What is Arrest, can a private person make an arrest, what procedure is p...

The word "Arrest" when used in its ordinary sense means the restraint or the deprivation of one's personal liberty to go where he pleases. When used in the legal sense, an arrest consists of taking a person into custody under the authority empowered by law for the purpose of holding or detaining him to answer a criminal charge and preventing the commission of criminal offence. Section 46 of Criminal Procedure Code provides as to how arrest is to be made.

Section 46 says that in making an arrest the police officer or other person making the same shall actually touch and confine the body of the person to be arrested unless there be a submission to the custody by words or action.

In Rahimal v. State of U.P. 1992 Criminal Law Journal 3819, it was observed that Section 46 does not contemplate any formality before a person can be said to be taken in custody. Submission to custody by words or action is sufficient. But investigating officer should give full details as to in what manner the accused was arrested. Single sentence of I.O. regarding arrest without mentioning even the time and place is not sufficient to prove arrest.

ARREST BY PRIVATE PERSON Section 43 of Cr.P.C. provide that any private person may arrest or cause to be arrested any person:

(a) Who in his presence commits a non-bailable and cognizable offence.

(b) Who is a proclaimed offender.

Such private person after the arrest, without unnecessary delay shall make over or cause to be made over the person arrested to police officer or take him to nearest police station.

Sub-section (2) to Section 43 then provides that if the person so arrested appears to come under the provisions of Section 41 of Code, such police officer shall rearrest him. Section 43(3) says if the police officer has reason to believe that the person arrested has committed a non-cognizable offence provisions of Section 42 would apply if such arrested person refuses to give his name and address or gives a false name and address.

In Abdul Habib v. State 1974 Criminal Law Journal 248, it was held that a private person can not arrest any one on mere suspicion or information. The offence must be committed in his view or in his presence. Where therefore an individual seeing a person fleeing with the knife in his hand pursued by others, tries to arrest him his exercise of power of arrest cannot be brought under Section 43.

In Directorate of Enforcement v. Deepak Mahajan AIR 1994 SC 1775, it was observed "The code gives power of arrest not only to a Police Officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person into custody and deal with him according to law. Needless to emphasize that the arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it differently, the taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or surrender. In every arrest, there is custody but not vice-versa and that both the words `custody' and `arrest' are not synonymous terms."

The provision relating to Public Prosecutor, under the Code of Criminal

Section 2(4) of Code says "Public Prosecutor" means any person appointed under section 24 and includes any person acting under the directions of Public Prosecutor.

Since in criminal cases State is in the prosecutor, the State is represented in the Court by the Public Prosecutor. In the High Courts and Court of Sessions the State Government is represented by Public Prosecutor and in the Court of Magistrate by the Assistant Public Prosecutor.

The provisions of the Criminal Procedure Code regarding the appointment of Public Prosecutors are contained in Section 24, which provides as herein under :-

(1) For every High Court, the Central Government, or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.

(2) The Central Government may appoint one or more Public Prosecutors, for the purpose of conducting any case or class of cases in any district or local area.

(3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district :

Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district.

(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district.

(5) No person shall be appointed by the State Government as the Public Prosecutor or Addl. Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4).

(6) Notwithstanding anything contained in sub-section (5) where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Addl. Public Prosecutor only from among the persons constituting such Cadre :

Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment, the Government may appoint a person as Public Prosecutor or Addl. Public Prosecutor, as the case may be from the panels of names prepared under sub- section (4).

(7) A person shall be eligible to be appointed as a Public Prosecutor or an Addl. Public Prosecutor under sub-section (1), (2) or (3) or (6), only if he is in practice as an advocate for not less than 7 years.

(8) The Central Government or the State Government may appoint for the purpose of any case or class of cases, a person who has been in practice for not less than ten years, as a Special Public Prosecutor.

(9) For the purpose of sub-sections (7) and (8), the period during which a person has been in practice as a pleader, or has rendered (whether before or after commencement of this Code) service as a Public Prosecutor or as an Addl. Public Prosecutor or as Assistant Public Prosecutor or other Prosecution Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate.

In State of Rajasthan v. Manohar 1981(2) SCC 525, it was held that notification by State Government appointing Advocate General is to be public prosecutor under section 24 Criminal P.C. - Another Notification by Advocate General authorising law officers including Deputy Advocate General to act, plead and argue in all matters covered by code - Held - Deputy Advocate General was public servant.

In R. Sarala v. T.S. Velu and others AIR 2000 SC 1731, it was observed that role of Public Prosecutor is inside the court and it commences after investigating agency presents the case in court after completion of investigation. Therefore, involving Public Prosecutor in investigation is injudicious and an investigating officer can not be directed to consult the Public Prosecutor before filling his report under section 173 Cr. P.C.

According to section 25 an Assistant Public Prosecutor is appointed to conduct prosecutions in the Courts of Magistrates. They are appointed by the State Government. No police officer is eligible for appointment as such but in a case for which no Assistant Public Prosecutor is available, the District Magistrate may appoint any other person to be Assistant may also be so appointed but such police officer should not be below the rank of an Inspector or and he should not have participated in the investigation of the case being prosecuted. A new sub-section (1-A) to Section 25 of the Code has been inserted by the Amendment Act, 1978, by which Central Government may also appoint Assistant Public Prosecutors for conducting cases in the Court of Magistrate.

In S.B. Shane v. State AIR 1995 SC 1628, it was observed that according to section 25 there is statutory obligation imposed on the state or Central Government to appoint one or more Asst. Public Prosecutors in every district for conducting prosecutions in the Magistrate Courts and of making such Assit. Public Prosecutors independent of the Police Department by constituting separate cadre of such Asst. Public Prosecutor and creating a separate Prosecution Department and its Head directly responsible to Govt. for such Department's work.

The various classes of Criminal courts and their powers

Chapter II of Code and Sections 6 to 24 deal with the constitution of Criminal Courts. Section 6 of Code says -

Besides the High Courts and the Courts constituted under any law, other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely :-

(i) Courts of Session;

(ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates;

(iii) Judicial Magistrates of the second class; and

(iv) Executive Magistrates.

Then Section 7 of the Code says that every State shall consist of Session division and each Session division, for the purpose of this Code, shall be district or consist of districts. In substance provision under section 7 is the same as was provided in old code but as a result of separation of judicial functions of magistrate from those of executive consequential changes were brought. Then Section 8 of code says that State Government may by notification declare any area in the State, comprising a city or town whose population exceeds one million shall be metropolitan area and city of Ahmedabad declared to be metropolitan area. State Government have also been empowered to extend, reduce or alter the limits of metropolitan area.

Section 9 of Code says -

(1) The State Government shall establish a Court of Session for every sessions division.

(2) Every court of Session shall be presided over by a Judge, to be appointed by the High Court.

(3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session.

(4) The Sessions Judge of one Sessions division may be appointed by the High Court to be also an Additional Sessions Judge of another division, and in such case he may sit for the disposal of cases at such place or places in the other division as the High Court may direct.

(5) Where the office of the Sessions Judge is vacant, the High Court may make arrangements for the disposal of any urgent application which is, or may be, made or pending before such Court of Session by an Additional or Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by a Chief Judicial Magistrate, in the sessions division; and every such Judge or Magistrate shall have jurisdiction to deal with any such application.

(6) The Court of Session shall ordinarily hold its sitting at such place or places as the High Court may, by notification, specify; but, if, in any particular case, the Court of Session is of opinion that it will tend to the general convenience of the parties and witness to hold its sittings at any other place in the sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the cases or the examination of any witness or witnesses therein.

So Section 9 deals with the power of State Government to establish Courts of Sessions and the power of High Court to appoint judges thereto and to direct at what places such courts shall hold its sittings. The State Government is bound to establish a Court of Session for every Sessions division then section 10 declares that all Assistant Sessions Judges shall be subordinate to Sessions Judge, who will time to time make rules as to distribution of business among such Assistant Sessions Judges.

Then Section 11 provides -

(1) In every district (not being a metropolitan area), there shall be established as many Courts of Judicial Magistrates of the first class and of the second class, and at such places, as the State Government may, after consultation with the High Court, by notification, specify:

Provided that the State Government may, after consultation with the High Court, establish, for any local area, one or more Special Courts of Judicial Magistrates of the first class or of the second class to try any particular case or particular class of cases, and where any such Special Court is established, no other court of Magistrate in the local area shall have jurisdiction to try any case or class of cases for the trial of which the such Special Court of Judicial Magistrate has been established.

(2) The presiding officers of such Courts shall be appointed by the High Court.

(3) The High Court may, whenever, it appears to be expedient or necessary, confer the powers of a Judicial Magistrate of the first class or of the second class on any member of the Judicial Service of the State, functioning as a Judge in a Civil Court.

The Section 12 says that in every district (not being a metropolitan area) High Court shall appoint a Judicial Magistrate of first class to be Chief Judicial Magistrate and Additional Chief Judicial Magistrate and Sub- divisional Judicial Magistrate. Then Section 13 of Code says that High Court upon the request of Central or State Government, confer upon any person who hold or has held any post under the Government all or any powers conferrable under the code to a Judicial Magistrate of first or second class for particular case or class of cases provided such person possesses such qualification and experience in legal affairs as High Court requires and such Magistrate shall be called "Special Magistrate" who will be appointed for term not exceeding one year at a time. Then section 14 of Code says subject to control of High Court, Chief Judicial Magistrate may from time to time define local jurisdiction within which Magistrates as appointed under section 11 or 13 may exercise any power as conferred under this Code. Then Section 15 says every Chief Judicial Magistrate shall be subordinate to Sessions Judge and every other Judicial Magistrate, shall be subject to general control of Sessions Judge be subordinate to Chief Judicial Magistrate who shall from title to time make rules or make order as to distribution of business among Judicial Magistrates.

Thereafter Sections 16, 17, 18 and 19 deal regarding Metropolitan Magistrate on similar provisions as stated above. Then section 20 says that in every District and Metropolitan area, the State Government may appoint any numbers of Executive Magistrates and one of them shall be appointed as District Magistrate. State Government may appoint an Executive Magistrate as Additional District Magistrate and may place any such executive magistrate in sub-division who shall be called `Sub-divisional Magistrate. Section 21 provides regarding appointment of Special Executive Magistrate. Then Section 22 says that subject to control of State Government, District Magistrate from time to time, may define local limits of jurisdiction of Executive Magistrates. All Executive Magistrates, other than Additional District Magistrate shall be subordinate to District Magistrate who will make rules regarding distribution of work among Executive Magistrate. (Section 23).

Power of Courts :- Chapter III of Codes deal with power of different criminal courts. Section 26 deals with the description of offences cognizable by several courts constituted under the Code. Section 26(a) says any offence of I.P.C. may be tried by

(i) High Court or

(ii) Court of Session or

(iii) any Judicial Magistrate by which such offence is shown in First Schedule, to be triable.

Section 26(b) says any offence under any other law shall be tried by court as mentioned in that law and when no such court is so mentioned, then it will be tried by

(i) High Court or

(ii) Court by which such offence is shown in First Schedule to triable.

Section 27 of Code then says about jurisdiction of court in case of Juveniles.

Then Section 28 says -

"(1) A High Court may pass any sentence authorised by law.

(2) A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law; but any sentence of death passed by such Judge shall be subject to confirmation by the High Court.

(3) Any Assistant Sessions Judge may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years."

Section 29 of Code says -

"(1) The Court of the Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years.

(2) The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees, or of both.

(3) The Court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding one thousand rupees, or of both.

(4) The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court of a Magistrate of the first class."

Then Section 30 says -

(1) The Court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law :

Provided that the term -

(a) is not in excess of the powers of the Magistrate under Section 29;

(b) shall not, where imprisonment has been awarded as part of the substantive sentence, exceed one-fourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine.

(2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under Section 29.

Difference between Investigation, Inquiry and Trial

Section 2(g) of Code of Criminal Procedure defines the term : "Inquiry" "Inquiry means every inquiry other than a trial conducted under this code by a Magistrate or Court."

Term "Inquiry" is wider than `b'. In V.C. Shukla v. State through C.B.I. AIR 1980 SC 962. The Supreme Court has held that from the time the accused appears or is produced before the Magistrate with the Police Report under Section 170 of Code and the Magistrate proceeds to enquire whether Section 207 of Code has been complied with and then proceeds to commit the accused to the court of Session, the proceedings before the Magistrate would be an inquiry as contemplated by Section 2(g) of the Code."

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So "Inquiry" is a name given to a proceeding conducted under the Code of Criminal Procedure by a Magistrate or a Court, other than a trial for ascertaining or verifying facts with a view to take some action under the code. Ambit of Inquiry is very wide and comprehensive and include proceedings under Sections 340, 144, 145, 176, 446 of Cr.P.C.

Section 2(h) of Code define the expression "Investigation" as "Investigation includes all the proceedings under this code for the collection of evidence, conducted by Police Officer or by any person (other than Magistrate) who is authorized by a Magistrate in this behalf."

Supreme Court recently in Navin Chandra N. Majithia v. State of Meghalaya 2000(4) Recent Criminal Reports 476 has observed "The Code contemplates the following steps to be carried out during such investigation (1) Proceeding to spot (2) Ascertainment of the facts and circumstances of the case (3) Discovery and arrest of suspected offender (4) Collection of evidence relating to the commission of offence which may consist of (a) the examination of various persons (including accused) and reduction of their statement into writing (b) search of places, seizure of things considered necessary for investigation and to be produced at the trial. (5) Formation of opinion as to whether on material collected, there is a case to place the accused before Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge sheet under Section 173."

DISTINCTION BETWEEN INQUIRY AND INVESTIGATION : An `Inquiry' relates to a proceeding held by a court or Magistrate while an `Investigation' relates to steps taken by a police officer or a person other than a Magistrate. The object of Inquiry is to determine `prima facie' the truth of falsity of certain facts in order to take further action thereon. Object of Investigation to ascertain the facts and collecting the evidence relating to commission of crime and to arrest the offender.

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Term "Trial" has not been defined in the Code. Trial may be said to be a judicial proceeding which ends either in conviction or acquittal of the accused. If in a proceeding the court has no power to convict or acquit, it is no `trial'. Trial includes all steps which a criminal court adopts subsequent to the framing of charge and until the pronouncement of judgement.

INQUIRY AND TRIAL - DISTINCTION : Inquiry is the second stage of a criminal proceeding and is always to be conducted by a Magistrate. Term `Trial' is distinguished as an original judicial proceeding. A judicial proceeding in a criminal case which ends either in conviction or acquittal of the accused, is a proceeding in which evidence is or may be legally taken on oath. The proceedings in a summon case after the appearance of accused or in a warrant case, after the charge is drawn are trials . In criminal matters, the inquiry is something different from trial. `Inquiry stops when trial begins so all proceedings before Magistrate, before framing the charge which do not result in conviction or acquittal can be termed as `Inquiry'. Trial presupposes the idea of an offence. But inquiry relates or matters which are not offences .

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Cognizable and Non-Cognizable Offences, Bailable and Non Bailable Offenc...

(i) Cognizable and Non-Cognizable Offences.
(ii) Bailable and Non-Bailable Offences.
(iii) Summons Cases and Warrant Cases.

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Cognizable and Non-Cognizable Offence Section 2(c) of Code define "Cognizable Offences and Cognizable Cases" as cognizable offence means offences for which and cognizable case means cases in which police officer may in accordance with first schedule of Criminal Procedure Code or under any other law for the time being in force arrest without warrant.

Then Section 2(l) of Code defines Non-Cognizable Offences and Non-Cognizable Cases as non-cognizable offence means offences for which and non-cognizable case means cases in which police officer has no authority to arrest without warrant.

So difference between cognizable and non-cognizable offences lies in the fact that in case of cognizable offence, a police officer can arrest without warrant whereas in Non-Cognizable offences police officer can not arrest any one without warrant.

Column 4 of First Schedule attached to the Code of Criminal Procedure mentions which are cognizable offences and which are non-cognizable offences. In case of commission of cognizable offence, if matter is reported to police, then police will record the First Information Report under Section 154 of Code and shall proceed to investigate the matter and arrest the accused without any warrant or Order of Magistrate. But in case of Non-Cognizable offence, police can not investigate without Order of Magistrate. Section 155 of Code provides procedure to be adopted by police in case of non-cognizable offences

Bailable and Non-Bailable Offences Section 2(a) of Code of Criminal Procedure defines `Bailable and Non-Bailable Offences' Section 2(a) says "Bailable offence means an offence which is shown as bailable in the first schedule or which is made bailable by any other law for the time being in force and non-bailable offence means any other offence.

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Column 5 of first schedule in its first part mention which offence of Indian Penal Code is bailable and which is non-bailable. Second part of the first schedule of Code deals with offences, other than that of Indian Penal Code and provides that all those offences which are punishable with imprisonment for term of 7 years or more are non-bailable and all offences punishable with imprisonment for term of three years or more are also non-bailable but offence punishment of which is imprisonment for term less than three years are bailable.

Chapter XXXIII of Code contains provisions regarding bail. Section 436 of Code provides as to bail in bailable offences Bail in bailable offences is a matter of right. Then Section 437 of Code provides as to granting of bail by Magistrate in non-bailable offences . It also provides that Magistrate shall not grant bail in offence punishable with death or imprisonment for life. However in case of person less than 16 years of age or woman or sick or infirm person, Magistrate may grant bail even in case of offences punishable with imprisonment for life or with death. Then Section 438 of Code provides for Anticipatory bail and Section 439 of Code then provides for bail by Session Court or High Court in non-bailable offences

SUMMON AND WARRANT CASES Section 2(w) of Code says `Summons case', means a case relating to an offence and not being warrant case.

According to Section 2(x) `Warrant case' means a case relating to an offence punishable with death, imprisonment for life or imprisonment for term exceeding two years.

So offences punishable with death or imprisonment for life or imprisonment for term exceeding 2 years are warrant cases and any other cases are summons cases. Following are the points of difference between two:

(a) For trial of Warrant Case by Magistrate two procedures are prescribed. One is adopted by Magistrate in cases instituted on Police report (Sections 238 to 243 and 248 Cr.P.C.) and other is for case instituted otherwise than on police report ( Sections 244 to 250 Cr.P.C.). Whereas, there is only one procedure prescribed for trial of Summons Cases (Sections 251 to 259).

(b) Trial of Warrant Cases as Summons Cases is an irregularity which vitiates the trial if prejudice is caused to accused. But trial of Summons Cases as Warrant Cases is only curable irregularity within the meaning of Section 465 of Code.

(c) Where a Warrant Case is tried as Summons Case and accused is acquitted, then Order of acquittal will operate as discharge under Section 245 and where a summon case is tried as a Warrant Case and accused is discharged under Section 245, it will operate as Order of acquittal.

(d) In a Warrant Case, framing of charge is necessary, whereas in Summon Cases framing of charge against accused is not necessary.

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Origin and developments of Law of Criminal Procedure

History of origin and developments of Law of Criminal Procedure. Discuss important changes introduced and Scope and Object.

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Ans. History of Law of Procedure in Criminal Courts - Previous to 1882 there was no uniform law of Criminal procedure for the whole of India. There were separate Acts, mostly rudimentary in their character, to guide the procedure of numerous courts in provinces and in the Presidency-towns. These Acts of procedure were replaced by Act X of 1882 which was Code of Criminal Procedure 1882 (Act X) which gave for the first time a uniform law of procedure for whole of India and it was supplanted by a new Code in 1898.

The Code of Criminal Procedure 1898 underwent drastic amendments at the hands of legislature in 1923 and since 1923 changes were made from time to time by minor Amendment Acts.

The Code again underwent drastic amendments in 1955 by Code of Criminal Procedure (Amendment) Act 26 of 1955. Schemes for the separation of judicial and executive functions of Magistrate were introduced by State legislatures from time to time and the Code was amended accordingly.

There was a constant demand for the revision of the Code partly to simplify the procedure and partly to introduce a uniform system in the country in relation to Judicial and Executive functions of Magistrates. The Law Commission therefore submitted a revised draft for the Code in its 13th report and thereafter it had undergone some changes in the hands of the joint select committee of the Parliament, and was passed into present form in 1973

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Important Changes to Act 2 of 1974 : Following changes were brought about with a view to speeding up the disposal of Criminal Cases:-

(i) The preliminary inquiry which precedes the trial by Court of Session, known as "Committal proceedings" was abolished.

(ii) the scope of summary trials was widened by including offences punishable with imprisonment upto one year instead of six months.

(iii) the power of revision against "interlocutory orders" was taken away.

(iv) the provisions for compulsory stoppage of proceedings by subordinate court on mere intimation from a party of his intention to move a higher court for transfer of the case was omitted.

(v) Provision was made for service of summons by registered post in certain cases.

(vi) Provisions for legal aid to indigent persons were made.

(vii) Courts have been empowered to order for payment of compensation by accused to victims of crime

Scope and Object of Code The object of the Criminal Procedure Code is to provide a machinery for the punishment of offenders against the sub stantive criminal law. It prescribes the procedure for the trial of offences which the Indian Penal Code defines. Section 4 of this Code provides that all offences under the Code shall be investigated, enquired into, tried and otherwise dealt with according to the provisions of this Code. It also provides that offences under a law other that the Indian Penal Code will also be tried according to the provisions of the Procedure Code, but subject to any provision in that other law in regard to investigation, inquiry or trial [Section 4(2)]. The Penal Code is thus the substantive law, of which the Procedure Code furnishes the adjective law to put in force its provisions. The Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines in accord with our notions of natural justice.

In Wilie Staney v. State of M.P., AIR 1956 SC 116, it was observed "The object of code is to ensure that accused person gets full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice, under the code as in all procedural laws, certain things are regarded as vital. Disregard of provisions of that nature is fatal to trial and at once invalidates the conviction. Other are not vital and what ever the irregularity, they can be cured. Chapter 45 of the code has carefully classified certain kinds of errors and expressly indicates how they are to be dealt with.

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Historical Background of Administrative Law and reasons for its growth

Historical Background of Administrative Law In England, by and large, the existence of Administrative Law as a separate branch of law was not accepted until the advent of the 20th century. In 1885, Dicey in his famous thesis on rule of law observed that there was no Administrative Law in England. In 1914, however, Dicey changed his views. In his famous book `Law and the Constitution', he admitted that during the last thirty years, due to increase of duties and authority of English officials, some elements of droit had entered into the law of England Administrative Law was in existence in India even in ancient times. The kings observed the rule of Dharma and administrators and nobody claimed any exemption from it. With the establishment of East India Company and the advent of the British Rule in India, the powers of the Government had increased. Many Acts, statutes and the British Government, regulating public safety, health, morality, transport and labour relations, passed legislations. Since Independence, the activities and the functions of the Government have further increased. The philosophy of a welfare State has been specifically embodied in the Constitution of India. The Constitution of India, which clearly mentions the welfare aspect of the State, and provides for an elaborate system of judicial control under Articles 32, 226 and 227 does accord recognition to the growing importance of this subject. The Constitution also envisages `tribunals', public sector and government liability, which are important aspects of Administrative Law. The Constitution of India visualizes a profound social transformation through law and Administrative Law must play a very significant role in channeling the State effort so as to make it consistent with the democratic values built into it. The following factors are responsible for the rapid growth and development of administrative law : (1) There is a radical change in the philosophy as to the role played by the State. The negative policy of maintaining `law and order' and of `laissez faire' is given up. The state has not confined its scope to the traditional and minimum functions of defence and has adopted the positive policy and as a welfare State has undertaken to perform varied function. (2) The judicial system proved inadequate to decide and settle all types of disputes. (3) The legislative process was also inadequate. It had no time and technique to deal with all the details. (4) There is scope for experiments in administrative process. Here a rule can be made, tried for some time and if it is found defective, it can be altered or modified within a short period. (5) The administrative authorities can avoid technicalities. Administrative Law represents functional rather than a theoretical and legalistic approach. (6) Administrative authorities can take preventive measures. In many cases, these preventive actions may prove to be more effective and useful than punishing a person after he has committed a breach of any provision of law. (7) Administrative authorities can take effective steps for enforcement of the aforesaid preventive measures e.g. suspension, revocation and cancellation of licences, destruction of contaminated articles, etc., which are not generally available through regular courts of law.

Define and Explain - Administrative Law, Discuss its nature and scope

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It is difficult to evolve a scientific, precise and satisfactory definition of Administrative Law. Many jurists have made attempts to define it, but none of the definitions has completely demarcated the nature, scope and content of administrative law. The main object of this law is to protect individual rights.

Administrative law is a branch of public law, which deals with the structure, powers and functions of the organs of administration; the limits of their powers and the methods, by which their powers are controlled, including the legal remedies available against them.

Prof. Jennings defines administrative law as the "law relating to administration. It determines the organization, powers and duties of administrative authorities".

H.L.A. Hart defines "Broadly conceived, administrative law includes law, that is made as well as the law, that controls the administrative authorities of the Government".

According to Wade, Administrative Law is `the law relating to the control of governmental power'. According to him, the primary object of Administrative Law is to keep powers of the Government within their legal bounds so as to protect the citizens against their abuse.

According to K.C. Davis , "Administrative Law is the law concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action".

Garner also adopts the American approach advocated by K. C. Davis. According to him, Administrative Law may be described as "those rules which are recognised by the courts as law and which relate to and regulate the administration of Government".

Dicey has defined administrative law as, "It is that portion of a nation's legal system, which determines the legal status and liabilities of all State officials, and secondly, defines the rights and liabilities of private individuals in their dealings with public officials, and thirdly, specifies the procedure by which those rights and liabilities are enforced." This definition is narrow and restrictive in so far as it does not take into consideration many aspects of administrative law, such as public corporations etc.

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His definition is mainly concerned with one aspect of administrative law, namely, judicial control of public officials.

So from above discussion it can be said that administrative law deals with structure, powers and functions of different administrative authorities and procedure to be followed by them in exercising powers and discharging duties so as to protect rights of any aggrieved person who has been affected by action of such authorities.

Administrative Law deals with the organization and powers of administrative authorities. The emphasis on the organization is only to the extent that it is necessary to understand the powers, characteristics of action, procedure for the exercise of those powers and the control mechanism provided therein.

In simple words, administrative law is the science of powers of administrative authorities. 

The nature of their powers can be studied under three heads :

(1) Legislative or Rule-making,

(2) Judicial or Adjudicative,

(3) Purely Executive.

The scope of Administrative Law in India is very much similar to that of United States. With the growth of the powers of administrative authorities the question as to how to control these powers became very important.

Administrative Law deals with the powers of the administrative authorities, the manner in which the powers are exercised and the remedies, which are available to the aggrieved persons, when these authorities abuse those powers.

The key function of administrative law is to find the ways, in which the administration could be kept within limits, so that discretionary power may not become arbitrary powers. The task of Administrative Law is to reconcile, in the field of administrative action, democratic safeguard and standards of fair play with the effective conduct of Government.

As has been rightly observed by Lord Denning : "Properly exercised, the new powers of the executive lead to the Welfare State; but abused they lead to the Totalitarian State". The main object of the study of Administrative Law is to unravel the way in which these administrative authorities could be kept within their limits so that the discretionary powers may not be turned into arbitrary powers..

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லஞ்ச ஒழிப்புத்துறை வரம்புக்குள் டி.என்.பி.எஸ்.சி -சென்னை உயர்நீதிமன்றம் தீர்ப்பு, TNPSC within Anti-Bribery Department - Chennai High Court Verdict

தமிழ்நாடு அரசு பணியாளர் தேர்வாணைய தலைவர் மற்றும் உறுப்பினர்களை ஊழல் கண்காணிப்பு ஆணையம் மற்றும் லஞ்ச ஒழிப்பு துறையின் வரம்புக்குள் கொண்டு வரும் வகையில் கடந்த 2011 ஆம் ஆண்டு ஆகஸ்ட் மாதம் தமிழக அரசு அரசாணை பிறப்பித்தது.

இந்த அரசாணையை எதிர்த்து தமிழ்நாடு அரசு பணியாளர் தேர்வாணையத்தின் அப்போதைய தலைவர் மற்றும் உறுப்பினர்கள் சென்னை உயர்நீதிமன்றத்தில் 2011ம் ஆண்டு வழக்கு தொடர்ந்து இருந்தனர்.இந்த வழக்கு நிலுவையில் இருந்தபோது அரசு பணியாளர் தேர்வாணைய தலைவர் மற்றும் உறுப்பினர்களை ஊழல் கண்காணிப்பு ஆணையம் மற்றும் லஞ்ச ஒழிப்புத்துறை வரம்புக்குள் கொண்டு வந்து தமிழ்நாடு அரசு பணியாளர் தேர்வாணைய விதிகளில் திருத்தம் செய்யப்பட்டது.

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இந்தத் திருத்தத்தை எதிர்த்தும், அதை 2011 ஆம் ஆண்டிலிருந்து முன் தேதியிட்டு அமல்படுத்துவதற்கு எதிர்ப்பு தெரிவித்தும் வழக்கு தொடரப்பட்டிருந்தது.இந்த வழக்குகளை விசாரித்த தலைமை நீதிபதி கங்கா பூர்வாலா மற்றும் நீதிபதி பரத சக்கரவர்த்தி அமர்வு, ஊழல் தடுப்புச் சட்ட பிரிவின்படி அரசு பணியாளர் தேர்வாணைய தலைவர் மற்றும் உறுப்பினர்கள் அரசு ஊழியர்களாக வகைப்படுத்தப்பட்டுள்ளதால், அவர்களை ஊழல் கண்காணிப்பு ஆணையம் மற்றும் லஞ்ச ஒழிப்புத்துறை வரம்புக்குள் கொண்டு வந்து அரசு பணியாளர் தேர்வாணைய விதிகளில் திருத்தம் கொண்டு வந்ததை தன்னிச்சையானது என கூற முடியாது என தெரிவித்து விதிகளை உறுதி செய்து தீர்ப்பளித்தது. 

தமிழ்நாடு அரசு பணியாளர் தேர்வாணைய விதிகளில் திருத்தம் கொண்டு வர ஆளுநருக்கு அதிகாரம் உள்ளதாக குறிப்பிட்ட நீதிபதிகள், இந்த திருத்த விதிகள் காரணமாக  தேர்வாணைய தலைவர் மற்றும் உறுப்பினர்களின் உரிமை எந்த விதத்திலும் பாதிக்கவில்லை என்றும் சுட்டிக்காட்டி உள்ளனர்.

இந்த விதிகளை முன் தேதியிட்டு அமல்படுத்துவது தவறில்லை எனவும், இந்தத் திருத்த விதிகள் காரணமாக அரசு பணியாளர் தேர்வாணையத்தின் தன்னாட்சி அந்தஸ்து எந்த விதத்திலும் பாதிக்கப்படவில்லை என்றும், தவறுகளுக்காக வழக்கு தொடர்வதில் இருந்து தேர்வாணைய தலைவர் மற்றும் உறுப்பினர்களுக்கு எந்த சட்டப் பாதுகாப்பும் வழங்கப்படவில்லை என்றும் நீதிபதிகள் தங்கள் உத்தரவில் தெளிவுபடுத்தி உள்ளனர்.

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 சட்ட விதிகள் இல்லாத நேரத்தில் தேர்வாணைய தலைவர் மற்றும் உறுப்பினர்களை ஊழல் கண்காணிப்பு ஆணையம் மற்றும் லஞ்ச ஒழிப்புத்துறை வரம்பு கொண்டு வந்து 2011ம் ஆண்டு பிறப்பிக்கப்பட்ட அரசாணைக்கு எந்த  முக்கியத்துவமும் இல்லை என்றும் நீதிபதிகள் தீர்ப்பளித்துள்ளனர்.