What Is Judiciary?
Brahmadandi Ramesh, Advocate
Advocate Code: 135, Telangana High Court
Email Id : email@example.com
Date : 25/05/2022
Location : H.No. 1-8-93/2, Bagh Lingampally, Hyderabad - 500 044, State - Telangana
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What Is Judiciary?Q.1 WHAT IS JUDICIARY? Judiciary, branch of government whose task is the authoritative adjudication of controversies over the application of laws in specific situations. Conflicts brought before the judiciary are embodied in cases involving litigants, who may be individuals, groups, legal entities (e.g., corporations), or governments and their agencies. The judiciary is the branch of government which administers justice according to law. The term is used to refer broadly to the courts, the judges, magistrates, adjudicators and other support personnel who run the system. The courts apply the law, and settle disputes and punish law- breakers according to the law. Our judicial system is a key aspect of our democratic way of life. It upholds peace, order and good government. Citizens look to the judiciary to uphold their rights and governments look to the courts to interpret laws. The judiciary must act without fear of powerful interests, and without favouring individual parties. A court's ability to deliver justice depends on its power to enforce its rulings. Only a court of appeal can overturn the ruling of a lower court. The Judiciary is the third organ of the government. It has the responsibility to apply the laws to specific cases and settle all disputes. The real `meaning of law' is what the judges decide during the course of giving their judgments in various cases. From the citizen's point of view, Judiciary is the most important organ of the government because it acts as their protector against the possible excesses of legislative and executive organs. Role of Judiciary as the guardian-protector of the constitution and the fundamental rights of the people makes it more respectable than other two organs. Functions of Judiciary and Its Importance: 1. To Give Justice to the people:
The first and foremost function of the judiciary is to give justice to the people, whenever they may approach it. It awards punishment to those who after trial are found guilty of violating the laws of the state or the rights of the people.
The aggrieved citizens can go to the courts for seeking redress and compensation. They can do so either when they fear any harm to their rights or after they have suffered any loss. The judiciary fixes the quantity and quality of punishment to be given to the criminals. It decides all cases involving grant of compensations to the citizens.2. Interpretation and Application of Laws:
One of the major functions of the judiciary is to interpret and apply laws to specific cases. In the course of deciding the disputes that come before it, the judges interpret and apply laws. Every law needs a proper interpretation for getting applied to every specific case. This function is performed by the judges. The law means what the judges interpret it to mean.3. Role in Law-making:
The judiciary also plays a role in law-making. The decisions given by the courts really determine the meaning, nature and scope of the laws passed by the legislature. The interpretation of laws by the judiciary amounts to law-making as it is these interpretations which really define the laws.
Moreover, `the judgments delivered by the higher courts, which are the Courts of Records, are binding upon lower courts. The latter can decide the cases before them on the basis of the decisions made by the higher courts. Judicial decisions constitute a source of law.4. Equity Legislation:
Where a law is silent or ambiguous, or appears to be inconsistent with some other law of the land, the judges depend upon their sense of justice, fairness, impartiality, honesty and wisdom for deciding the cases. Such decisions always involve law-making. It is usually termed as equity legislation.5. Protection of Rights:
The judiciary has the supreme responsibility to safeguard the rights of the people. A citizen has the right to seek the protection of the judiciary in case his rights are violated or threatened to be violated by the government or by private organisations or fellow citizens. In all such cases, it becomes the responsibility of the judiciary to protect his rights of the people.6. Guardian of the Constitution:
The judiciary acts as the guardian of the Constitution. The Constitution is the supreme law of the land and it is the responsibility of the judiciary to interpret and protect it. For this purpose the judiciary can conduct judicial review over any law for determining as to whether or not it is in accordance with the letter and spirit of the constitution. In case any law is found ultra vires (unconstitutional), it is rejected by the judiciary and it becomes invalid for future. This power of the court is called the power of judicial review.7. Power to get its Decisions and Judgments enforced:
The judiciary has the power not only to deliver judgments and decide disputes, but also to get these enforced. It can direct the executive to carry out its decisions. It can summon any person and directly know the truth from him.
In case any person is held:
(i) Guilty of not following any decision of the court, or
(ii) Of acting against the direction of the court, or
(iii) Misleading the court, or
(iv) Of not appearing before the court in a case being heard by it, the Court has the power to punish the person for the contempt of court.8. Special Role in a Federation:
In a federal system, the judiciary has to perform an additionally important role as the guardian of the constitution and the arbiter of disputes between the centre and states. It acts as an independent and impartial umpire between the central government and state governments as well as among the states. All legal centre-state disputes are settled by the judiciary.9. Running of the Judicial Administration:
The judiciary is not a department of the government. It is independent of both the legislature and the executive. It is a separate and independent organ with its own organisation and officials. It has the power to decide the nature of judicial organisation in the state. It frames and enforces its own rules.
These govern the recruitment and working of the magistrates and other persons working in the courts. It makes and enforces rules for the orderly and efficient conduct of judicial administration.10. Advisory Functions:
Very often the courts are given the responsibility to give advisory opinions to the rulers on any legal matter. For example, the President of India the power to refer to the Supreme Court any question of law or fact which is of public importance.11. To Conduct Judicial Inquiries:
Judges are very often called upon to head Enquiry Commissions constituted to enquire into some serious incidents resulting from the alleged errors or omissions on the part of government or some public servants. Commissions of enquiry headed by a single judge are also sometimes constituted for investigating important and complicated issues and problems.12. Miscellaneous Functions:
Besides the above major functions, the judiciary also performs several other functions. Some such functions are the appointment of certain local officials of the court, choosing of clerical and other employees. Cases relating to grant of licenses, patents, and copy rights, the appointment of guardians and trustees, the admission of wills, to appoint trustees to look after the property of the minors, to settle the issues of successions of property and rights, issue of administrating the estates of deceased persons, the appointment of receivers, naturalization of aliens, marriage and divorce cases, election petitions and the like.
Through all these functions, the Judiciary plays an important role in each state. It also plays a role in the evolution of Constitution through the exercise of its right to interpret and safeguard it against all legislative and executive excesses.Importance of Independent Judiciary: In the life of the citizens of a state, Judiciary is a source of confidence and fearlessness. The common man depends upon judiciary for getting justice. Without a security of rights and freedom guaranteed by the judiciary, they cannot really hope to carry out their jobs and enjoy their living. They are more dependent upon judiciary than the legislature and the executive. Without judicial protection, their lives can become miserable. From citizens point of view Judiciary is the most important organ of the government. Garner highlights this view when he observes, "A society without legislature is conceivable, and indeed, legislative organs did not make their appearance in the state until modern times, but a civilised state without a judicial organ and machinery is hardly conceivable." Judiciary enjoys a big importance in the eyes of the people because it acts as:
(1) The dispenser of Justice.
(2) Protector of the rights of the people.
(3) Guardian protector of the Constitution of the State.
(4) Arbiter of center-state disputes.
(5) Safeguard against Legislative and executive excesses.
(6) Check against arbitrary exercise of powers by the power-holders.
(7) Guardian of Rule of Law and Justice.An independent judiciary is always considered to be the most essential part of every democratic government worth its name. A government without judiciary is almost inconceivable. A government without independent judiciary is always held to be an authoritarian government. Independence of Judiciary: An Essential Quality: The chief quality which helps the judiciary to faithfully administer justice and to perform its functions efficiently is judicial independence. It is only when the judiciary works independently without any interference of the other two organs of the government that it can carry out its high responsibilities. "The independence of judiciary," writes Dr. P. Sharan, "is a corner stone of every democratic government and upon it is built the structure of civil liberty." Judiciary can perform its functions only when it is free to administer justice according to law. Without being well-organised and independent it can never serve its purpose. Therefore, Judiciary must be organised in such a way as can enable the judges to give their judgments without any fear or favour. Dr. B.R. Ambedkar describes Article 50 as conscience of Constitution. As per Article 50 enshrined as Article 50 in the Constitution Of India 1949 50. Separation of judiciary from executive The State shall take steps to separate the judiciary from the executive in the public services of the State- Organisation of Judiciary must be based on the following features:
(1) Appointment of only highly qualified and experienced judges.
(2) The Judiciary must have prevented the executive and legislature from committing excesses.
(3) The ability of the judiciary to maintain and independently run the judicial administration.
(4) The Judiciary must be made the guardian protector of the Constitution,
(5) The Judiciary must ensure full, fair and less- expensive opportunities to the people for defending their rights and getting justice.
(6) The method of appointment of judges must be fair, systematic, effective and transparent.
(7) Method of removal of judges should be difficult and no single should have the power to remove the judges.
(8) Judges must be paid high salaries, necessary allowances, good service conditions, and appropriate retirement benefits.Furthermore as it is well said by the Hon'ble Supreme Court reported in AIR 1987 SC 1353 as It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. By incorporating all these features in the judicial system, a well organised and independent judiciary can be secured. That's why it is well noted the courts as "The courts are last cathedral to the dying Man." Q 2. WHAT IS JUDICIOUS CONSCIENCE? That 'Judicious Conscience' word has often been using by the Judges. When the matters is deeply related with the law and more particularly with the legal principles, which can affect the conscience of a person having knowledge or understanding of the principles of law, it become 'Judicious Conscience'. Law and conscience will of course often be perfectly consonant. Most of the time, this should be fairly unremarkable, and thus it will not be mentioned in the mine run of opinions. In those situations where no judge on the panel disagrees on any material matter in the case, so that only a majority opinion will be published, there is often little to be gained by adding considerations of conscience or morality to support what is already established law. It does happen, though, most commonly in instances in which the opinion underscores the judicial obligation of faithful adherence to precedent as a matter of institutional conscience. Other common circumstances for references to conscience as further support for an otherwise already legally tenable position include matters implicating issues of judicial resources and burdens on the courts other players in the justice system, issues of substantive or procedural fairness, and others still. Such positions do not only appear in unanimous majority opinions, but also in dissents in those cases in which at least one judge believes that he is correct both on the law and on the morality, but is compelled to write in a dissenting opinion due to a difference of legal interpretation between the dissenter and others on the court. It is the expressions of the consonance of law and conscience that appear in the concurring and dissenting opinions, though, that turn out to be more worthy of note for the purposes of this discussion. Where the consonance appears in a majority opinion, it simply has that much less force or weight, in the light of the clarity of the established law. However, this article does not limit its discussion to cases in which conscience differs from law. Any resort or reference to conscience is ripe for discussion in the effort to develop a fuller and clearer understanding of what judicial conscience is and how it fits into the shape of the judicial role. While there is perhaps an interesting academic question about the propriety of judicial reference to conscience in further support of an uncontroverted legal interpretation, the more difficult question is what ought to happen when a judge's considerations of conscience are in conflict with established law, or at any rate with the interpretation of the law accepted by a majority of the relevant panel. Any judge who feels faced with a serious dissonance between law and conscience has an array of options at least apparently open to him. To state them roughly and in relatively short order, a judge could: (1) keep silent about the conflict and simply follow the law; (2) follow the law When judges use words and phrases like "in good conscience" or "unconscionable," they do so in many contexts and with a broad range of ideas apparently in mind. Though some scholarship in this area tends to be focused specifically on the role or expression of a judge's religious faith, it can be hard to distinguish - and it is probably pointless to try to divine any distinction, for purposes of this paper - between religiously- based convictions and any other personal commitments that underlie actual judicial usage of the word `conscience.' It is difficult to pin down a particular consensus definition of conscience or the unconscionable, either in the actual usage by judges or in the legal academic literature that has built up around this concept. Much might be included, but some usages are clearly of more import than others for this topic. Black's Law Dictionary defines conscience as "1. The moral sense of right or wrong; esp., a moral sense applied to one's own judgment and actions. 2. In law, the moral rule that requires justice and honest dealings between people." This underscores the overlap and thus the lack of specific distinction, among the terms `conscience,' `morality' and `justice. These terms must, to a certain extent, be left a bit muddy, because one must take them as the courts use them. Judges are not necessarily philosophers or linguists, and they are not typically concerned with precision about distinctions among these particular terms. Furthermore, to get too technical about the verbal or semantic distinctions here might even encourage an unwarranted and unhelpful formalism by judges. Examination of the variety of uses of these terms by judges does however reveal some broad categories of apparent meaning. Sometimes it is a matter of a judge's core personal conviction about right and wrong; sometimes it is a matter of responsibility for the integrity of the institution (for the proper role of the court, for its reputation, or for proper use of its resources, for example); sometimes it is an attempt to speak for something like a `common conscience' or a common public notion of justice or other values; sometimes it is simply a matter of personal honesty about a particular view of the facts or the law in a given case. Very often, phrases like "in good conscience" or "unconscionable" or other variants on these, come up in cases having to do in one way or another with liberty interests, and of those very often the cases are before the court on appeals of denials of habeas petitions. These are decisions in which a panel's collective decision may effectively be the end of the road on life and death issues. Another common context for these expressions of conscience is in dissents from denials of petitions for rehearing en banc - again, an end of the road determination, which may introduce frustration about the full court not taking up a matter a judge. Believes to be a moral imperative for further attention. Although judges certainly do use other related terms such as morality, injustice, and unfairness as well in these kinds of scenarios, this article limits the discussion to those specifically using `conscience' and its cognates, in an attempt to get a clearer picture of what judges themselves see as the proper role for their conscientious commitments in their decision making and what that may reveal to help us better understand the larger shape of the judicial role. THE SIGNIFICANCE OF SECTION 482 SEC 482 CR.P.C READS AS FOLLOWS:
"Saving of inherent power of High Court- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."WHY THE NEED FOR SECTION 482 CR.P.C.?
The powers of the High Court U/s 482 Cr.P.C are partly administrative and partly judicial. The section was added by the Code of Criminal Procedure (Amendment) Act of 1923, as the High Courts were unable to render complete justice even if in a given case the illegality was palpable and apparent. The Hon'ble Supreme Court in State of Karnataka v. Muniswami- AIR 1977 SC 1489, held that the section envisages 3 circumstances in which the inherent jurisdiction may be exercised, namely, "to give effect to an order under CrPC, to prevent abuse of the process of the court, and to secure the ends of justice".
The Hon'ble Allahabad High Court went on to state that, "The section is a sort of reminder to the High Courts that they are not merely courts in law, but also courts of justice and possess inherent powers to remove injustice". The inherent power of the High Court is an inalienable attribute of the position it holds with respect to the courts subordinate to it. They are necessarily judicial when they are exercisable with respect to a judicial order and for securing the ends of justice. The jurisdiction under section 482 is discretionary, therefore, the high court may refuse to exercise the discretion if a party has not approached it with clean hands.WHAT ARE THE REAL POWERS OF THE HIGH COURT U/S 482 CR.P.C?
Inherent powers u/s 482 of Cr.P.C. include powers to quash FIR, investigation or any criminal proceedings pending before the Sessions Courts or any Courts subordinate to it and are of wide magnitude and ramification. Such powers can be exercised to secure ends of justice, prevent abuse of the process of any court and to make such orders as may be necessary to give effect to any order under this Code, depending upon the facts of a given case. Court can always take note of any miscarriage of justice and prevent the same by exercising its powers u/s 482 of Cr.P.C. These powers are neither limited nor curtailed by any other provisions of the Code. However, such inherent powers are to be exercised sparingly and with caution.
It is well settled that the inherent powers under section 482 can be exercised only when no other remedy is available to the litigant and NOT where a specific remedy is provided by the statute. If an effective alternative remedy is available, the High Court will not exercise its powers under this section, especially when the applicant may not have availed of that remedy.
Rules governing the petitions which pray for quashing of criminal proceedings
Section 482 of CrPC, which deals with the power of the court to quash criminal proceedings, hasn't given the details of that what exactly constitutes the inherent power of the court. In that sense, the Code is very vague as it doesn't lay out the grounds on which the foundations of the inherent power of court lay. Furthermore, there has been consistent inconsistency in the judgments of the Supreme Court of India with regard to the application of Section 482 of CrPC.
Consequently, the application of Section 482 of CrPC is a very agitated issue in litigation along with being a strongly debated concept in the legal academic circles. Nevertheless, there are some cases which have got wide acceptance in the legal fraternity and hence, are used as the minor guiding principles (landmark cases being the major ones) governing the cases of quashing of criminal proceedings. Some of these cases are:1. Prashant Bharti v. State of NCT of Delhi (2013) 9 SCC 293
In order to determine the veracity of a prayer for quashing the criminal proceedings raised by an accused under Section 482 of the CrPC, the following questions were raised before the High Court. The court held that if the answer to all the following questions was in affirmative, then the Court should quash the proceedings by exercising its power under Section 482 of CrPC;
1. Whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
2. Whether the material relied upon by the accused is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
3. Whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
4. Whether proceeding with the trial would result in an abuse of process of the court and hence, would not serve the ends of justice?2. Parbatbhai Ahir v. State of Gujarat (4 October 2017)
In this case, the Supreme Court referred to various precedents and summarised the following principles to govern the power of High Court under Section 482 of CrPC;
1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court.
2. The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non- compoundable.
3. Informing an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power.
4. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised;
4.1. To secure the ends of justice.
4.2. To prevent abuse of the process of any court.
5. The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated.
6. In the exercise of the power under section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed, even though the victim or the family of the victim, have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences.
7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned.
8. Criminal cases involving offences which arise from a commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute.
9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice
10. There is yet an exception to the principle set out in propositions (viii) and above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."3. QUASHING OF CRIMINAL PROCEEDINGS IN MATRIMONIAL CASES (CASES FILED UNDER SECTION 498A) The purpose of drafting Section 498A was to help the hapless women who were the worst victims and were harmed at the hands of their husbands. In the present times, there have been several instances where the section is misused. The situation became so severe that various non- government organizations (NGOs) came up for the purpose of advocating the repeal of Section 498. The Supreme Court of India has, many a time, held that the proceedings being pursued under Section 498 - A of IPC ought to be quashed if the chances of conviction are very bleak or the case has been filed with ulterior motives. This is so because there are various cases where the purpose of the litigation is the ulterior motive of settling personal scores. The following cases discuss quashing of proceedings in such matters;
1. The Supreme Court of India observed in the case of Sushil Kumar Sharma v. Union of India (19 July 2005),
"...The object of the provision is the prevention of the dowry menace. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bona fide and have filed the cases with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery..."
1. In B.S. Joshi v. State of Haryana 2003 (4) SCC 675 the Supreme Court justified the exercise of powers under Section 482 CrPC to quash the proceedings in matrimonial cases to secure the ends of justice in view of the special facts and circumstances of the case even where the offences alleged are non-compoundable.
2. The judgment in B.S. Joshi v. State of Haryana was used by the Delhi High Court to quash criminal proceedings which had been initiated under Section 498 - A of the Indian Penal Code in the case of Girish Pandey v. State (20 October 2016).
3. Furthermore, it was held in the case of Geeta Mehrotra v. State of Uttar Pradesh (17 October 2012) by the Supreme Court that making general allegations against husband without any conclusive proof is ground enough to quash criminal proceedings instituted under Section 498- A of IPC.The landmark Judgments in Quashing the Criminal cases delivered by the Hon'ble Supreme Court of India are:
(1) Janki Bai v. The state of Madhya Pradesh
(2) Rajave Textiles Private Ltd., v. Sourabh Biotech
(3) Raghavendra Sharma v. MPM KVV Construction Ltd., and also Hon'ble Telangana High Court is
(4) Sri Kota Reddy Veerappa Reddy v. State of Telangana.4. TEST TO CHECK WHETHER HIGH COURT CAN INTERFERE OR NOT Ordinarily, a High Court will not interfere at an interlocutory stage of criminal proceeding in a subordinate court but HC is under an obligation to interfere if there is harassment of any person (Indian citizen) by illegal prosecution. It would also do so when there are any exceptional or extraordinary reasons for doing so. The Supreme Court, in Madhu Limaye v. Maharashtra, has said, "Nothing in the Code, not even Section 397 can affect the amplitude of the inherent power preserved in Section 482. Where the impugned interlocutory order clearly brings about a situation which is an abuse of the process of the court then for the purpose of securing the ends of justice, interference by the High Court is absolutely necessary and nothing contained in Section 397 (2) can limit or affect the exercise of the inherent power of the High Court". The SC, further, in Madhu Limaye v. Maharashtra, has held that the following principles would govern the exercise of inherent jurisdiction of the HC:
1. Power is not to be resorted to, if there is specific provision in code for redress of grievances of aggrieved party.
2. It should be exercised sparingly to prevent abuse of process of any Court or otherwise to secure ends of justice.
3. It should not be exercised against the express bar of the law engrafted in any other provision of the code.It can never be laid down more particularly or precisely when the High Court can and cannot use its powers, but attempts have been made on that behalf in several of the decisions of Supreme Court. In the landmark case State of Haryana v. Bhajan Lal (1992 Supp.(1) SCC 335), a two-judge bench of the Supreme Court of India considered in detail, the provisions of section 482 and the power of the High Court to quash criminal proceedings or FIR. The Supreme Court summarized the legal position by laying the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal complaint:
1. Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which, no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or, where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.LIMITATION ON SECTION 482 OF CR.P.C Even though the inherent jurisdiction of the High Court under Section 482 is very wide, it has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised exdebito justitiae to do real and substantial justice for the administration of which alone, courts exist. This view has been taken by the Hon'ble SC in many of its judgments including the recent Monica Kumar v. State of Uttar Pradesh. In a proceeding under section 482, the High Court will not enter into any finding of facts, particularly when the matter has been concluded by concurrent finding of facts of two courts below. In State of Bihar and another v. K.J.D. Singh, the Hon'ble Supreme Court had a question whether the Criminal Proceedings can be quashed even before the Commencement of the Trial. The Supreme Court went ahead and held that "The inherent power under Section 482 has to be exercised for the ends of the justice and should not be arbitrarily exercised to cut short the normal process of a criminal trial. After a review of catena of authorities, Pendian, J. in Janta Dal v. H.S. Chowdhary (supra) has deprecated the practice of staying criminal trials and police investigations except in exceptional cases and the present case is certainly not one of these exceptional cases." In R.P. Kapoor v. State of Punjab, Hon'ble Supreme court went on to limit the powers of the Hon'ble High Court within the ambit of the Cr.P.C. It was held, "Inherent power of the High Court cannot be invoked in regard to matters which are directly covered by specific provisions in the Cr.P.C.". It is well settled that the inherent powers under section 482 can be exercised only when no other remedy is available to the litigant and NOT where a specific remedy is provided by the statute. If an effective alternative remedy is available, the High Court will not exercise its powers under this section, specially when the applicant may not have availed of that remedy. CONCLUSION Section 482 Cr.P.C has a very wide scope and is an essential part of statue to meet the end of justice where injustice can take place but at the same time the said Power is too wide and hence, it is important for the courts to use it wisely and according to the guidelines laid down by High Courts and Supreme Court time to time. Section 482, in its current form has seen several changes with the changing times and needs of the hour and by the Guidelines framed by the Supreme Court in several of its judgments. The Courts are constrained to do so as the said Section which gives wide powers to the High Court, was highly abused by the Law Practitioners. Section 482 of Cr.P.C has made its space in Cr.P.C in order to enable the High Courts to provide proper justice and at the same time to curb filing of fictitious complaints just to avenge personal grudges. Q. 5 JUSTICE, PRACTICE, PROFESSION In the most common terms, justice is an ideal representing something that is just and right. It basically means being just, impartial, fair and right. ... On the other hand, modern jurisprudence says justice means the implementation of concepts like equality and liberty. For example, the natural law school of jurisprudence believes that justice means the implementation of religious laws. On the other hand, modern jurisprudence says justice means the implementation of concepts like equality and liberty. However, in both these examples, justice just means enforcement of what the law perceives to be right. In the modern context, justice basically means the recognition and implementation of laws made by legislatures. Furthermore, in the modern context, unlike ancient states, this function lies largely on judicial organs. According to Salmond, laws are the bodies of principles that tribunals recognize and apply while administering justice. Even Roscoe Pound defines laws to mean principles that public tribunals recognize and enforce. Therefore, justice generally means the recognition, application and enforcement of laws by courts. This is different from the understanding of justice in the ancient period when it was given a religious and moralistic meaning. KINDS OF JUSTICE The concept of justice and its administration can be of the following types:
1) Public justice and Private justice
Public justice is basically that kind of justice which the state administers through its tribunals and courts. It explains the relationship between courts and citizens of a state. Courts usually enforce laws that the states make under public justice.
On the other hand, private justice regulates the legal relationship between individuals. It is limited to people enforcing concepts of justice amongst each other without approaching courts.
For example, let's imagine that A and B entered into a business transaction in which A paid money to B as promised. B, instead of selling goods to A for the money, refused to fulfill his obligation. If A and B decide to settle their dispute through means of arbitration or negotiation, it is private justice. However, if A approaches a court and sues B, we refer to that as public justice.
2) Civil justice and Criminal justice
In terms of the subject matters of justice, we can categorize it as civil and criminal. Civil justice generally refers to private wrongs that affect specific people or entities.
For example, breach of a contract between two parties will affect only one of them. Trespassing of property is another example. The remedy of such civil wrongs is generally to approach civil courts.
Criminal justice, on the other hand, affects society in general even if specific people are victims. For example, the murder affects specific victims only but the law treats it as a crime against society.
Another feature of criminal justice is that it relates to laws made by a legislature. Only acts that are defined as crimes can be the subject matter of criminal justice.
In respect of Legal Profession is concerned it is well noted by the legal laurets that legal profession is a Nobel Profession.
The statement, "A lawyer is and must ever be the high priest at the shrine of justice", a religious metaphor, reflects the view of the lawyer's special role on the administration of justice as contemplated by the American Bar Association in the first national code of legal ethics in the USA. The religious metaphor was developed in the context of viewing Courts as the `shrines of justice', and lawyers as the ministers of the "courts of justice robed in the priestly garments of truth, honor and integrity". Even in a secular context, the statement still captures the essence of the role of an advocate in the mechanism of administration of justice in the society.
At the outset, it is necessary to appreciate the role an advocate plays in the society. The development of lawyers as a class of professionals can be attributed to the need for trained persons who can form the competent interface to facilitate the interaction between the lay persons and the judiciary. This involves providing legal advice in matters of rights, liberties or property of the client within the framework of legislative and legal rights, and representing the client in the event of a dispute before an adjudicatory body. In fact, if law is viewed as a `public good' which is frequently technical and not self-executing, meaningful access to law requires the assistance of a lawyer. Particularly, in most jurisdictions, the members of the legal profession are conferred the status of privileged members of the community, and occupies an exclusive domain with the privilege of pleading and acting on behalf of suitors being restricted only to enrolled advocates and attorneys. This monopolistic character of the legal profession entails certain high traditions which its members are expected to upkeep and uphold.
Therefore, the lawyer plays an indispensible role in the mechanism of administration of justice.
However, the lawyer has a particularly onerous and multi-dimensional role to fulfill. As expressed by Mathew, J., "A Counsel has a tripartite relationship: one with the public, another with the court, and the third with his client. That is a unique feature. Other professions or callings may include one or two of these relationships but no other has the triple duty."The satisfaction of the obligations and expectations arising out of these three relationships are frequently difficult to reconcile. The role of the advocate in these three capacities requires a closer scrutiny.
The lawyer, as a professional, to some extent, acts on behalf of the client, and representing the client. This is particularly relevant in an adversarial system of adjudication followed by common law countries which is characterized by a neutral adjudicating authority, which, on the basis of the arguments and evidence placed before it, arrives at a conclusion. The role of an advocate in an adversarial system, therefore, is to represent the case of the client before the adjudicating authority.
As a professional, the functional role of an advocate, in essence, is comparable to that of a legal technician. An advocate is specially trained in the technical profession of `law', and with his grasp over the subject matter; professional function consists largely of providing counsel for clients about how to escape or mitigate the incidence of the law's obligations, availing of the loopholes and the ambiguities of law. An advocate is essentially an adviser to his client. The contractual arrangement creates an obligation on the part of the advocate to offer sound legal service, and place before the court all that can fairly and reasonably be submitted on behalf of his client. The oft-quoted comment of Lord Reid in the celebrated case of Rondel v. Worley succinctly conveys the essence of the duty of an advocate towards his client: "Every counsel has the duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case". More importantly, he should not let his personal opinion, or considerations of unpleasant consequences or reactions that he may expect to face in the performance of his duty towards his client affect the quality of services he provides to the client.
At the same time, it would be erroneous to view an advocate as merely a professional - that would lead to the risk of degenerating the legal profession into a trade or mere sordid pursuit for livelihood and accumulation of wealth, with professionals indulging in "briefs merchandise".
It must be clarified that an advocate is obligated to act so as to protect and uphold the interest of his client by all fair and honorable means. As has been frequently emphasized, he also acts in the capacity of an officer of the Court. The role of advocates as officers of the Court is to assist the Court in the administration of justice. Lawyers collect materials relating to a case and thereby assist the Court in arriving at a correct judgment. Furthermore, being a responsible officer of the court and an important adjunct of the administration of justice, the lawyer also owes a duty to the court as well as the opposite side. The Bar and the Bench constitutes the two wheels of the carriage of justice. The success of the judicial process often depends on the services of the legal profession. The function of both the Bar and the Bench in an adversarial system of dispute resolution are clearly made out, and the need for a dynamic relationship of co-operation between the two is acute. Advocates, as members of the Bar and officers of the Court, have the responsibility of `keeping the stream of justice pure and unsullied' so also to enable it to administer justice fairly and to the satisfaction of all concerned. This involves two aspects - firstly, to uphold the dignity of the judicial office and maintain a respectful attitude towards the Court, and secondly, to ensure that under no circumstance, any illegal or improper means is used to mislead the Court.CONCLUSION The public impact of the legal profession can be gauged by the observation by the Supreme Court in All India Judges Association v. Union of India, wherein it was expressed that the administration of justice and the part to be played by the advocates in the system must be looked into from the point of view of litigant public and the right to life and liberty guaranteed under Article 21 and right to grant legal aid as contemplated under Article 39A of the Constitution. The aspect of the advocate as a public servant is closely tied to the fact key role he plays in the developmental and dispute-processing activities and, above all, "in the building up of a just society and constitutional order." Being the custodian of the monopolistic power statutorily granted by the nation, the lawyer is obligated to rise to the expectations of him in being a member of the society worthy of confidence of the community in him as a vehicle of social justice. Viewed in this context, it can be said that the lawyer is indeed the channel through which the general public can access the law, and avail of the protection of the law, in the shrine of justice.
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