1. The legal process in the Court of law is initiated by the presentation / institution of a Case, whether in the form of a Suit, Petition, Complaint / Application etc, in the competent court of jurisdiction.

2. Every litigation presupposes the accrual of “cause of action”, that is to say, reason for initiating legal action in the Court of law.

3. Accrual of cause of action implies and presupposes infringement of litigant’s some statutory right / fundamental right / equitable right / contractual right / or any other right recognized under the statutes or customs.

4. In order to commence a legal action, the person must have some real grievance, which is the foundation of any legal action. For having right to move the court of law, the right sought to be enforced should have already come into existence, and there should be an infringement of it.

5. Ordinarily, in Criminal law, there are two ways by which the machinery of law is set into motion against any person –

(a) By registering FIR (First Information Report) before Police u/s 154 of CrPC, 1973 or by making Application u/s 156(3) to the Magistrate, thereby Magistrate directing the Police to register the FIR, investigate the offence and file Police Report in a time bound manner;

(b) By making a private complaint before the concerned Magistrates Court u/s 200 of CrPC, 1973.

6. In a private complaint u/s 200, the Magistrate who is taking cognizance of an offence, is obliged to examine upon oath the complainant and if necessary, the witnesses present; and the substance of such examination shall be reduced in writing.

7. The paramount object of this examination of the complainant and his witnesses u/s 200, is to secure evidences against the persons accused of; and to further satisfy himself that there are sufficient material or evidences against the persons who is charged with the commission of certain offences.

8. In a very recent judgment, the remarkable observations of Apex Court deserves a mention. In the case of Sunil Bharti Mittal Versus Central Bureau of Investigation [AIR 2015 SC 923], the Apex Court observed to say that – Para 32: Sine Qua Non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the Court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not.

9. There is no particular format of a complaint. A petition addressed to the Magistrate containing an allegation that an offence has been committed, ending with a prayer that the culprit be suitably dealt with, is a Complaint. Also, a complaint to Magistrate may be made orally (Section 2(d) CrPC, 1973). Mohd Yusuf versus Afaq Jahan [2006]

10. Any inquiry into the alleged commission of any criminal offence must begin with the contemplation in our mind, the definition of “offence” as contained in General Clauses Act, 1897. Section 3(38) of the said Act defines it as “offence” shall mean any “act or omission” made punishable by any law for the time being in force”.

11. The word “act or omission” is defined in the said Act in section 3(2) as – “act”, used with reference to an offence or a civil wrong, shall include a series of acts, and words which refer to acts done extend also to illegal omissions.

12. Therefore, it would be safe to say, that “specific overt act and / or omissions” attributed towards the person, may make the person liable for the commission of an offence, and mere allegation is of no use to initiate any action in law, against any person, unless vicarious liability is imposed by express provision of any statute, like imposed in section 141 of Negotiable Instruments Act, 1881, and in many other statutes, containing identical provision.

13. It may further be noted that even Indian Penal Code (IPC) does not recognizes vicarious liability; and if any person is accused of any offence under IPC, and who appears to have no direct involvement in the offence, he may be brought within the purview of sections 34, 107, or 120A, which imposes criminal liability on the basis of common intention, abetment or criminal conspiracy; provided that requisite ingredients of respective section is duly satisfied. http://thepracticeoflawjalan.blogspot.in/2015/05/criminal-behind-curtains.html

14. Then we may proceed to look at the substantive definition of the offence, which spells out, as “what” bundle of “acts and omissions” would constitute the commission of an offence.

15. Moving little further, the alleged acts and omissions attributed towards any person, constitute “facts in issue” of the prosecution case; and to bring home, the guilt of the person, it is suffice or to say necessary, if the existence of such “facts in issue” are “proved” by the prosecution, while employing the principles spelled out in the Indian Evidence Act, 1872, with the means of procedure, prescribed under code of criminal procedure, 1973. The definition of “proved” disproved” and “not proved” in the Evidence Act, assumes greatest significance in any trial.

16. Therefore, every lawful and valid criminal complaint, whether u/s 156(3) or u/s 200 of CrPC, 1973, or FIR u/s 154, must, as far as possible, aptly spell out the bundle of “incriminating acts and omissions” attributed towards the person concerned, wherein the said acts and omissions would constitute a particular offence.

17. Thereafter, the investigation by the Police, or the Inquiry by the Magistrate comes into picture, into the alleged acts or omissions, so as to collect the oral and documentary evidences against the person, who is alleged for the commission of an offence; or there may be cases where the complainant may have sufficient evidence in his hand to proceed with the case himself and may file private complaint u/s 200 of CrPC, 1973.

18. In cases where Police files the Charge Sheet u/s 173 or the Magistrate taking cognizance of the offence u/s 200 of CrPC, 1973, it would invariably imply at least three things – a. the existence of allegations of bundle of incriminating “acts and omissions” against the person concerned; b. such bundle of incriminating acts and omissions must constitute the “offence”; c. the existence of such material in the form of oral and documentary evidences, which “may” prove the existence of the aforesaid incriminating acts and omissions.

19. Every “trial”, whether civil or criminal, presupposes the existence of materials / evidences which are to be led by the parties to prove their case; and when the party who is obliged to prove his case, has no material / evidence, there can be no trial.

20. The question may arise as what could be the nature of averments (of facts) in the complaint, and the nature of depositions required before the court, which would constitute “bundle of incriminating acts and omissions”.

21. It is incumbent upon the Complainant to set out in the Complaint, or to produce such witnesses, having sufficient material and evidences in support of the allegations made in the Complaint; and similarly, equally it is incumbent upon the Magistrates to secure that there are sufficient material / evidence on record against a person before he ventured to issue Summons against him.

22. Take for example, where a complainant wife alleges cruelty against her husband and her relatives and the said complainant merely reproduces the words of the section, without stating or adducing anything further, in support of the allegation of cruelty; Can such complaint survive the test of law, more particularly the mandate of section 204 of CrPC. The answer is no, and the Complaint is liable to be dismissed u/s 203 of CrPC, 1973.

23. And when there are sufficient evidences or material on record, to proceed against the person charged with, the Magistrate takes the cognizance of the “offence” u/s 200 r/w 190 of CrPC, 1973, and may issue summons or warrant u/s 204, and set the criminal machinery of law into motion. The mandate of section 204, employing the expression “sufficient grounds to proceed” is salutary wherein it sought to check frivolous and meritless cases to be nipped in the bud.

24. On the returnable date of Summons, the Accused must remain present, either in person or through Advocate. If he is appearing through an Advocate, and personally not be able to remain present, the Advocate must tender Exemption Application u/s 205 of CrPC, 1973, before the Court, setting out the reasons for which the Accused could not remain present on this day. In offences involving mere fines, the Accused u/s 206 of CrPC, 1973, may plead guilty through his Advocate, and pay the fine as directed by the Magistrate. If the Accused is present on this day, the Magistrate will explain him the charges against him, and will ask him, if he pleads guilty or not. If he pleads guilty, then he convicts him; and if he pleads Not guilty, then he calls upon the prosecution to lead evidence.

25. Criminal trials may broadly be divided into 3 categories – (1) State Prosecution or Private Complaint; (2) Summons triable or Warrant triable; and (3) Magistrate triable or Sessions triable. Warrant triable are those cases where the punishment for the offence to which a person is charged with, is more than two years. In cases, where offences charged with, are both Summons triable and Warrant triable, then procedure provided under Warrant triable is followed. All offences to which the punishment prescribed is minimum 7 years, are exclusively Sessions triable.

26. In our system of laws, every Accused person is considered innocent unless his guilt is proved beyond reasonable doubt. Our Constitution further protects, and rightly so, Accused persons, wherein it is provided that an accused cannot be compelled to answer any question which may incriminate him; and accused are not obliged to lead any evidence in support of their innocence, except in certain situations and circumstances, the burden does shift upon the accused to prove their innocence; like for example when the accused takes the plea of self defense, or plea of alibi, or plea of insanity; and also in cases where the particular fact is especially within the exclusive knowledge of the accused, as contemplated in section 106 of Evidence Act, 1872; or in cases of Negotiable Instruments, where the law presumes that Cheque or any other negotiable instrument, was issued for consideration / in discharge of any debt / liability, and the burden is shifted upon the Accused to prove otherwise.

27. Coming to deliverance and dispensation of justice, the Courts / Tribunals, in the exercise of adjudicating and declaring rights and obligation of respective parties which are before it, formulate its decision by employing laws of the land, the principle of equity, and customs & usages.

28. The principles of natural justice forms the corner stone of every judicial procedure and decision and it postulate that both the litigating parties must have equal and sufficient opportunity to deal with the allegations made against them.

29. A Judicial decision must be a self contained document from which it should appear as to what the facts of the case were and what was the controversy, which was tried to be settled by the Court / Tribunal.

30. The process of reasoning by which Court came to a particular conclusion and decreed or dismissed the case, should clearly be reflected in the decision. 31. The decision should be on the basis of evidence on record and in accordance with law.

32. The fate of Justice is tied to the thread of reason: Reasoned decisions are inescapable in the entire scheme of administration of Justice, as explained decision breathes life into court order. Reasons disclose how the mind was applied to the subject matter and reveals a rational nexus between the facts considered and conclusions reached.

Recording of reasons is also an assurance that the judicial authority has applied its mind to the facts on record. The reasons employed not only be logical / conceivable but which will also deal with the substantial points which have been raised.

An unreasoned Order presupposes the non consideration of evidences and submissions on record made by the Party therein and the opportunity of affording due hearing would be rendered meaningless and empty formality and thus in essence occasion the frustration of principles of natural justice for the prejudiced party.

The giving of satisfactory reasons is required by the ordinary man’s sense of justice. Reasoned decisions are vital for the purpose of showing that one is receiving justice.

33. Having said all this, and to say that reasons must be given for decisions, what we really expect from the judicial authority.

Reasons are appreciation of such facts and evidences which are on record, and from which the judicial authorities are entitled to draw inferences and results.

Then comes the question, what is appreciation of facts and evidences.

Appreciation of facts and evidences is, drawing natural and logical inferences, drawing natural and logical results, which necessarily flow from those facts and evidences [the facts would mean those facts which are self evident or are admitted, or facts which are reasonably proved, disproved or not proved].

Appreciation of facts and evidence is an exercise wherein the proved existence of certain facts, provokes or persuades the decision maker to reach a certain conclusion.

And to put it further straight, Reasons are those statements, whereby the decision maker will tell you, WHY your submissions to claim certain reliefs, or WHY your submissions to deny reliefs claimed, are meritorious or if are meritless; or to say, the decision maker will tell you, WHY you are entitled to the reliefs or WHY you are not entitled to the reliefs, claimed or prayed for.

34. I am hasten to add here the notable observations of the Apex court in the case of State Of Uttaranchal Versus Sunil Kumar Vaish [2011].

Para 18: Judicial determination has to be seen as an outcome of a reasoned process of adjudication initiated and documented by a party based, on mainly events which happened in the past. Courts' clear reasoning and analysis are basic requirements in a judicial determination when parties demand it so that they can administer justice justly and correctly, in relation to the findings on law and facts. Judicial decision must be perceived by the parties and by the society at large, as being the result of a correct and proper application of legal rules, proper evaluation of the evidence adduced and application of legal procedure. The parties should be convinced that their case has been properly considered and decided.

Para 19: Judicial decisions must in principle be reasoned and the quality of a judicial decision depends principally on the quality of its reasoning. Proper reasoning is an imperative necessity which should not be sacrificed for expediency. The statement of reasons not only makes the decision easier for the parties to understand and many a times such decisions would be accepted with respect. The requirement of providing reasons obliges the judge to respond to the parties’ submissions and to specify the points that justify the decision and make it lawful and it enables the society to understand the functioning of the judicial system and it also enhances the faith and confidence of the people in the judicial system.

No adverse Order if No adverse findings

1. It is typical for Courts and Judges, whilst passing Orders and decisions, (to commit basic and elementary mistakes, and most of the times consciously) outright overlooking some of the very material facts and evidences / submissions / Judgments cited, by the losing Party; and drive themselves to irrelevant consideration of facts.

2. Before discussing the aforesaid expression “No adverse Order if No adverse findings”, let us first broadly look at the decision making process.

3. Broadly, the decision making is a process wherein, having regard to the Reliefs claimed, the presiding Judge – (a) examine the (legality) of facts alleged, (b) examine the (legality) of stand of the adversary, (c) examine the materials and the evidences which are placed before him in support of the facts alleged by both the sides; (d) would record his reasoned finding (prima facie or conclusive) as to the existence or the non existence of the facts alleged.

4. The process of recording finding of facts is, having regard to the applicable laws and precedents, testing of facts and evidences, and drawing natural, logical and legal inferences and outcomes, which necessarily flows from those facts and evidences [the facts would mean those facts which are self evident or are admitted, or facts which are reasonably proved, disproved or not proved]. Appreciation of facts and evidence is also an exercise wherein the existence of certain facts and evidence, provokes or persuades the decision maker to reach a certain conclusion.

5. Once findings as to facts are arrived at, the decision follows, either granting the reliefs claimed for, or the denial of.

6. However, what is witnessed in many Orders of the Courts is – either (a) In the process of finding of facts, findings on significant material fact are not recorded at all, by overlooking all the materials and evidences and submissions of the losing party, which are placed on record; the evidences and submissions, which had a direct bearing on the decision of the Court; or (b) whilst recording finding as to material fact, some of the material facts agitated / evidences / submissions / Judgments cited are not dealt with. The situation (a) mainly occurs in discretionary jurisdiction Orders/ Interim /Ad-Interim Orders / and Orders passed at Appellate stage; and situation (b) occurs in Orders passed in original proceedings. [Material facts would mean such facts which naturally arises in the nature of legal proceeding and nature of reliefs claimed]

7. In wealth of judgments, the Apex Court and High Courts have insisted upon recording of reasons whilst arriving at findings of facts and law. In a case (AIR 2011 SCW 5486) before it, the Apex Court have observed to say that Judicial decisions must in principle be reasoned and the quality of a judicial decision depends principally on the quality of its reasoning, on law and facts.

8. Therefore, IF it is contempt of the Court, if reasoned findings are not recorded, then it is regressive and aggravated contempt, to not to record findings at all.

9. Can we really compel the Courts to record finding of fact in their decisions? At least the Apex Court in a case before it [(2006) 9 SCC 222], have said Yes. The Apex Court have held that before subjecting a party to the adverse decision, adverse findings must be recorded against it.

The Apex Court in the aforesaid case, have set aside the Order of the High Court on the grounds that, the High Court, before directing the Defendants to “clear the encroachment”, should have recorded the findings that “Defendants had entered upon the suit land and put up construction subsequent to the undertaking given to the trial court”.

It was a case where the Defendant in a Suit gave undertaking to the trial Court that Defendants will not interfere with the possession of the Plaintiff’s land. The Suit was disposed of on the basis of above undertaking. Thereafter, the Plaintiff moved Execution Application under O.21 R.32 before the trial Court alleging that Defendants have constructed some structure on the Suit land. The trial Court dismissed said Execution Application. The Plaintiff challenged trial Court’s Order before High Court. The High Court directed the Defendants to clear the encroachment effected by them on the suit land. In this backdrop, the Apex Court set aside the Order of the High Court on the grounds that, the High Court, before directing the Defendants to “clear the encroachment”, should have recorded the findings that “Defendants had entered upon the suit land and put up construction subsequent to the undertaking given to the trial court”.

10. The Illustration: To illustrate the proposition of “Findings”, agitated hereinabove, therefore, in a Writ Petition, the High Court, before refusing to exercise its writ jurisdiction on the grounds of availability of alternate remedy, and depending upon the nature of facts alleged, must record a prima facie finding that, having regard to the facts on record, (a) fundamental rights of the Petitioners are not infringed; and / or (b) principles of natural justice have not been infringed; or (c) the Authority / Subordinate court / Tribunals have acted within their respective jurisdiction. This is because, there are ample judgments of Apex Court, wherein it is held that, on the existence of any of the aforesaid grounds in the case, notwithstanding availability of alternative remedy, the High Courts must exercise their Writ Jurisdiction under Article 226 of the Constitution of India. [AIR 1970 SC 645; AIR 2010 SCW 7184; AIR 1999 SC 22; AIR 2012 SCW 616; AIR 2003 SC 2120; AIR 2005 SC 3936; AIR 1958 SC 86 (Constitution Bench Judg); (2011) 5 SCC 697; AIR 1969 SC 556; (2015) 6 All MR 35 (BHC)]

Similarly, in an Application for Anticipatory Bail, the Session Judge / High Court, before rejecting Anticipatory Bail must record a prima facie finding that, having regard to the facts on record, (a) the Applicant is not cooperating in the investigation; (b) custodial interrogation of the Accused is essential; or (c) There is a apprehension of tampering of the witness by the Applicant; or (d) There is a possibility of the Applicant to flee from justice; or that there is a possibility of the Accused's likelihood to repeat similar or the other offences.

11. The necessity of recording of finding on material facts, would take away the arbitrary and whimsical discretion of the Courts, for, they have to record findings, based on facts and evidences which are explicitly placed on record. And when the facts / evidence are seen large, the Courts may abstain from recording illogical findings, which are contrary to facts / evidence placed on record, and seen large.

This is how the captioned proposition should come into play, that is, “No adverse Order if No adverse findings”.

The concentrated view which emerges runs to the effect that every decision / Order of the court, be interim or final, must be based on findings of facts recorded by it, whether prima facie or conclusive, on such facts which naturally arises in the nature of legal proceeding and nature of reliefs claimed.