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Law in Practice
Case Studies from the Field
Volume I
by
Munish Moudgil, IAS
Administrator CADA,
Bheemarayangudi,
Shanpur Taluk,
Gulbarga District,
Karnataka
ACKNOWLEDGMENT
This Volume I in a series of two volumes is a result of tremendous encouragement I received from Mrs Amita Prasad, IAS, Director General, Administrative Training Institute, Mysore; who, having guided and supported my work as Deputy Commissioner Uttara Kannada (Karwar) as the then Regional Commissioner Belgaum, goaded me into taking effort to write down this Volume.
The actual work on this volume would not have been possible but for the sacrifices that my wife Roopa D, IPS, Superintendent of Police, Internal Security Division, Bangalore, made in taking care of all things around me and regularly reposing faith in my abilities.
Last but not the least, I thank almighty and my parents for all the gifts of life.
Munish Moudgil, IAS
Foreword
The “Law” in a living society and nation is an evolving organic entity. Nobody masters law by cramming the statutes and rules; rather, appreciation of the fundamental legal principles and internalisation of basic postulates of law does the trick. In turn this appreciation comes from real-life implementation of the law and solving of real issues with legal wisdom.
Law has some fundamental principles which once mastered and imbibed would equip you with an internal understanding and appreciation of law and, thereupon, dealing with various laws and rules is relatively easy. It is in this sense that it can be said that once you have finished reading this collection of real life field practices and principles of law and imbibed the essence therein that you would be a master of “real” law.
This claim may sound too big to be true yet it is true. It can best be understood by the analogy that once you have learnt how-to-fish and then the claim “hereinafter you shall never go hungry” – would be true.
It has been correctly said that real knowledge of law is just like someone knowing the directions once there is a compass in his hands. The attempt through these real life write-ups is to build this “legal compass” within you. Once that is achieved you are not likely to go astray in the trackless legal terrain.
”Law is codified common sense” and to this is added established social and other practices, formalized customs and what emerges is what we commonly understand as the “Law of the Land”. A well trained legal mind can arrive at what law mandates in a given situation simply by relying on this sensitively developed “legal compass” within.
The essentials of this “legal compass” or fundamental postulates of law are as follows –
1. Common Sense
2. Ideals of Fairness, Justice and Principles of Natural Justice
3. And knowledge or sensitivity to the formalised social, cultural, and other practices.
It is true that at times the 3rd point contradicts the first two in which case one ought to follow the first two essentials and bring a change in the 3rd one.
The approach in this Volume is essentially case study based and the chapters have been laid out as follows –
1. The Chapters are divided subject wise. Each chapter focuses on a major area or subject that an IAS officer deals with. Wherever a class or a group of provisions are very important (for example Security Provisions or section 144 provision of Code of Criminal Procedure) such provisions have been dealt with through a separate chapter.
2. The narration of real life experiences of implementation and enforcement of law is the methodology adopted to explain law and create its understanding.
3. It is the importance of a provision that decides the coverage it gets and importance is based on the centrality of the said provision in work of an IAS Officer in the first ten years of service.
4. The matter in the chapters is arranged as follows –
(a) Introduction describes the problem at hand and the legal framework available to solve it
(b) the legal procedures are captured after the introduction.
(c) Wherever applicable the finer legal nuances are brought out.
(d) Specific examples are then taken up of actual implementation of the said legal provisions and discussed to create better understanding of law and its practices
5. In the end Chapter 7 gives important provisions of the Code of Criminal Procedure along with commentary in a tabular form. The chapter then gives brief commentary and attempts to create basic understanding of the related laws and provisions such as Indian Penal Code, Indian Evidence Act. Therefore, Chapter 7 gives a synoptic commentary on the legal provisions and is a ready reference
It is imperative to understand that “Law” is not a set of static unchanging commands written in stone but is an evolving species. Hence, in many situations the legal grey areas have been used by interpreting and implementing law with an aim to achieve greatest good of the maximum number of people as well as goals of a welfare and judicious State.
The most important learning point is to know that the legal interpretation of law as per underlying constitutional provisions and Preamble of Indian Constitution for greatest good of the largest number of people is always going to be upheld by the Courts.
Last but not the least - this volume need not be read cover to cover, and is deliberately written in a fashion that each chapter and even many paragraphs are self complete and can be read as per need and wish of the reader.
Table of Contents
CHAPTER / SUBJECT / PAGE1.
Public Nuisance / 1. Code of Criminal Procedure (CrPC)
a. Legal and Technical Points under Code of Criminal Procedure ………………..……….
b. Examples …………………………..……….
i. Overloaded Iron-Ore Trucks…………
ii. Illegal Parking ……………………...
iii. Road Encroachment ……….………
2. Public Nuisance under Indian Penal Code
a. Introduction ……………………..………….
b. Commentary on Legal Provisions ………….
c. Examples ……………………….………….
i. Arrest Orders of District Education Officer ………………….………….
ii. Arrest of Secretary Gram Panchayat
iii. Failure of Electricity, Irrigation, Telephony etc ………………………. / 08
08
13
13
18
21
22
22
22
24
24
25
26
2.
Security Proceedings under CrPC / 1. Introduction …………………………………….
2. Legal and Technical Details …………………...
3. Example …………………………………………
a. Peculiar Situation ………………………..
b. Solution …………………………………. / 27
27
29
30
20
3.
The Essential Commodities Act and Orders / 1. Introduction …………………………………….
2. The Basics of the E C Act 1955 ……………….
3. Examples ……………………………………….
i. Trucks and buses running on Kerosene ……..
4. Legal Nuances …………………………………. / 33
33
36
36
38
4.
False Evidence / 1. Introduction & Commentary
2. False Evidence
3. The Legal Zugzwang / 40
42
42
5.
Encroachments & Revenue Issues / 1. Introduction …………………………………….
2. Issues in Encroachment Removal ……………..
3. Encroachment Removal Methods …………….
4. Examples ……………………………………….
i. Karwar (Uttara Kannada District) ………….
a. Shops on Road in front of Bus Stand …...
b. Shopping Complex Overhanging a Road
c. Road Side Temporary Shops ……………
d. General Demolition ……………………..
e. Encroachment Removal in Taluk/Block Hq
f. Rehabilitation ……………………………
ii. Titlagarh (Bolangir district, Orissa) …………
iii. Baliguda demolition under section 133CrPC
iv. Encroachment Removal and 144CrPC ……..
5. The Salient Learning Points in Examples Above
i. Divide and Rule …………………………….
ii. Carrot & Stick ………………………………
iii. Time is the Essence …………………………
iv. Be Firm and Knowledgable …………………
v. Planning & Ability to think on-the-spot ……..
vi. Stubbornness ……………………………….. / 46
47
47
47
47
48
48
49
49
50
50
51
53
54
56
57
58
58
59
59
59
6.
Miscellaneous Examples / 1. 144 or 107? ………….
2. Illegal Raid …………. / 60
64
7.
Code of Criminal Procedure and Important Statutes / 1. Introduction …………..
2. Code of Criminal Procedure 1973 …………..
3. Related Statutes ………….
a. Indian Penal Code ………….
b. Indian Evidence Act …………. / 67
68
87
87
89
CHAPTER 1
PUBLIC NUISANCE
Law is a ruthless master but a better servant
2.1 Code of Criminal Procedure (CrPC)
The provisions relating to the Public Nuisance under the Code of Criminal Procedure give wide ranging powers to the Executive, the full purport and usage of which are yet to be fully understood and applied. These provisions under section 133CrPC and other related sections of the Code of Criminal Procedure can be used with telling effect in many administrative issues and problems faced commonly. Many elements in the examples cited hereunder are common to each other yet each case is dealt with in a self complete fashion even at the cost of repetition.
Legal and Technical Points under Code of Criminal Procedure
The provisions for dealing with public nuisance under CrPC are contained in section133 to section143. The FLOW CHART that briefly captures the procedure for the same is given hereunder –
The following points of the order under 133CrPC need finer appreciation –
1. The action under section 133CrPC can always be initiated if the facts of a case require so notwithstanding any other legal remedies that might be available to address the same. This position of law has been up-held in numerous judgments in various Hon’ble High Courts and even by Hon’ble Supreme Court. The case of Ratlam Municipal Corporation is a famous one in this regard. For example even when there are provisions under Municipal Zoning Regulations and City Master Plan which prohibit opening of industries in residential areas, the action under section 133CrPC can also be initiated to control as well as proscribe such an industry in a residential area. Another example could be that even when action under Air/Water Pollution Control Acts could be taken still if situation so requires the action can also be taken under section 133CrPC and that also in addition to action under Pollution Control Acts.
2. The order under section 133CrPC is always directed against specified person or persons and cannot be directed against public at large (like an order, say, under section 144CrPC)
3. The order under section 133 CrPC cannot be passed ex-parte or without affording persons (against whom it is sought to be passed) an opportunity of being heard. However, in case persons do not turn-up or fail to submit replies within reasonable time (you may specify it in your notice itself) AFTER SERVICE OF NOTICE, the suitable order can still be passed with respect to such persons.
4. The initial notice is technically speaking a “CONDITIONAL ORDER” asking the respondent to show cause why the same should not be made ABSOLUTE.
5. The action under section 133CrPC can be initiated either on a private complaint or official report or even suo-moto (in which case take subsequent field report before passing the final order).
6. A report from local officers is advisable and can be the start point or it can be subsequent additional field report.
7. In any case you can always seek report from local Executive Magistrate/Tehsildar on facts of the case at hand before passing suitable orders.
8. There is provision that in case a public nuisance ordered to be removed is not removed within the time frame allowed for doing so then the same may be removed through governmental agencies and the costs of its removal recovered from the defaulter and in case of non-payment recoveries can be effected through distress warrants.
9. The action to remove public nuisance that the defaulter fails to remove and recovery of cost of such a removal is in addition to any criminal prosecution that can be launched under section 188 of Indian Penal Code for violation of orders passed under section 133CrPC.
2.1.1 EXAMPLES
The following examples will give insight into real working of the section 133CrPC
(a) OVERLOADED IRON-ORE TRUCKS
Problem Description
In the coastal district of Uttara Kannada (also known as Karwar) in Karnataka the incorrigible menace of overloaded iron-ore trucks had wrecked havoc to the roads besides causing uncountable suffering due to non-adherence to pollution control norms, endless road traffic jams due to poor driving habits etc.
Everyday around 5000 trucks overloaded with iron-ore used to come to the district for its onward export through two state ports (Belekere and Karwar). Belekere accounted for inflow of about 4000trucks per day while about 1000trucks reached karwar port everyday. Practically, both Karwar and Belekere ports are on National Highway 17 (NH17). While Karwar port is literally on NH17, Belekere port can be reached by travelling for about 4KM on Belekere Village road off the NH17. The yearly export turnover from these two ports was in excess of Rs1500Crores.
The local groups filed a petition in the Court of District Magistrate under section 133CrPC seeking control and regulation of these activities. After detailed hearing final orders were passed on the matter under section 133CrPC read with section 143CrPC.
PECULIAR FACT – THE ORDERS WERE NEVER CHALLENGED!!!
Solution
Two specific directions were passed under section 133CrPC read with section 143CrPC in the matter –
(i) The truck owner or any of their agents shall not under any circumstances do overloading of the trucks or ply them in contravention of any of the pollution control norms anywhere in the district
(ii) Other than the National Highways or the State Highways, the iron ore loaded trucks shall not ply on any other road unless a team headed by Executive Engineer PWD gives a certificate that the concerned road is fit to carry iron-ore loaded trucks. In this context the 4km stretch of Belekere village road connecting NH17 with Belekere Port must be brought to a standard that is fit to carry iron-ore loaded trucks within one month failing which the iron-ore truck traffic must stop using the said road. The decision whether Belekere road is fit to bear iron-ore loaded truck traffic shall be based on the fitness certificate that the Executive Engineer PWD shall furnish two days before the expiry of one month grace period given to set right the said public nuisance (sub-standard road). The cost of setting right the public nuisance of bad road caused by iron-ore trucks shall be borne by the Iron Ore Exporters and/or Truck Owners and they shall themselves execute the work (final fitness certificate given by the Executive Engineer PWD).