fact merely on pleadings and documents produced without a trial. In this case, the learned Single Judge has adjudicated and decided questions of fact and rendered a judgment, without evidence tested by cross- examination.

"Common Object" under S. 149 of the Indian Penal Code : The Law

Dr. Justice B.S. Chauhan
Supreme Court of India

The Supreme Court in Ramachandran Vs. State of Kerala has examined the law relating to offences committed by persons in pursuance of common object being part of an unlawful assembly, as entailed in Section 149 of the Indian Penal Code. The relevant extracts from the judgment are reproduced hereunder;

SECTION 149 IPC: Scope and Object 

10. Section 149 IPC has essentially two ingredients viz. (i) offence committed by any member of an unlawful assembly consisting five or more members and (ii) such offence must be committed in prosecution of the common object (under Section 141 IPC) of the assembly or members of that assembly knew to be likely to be committed in prosecution of the common object. 

11. For "common object", it is not necessary that there should be a prior concert in the sense of a meeting of the members of the unlawful assembly, the common object may form on spur of the moment; it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. [Vide: Bhanwar Singh & Ors. v. State of M.P., (2008) 16 SCC 657] 

12. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under second part of Section 149 IPC if it can be held that the offence was such as the members knew was likely to be committed. The expression 'know' does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowledge that if a body of persons go armed to take forcible possession of the land, it would be right to say that someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of Section 149 IPC. 

13. There may be cases which would come within the second part, but not within the first. The distinction between the two parts of Section 149 IPC cannot be ignored or obliterated. [See : Mizaji & Anr. v. State of U.P., AIR 1959 SC 572; and Gangadhar Behera & Ors. v. State of Orissa, AIR 2002 SC 3633]. 

14. However, once it is established that the unlawful assembly had common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act. For the purpose of incurring the vicarious liability under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. [See : Daya Kishan v. State of Haryana, (2010) 5 SCC 81; Sikandar Singh v. State of Bihar, (2010) 7 SCC 477, and Debashis Daw v. State of W.B., (2010) 9 SCC 111]. 

15. The crucial question for determination in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons which were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly.(Vide: Masalti v. State of Uttar Pradesh, AIR 1965 SC 202) 

16. In K.M. Ravi & Ors. v. State of Karnataka, (2009) 16 SC 337, this Court observed that mere presence or association with other members alone does not per se be sufficient to hold every one of them criminally liable for the offences committed by the others unless there is sufficient evidence on record to show that each intended to or knew the likelihood of commission of such an offending act. 

17. Similarly in State of U.P. v. Krishanpal & Ors., (2008) 16 SCC 73, this Court held that once a membership of an unlawful assembly is established it is not incumbent on the prosecution to establish whether any specific overt act has been assigned to any accused. Mere membership of the unlawful assembly is sufficient and every member of an unlawful assembly is vicariously liable for the acts done by others either in prosecution of common object or members of assembly knew were likely to be committed. 

18. In Amerika Rai & Ors. v. State of Bihar, (2011) 4 SCC 677, this Court opined that for a member of unlawful assembly having common object what is liable to be seen is as to whether there was any active participation and the presence of all the accused persons was with an active mind in furtherance of their common object. The law of vicarious liability under Section 149 IPC is crystal clear that even the mere presence in the unlawful assembly, but with an active mind, to achieve the common object makes such a person vicariously liable for the acts of the unlawful assembly. 

19. Regarding the application of Section 149, the following observations from Charan Singh v. State of U.P., (2004) 4 SCC 205, are very relevant: 

"13. ... The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. ... The word `object' means the purpose or design and, in order to make it `common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression `in prosecution of common object' as appearing in Section 149 has to be strictly construed as equivalent to `in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter...." 

20. In Bhanwar Singh v. State of Madhya Pradesh, (2008) 16 SCC 657, this Court held: 

"Hence, the common object of the unlawful assembly in question depends firstly on whether such object can be classified as one of those described in Section 141 IPC. Secondly, such common object need not be the product of prior concert but, as per established law, may form on the spur of the moment (see also Sukha v. State of Rajasthan AIR 1956 SC 513). Finally, the nature of this common object is a question of fact to be determined by considering nature of arms, nature of the assembly, behaviour of the members, etc. (see also Rachamreddi Chenna Reddy v. State of A.P. (1999) 3 SCC 97 )". 

21. Thus, this court has been very cautious in the catena of judgments that where general allegations are made against a large number of persons the court would categorically scrutinise the evidence and hesitate to convict the large number of persons if the evidence available on record is vague. It is obligatory on the part of the court to examine that if the offence committed is not in direct prosecution of the common object, it yet may fall under second part of Section 149 IPC, if the offence was such as the members knew was likely to be committed. Further inference has to be drawn as what was the number of persons; how many of them were merely passive witnesses; what were their arms and weapons. Number and nature of injuries is also relevant to be considered. "Common object" may also be developed at the time of incident.

Powers of Courts under Section 326 of the Criminal Procedure Code

Justice J.M. Panchal
Supreme Court of India

The Supreme Court in Nitinbhai Saevatilal Shah Vs. Manubhai Manjibhai Panchal has examined the law relating to the powers of the succeeding Magistrate to pass sentence or to proceed with the case from the stage it was stopped by his preceding Magistrate, under Section 326 of the Criminal Procedure Code. While discussing the above provision, the Supreme Court held as under;

10. Section 326 of the Code deals with the procedure to be followed when any Magistrate after having heard and recorded the whole or any part of the evidence in an enquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another Magistrate who exercises such jurisdiction. Section 326 of the Code reads as under :- 

"326. Conviction or commitment on evidence partly recorded by one Magistrate and partly by another:- 

(1) Whenever any Judge or Magistrate after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another Judge or Magistrate who has and who exercises such jurisdiction, the Judge or Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself : Provided that if the succeeding Judge or Magistrate is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, he may re-summon any such witness, and after such further examination, cross- examination and re- examination, if any, as he may permit, the witness shall be discharged. 

(2) When a case is transferred under the provisions of this Code from one Judge to another Judge or from one Magistrate to another Magistrate, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter, within the meaning of sub-section (1). 

(3) Nothing in this section applies to summary trials or to cases in which proceedings have been stayed under section 322 or in which proceedings have been submitted to a superior Magistrate under section 325." 

11. Section 326 is part of general provisions as to inquiries and trials contained in Chapter XXIV of the Code. It is one of the important principles of criminal law that the Judge who hears and records the entire evidence must give judgment. Section 326 is an exception to the rule that only a person who has heard the evidence in the case is competent to decide whether the accused is innocent or guilty. The Section is intended to meet the case of transfers of Magistrates from one place to another and to prevent the necessity of trying from the beginning all cases which may be part-heard at the time of such transfer. Section 326 empowers the succeeding Magistrate to pass sentence or to proceed with the case from the stage it was stopped by his preceding Magistrate. Under Section 326 (1), successor Magistrate can act on the evidence recorded by his predecessor either in whole or in part. If he is of the opinion that any further examination is required, he may recall that witness and examine him, but there is no need of re-trial. In fact Section 326 deals with part-heard cases, when one Magistrate who has partly heard the case is succeeded by another Magistrate either because the first Magistrate is transferred and is succeeded by another, or because the case is transferred from one Magistrate to another Magistrate. The rule mentioned in Section 326 is that second Magistrate need not re-hear the whole case and he can start from the stage the first Magistrate left it. However, a bare perusal of sub Section (3) of Section 326 makes it more than evident that sub Section (1) which authorizes the Magistrate who succeeds the Magistrate who had recorded the whole or any part of the evidence in a trial to act on the evidence so recorded by his predecessor, does not apply to summary trials. The prohibition contained in sub Section (3) of Section 326 of the Code is absolute and admits of no exception. Where a Magistrate is transferred from one station to another, his jurisdiction ceases in the former station when the transfer takes effect. 

12. Provision for summary trials is made in chapter XXI of the Code. Section 260 of the Code confers power upon any Chief Judicial Magistrate or any Metropolitan Magistrate or any Magistrate of the First Class specially empowered in this behalf by the High Court to try in a summary way all or any of the offences enumerated therein. Section 262 lays down procedure for summary trial and sub Section (1) thereof inter alia prescribes that in summary trials the procedure specified in the Code for the trial of summons-case shall be followed subject to condition that no sentence of imprisonment for a term existing three months is passed in case of any conviction under the chapter. 

13. The manner in which record in summary trials is to be maintained is provided in Section 263 of the Code. Section 264 mentions that in every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of evidence and a judgment containing a brief statement of the reasons for the finding. Thus the Magistrate is not expected to record full evidence which he would have been, otherwise required to record in a regular trial and his judgment should also contain a brief statement of the reasons for the finding and not elaborate reasons which otherwise he would have been required to record in regular trials. 

14. The mandatory language in which Section 326 (3) is couched, leaves no manner of doubt that when a case is tried as a summary case a Magistrate, who succeeds the Magistrate who had recorded the part or whole of the evidence, cannot act on the evidence so recorded by his predecessor. In summary proceedings, the successor Judge or Magistrate has no authority to proceed with the trial from a stage at which his predecessor has left it. The reason why the provisions of sub-Section (1) and (2) of Section 326 of the Code have not been made applicable to summary trials is that in summary trials only substance of evidence has to be recorded. The Court does not record the entire statement of witness. Therefore, the Judge or the Magistrate who has recorded such substance of evidence is in a position to appreciate the evidence led before him and the successor Judge or Magistrate cannot appreciate the evidence only on the basis of evidence recorded by his predecessor. Section 326 (3) of the Code does not permit the Magistrate to act upon the substance of the evidence recorded by his predecessor, the obvious reason being that if succeeding Judge is permitted to rely upon the substance of the evidence recorded by his predecessor, there will be a serious prejudice to the accused and indeed, it would be difficult for a succeeding Magistrate himself to decide the matter effectively and to do substantial justice. 

15. The High Court by the impugned judgment rejected the contention regarding proceedings having been vitiated under Section 461 of the Code, on the ground that parties had submitted pursis dated August 3, 2001 and in view of the provisions of Section 465 of the Code, the alleged irregularity cannot be regarded as having occasioned failure of justice and thus can be cured. The reliance placed by the High Court, on the pursis submitted by the appellants before the learned Metropolitan Magistrate declaring that they had no objection if matter was decided after taking into consideration the evidence recorded by his predecessor- in-office is misconceived. It is well settled that no amount of consent by the parties can confer jurisdiction where there exists none, on a Court of law nor can they divest a Court of jurisdiction which it possesses under the law. 

16. The cardinal principal of law in criminal trial is that it is a right of an accused that his case should be decided by a Judge who has heard the whole of it. It is so stated by this Court in the decision in Payare Lal Vs. State of Punjab, AIR 1962 SC 690 : (1962 (1) Crl LJ 688). This principle was being rigorously applied prior to the introduction of Section 350 in the Code of Criminal Procedure, 1898. Section 326 of the new Code deals with what was intended to be dealt with by Section 350 of the old Code. From the language of Section 326(3) of the Code, it is plain that the provisions of Section 326(1) and 326(2) of the new Code are not applicable to summary trial. Therefore, except in regard to those cases which fall within the ambit of Section 326 of the Code, the Magistrate cannot proceed with the trial placing reliance on the evidence recorded by his predecessor. He has got to try the case de novo. In this view of the matter, the High Court should have ordered de novo trial. 

17. The next question that arises is as to from what stage the learned Metropolitan Magistrate Ahmedabad, should proceed with the trial de novo. As it has been seen that Section 326 of the new Code is an exception to the cardinal principle of trial of criminal cases, it is crystal clear that if that principle is violated by a particular Judge or a Magistrate, he would be doing something not being empowered by law in that behalf. Therefore, Section 461 of the new Code would be applicable. Section 461 of the new Code narrates irregularities which vitiate proceedings. The relevant provision is Clause (l). It reads as follows:- 

"461. Irregularities which vitiate proceedings:- If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely; x x x x x (l) tries an offender; x x x x x his proceedings shall be void." A plain reading of this provision shows that the proceedings held by a Magistrate, to the extent that he is not empowered by law, would be void and void proceedings cannot be validated under Section 465 of the Code. This defect is not a mere irregularity and the conviction of the appellants cannot, even if sustainable on the evidence, be upheld under Section 465 of the Code. In regard to Section 350 of the old Code, it was said by Privy Council in Pulukuri Kotayya Vs. Emperor, AIR 1947 P.C. 67 that "when a trial is conducted in a manner different from that prescribed by the Code, the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed, but some irregularity occurs in the course of such conduct, the irregularity can be cured under Section 537".

Concept of 'Obiter Dicta' : The Law

Justice G.S. Singhvi
Supreme Court of India

The Supreme Court in Arun Kumar Aggarwal Vs. State of Madhya Pradesh has examined the concept of 'obiter dicta' and the binding nature of statements / observations by Judges. We have already covered a judgment on the 'Precedentiary Value of Judgments : The Law', wherein Justice Anil Kumar of the Delhi High Court had observed that the precedentiary value of a judgment is to be judged in the background of the facts of a particular place. The relevant extracts from the judgment are reproduced hereinbelow;

10. We have heard the learned counsel for the parties before us. The short point in issue before us is based on the nature of the Order passed by the learned Special Judge whether it amounts to a direction issued by the Court to the concerned authority or mere observation of the Court. 

11. We will first discuss the nature and scope of the expression `direction' issued by the Court. This Court in Rameshwar Bhartia v. The State of Assam, 1953 SCR 126 whilst distinguishing the expression `Sanction' from the `Direction', for the purpose of initiating the prosecution has held: 

"15. But where a prosecution is directed, it means that the authority who gives the direction is satisfied in his own mind that the case must be initiated. Sanction is in the nature of a permission, while a direction is in the nature of a command." 

(Emphasis supplied). 

12. In Income Tax Officer, A-Ward, Sitapur v. Murlidhar Bhagwan Das, Lakhimpur Kheri, (1964) 6 SCR 411, this Court has observed that the expression "direction" cannot be construed in vacuum, but must be collated to the directions which the Assistant Appellate Commissioner can give under Section 31 of the Indian Income Tax Act, 1922. 

13. This Court in Rajinder Nath v. CIT, (1979) 4 SCC 282, while considering the meaning of expression `finding' and `direction', occurring in Section 153(3)(ii) of the Income Tax Act, 1961, has held: 

"11. ... As regards the expression "direction" in Section 153(3)(ii) of the Act, it is now well settled that it must be an express direction necessary for the disposal of the case before the authority or court. It must also be a direction which the authority or court is empowered to give while deciding the case before it. The expressions "finding" and "direction" in Section 153(3)(ii) of the Act must be accordingly confined." 

(Emphasis supplied). 

14. In Kanhiya Lal Omar v. R.K. Trivedi & Ors., (1985) 4 SCC 628, this Court has observed that "A direction may mean an order issued to a particular individual or a precept which many may have to follow. It may be a specific or a general order." 

15. In Giani Devender Singh v. Union of India, (1995) 1 SCC 391, this Court, whilst considering the direction issued by the High Court in a Public Interest Litigation, has observed that the directions should not be vague, sweeping or affected by sarcasm which are not capable of being implemented. It should be specific, just and proper in the facts and circumstances of the case. This Court further held: 

"10. It appears to us that when the High Court was not in a position to precisely discern what was the complaint alleged by the petitioner and when the High Court was of the view that the prayer made by the petitioner was absurd and it also held that the officers who were alleged to have been carrying on nefarious activities were more imaginary than real, the direction in general and sweeping terms to sack erring officers (whomsoever they may be) and overhaul the administration by recruiting only conscientious and devoted people like the petitioner in order to satisfy the vanity of the petitioner, should not have been made. If the High Court intends to pass an order on an application presented before it by treating it as a public interest litigation, the High Court must precisely indicate the allegations or the statements contained in such petition relating to public interest litigation and should indicate how public interest was involved and only after ascertaining the correctness of the allegation, should give specific direction as may deem just and proper in the facts of the case. 

11. It appears to us that the application was disposed of by the Division Bench of Madhya Pradesh High Court in a lighter vein and the order dated 27-2-1992 is couched in veiled sarcasm. Such course of action, to say the least, is not desirable and the High Court should not have issued mandate in general and sweeping terms which were not intended to be implemented and were not capable of being implemented because of utter vagueness of the mandate and of its inherent absurdity." 

(Emphasis supplied) 

16. The Blacks Law Dictionary (9th ed. 2009) defines the term `Direction' as an order; an instruction on how to proceed. 

17. The meaning of expression "Direction" has been discussed in Corpus Juris Secundum, Vol. 26A, at pg. 955-956 as thus: 

"The word "direction" is of common usage, and is defined as meaning the act of governing, ordering, or ruling; the act of directing, authority to direct as circumstances may require; guidance; management; superintendence; "prescription;" also a command, an instruction, an order, an order prescribed, either verbally or written, or indicated by acts; that which is imposed by directing, a guiding or authoritative instruction; information as to method." 

18. According to P. Ramanatha Aiyar, Advanced Law Lexicon (3rd ed. 2005) the word `Direction' means: address of letter, order or instruction as to what one has to do. A direction may serve to direct to places as well as to persons. Direction contains most of instruction in it and should be followed. It is necessary to direct those who are unable to act for themselves. Directions given to servants must be clear, simple and precise. 

19. According to the Words and Phrases, Permanent Edition, Vol. 12A, the term `Direction' means a guiding or authoritative instruction, prescription, order, command. 

20. To sum up, the direction issued by the Court is in the nature of a command or authoritative instruction which contemplates the performance of certain duty or act by a person upon whom it has been issued. The direction should be specific, simple, clear and just and proper depending upon the facts and circumstances of the case but it should not be vague or sweeping. 

21. At this stage, it is pertinent to consider the nature and scope of a mere observation or obiter dictum in the Order of the Court. The expression obiter dicta or dicta has been discussed in American Jurisprudence 2d, Vol. 20, at pg. 437 as thus: 

"74. -Dicta Ordinarily, a court will decide only the questions necessary for determining the particular case presented. But once a court acquires jurisdiction, all material questions are open for its decision; it may properly decided all questions so involved, even though it is not absolutely essential to the result that all should be decided. It may, for instance, determine the question of the constitutionality of a statute, although it is not absolutely necessary to the disposition of the case, if the issue of constitutionality is involved in the suit and its settlement is of public importance. An expression in an opinion which is not necessary to support the decision reached by the court is dictum or obiter dictum. "Dictum" or "obiter dictum: is distinguished from the "holding of the court in that the so- called "law of the case" does not extend to mere dicta, and mere dicta are not binding under the doctrine of stare decisis, As applied to a particular opinion, the question of whether or not a certain part thereof is or is not a mere dictum is sometimes a matter of argument. And while the terms "dictum" and "obiter dictum" are generally used synonymously with regard to expressions in an opinion which are not necessary to support the decision, in connection with the doctrine of stare decisis, a distinction has been drawn between mere obiter and "judicial dicta," the latter being an expression of opinion on a point deliberately passed upon by the court." 

(Emphasis supplied). 

Further at pg. 525 and 526, the effect of dictum has been discussed: 

"190. Decision on legal point; effect of dictum... In applying the doctrine of stare decisis, a distinction is made between a holding and a dictum. Generally stare decisis does not attach to such parts of an opinion of a court which are mere dicta. The reason for distinguishing a dictum from a holding has been said to be that a question actually before the court and decided by it is investigated with care and considered in its full extent, whereas other principles, although considered in their relation to the case decided, are seldom completely investigated as to their possible bearing on other cases. Nevertheless courts have sometimes given dicta the same effect as holdings, particularly where "judicial dicta" as distinguished from "obiter dicta" are involved." 

22. According to P. Ramanatha Aiyar, Advanced Law Lexicon (3rd ed. 2005), the expression "observation" means a view, reflection; remark; statement; observed truth or facts; remarks in speech or writing in reference to something observed. 

23. The Wharton's Law Lexicon (14th Ed. 1993) defines term `obiter dictum' as an opinion not necessary to a judgment; an observation as to the law made by a judge in the course of a case, but not necessary to its decision, and therefore of no binding effect; often called as obiter dictum, ; a remark by the way. 

24. The Blacks Law Dictionary, (9th ed, 2009) defines term `obiter dictum' as a judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive). -- Often shortened to dictum or, less commonly, obiter. 

"Strictly speaking an `obiter dictum' is a remark made or opinion expressed by a judge, in his decision upon a cause, `by the way' -- that is, incidentally or collaterally, and not directly upon the question before the court; or it is any statement of law enunciated by the judge or court merely by way of illustration, argument, analogy, or suggestion.... In the common speech of lawyers, all such extrajudicial expressions of legal opinion are referred to as `dicta,' or `obiter dicta,' these two terms being used interchangeably." 

25 The Word and Phrases, Permanent Edition, Vol. 29 defines the expression `obiter dicta' or `dicta' thus: 

"Dicta are opinions of a judge which do not embody the resolution or determination of the court, and made without argument or full consideration of the point, are not the professed deliberate determinations of the judge himself; obiter dicta are opinions uttered by the way, not upon the point or question pending, as if turning aside for the time from the main topic of the case to collateral subjects; It is mere observation by a judge on a legal question suggested by the case before him, but not arising in such a manner as to require decision by him; "Obiter dictum" is made as argument or illustration, as pertinent to other cases as to the one on hand, and which may enlighten or convince, but which in no sense are a part of the judgment in the particular issue, not binding as a precedent, but entitled to receive the respect due to the opinion of the judge who utters them; Discussion in an opinion of principles of law which are not pertinent, relevant, or essential to determination of issues before court is "obiter dictum" 

26. The concept of "Dicta" has also been considered in Corpus Juris Secundum, Vol. 21, at pg. 309-12 as thus: 

"190. Dicta a. In General A Dictum is an opinion expressed by a court, but which, not being necessarily involved in the case, lacks the force of an adjudication; an opinion expressed by a judge on a point not necessarily arising in the case; a statement or holding in an opinion not responsive to any issue and noty necessary to the decision of the case; an opinion expressed on a point in which the judicial mind is not directed to the precise question necessary to be determined to fix the rights of the parties; or an opinion of a judge which does not embody the resolution or determination of the court, and made without argument, or full consideration of the point, not the professed deliberate determination of the judge himself. The term "dictum" is generally used as an abbreviation of "obiter dictum" which means a remark or opinion uttered by the way. Such an expression or opinion, as a general rule, is not binding as authority or precedent within the stare decisis rule, even on courts inferior to the court from which such expression emanated, no matter how often it may be repeated. This general rule is particularly applicable where there are prior decisions to the contrary of the statement regarded as dictum; where the statement is declared, on rehearing, to be dictum; where the dictum is on a question which the court expressly states that it does not decide; or where it is contrary to statute and would produce an inequitable result. It has also been held that a dictum is not the "law of the case," nor res-udicata." 

27. The concept of "Dicta" has been discussed in Halsbury's Laws of England, Fourth Edition (Reissue), Vol. 26, para. 574 as thus: 

"574. Dicta. Statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that it is unnecessary for the purpose in hand are generally termed "dicta". They have no binding authority on another court, although they may have some persuasive efficacy. Mere passing remarks of a judge are known as "obiter dicta", whilst considered enunciations of the judge's opinion on a point not arising for decision, and so not part of the ratio decidendi, have been termed "judicial dicta". A third type of dictum may consist in a statement by a judge as to what has been done in other cases which have not been reported. ... Practice notes, being directions given without argument, do not have binding judicial effect. Interlocutory observations by members of a court during argument, while of persuasive weight, are not judicial pronouncements and do not decide anything." 

28. In Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101 and Divisional Controller, KSRTC v. Mahadeva Shetty, (2003) 7 SCC 197, this Court has observed that "Mere casual expressions carry no weight at all. Not every passing expression of a judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority." 

29. In State of Haryana v. Ranbir, (2006) 5 SCC 167, this Court has discussed the concept of the obiter dictum thus: 

"A decision, it is well settled, is an authority for what it decides and not what can logically be deduced therefrom. The distinction between a dicta and obiter is well known. Obiter dicta is more or less presumably unnecessary to the decision. It may be an expression of a viewpoint or sentiments which has no binding effect. See ADM, Jabalpur v. Shivakant Shukla. It is also well settled that the statements which are not part of the ratio decidendi constitute obiter dicta and are not authoritative. (See Divisional Controller, KSRTC v. Mahadeva Shetty)" 

30. In Girnar Traders v. State of Maharashtra, (2007) 7 SCC 555, this Court has held: 

"Thus, observations of the Court did not relate to any of the legal questions arising in the case and, accordingly, cannot be considered as the part of ratio decidendi. Hence, in light of the aforementioned judicial pronouncements, which have well settled the proposition that only the ratio decidendi can act as the binding or authoritative precedent, it is clear that the reliance placed on mere general observations or casual expressions of the Court, is not of much avail to the respondents." 

31. In view of above, it is well settled that obiter dictum is a mere observation or remark made by the court by way of aside while deciding the actual issue before it. The mere casual statement or observation which is not relevant, pertinent or essential to decide the issue in hand does not form the part of the judgment of the Court and have no authoritative value. The expression of the personal view or opinion of the Judge is just a casual remark made whilst deviating from answering the actual issues pending before the Court. These casual remarks are considered or treated as beyond the ambit of the authoritative or operative part of the judgment.