Friends,
I have received an interesting compilation about legal measures to protect against wrongful acts by public authorities. Further suggestions are invited.
Dhirendra Krishna
(AA) WHEN GRIEVANCE IS AGAINST ANY GOVT / STATUTORY / MUNICIPAL AUTHORITY / ANY PUBLIC AUTHORITY / PUBLIC OFFICER – depending upon the nature of one's case, the likely Remedies may be
(i) Recording complaint / Notice to the concerned Public authority OR to its Regulating Authority, followed by filing Writ Petition in the High Court.
(ii) Those who have not immediate access to High Court, may file a Civil Suit before the District Court, for the relief of mandatory Injunction, as defined under Section 39 read with Section 2(a) of the Specific Relief Act, 1963, seeking necessary reliefs. But before filing Civil Suit against any Public authority, one is obliged to give notice under section 80 of CPC, 1908, to the concerned Public authority. However, in urgent situation, one can file the Suit without issuing the said notice, specifying therein the reasons for urgency in filing the Suit.
(iii) When it is alleged that a Public Officer is occupying a Public Office although he/she does not satisfy the qualifications prescribed for holding that Public office, then a Writ of Quo Warranto may be filed in the High Court for the removal that Public Officer.
(iv) Recording complaint to Anti corruption agencies like CBI, ACB, CVC;
(v) Recording complaint to Human Rights Commission;
(vi) When grievance is against a particular Public servant, then depending upon the nature of alleged illegal acts of said Public Servant, FIR to Police under Section 166, 167, 217, 218, 409 or under any other Section of IPC 1860 may be made, or a complaint may directly be made before respective Magistrates Court under section 200 read with section 190 of CrPC, 1973.
(vii) Where the grievance is in particularly relating public nuisance, then Recording complaint to District Magistrate (Collectorate of the District) / Commissioner of Police (in Metropolitan areas), under section 133 of CrPC, 1973 may be made. Refer Landmark SC Judgment - Ratlam Municipality versus Vardichand, year 1980.
(viii) Recording a complaint as aforesaid, followed by an RTI application, thereby seeking information as what action has been taken on the complaint made, so as to compel Public servants to perform their duties.
(BB) WHEN FACING ILLEGALITY BY POLICE, INCLUDING ILLEGAL ARREST OR ILLEGAL SUMMONS, ETC –
HERE FOUR KIND OF ILLEGALITIES HAVE BEEN IDENTIFIED
ILLEGALITY No.1
WHEN POLICE REFUSES TO REGISTER FIR
(i) Approaching the Superintendent of Police or Commissioner of Police (in Metropolitan areas) and recording the FIR / complaint with him;
(ii) A Complaint against those persons can be registered before Judicial Magistrate / Metropolitan Magistrate under section 200 read with section 190 of CrPC, 1973, seeking relief, Magistrate directing the Police to register an FIR and investigate the case [section 156(3) of CrPC, 1973], OR in the alternative, Magistrate may himself cause an Inquiry into the offence complained of (section 155 of CrPC, 1973), OR Magistrate may directly issue summons to the person made accused in the complaint (section 202 of CrPC, 1973);
(iii) A private complaint as aforesaid can be registered before Judicial Magistrate / Metropolitan Magistrate under section 200 read with section 190 of CrPC, 1973, against those Police officers who have refused to register FIR under section 217 of IPC, 1860;
(iv) Filing Contempt Petition against Police officers who have refused to register FIR. There are series of High Courts and Supreme Court Judgments which clearly mandates that Police must register FIR whoever comes to them, when the Complaint discloses a Cognizable offence. Also, refusing to register an FIR amounts to criminal contempt of the court. The Contempt proceedings are held only in High Courts and in Supreme Court. If criminal contempt is contemplated, then permission of the Advocate General of the respective State must be obtained before filing Contempt Petition;
(v) Also, Complaint to Judicial Magistrate / Metropolitan Magistrate under section 200 read with section 190 of CrpC 1973 as aforesaid can be made where if the alleged offence is defined as Non Cognizable offence, popularly known as NC.
ILLEGALITY NO.2
WHEN FALSE FIR IS REGISTERED AGAINST ONE; AND ARREST IS ANTICIPATED – THEN DEPENDING UPON THE PECULIAR FACTS OF EACH CASE,
FOLLOWING ACTION MAY BE TAKEN –
(i) Recording a letter to the concerned Police station where the false FIR is filed, with a copy to Superintendent of Police or Commissioner of Police, advising the Police authority that in case the Police intends to arrest the Person named in the false FIR, then they should scrupulously / strictly follow the due process of law and strictly adhere to the guidelines framed by SC in the Joginder Kumar case.
(ii) Obtaining Anticipatory Bail from Sessions court or High Court under section 438 of CrPC, 1973;
(iii) A private complaint as aforesaid can be registered before Judicial Magistrate / Metropolitan Magistrate under section 200 read with section 190 of CrPC, 1973, against those Police officers who have knowingly registered false FIR / or have falsely arrested / or are falsely prosecuting the case, alleging therein your complaint that said Police officer have committed the offence defined under section 218 and 220 of IPC, 1860;
(iv) Filing a Writ Petition in the High Court under Article 226 of Constitution of India, seeking a Writ of Mandamus, i.e. the HC directing the Police authorities to scrupulously follow the due process of law and strictly adhere to the guidelines framed by SC in the Joginder Kumar case, in case the Police intend to arrest the Petitioner (the person named in the FIR);
(v) File Writ Petition under Article 26 of Constitution read with Section 482 of CrPC, 1973, before respective High Court, for High Court in the exercise of their inherent powers, quash the false FIR;
(vi) Where the charge sheet is filed, the innocent person may endeavour to get discharge under section 227, 239 of CrPC, 1973;
(vii) It is a criminal offence to knowingly register a false complaint, as defined in section 182 and 211 of IPC, 1860. FIR or private complaint to Magistrates court is not permissible under the law for certain criminal offences. Such offences are specified in section 195 of CrPC, 1973. In such cases, criminal proceedings may be initiated by making an Application under section 340 read with section 195 of CrPC 1973, before the concerned trial Court, praying therein for trial court to refer the said offence of false complaint, to the appropriate / competent Magistrate Court of jurisdiction, against those persons who have knowingly filed the false FIR.
(IPC Section 182: False information, with intent to cause public servant to use his lawful power to the injury of another person.
IPC Section 211: False charge of offence made with intent to injure.)
(viii) Compensation may be sought against the persons under section 250 of CrPC, 1973, who have knowingly filed false FIR.
ILLEGALITY NO.3
WHEN POLICE ILLEGALLY ARREST –
(i) Whenever Police arrests any person, it is obligatory upon police to inform immediately to any of the friend or relative of the arrested person about the said arrest. The arrested person or his relative / friend to record a Letter to the concerned Police station, stating therein about the position of law as regards to restrictions in powers of arrests, that the Police officer effecting arrest is not following the mandate of law and knowingly disregarding the guidelines framed by SC in the case of Joginder Kumar versus State of U.P., 1994, for effecting arrests.
Relevant sections pertaining to powers of arrests and bail are 41, 57, 157, 167, 172, 389, 436, 437, 438, 439 of CrPC, 1973.
(ii) The relative / friend of the arrested person may file a Writ Petition of Habeas Corpus before respective High Court for alleged illegal arrest;
(iii) When the arrested person is produced before the Judicial Magistrates, the arrested person or his relative / friend may present a Bail Application / seeking Declaration before concerned Magistrates Court to declare the said arrest as illegal, for being carried out without following the due process of law and in willful disregard of guidelines framed by SC in the case of Joginder Kumar versus State of U.P., 1994, for effecting arrests; Any person who is arrested must be produced before the nearest Judicial Magistrates court within 24 hours of his arrest.
(iv) Application for subsistence allowance for arrestee's dependent, if Bail is refused. Presently law doesn't make any provision for subsistence allowance. It is my case that a person so arrested, may in certain circumstances should get subsistence allowance for his immediate dependent;
(v) If one cannot go to High Court for Writ Petition of Habeas Corpus, then, either personally approaching or by making an Application to State Human Rights Commission, National Human Rights Commission; by making an Application to Supreme Court and also to respective High Court, about the said arrest effected, in willful disregard of the directions given by the SC in Joginder Kumar case; followed by RTI Application to State Human Rights Commission, National Human Rights Commission, to Supreme Court and to respective High Court, on steps taken by them in pursuance to said Application. Life and Liberty clause under RTI may be invoked to obtain information within 48 hours;
(vi) Writ of mandamus seeking exemplary Damages / Compensation from respective State Government, but only after the High Court in the Writ of Habeas Corpus, OR the concerned Magistrates Court grant Bail on the basis of representation made to it, OR the concerned Human Rights Commission comes to the conclusion that the said arrest was illegal;
(vii) A Contempt Petition before HC can be filed alleging therein that the Police illegally arrested the Petitioner in willful disobedience to SC guidelines framed in Joginder Kumar case.
ILLEGALITY NO.4
When police neglects to investigating the case.
(i) Writ Petition under Article 226 of Constitution of India read with section 482 of CrPC 1973, may be made to the respective High Court, thereby HC directing the Police to make thorough investigation;
(ii) Writ Petition under Article 226 of Constitution of India read with section 482 of CrPC 1973, to the respective High Court, may be made thereby HC directing the State Govt to refer the case to an independent agency like CBI or CID for investigation;
(iii) A private complaint can be made before Judicial Magistrate / Metropolitan Magistrate under section 200 read with section 190 and 202(1) of CrPC, 1973, for Hon'ble Magistrate to cause an Inquiry into the case himself instead of directing police investigation u/s 156(3) of CrPC, 1973.
(iv) An FIR or private complaint under section 217, 221 of IPC, 1860, can be registered before Judicial Magistrate / Metropolitan Magistrate under section 200 read with section 190 of CrPC, 1973, against those Police officers who have neglected to investigate the case;
(CC)
WHEN A CHEQUE IS DISHONOURED –
depending upon the nature of one's case, the likely Remedies may be
(i) A Summary Suit, contemplated under Order XXXVII of Civil Procedure Code, 1908, in the High Court or District Court, can be filed for the recovery of dishonoured cheque amount;
(ii) Issuing statutory Notice under Section 138 of Negotiable Instrument Act 1881, followed by filing Criminal Complaint to the Judicial Magistrate / Metropolitan Magistrate;
(iii) In case, the dishonoured cheque was given by a individual or by a proprietorship firm or by a Partnership firm, a notice followed by Insolvency Petition in the High Court or in the District Court, can be filed against that individual / proprietor / partners;
(iv) In case, the dishonoured cheque was given by a Private or Public Limited Company, a Statutory Notice u/s 433 / 434 / 439 of the Companies Act, 1956, followed by Winding up Petition can be filed in the High Court against that Company;
(v) a complaint to Police or private Complaint, under section 200 read with section 190 of CrPC, 1973, to Judicial Magistrate / Metropolitan Magistrate can be filed, of the offence of cheating against the said individual / proprietor / partners / officials of the Company;
(DD)
WHEN ONE IS TO RECOVER SPECIFIED DEBT / MONEY, i.e. TO SAY RECOVERY OF LOAN, MONEY DUE UNDER COMMERCIAL TRANSACTIONS, MONEY DUE UNDER ANY CONTRACT / AGREEMENT, MONEY TO BE RECOVERED BY VIRTUE OF ANY LEGAL RIGHT / UNDER STATUTE, WHETHER FROM A PRIVATE PERSON / INDIVIDUAL OR FROM ANY PUBLIC AUTHORITY –
depending upon the nature of one's case, the likely Remedies may be –
(i) If there exist any Arbitration clause in the Contract / Agreement or in the absence of Arbitration clause, by consent of the other side, one may adopt Arbitration proceedings for the resolution of the dispute;
(ii) A Summary Suit, contemplated under Order XXXVII of Civil Procedure Code, 1908, in the High Court or District Court can be filed for the recovery of that specified debt / amount;
(iii) In case, the specified ascertained debt / amount is to be recovered from an individual or from a proprietorship firm or from a Partnership firm, depending upon the acts of the defaulter, a notice followed by Insolvency Petition in the High Court or the District Court, can be filed against that individual / proprietor / partners;
(iv) In case, the specified ascertained debt / amount is to be recovered from a Private or Public Limited Company, a Statutory Notice under section 433 / 434 / 439 of the Companies Act, 1956, followed by Winding up Petition can be filed in the High Court against that Company;
(v) Depending upon the nature of one's case, a complaint to Police or private Complaint, under section 200 read with section 190 of CrPC, 1973, to Judicial Magistrate / Metropolitan Magistrate can be filed.
(EE)
WHERE ONE HAS ALLEGED TO HAVE BEEN SUPPLIED DEFECTIVE GOODS OR ONE HAS ALLEGED TO HAVE RENDERED DEFICIENT SERVICES, OR WHERE ANY PERSON IS ALLEGED TO HAVE INDULGING IN UNFAIR TRADE PRACTICES –
depending upon the nature of one's case, the likely Remedies may be
(i) A Consumer complaint can be filed, depending upon the amount of compensation claimed, before the appropriate District Forum / State Commission or before the National Commission;
(ii) For deficiency in respect of Banking services, Banking Ombudsman may be approached; Please visit RBI website.
(iii) Depending upon the nature of one's case, a complaint to Police or private Complaint, under section 200 read with section 190 of CrPC, 1973, to Judicial Magistrate / Metropolitan Magistrate can be filed;
(iv) A complaint to respective governmental regulatory body of said defaulting company can be made alleging the said company indulging in unfair trade practices; and in the event the said governmental regulatory body refuses to take any action against the said company, then, a Writ Petition can be filed against that governmental regulatory body, in the respective High Court, seeking relief from HC, directing the said governmental regulatory body to take appropriate action against that company indulging in unfair trade practices. What amounts to unfair trade practice is defined in the Consumer Protection Act, in the definition clause.
(v) Where the defaulting Company is a Governmental Company / authority, then, a Writ Petition can be filed against that Governmental Company / authority, in the respective High Court, seeking relief from HC, directing the said Governmental Company / authority, either to compensate the Petitioner / or such other relief as may be permitted under the Statute / Act in which the said defaulting company is constituted.
(vi) A complaint may be made to Competition Commission of India.
The goods will include all kinds of goods (Sale of goods Act) and Services includes – Banking, Financial, Transport / Cargo, Courier, Housing, Cellular services, Internet, Insurance, credit card, Medical, Educational etc.
(FF)
WHEN YOU ARE HOLDING SHARES IN A PRIVATE / PUBLIC LIMITED COMPANY – AND YOU HAVE GRIEVANCE AGAINST A COMPANY OR YOU HAVE A GRIEVANCE AGAINST THE STOCK BROKER OR YOU HAVE A GRIEVANCE AGAINST THE STOCK EXCHANGE –
depending upon the nature of one's case, the likely Remedies may be –
(i) So far as may be permissible under the law, and if there exist any Arbitration clause in the Contract / Agreement or in the absence of Arbitration clause, by consent of the other side, one may adopt Arbitration proceedings for the resolution of the dispute;
(ii) Complaint to SEBI: All these below listed kind of complaints can be made online, at prescribed format therein provided in SEBI website.
1. Against Listed Companies – like – Refund / Allotment / Dividend / Transfer / Bonus / Rights/ Redemption / Interest;
· Pre-listing / Offer Document
· De-listing of Shares / Securities
· Buy-Back of Shares / Securities
· Takeover and Restructuring
· Corporate Governance / Listing Conditions
2. Registrar and Transfer Agents
3. Stock Brokers
4. Sub Brokers
5. Portfolio Managers
6. Stock Exchanges
7. Depository
8. Mutual Fund Companies
9. Collective Investment Schemes
10. Merchant Bankers
11. Debenture Trustees
12. Bankers to an issue
13. Credit Rating Agencies
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