COURT & LITIGATION MGMT.

By: A. K. Pandey, Asstt. Professor (Law Mgmt.)

Blindfold :
indicating
impartiality.

Scales :
representing
the weighing of
competing claims.

Sword:
symbolizing
the court's
coercive power.

Law as the body of principles recognized and applied by the

state in the administration of justice .

-Salmond

1989

CONSTITUTION

ACT

IPC
RLY

 Ignorantia Facti Excusat is a Latin

legal maxim that means ignorance of a
fact is an excuse. Any act done under a
mistaken impression of a material fact
is excused. Acts and contracts made
under a mistake or an ignorance of a
material fact are voidable. However
ignorance of law is not an excuse.

 Ignorantia Juris Non Excusat is a Latin maxim

meaning ignorance of law is not an excuse to a
criminal charge. The maxim, ignorantia juris
non excusat is applicable to civil as well as
criminal jurisprudence.
The purpose of this maxim is that if ignorance
is considered an excuse, a person charged with
criminal offences or a subject of a civil law suit
would merely claim that he/she is unaware of
the law in question to avoid liability. Ignorantia
Juris Non Excusat is also known as Ignorantia
Legis Non Excusat.

Justice

PENALTY

Civil &
Criminal
proceeding
can go
side by
side .

 UBI JUS IBI REMEDIUM

1.Fundamental
1.Fundamentalrights,
rights,
2.No
2.Noother
otherremedy
remedyavailable,
available,
3.Other
3.OtherConstitutional
Constitutionalrights,
rights,
4.Statutory
4.Statutoryrights
rights
5.5.Rights
Rightsbased
basedon
oncase
caselaw
law
etc.
etc.

1.Habeas
1.HabeasCorpus
Corpus
2.Mandamus,
2.Mandamus,
3.Quo
3.QuoWarranto
Warranto, ,
4.Certiorari,&
4.Certiorari,&
5.Prohibition
5.Prohibition. .

WRITS

Civil-side

Criminal-side

Spl Courts
For Juvenile
For family matters
For Rly matters

 Sanction is mandatory legal requirement to launch the

prosecution against a public servant/ Railway
employee.
CVCs Manual [2.5.]: If the prior sanction of the
competent authority is not obtained, the trial would be
ab-initio void and if commenced will have to be set
aside. A fresh prosecution would be necessary after a
proper sanction has been obtained and a chargesheet against the accused will need to be filed afresh
for his trial for offence covered by the sanction.
8/14/15

17

Sanctioning

authority
is
placed
somewhat
in
the
position of a sentinel at the
door of criminal courts in order
that no irresponsible
or
malicious
prosecution
can
pass the portals of the court of
justice.

8/14/15

18

(A) Constitution(Art-361):

No criminal/civil proceeding can be instituted or continued against

President & Governor during term of his office & immunity from arrest.

(B) The Delhi Special Police Establishment Act-1946 (Sec6A):

(a)
(b)

Approval of Central Government :(1) DSPE shall not conduct any enquiry / investigation into any offence alleged to
have been committed under the P C Act,1988 except with the previous approval
of the Central Government where such allegation relates to
Level of Joint Secretary and above,
Exception : involving arrest of a person on the spot

(c) General exceptions (Sec-76 to 106 Indian Penal Code1860]:

()

Nothing is an offence which is done by a person ..

8/14/15

19

8/14/15

20

8/14/15

21

Protection at Initial stage

RAILWAYS ACT-1989
Sec-186: Protection of action taken in good faith:

No suit, prosecution or other legal proceeding

shall lie against the Central Government, any
Railway administration, a Railway servant or
any other person for anything which is in good
faith done or intended to be done in pursuance
of this act or any rules or orders made there
under.
8/14/15

22

Constitutional Protection
Art-311:
(1) No person who is a member of a civil
service of the Union or an all-India service or
a civil service of a State or holds a civil post
under the Union or a State shall be
dismissed or removed by an authority
subordinate to that by which he was
appointed.

8/14/15

23

 (2) No such person as aforesaid shall be

dismissed or removed or reduced in rank
except after an inquiry in which he has
been informed of the charges against him
and given a reasonable opportunity of
being heard in respect of those charges

 Except conviction in cases relating to moral turpitude, DA may show

leniency considering the background of the case as well as of
employee.
Normally, following cases come within the category of moral turpitude :
-Cases under Prevention of Corruption Act,
-Misappropriation of government property,
-Falsification of Government record,
-Misuse of official position for personal gain,
-False claim on the Government such as TA or other
reimbursement.
-Rape ,
-Using forged documents/cheating etc.

[G.S.SHAMBANI V/S SBI1984(II)LLJ 322]

8/14/15

25

 Prior Notice :[Sec-80 CPC]

A 60 days prior notice is required to be given to government or
any governments employee, if case is going to be logged
against that Govt. or employee.
Exception : Such notice is not required if matter covered under
CAT Act-1985.
Caveat : [Sec. 148-A OF CPC]
Where an application is expected to be made, or has been
made, in a suit or proceeding instituted, or about to be
instituted, in a Court, any person claiming a right to appear
before the Court on the hearing of such application may lodge a
caveat in respect thereof.
Where, after a caveat has been lodged, any application is filed
in any suit or proceeding, the Court shall serve a notice of the
8/14/15
26
application
on the caveator.

 SEC-19 [PREVENTION OF CORRUPTION ACT-1988]:

1) No court shall take cognizance of an offence punishable under

Sections 7, 10, 11, 13 and 15 alleged to have been committed by a
public servant, except with the previous sanction
(a)
In the case of a person who is employed in connection with
the
affairs of the Union and is not removable from his office save
by or with the sanction of the Central Government,
(b)
In the case of a person who is employed in connection with
the
affairs of a State and is not removable from his office save by
or with the sanction of the State Government, of that Government;
(c) In the case of any other person, of the authority competent to
remove him from his office.
Extension: Applicable to all Railway Servants.
8/14/15

27

Relevant Provisions of P.C.Act, 1988.

7. Public servant taking gratification other than legal
remuneration in respect of an official act.
10. Punishment for abetment by public servant of offences
defined in section 8 or 9
11. Public servant obtaining valuable thing, without
consideration from person concerned in proceeding or
business transacted by such public servant
13. Criminal misconduct by a public servant
15. Punishment for attempt
Whoever attempts to commit an offence referred to in clause (c) or
clause (d) of sub-section (1) of section 13 shall be punishable with
imprisonment for a term which may extend to three years and with
fine.

8/14/15

28

 Sec-197:[Code of Criminal Procedure-1973 ]

Prosecution
of
Judges
and
Public
Servants.
(1) When any person who is or was a Judge or Magistrate or a
public servant not removable from his office save by or with the
sanction of the Government is accused of any offence alleged
to have been committed by him while acting or purporting to act
in the discharge of his official duty, no court shall take
cognizance of such offence except with the previous sanction of
the Central Government.
Extension: Also applicable after retirement.

8/14/15

29

Supreme Court has laid down the following guidelines :

(i) If the departmental proceedings and the criminal case are

based on identical and similar set of facts then and defence of

accused is being prejudiced due to continuation of DAR
proceeding , it would be desirable to stay the DAR till the
conclusion of the criminal case.

(ii) Whether the nature of a charge in a criminal case is grave

and whether complicated questions of fact and law are
involved in that case too, it would be desirable to stay the DAR
till the conclusion of the criminal case.
[CAPT. M. P. ANTHONY Vs. BHARAT GOLDMINES LTD. AIR 1999
SC 1416 & STATE OF RAJSTHAN V/SB.K.MEENA-AIR1997SC13]
8/14/15

30

Govt. is made OP
along with RE

Govt. is not made

OP along with RE

Pray before court to

add Government as
OP

Claim is for due

wage/money

Full assistance

Full assistance/
Partial assistence

Assistance
discretionary

In rest of the
cases

[Rule:702(a)IREC-I]
8/14/15

31

Criminal case

Police case

Complaint case
Seek Legal assistance
from deptt.

Challenge the proceeding

u/s186 of Railway Act also
pray for stay on arrest

Go for anticipatory or regular

bail

Present the case informally, before

department to deny SANCTION

8/14/15

32

 It is reiterated that the CVCs views/advices in

disciplinary cases are advisory in nature and it is for
the DA concerned to take a reasoned decision by
applying its own mind.
RBV NO.06/2009 [No.2009/V-1/CVC/1/5]Dt.20.04.09.
Above principle is equally applicable when advice
received from any other agencies for taking action
under DAR including Complaints Committee for
sexual- harassment.
8/14/15

33

yramid of Hierarchy

Under-Act

8/14/15

Under:Art-309

35

THANK YOU
8/14/15

36