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In the case of STATE OF GUJARAT VS DR. P. A BHATT, the question of whether Allopathy doctors and doctors of indigenous medicine can be said to be performing “equal work” so as to be entitled to “equal pay” is answered.
FACTS
A High-Power Committee was established on May 3, 1990, with Shri R.K. Tikku as its chairman, to enhance the working conditions and career prospects for doctors employed by the government. This was done by a Memorandum of Settlement signed by the Ministry of Health and Family Welfare on August 21, 1989, and the Joint Action Council of Service Doctors Organisation. This committee held 30 meetings between June 1990 and October 1990, and on October 31, 1990, it issued a report with its recommendations. The recommendations in this Report were only applicable to service physicians with MBBS degrees, post-graduate medical degrees, degrees in super-specialities, and individuals working on both the teaching and nonteaching sides of medicine.
The Ministry of Health and Family Welfare established a second High-Power Committee on November 19, 1990, with the same person serving as its chairman—Shri R.K. Tikku—toconsider career advancement and cadre restructuring for practitioners of Indian Systems of Medicine and Homoeopathy. On February 26, 1991, this Committee issued a second Report that was limited to individuals who practised alternative systems of medicine and had degrees in Ayurveda, Unani, Siddha, or homoeopathy.
The Local Fund Audit, Ahmedabad requested clarifications via letters dated 04.03.1998 and 21.04.1998, as to whether the same benefits are available to non-MBBS medical officers holding qualifications such as G.A.F.M/LMP, following the implementation of the recommendations of the Tikku Committee dated 31.10.1990 in respect of allopathic doctors in the State of Gujarat by the Government Resolution dated 17.10.1994.
In response, the Gujarati government’s Health and Family Welfare Department published a government resolution stating that non-MBBS medical officers are also qualified for the benefit. In addition, this letter indicated that, by a government resolution dated 01.07.1997, the Tikku Committee’s recommendations were extended to physicians who were covered by the Employees State Insurance Scheme.
The respondents in this case, who were initially hired on an as-needed basis under the “Community Health Volunteer Medical Officers Scheme” put forth by the Government of India and who were subsequently absorbed by the State of Gujarat in May 1999, filed four writ petitions on the file of the High Court of Gujarat seeking an extension of the benefit of higher pay scales based on the recommendations of the Tikku Pay Commission. The Medical Officers (Ayurved) Association, made up of individuals initially appointed as Medical Officers Class-III, filed a separate writ petition. This Association requested a similar remedy to that outlined in the group of four writ petitions.
The High Court’s Division Bench dismissed all intra-court appeals, ruling that (i) non-MBBS doctors and MBBS doctors both belong to the same cadre and that, as a result, there may be no discrimination based on educational background; and (ii) non-MBBS doctors were performing the same duties and functions as MBBS doctors and even manning primary health centres independently, making them equally qualified for employment.
PETITIONER’S CONTENTION
On behalf of the State, it is argued that the recommendations of the Tikku Pay Commission for raising pay scales were per se applicable only to MBBS doctors; that the revision of pay scales in favour of allopathic physicians was justified by the ongoing shortage of allopathic physicians; and that the State Government had to fulfil its constitutional duty to provide adequate healthcare infrastructure.
The assailed order is incorrect in law and law and on facts because the High Court shamefully failed to recognize the fundamentally distinct nature of duties and responsibilities undertaken by Allopathy doctors and AYUSH doctors.
RESPONDENT’S CONTENTION
The learned attorney for the respondents responds by arguing that both Allopathy and AYUSH doctors are appointed to the position of Medical Officer falling under Class-II of Gujarat Medical Services; that once individuals with various qualifications are appointed to one unified cadre with a common pay scale and governed by one set of rules, then at a later stage, the Government cannot make a classification; and that all Medical Officers, regardless of their educational backgrounds, are subject to the same rules.
The appeals are likely to be dismissed because the findings of fact made by the learned Single Judge and the Division Bench of the High Court that both types of doctors are conducting equivalent work do not call for any interference under Article 136 of the Constitution.
JUDGEMENT
In our judgment, two issues come up for discussion in these appeals. They are: (i) Is it possible to set different pay scales for officers appointed to the same cadre based on their educational backgrounds? (ii) Can allopathic physicians and practitioners of indigenous medicine be deemed to have “equal work” to warrant “equal pay”?
This Court determined that the classification of Tracers into two pay scales—one for matriculates with a higher pay scale and the other for nonmatriculated with a lower pay scale—does not violate Articles 14 and 16 of the Constitution.
Doctors who practice allopathy must handle emergencies and treat trauma patients. The emergency duties and trauma care that Allopathy doctors are capable of executing, as well as the advancements in science and current medical technology, cannot be performed by Ayurvedic doctors due to the nature of their practice and the advancements in science and modern medical technology.
Ayurved doctors are also unable to assist surgeons in undertaking difficult surgeries, but MBBS doctors can. We do not intend for this to imply that one medical system is better than another. It is well known that MBBS doctors are required to care for hundreds of patients during outpatient days (OPD) in ordinary hospitals in cities and towns, however, this is not the case with Ayurvedic doctors.
We are unable to distinguish between Ayurvedic physicians who have already obtained some benefits thanks to the temporary injunction issued by this Court and those who have not.Additionally, we cannot ignore the fundamental rule that states a person cannot be permitted to keep a benefit obtained through an interim order issued by a court if the case’s final result was averse to that person.
As a result, all appeals are granted, the High Court’s contested order is revoked, and the respondents’ writ petitions are denied. All interlocutory applications, including the impleadment application(s), and the contempt petitions are likewise rejected. No fees
In the present case supreme court discusses the conviction when the trails court records are absent and can not be obtained. White discussing the present case by the division bench of Justice Krishna Murari and Justice Sanjay Karol observed that the job of the Court of Appeal is not to depend on the lower Court’s judgment to uphold the conviction but, based on the record available before it duly called from the Trial Court and the arguments advanced before it, to come to a conclusion thereon…Had there been properly preserved records of the Trial Court, the issue in the present appeal as to whether the High Court could uphold a conviction having not perused the complete Trial Court record, would not have arisen they also talk about the digitalisation of the court for smoothening the judicial process.
Facts of the case:
The prosecution has been successful in proving that accused J.K Rode being working at the post of a Public Servant as Assistant Commercial Manager, Northern Railway, Lucknow made a 2 demand of Rupees Five Hundred from Chief Ticket Inspector Shri Jai Prakash Narayan Upadhyay on 03.05.95 to dispose of the charge sheet issued against him. He was caught red-handed receiving the bribe on 03.05.95. He received Rs. 500 (Rupees five hundred) from said J.P.N Upadhya being posted as a public servant misusing his post as a public servant for his gain in a corrupt and illegal manner. Thus, the offence under sections 7, 13(1) and 13(2) of the PC Act 1988 is proved against the accused and he is liable to be punished for these charges. Accused is on bail and his bail bonds are discharged. The accused should be taken into custody then the accused person moves to the High Court where the High Court upheld the conviction of the accused person.
Legal issue:
1)Whether in the absence of the records of the Court of Trial, the appellate Court could have upheld the conviction and enhanced the quantum of the fine.
2)Whether, given the language employed under Section 385 of CrPC, the present situation constitutes a violation of the accused’s fundamental rights under Article 21 of the Indian constitution
Related laws:
1)Sec 7 of the Prevention of corruption act: Public servant taking gratification other than legal remuneration in respect of an official act.—Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.
2) Sec 13(1),Sec13(2) of the prevention of the corruption act
3)SEC.385. of Criminal Procedure code Procedure for hearing appeals not dismissed summarily.—(1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given—
(i) to the Appellant or his pleader;
(ii) to such officer as the State Government may appoint on this behalf;
(iii) if the appeal is from a judgment of conviction in a case instituted upon complaint to the complainant;
Appellant’s contention:
On the surface of the record, it is clear that the relevant portions of the record, in particular, could never have been recreated by the relevant District Court. Despite this, the Court sustained the conviction on the basis of the partially reconstructed record, which only contained a few documents, such as the FIR. The knowledgeable attorney for the appellant claims that the law is clear on the matter and that without these records, it is impossible to say that a conviction was obtained on solid evidence and is therefore subject to being overturned.
Respondent’s contention :
Not every conviction alters a person’s personality forever. A conviction may occasionally have little to no effect on a person’s behaviour and character. Furthermore, even though key evidence was lacking, it would be reasonable to uphold the conviction in particular circumstances. Although 500 rupees may not seem like much, if the evidence leads to a conviction, the accused should still be held accountable for their acts. The absence of an appeal does not necessarily imply that the defendant is innocent or deserves a second chance. Instead, in order to reach a fair and just judgment, the relevant data should be thoroughly analyzed and taken into account
Judgment:
The Court of Appeal’s responsibility is to reach a decision on the matter “based on the record available to duly called from the Trial Court and the arguments advanced before it,” rather than relying on the lower court’s decision to affirm the conviction. The Court further held that in the absence of a fair legal process, the protection of Article 21 rights includes the freedom from any restrictions thereon. This includes the right of the person filing an appeal to contest the findings of fact made by the trial court, which can only be done when the record is available to the Court of Appeal. We hold that noncompliance with the mandate of the section, in certain cases contingent upon specific facts and circumstances of the case, would result in a violation of Article 21 of the Constitution of India, which we find to be the case in the instant case. Therefore, in the considered opinion of this Court, it is not within prudence to lay down a straightjacket formula.
As a result, the Court overturned the appellant’s conviction.
Court also directed the High Court to the digitization of the lower courts so these kinds of situations could not arise in the future.
The recent judgement of P.V. Satheesan v. UOI & Ors deals with the question that whether a person can get absorbed in the department to which he had gone on deputation. Herein, the original application of the person was rejected by the Tribunal. Therefore, a writ petition was filed in the Delhi High Court challenging the order passed by the Tribunal.
FACTUAL BACKGROUND:
The petitioner was appointed as LDC in General Reserve Engineering Force (‘GREF’ in short). He was selected as LDC on a deputation basis in CBI on September 13, 2002. He initially worked in Chennai. In 2004, he applied for permanent absorption in CBI. Subsequently, on May 3, 2005, he was transferred to Delhi. CBI required a NOC for the petitioner’s permanent absorption in CBI. According to the petitioner, on March 24, 2005, GRPF/ parent department issued NOC for his absorption. But even after submitting NOC, CBI did not absorb deputationist as LDC/ SCS in CBI.
Thereafter, CBI requested for further extension of the petitioner’s deputation in CBI but the GREF did not accede to the same request. Accordingly, the Head Office of CBI vides Fax directed SP, CBI, AC-II to repatriate the petitioner to his parent department by March 26, 2006.
Therefore, the petitioner approached the Central Administrative Tribunal, Principal Bench, New Delhi. However, the original application of the petitioner was dismissed by the Tribunal stating that a person underlying deputation has no right to continue for long on deputation or get absorbed in the department to which he had gone on the department.
The petitioner, therefore, aggrieved by the order of the Tribunal moves to the Delhi High Court.
PETITIONER’S CONTENTIONS:
➢ The learned counsel for the petitioner submits that the petitioner joined the CBI on December 10, 2002, on a deputation basis and subsequently, as requested by the CBI, the GREF gave NOC for the absorption of the petitioner. However, after receiving NOC, the CBI denied the permanent absorption of the petitioner.
➢ The learned counsel further submits that the petitioner has served CBI for more than 20 years and in fact, he is superannuating on April 30, 2023.
➢ Furthermore, during his service in CBI, his work has been appreciated by the CBI by conferring “CBI Day Award”, “ATI UTKRISHT SEWA PATAK, 2016” and Commendation Certificates in 2006, 2015, 2016 & 2017.
➢ The learned counsel further submits that in the given background, if the petitioner is compelled to be repatriated then his entire family would be put to irreparable loss and injury.
➢ The learned counsel further states that it would be inequitable for the respondents to repatriate the petitioner to GREF, at this point, when the petitioner is on the verge of retirement after putting in more than 20 years of service which is more than his tenure in GREF.
RESPONDENT’S CONTENTIONS:
➢ The learned counsel for the respondent (CBI) submitted that the petitioner cannot claim absorption as a matter of right when CBI has already decided not to absorb deputation’s LDC/ SCS.
➢ He also submitted that, since 2005, no absorption of deputations LDC/ SCS has been effected.
➢ The learned counsel further relied upon the judgment of the Supreme Court in the case of Kunal Nanda v. UOI & Anr., (2000) 5 SCC 362, in this case, the petitioner, who had come on deputation from CRPF, sought his absorption in CBI. This request was rejected and he was repatriated. The decision was upheld by the Supreme Court. The learned counsel, therefore, contends that similar should be the outcome in this case as well.
JUDGEMENT:
The Delhi High Court observes that the petitioner has worked for 12 years in GREF as against 20 years of service in the CBI. Therefore, the court held that it is inequitable to deny the absorption of the petitioner in CBI. Insofar as the judgement of Kunal Nanda is concerned, the same shall not be applicable to the facts of this case, as the CBI (in that case) has rejected the prayer of the petitioner for absorption in CBI on the ground of unreliability. But in the present case, there is no issue of integrity raised by the CBI against the petitioner herein.
Thereby, the High Court opined that the petitioner should be absorbed in the CBI from the date when NOC was given by the GREF with all the consequential benefits that would flow pursuant to his absorption in CBI from that date. Accordingly, the Hon’ble High Court set aside the impugned order passed by the Tribunal.
Project 39A invites submissions to The P39A Criminal Law Blog focuses on contemporary criminal law and criminal justice issues.
The blog provides a platform for academic engagement with criminal justice issues, seeking to trigger nuanced and interdisciplinary engagement with the structural barriers and harsh realities of the criminal justice system in India. We also encourage perspectives through various disciplines, including sociology, psychology, anthropology and science. We particularly encourage students (across disciplines) to submit relevant pieces.
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On the occasion of the 50th anniversary of the Kesavananda Bharati Judgement, NUJS, in collaboration with Nani A. Palkhivala Memorial Trust and supported by Tata Group, presents Nani A Palkhivala Memorial Essay Competition.
Theme
Application of Basic Structure Doctrine to Contemporary Issues
Sub-themes
1. Scope of Judicial Review 2. Powers of Promulgating Ordinances
Prize money under each sub-theme of the Essay Competition
Winner: 75,000 INR
Runners-up: 50,000 INR
2nd Runner up: 25,000 INR
Timeline
April 24, 2023: Launch of the Essay Competition & Opening of Registration.
May 24, 2023: Deadline for Registration for the Essay Competition.
July 31, 2023: Deadline for Submission for the Essay Competition.
October 2023: Announcement of Results.
November2023: Conclave @WBNUJS.
NUJS shall host a Nani A. Palkhivala Memorial Conclave where select participants can present their essays before distinguished guests. The NUJS Law Review shall publish selected entries in a special edition.
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Deloitte India (Mumbai/Delhi) is hiring for their Risk Advisory Team.
Location
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Candidates with experience in:
Legal compliance
Statutory compliance
Regulatory compliance
Legal audit
Labour laws
Environment laws
Application Procedure
Only you have relevant experience & are interested. Kindly share your profiles at crfernandes@deloitte.com with the subject line “Risk Advisory(Legal Compliance) Application– Your name.”
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Law Firm dealing in matters of Civil and Criminal nature including Matrimonial Disputes, Consumer Disputes, Criminal Complaints, RERA Complaints and Compliances all over Delhi -NCR including Chandigarh, Panchkula, Jaipur, Noida.
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An individual or organization has a legal entitlement known as the “right to sue” that enables them to initiate a lawsuit against another individual or organization in a court of law. This right is considered fundamental since it allows them to pursue legal action and seek remedy or recourse for any perceived harm or wrongdoing caused by the other party. Typically, the right to sue is granted to individuals or organizations who are capable of demonstrating that they have suffered legal harm or damages resulting from the actions or omissions of another party. Such circumstances may include but are not limited to a breach of contract, personal injury, property damage, or infringement of intellectual property rights, among others. It is essential to note that the right to sue is subject to legal constraints or limitations, and may not be an absolute right. Furthermore, the process of initiating legal proceedings can be intricate, requiring the guidance of legal experts to navigate it effectively.
It is crucial to acknowledge that the right to sue is not an unrestricted right, as there may be legal limitations or restrictions on the individuals or entities who can initiate legal proceedings and the situations in which they can do so. Moreover, the process of commencing a lawsuit can be intricate and costly and may necessitate the guidance of legal experts to navigate it competently.
Right to Appeal
The legal entitlement of a party to challenge a lower court or tribunal’s decision in a higher or appellate court is known as the right to appeal. This right permits parties to contest the factual or legal conclusions reached by a lower court or tribunal and seek a different outcome.
Under Article 21 of the Constitution of India[1], which guarantees the right to life and personal liberty, the right to appeal is recognized in India. It is a fundamental component of the Indian legal system and is intended to ensure equitable and impartial administration of justice.
The procedure for filing an appeal in India is dependent on the type of case and the court or tribunal involved. Generally, a written petition outlining the grounds for the appeal must be submitted within a specified timeframe after the lower court’s decision. The higher court then assesses the evidence and legal arguments presented by both parties before reaching a decision. The right to appeal is accessible at various levels of the Indian judiciary system, from district courts to the Supreme Court of India. Both civil and criminal cases can be appealed, and the appellate court may either uphold, modify, or reverse the lower court’s decision.
Scope of Right to Appeal in Statutory Law
The right to appeal is not an inherent right and is only granted through specific statutes. It is considered a substantive right, rather than merely procedural. This right is conferred upon the litigant from the beginning of the case, although it is exercised only when an unfavourable judgment is pronounced. Consequently, the law that applies to the right to appeal is the one that was in force at the time the lawsuit was filed, not the law that applies at the time of decision or when the appeal is filed. These vested rights can only be taken away by a subsequent statute if it explicitly provides for it.
It is important to note that as this right is created by statute, the statute can impose conditions for its exercise. The forum of appeal may also be altered by the statute, and the litigant does not have the right to choose the forum for appeal. As Justice Khanna once stated, the right of appeal is a product of statute, and there is no reason why the legislature cannot impose conditions for exercising this right as long as those conditions are not excessively restrictive to the point of rendering the right almost meaningless.
Historical Overview
The Indian legal system has evolved to recognize two fundamental rights, namely the right to sue and the right to appeal. These rights have been shaped by diverse legal traditions and cultures, and their historical development in India is a topic of great significance.
The right to access justice, commonly referred to as the right to sue, has been an integral facet of the Indian legal system since ancient times. In ancient India, justice was founded upon the principle of dharma, which denotes righteousness, and it was the responsibility of the king to ensure that justice was dispensed impartially. During this period, individuals were granted the right to approach the king or local courts to seek redressal.
Subsequently, during British rule in India, a formal legal system was introduced, and the English legal system became prevalent. This system placed great emphasis on the right to sue and the right to a fair trial. Consequently, the Indian Civil Procedure Code (CPC) was enacted in 1908, which laid down the procedural framework for filing a civil suit in India. The code ensured that every individual was entitled to the right to sue, and could approach a court of law to seek justice.
The notion of the right to appeal gradually developed during the period of British governance in India. Under their rule, the appellate system was introduced, permitting litigants to challenge a lower court’s decision by appealing to a higher court. In 1898, the Criminal Procedure Code (CrPC) was passed, recognizing the right to appeal in criminal cases. This legislation allowed accused individuals to appeal their conviction or sentencing from a lower court to a higher court.
Following India’s independence in 1947, significant changes were made to the country’s legal system. In 1950, the Constitution of India was enacted, enshrining the right to access justice as a fundamental right. Furthermore, the Constitution established the Supreme Court as the highest court in the nation, providing the right to appeal to it. Additionally, the Constitution conferred the authority on high courts to hear appeals from subordinate courts.
Throughout the years, the Indian legal system has been subject to diverse influences from various legal traditions and cultures. The ancient Hindu legal system, which was predominant in India, prioritized the fundamental right to access justice and provided for the amicable resolution of conflicts through mediation and arbitration. Meanwhile, the Islamic legal system, which emerged during the Mughal era, accentuated the significance of a just and fair trial process and guaranteed the right to appeal. These legal traditions have left a profound impact on the Indian legal system and continue to shape its development to this day.
Legal Frameworks
Right to Suit
In India, individuals have the right to initiate legal action against another person or entity in a court of law, which is commonly known as the right to sue. This right is enshrined in the Indian Constitution, which ensures that every citizen has access to justice as per Article 39A[2]. The Indian legal system provides for various types of civil suits, including breach of contract, recovery of money, specific performance, and injunctions, among others. The Code of Civil Procedure, 1908[3] governs the process of initiating a civil suit.
Initiating a Suit: Parties, Framing, and Institution
The process of initiating a civil case involves two parties, the plaintiff and the defendant, as per Order 1 which deals with Parties to suit. The plaintiff is responsible for bringing the case against the defendant, who is the other party that must provide a defence against the allegations made by the plaintiff in civil court.
Once the parties to the suit are recognized, the next step is to frame the suit as provided under Order 2. This involves the plaintiff approaching the civil court with their suit, which is referred to as the Frame of Suit. Framing of suit indicates that a legal action has been brought by one party against another. According to Rule 2 of Order 2, the plaintiff must include their entire claim in the suit, which serves as the cause of action against the defendant. The framed suit needs to be instituted before the civil court, but the question of who the institution is answered by Order 3 of the Code.
Agents and Pleaders
Order 3 of the Code of 1908 deals with recognized agents and leaders, who are essential for the plaintiff to institute a suit framed before the civil court. The plaintiff requires the help of a legal professional or pleader who has expertise in the field of law to take the framed suit before the court on their behalf. Rule 2 and Rule 4 of Order 3 respectively provide guidelines for recognizing agents and pleaders. Once a recognized agent or pleader is hired, it becomes their responsibility to institute the suit before the civil court on behalf of the plaintiff. This brings us to Order 4 of the Code, which discusses the proper institution of suits. To institute a suit, the plaintiff needs to present a plaint before the court, the meaning of which is explained under Order 7 of the Code of Civil Procedure, 1908.
It is crucial to note that compliance with sub-rules (1) and (2) of Rule 1 of Order 4 is mandatory for the proper institution of the suit. Sub-rule (1) requires the presentation of a plaint to institute a suit before the court of law. Sub-rule (2) provides that no plaint as provided in the previous rule can escape the rules provided under Orders 6 and 7 of the Code.
Right to appeal
As per Section 96 of the CPC, an aggrieved party to any decree passed by a court while exercising its original jurisdiction has the right to appeal to a higher authority designated for this purpose, except in cases where any statute makes an exception. This grants the aggrieved party at least one right of appeal.
However, Sections 97, 98, and 102 of the CPC specify certain conditions under which no further appeal is allowed, therefore limiting the right of appeal to a single opportunity.
It is important to note that no person has the right to appeal against a decision unless they are a party to the suit, unless they have been granted special leave of the court. The question of whether a person is adversely affected by the decision or suit is a factual matter that needs to be determined on a case-by-case basis.
The case of Garikapati Veeraya v. Subbiah Chaudhary[4] established that the right to appeal to the Federal Court that existed prior to the establishment of the Supreme Court still remained valid. The court recognized the shift in the judicial system from the Federal Court to the Supreme Court but emphasized the preservation of the right to appeal that was created under the old law. It should be noted, however, that the continuation of this right is subject to the provisions of the Constitution.
Appeals and Conversions under CPC
The Code of Civil Procedure, 1908 provides for various types of appeals and their maintainability. Under Section 96 of the CPC[5], a regular first appeal may or may not be maintainable against certain adjudications, as indicated by a combined reading of Sections 2(2), 2(9), and 96 of the CPC. A first appeal lies from a decree passed by any court exercising original jurisdiction to the authorized appellate courts, except where expressly prohibited.
Furthermore, Section 100 of the CPC[6] provides for a second appeal under this code. A decree passed in the first appeal by a subordinate court can be appealed to the High Court unless there are provisions indicating otherwise. However, the scope of exercise of jurisdiction under this section is limited to a substantial question of law framed at the time of admission of appeal or otherwise.
Regarding the conversion of an appeal into a revision, the court’s inherent powers allow it to pass orders that may be required to meet the ends of justice, as held in the case of Bahori v. Vidya Ram[7]. In the absence of a specific provision in the CPC for converting an appeal to a revision or vice versa, Section 151[8] governs the court’s exercise of power. The conversion is allowed, as long as the proper procedure was followed during the filing of the original appeal or revision. However, the only precondition to such conversion is that due procedure is adhered to during the filing of the original appeal/revision.
Who has the right to appeal under Section 96 of the CPC?
Section 96 of the CPC provides that a regular first appeal can be preferred by any party to the suit who has been adversely affected by the decree. This includes the legal representatives of the deceased party under Section 146. Additionally, a transferee of the interest of such a party, whose name is entered on the record of the suit, may also appeal. In the event of an order in execution setting aside the sale on the basis of fraud, the purchaser at auction has the right to file an appeal.
However, no person other than a party to the suit is entitled to appeal under Section 96 unless special leave is granted by the appellate Court. This means that a person who is not a party to the suit can only prefer an appeal from a decree or order if they are bound, aggrieved or prejudicially affected by it and if special leave of the appellate Court is granted.
Who is barred from appealing?
A party who has waived their right to appeal a judgment is precluded from filing an appeal at a later stage. The principles of estoppel may also apply where a party has accepted the provisions of a judgment and has acknowledged it as final and binding. The doctrine of estoppel prevents such a party from appealing the same judgment in a higher forum. Scrutton L.J. has expressed the view that a party cannot simultaneously accept the benefits of a judgment and then appeal against it as being unfavourable.
Role and Standards of Review in Indian Appellate Courts
Appellate courts in the Indian legal system are higher courts that review and revise the decisions of lower courts, including district courts and tribunals. These courts include the High Courts, the highest courts in each state or union territory, and the Supreme Court of India, the highest court in the country.
Appellate courts use two standards of review when examining lower court decisions: one for questions of fact and one for questions of law. The standard of review on questions of fact is deferential to the lower court’s decision and will only be overturned if the findings of fact are clearly erroneous or not supported by evidence. The standard of review on questions of law, on the other hand, is less deferential and will closely examine the legal reasoning and interpretation used by the lower court, often applying its own interpretation of the law.
In criminal cases, the standard of review is higher due to the higher stakes and severe consequences of an erroneous decision. The decisions of appellate courts have significant implications for the parties involved and for the development of the law in India. Overall, the role of appellate courts in the Indian legal system is to ensure the fair administration of justice by reviewing and correcting lower court decisions.
Conclusion
To conclude, the right to sue and appeal in India represent fundamental pillars of the legal system, enabling access to justice for all citizens. These rights are duly recognized by the Indian Constitution, and the procedures for initiating legal action are regulated by the relevant statutes and rules. The Supreme Court of India has provided crucial interpretations of these rights, ensuring that they align with the principles of natural justice and the fundamental right to access justice. By having these rights in place, individuals in India can seek legal remedies in cases of disputes or breaches of the law, contributing to the promotion of a just and equitable society.
Endnotes:
Article 21 of the Indian Constitution
Article 39A of the Indian Constitution
Code of Criminal Procedure (India), Act No. 2, 1974
Garikapati Veeraya v. Subbiah Chaudhary, (1979) 1 SCC 16.
Civil Procedure Code § 96 (India).
Code of Civil Procedure, Act No. 5, 1908, §100, India Code (2019)
Bahori v. Vidya Ram, (1978) 1 SCC 1.
Civil Procedure Code, § 151 (India).
Civil Procedure Code, § 146 (India).
This article was authored by Sohini Chakraborty, a first-year law student at RGNUL Patiala.
Adjudicating the matter of life imprisonment on a rarest of rare cases of a man raping his 9-year-old daughter, the Delhi High Court on Tuesday held that the term ‘life imprisonment’ is synonymous with a convict spending the rest of their life imprisoned for whatever they have been convicted for. Liberal remissions to diminish the sentence of the life imprisonmentgranted to the convict in the present case would in factuality, be nothing short of a travesty ofjustice. Judges who wield the sword of justice should not hesitate to wield that sword with the utmost severity to the full and to the end if the seriousness of the offence so requires, as thisCourt noted in Madan Gopal Kakkad Vs. Naval Dubey and another.
FACTS
In the matter at hand, the appellant was tried for raping his own 9-year-old daughter in August 2012. In accordance with the same, the Sessions Court (Special Fast-track Court) hadheld the appellant guilty of the same in 2013 and had adjudicated the appellant for lifeimprisonment under Sections 376, 377 7 506 of the IPC. Additionally, the appellant was alsonot granted clemency by the State until and unless he had served at least 20 years ofimprisonment. On appeal, a Division Bench of the High Court of Delhi further upheld theprevious court’s judgement in 2017. As a last resort, this special leave petition was filedunder Article 136 of the Constitution. This appeal was filed to merely discuss the magnitude of the sentence imposed on the convicted person, and not to elaborate on the conviction.
JUDGEMENT
Upon giving due regard to the facts and law in the above-mentioned case, it is contended bythe Hon’ble High Court that the appellant is liable for serving at least 30 years ofimprisonment upon taking into account remissions His lengthy incarceration would not only guarantee that he received his just rewards but would also give his daughter more time and maturity to calm down and move on with her life, even if her father is released. Owing to the amendments leading to the inclusion of the new sections 376(2)(f) and 376(3) in the IPC in 2013, the legal recourse adopted by the Sessions Fast-track Court had been wrong in technicality since the newer provisions would not have been applicable as the present case had been instituted in 2012. But owing to the gravity and severity of this case, the monstrosityimposed by the father on his own daughter led to the High Court deciding the present case. The appeal therefore has been dismissed and the appellant/convicted has been directed to payhis dues accordingly.
