NewsLetter | Nathan and Associates

Dissolution of Partnership Firm due to the direction by court

Aakash Prithivee Ram B — Fri, 28 Nov 2025 05:00:42 +0000

Introduction

A partnership firm will be registered under the Indian Partnership Act of 1932, and the provisions of this Act will apply to all such firms. Dissolution occurs in two categories- the dissolution of the partnership and the dissolution of the partnership firm. The dissolution of the partnership firm would mean the end of the firm as an individual entity, and it would cease to exist, and one of the modes of dissolution is by the direction of the court. There are several reasons for a court to direct dissolution of a partnership firm. One of the reasons is when a partner continuously breaches the partnership agreement.

Section 44 in The Indian Partnership Act, 1932

The court, under S.44 of the Indian Partnership Act, 1932, is empowered to order the dissolution of a firm consequent on a suit by a partner in case a partner conducts himself/herself in such a way that the other partners can’t carry on partnership with him.

44. Dissolution by the Court.—At the suit of a partner, the Court may dissolve a firm on any of the following grounds, namely:—

(d) that a partner, other than the partner suing, wilfully or persistently commits a breach of agreements relating to the management of the affairs of the firm or the conduct of its business or otherwise so conducts himself in matters relating to the company that it is not reasonably practicable for the other partners to carry on the company in partnership with him;

The decision of the Supreme Court in the case of Hind Overseas Private Limited vs Raghunath Prasad Jhunjhunwalla^{^[1]} 1976 SCR (2) 226 justifies the dissolution of the partnership on the following grounds:

(1) if the partnership agreement is wilfully or persistently violated;

(2) if one partner so behaves in matters relating to the partnership business that the other partners find it impossible to carry on business in partnership with him;

(3) if some partners are, in effect, excluded from the concern;

(4) if the misconduct of one or more partners is such that the confidence which must subsist in a partnership is destroyed,

(5) if there is a state of animosity which precludes all reasonable hope of reconciliation and friendly cooperation;

In the case of S Hardutt Singh Vs. Ch Mukha Singh^{^[2]}, AIR 1973 J & K 46, the Jammu & Kashmir High Court had allowed the appellant’s suit asking for the dissolution of the partnership firm as confidence amongst the partners had been lost and the partnership business could not be carried on and that it was just and equitable.

Conclusion

The partnership relationship between the partners is based on the belief that the partners will not violate the agreements. The provision in the Act clearly states that when a partner continuously breaches the partnership agreement, the entire relationship collapses as the trust between the partners slowly vanishes. Under such circumstances, continuing the business and performing the duties becomes challenging. Every viable option will be included in dissolving the partnership firm, especially if there are just two partners.

^[1] Hind Overseas Private Limited vs Raghunath Prasad Jhunjhunwalla, 1976 SCR (2) 226

^[2] S Hardutt Singh Vs. Ch Mukha Singh, Air 1973 J & K 46

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DEATH PENALTY: A NECESSARY EVIL?

Aakash Prithivee Ram B — Wed, 26 Nov 2025 10:23:28 +0000

24.05.2024

DEATH PENALTY: A NECESSARY EVIL?

Introduction

Capital punishment, also called the death penalty, refers to the most extreme of all sanctions imposed by law by a state against an individual for having committed a crime. This final penalty signifies that the criminal condemned, judged and punished is an execution by the state in which the criminal was found guilty. In many nations across the world, including India, capital punishment is reserved for the most heinous offences, known as capital crimes. These crimes are often ones that do significant harm to persons or society, frequently including intentional and brutal acts of violence.

Evolution of the Death Penalty in India

The offensive sentence was systemic punishment during the Mauryan dynasty, as per the type of offence. The law of retributive justice applies to the commonly stated principle “eye for an eye, hand for a hand”. This meant that punishment would directly correspond with the actual crime committed. Looking back in history, we find that King Hammurabi of Babylon was the first to codify criminal laws, including those related to the death penalty or capital punishment. His legal code laid the foundation for future legal systems that incorporated capital punishment as a deterrent and a form of retribution.

The death penalty imposed during British rule was primarily followed by trials before hanging or without even putting up a legal battle. During that period, capital punishment became the most effective method of controlling the masses. Substantial Changes in the Judicial System, which Included Death Penalty: Indian Independence was in 1947. Although it became a republic and adopted a new constitution, the death penalty remained part of the 1860 Penal Code.

During the drafting of the Indian Constitution between 1947 and 1949, several members of the Constituent Assembly advocated for the abolition of the death penalty. However, no such provision was included in the final constitution. In the subsequent two decades, various private members’ bills to abolish the death penalty were introduced in both the Lok Sabha and Rajya Sabha, but none were adopted.

It is estimated that between 1950 and 1980, there were between 3,000 and 4,000 executions in India. The exact number of death sentences and executions between 1980 and the mid-1990s is more complicated to ascertain. Still, it is believed that two to three people were hanged annually during this period. In the landmark 1980 Bachan Singh judgment, the Supreme Court of India ruled that the death penalty should only be imposed in the “rarest of rare” cases.

Notably, however, it did not clarify the “rarest of rare” cases or how they came by the fact. The United Nations declared capital punishment a contravention of human rights. However, India still treats it as a punishment endured within its legal framework. It has put a cap on the death penalty, reduced considerably in its application since the mid-20th century.

The Current Scenario of Death Penalty in India

The death penalty can be executed through various methods, with nine primary modes recognised globally. These include hanging, shooting by firing squad, shooting, beheading, lethal injection, stoning, gas chamber, electrocution, and falling from an unknown height. Hanging happens to be the most widely authorised practice, whilst electrocution, gas chamber, and falling from heights are few among those least adopted. In India, the death penalty is commonly given through hanging. Section 53 of the Indian Penal Code describes the types of punishments, explicitly placing the death penalty as the first. The death penalty can be imposed for 11 specific offences, including:

1. Waging war against the government of India.

2. Abetting mutiny.

3. Fabricating false evidence leading to the execution of an innocent person.

4. Threatening someone to give false evidence resulting in the death of an innocent person.

5. Murder.

6. Abetment of suicide of a minor, insane, or intoxicated person.

7. Attempting to murder a life convict if hurt is caused.

8. Kidnapping for ransom.

9. Rape causing death or resulting in a persistent vegetative state of the victim.

10. Repeat offences under sections 376, 376-A, or 376-D of the IPC.

11. Dacoity with murder.

However, the death penalty is reserved for the “rarest of the rare” cases. The courts must have also made a compelling reason to impose the sentence in detailing why the death penalty was chosen over life imprisonment. Only in sporadic cases should the death sentence be awarded. Thus, the Indian Supreme Court holds.

Before the Criminal Procedure (Amendment) Act of 1955, the death penalty was the norm, with life imprisonment being the exception in India. Courts were mandated to provide a rationale for opting for a lesser penalty than death for capital offences. However, the 1955 amendment granted courts the discretion to choose between the death penalty and life imprisonment.

Under Section 354(3) of the CrPC, 1973, courts must now articulate their reasons in writing when imposing the maximum penalty; life imprisonment has become the yardstick punishment; in extreme cases, the death penalty is prescribed for exceptional cases. Despite the UN advocating the abolition of the death sentence worldwide, India still retains it as a form of punishment. The logic of this argument rests on the concept that if human beings were spared a sentence for murder- deliberate, cold-blooded murder- it would not serve the law’s efficacy and justice.

In line with this stance, the Law Commission rejected a proposal to abolish the death penalty in its 35th report in 1967Statistical data from official sources reveal that there have been 720 hangings since the time of Independence from 1947 in India, out of the thousands, perhaps millions, who were sentenced to the gallows by trial courts. Many sentences were transformed into life sentences; some were set free by higher courts.

In Raghubir Singh v. State of Haryana, the court held that a treacherous murderer deserves a harsher sentence. Still, it also emphasised the need to consider ameliorative aspects since judicial decisions should temper indignation with fairness. In Attorney General of India v. Lachma Devi, the argument was made that the death penalty violated Articles 14, 19, and 21 of the Indian Constitution. However, this has been ruled by a majority of 4:1 in the Supreme Court in favour of the view that the death penalty is neither unjust nor contrary to the public interest. It has been recognised that the doctrine of ‘rarest of rare’ is fraught with inconsistencies in its application and thus leaves the question of what kinds of cases fall under this category open to debate.

Proponents argue that capital punishment is necessary to protect society from dangerous criminals and to satisfy the public’s demand for justice against heinous crimes. In their view, the very cardinal issue is the rejection by the President and the Governor on the mercy petitions. They argue that life imprisonment does not serve such a deterrent purpose that it can be preferred in replacement of the death sentence.

They argue that the death penalty is a powerful deterrent against other potential offenders, as it acts as an example to all. They say that lesser punishments do not prevent recidivism, and compared to life imprisonment, the death penalty is quicker and arguably more humane. Abolishing the death penalty, they argue, would embolden criminals and increase crime rates.

Critics of the death penalty argue that it is an admission of the state’s failure to achieve deterrence through less severe means. So they say that the criminals, being humans, can very well be reformed. The death penalty, for them, is barbaric and cruel, which actually only affects the poor, while the affluent often escape its severe consequences. Morally, they contend that it is state-sanctioned murder, violating the sanctity of life granted by God. Despite these criticisms, many believe that the time is not ripe for the abolition of the death penalty in India.

The presence of terrorism in regions like Jammu and Kashmir, the Naxalite movement in Assam and Nagaland, and various divisive movements necessitate its retention. Abolishing the death penalty, they argue, would encourage terrorism and separatist forces. The Supreme Court and the Law Commission of India also share the view that the death penalty should remain a part of the criminal justice system. They believe it is crucial in deterring crime and maintaining public order.

Constitutional Validity of Death Penalty

The constitutional validity of the death penalty was deliberated by a Constitutional Bench of the Supreme Court in the landmark case of Bachan Singh v. the State of Punjab. This matter reached the Constitutional Bench due to a conflict between two previous rulings of the Supreme Court regarding the scope and validity of the provision enabling the imposition of the death penalty. The conflicting rulings are the ones where it was held by the Constitutional Bench in Jagmohan v. State of Uttar Pradesh that the death penalty was constitutional. At the same time, the ruling of a three-member bench in Rajendra Prasad v. State of Uttar Pradesh had a majority opinion which laid down certain criteria for the imposition of death penalty.

In Bachan Singh v. the State of Punjab, the Constitutional Bench, consisting of Chandrachud CJ, Sarkaria, AC Gupta, and NI Untwalia JJ, after extensive deliberation and comparative analysis of death penalty laws in other countries like the US and UK, upheld the constitutional validity of the death penalty. In the case of Macchi Singh v. the State of Punjab, the Supreme Court brought finer touches to the death penalty. The Court laid down the guidelines for the application of the death penalty, stating that it was to be imposed only in the rarest of rare cases of the highest degree of culpability and as such “life imprisonment should be the rule and death the exception.”. Moreover, the court emphasised the importance of weighing both aggravating and mitigating circumstances before deciding on the sentence. The balance between these factors should be carefully considered, ensuring that the imposition of the death penalty is reserved for cases where life imprisonment is deemed inadequate and insufficient punishment given the nature and circumstances of the crime.

Article 21 of the Indian Constitution stands as a cornerstone, guaranteeing every individual the inviolable right to life and personal liberty, encompassing the right to live with dignity. This fundamental right can only be curtailed by the state through a fair and just process, as articulated in the landmark judgment of Maneka Gandhi v. Union of India. In the death penalty context, our constitutional framework delineates several guiding principles.

The death penalty shall be reserved for only the rare cases so that it may be justified as an exceptional step under concomitant circumstances. Therefore, the punishment should be introduced forthwith caution, as something unique, not as a regular sentence. Additionally, the accused must be allowed to present their case and be heard fairly and impartially. Sentencing should consider each case’s circumstances, ensuring that justice is met with due regard to the specific context and mitigating factors.

Additionally, the confirmation of a death penalty sentence resided with the High Court, with appeal provisions to the Supreme Court, hence providing multiple judicial review layers. The accused may also seek commutation from and pardon from established legal channels to ensure protection against this irreversible extreme penalty. It is, by all accounts, confirmed that the exercise of executive power, mainly when it deals with matters of clemency, should follow the lines that the rules of law and reason have laid down. It should completely avoid any extraneous consideration such as those of race, religion or political affiliation. Furthermore, the accused enjoys a right to a speedy and fair trial, protection from torture, and the right to competent legal counsel in all trials. Those rights are documented in Articles 21, 22, and 19 of the Constitution. They are representative of due process safeguards and the dignity and rights of every individual in all cases, particularly the most heinous of criminal charges.

Opinion on the Death Penalty

The death sentence is often criticised as a cruel act that strips individuals of their most fundamental right—the right to life—effectively ending a person’s existence. One of the gravest concerns surrounding capital punishment is the risk of executing an innocent person, wrongfully accused in the often-complex legal process. Punishment, which cannot be revoked, takes away any chance of rehabilitation and reform and suffocates possible positive change. Often, habitual offenders are people who at one time may have broken the law but have not received the necessary support to reform.

It is indeed cruel, but in a way, it has some advantages. First, it serves as a good deterrent to criminals, who, knowing that life might cease to be, refrain from attempting crimes. The fear of capital punishment can also go toward reducing crime incidence, as only a few are willing to risk their lives because of their criminal acts. Furthermore, the death penalty can also be seen as a means to permanently remove dangerous individuals from society, thereby enhancing public safety and reducing the fear of crime.

In essence, the death sentence represents the most extreme form of punishment a judicial system can impose. While it is indeed a heinous act that violates the fundamental right to life, it is also crucial to acknowledge its role in dealing with exceptional crimes. The legal framework governing the death penalty in India is designed to ensure that it is not applied arbitrarily but is reserved for the “rarest of rare” cases. This approach appears to be justified and appropriate, balancing the need for exceptional punishment with the importance of safeguarding human rights.

Conclusion

In India, capital punishment is a serious debate issue between the advocates and opponents of the death penalty. Those in favour of capital punishment argue that it serves as a powerful deterrent, dissuading potential offenders from committing heinous crimes due to the fear of facing the ultimate punishment. They also contend that the death penalty provides a sense of closure and justice for victims and their families, particularly in cases of egregious offences like murder and rape.

Additionally, supporters assert that executing dangerous criminals ensures the safety of society by permanently removing them from circulation, preventing them from causing further harm. However, opponents raise significant concerns regarding the death penalty’s ethical implications and potential for wrongful execution. They argue that the risk of executing innocent individuals, coupled with the fundamental moral question of state-sanctioned killing, undermines the credibility of the legal system.

Moreover, critics highlight the disproportionate impact of the death penalty on marginalised and economically disadvantaged individuals, exacerbating systemic injustices within the criminal justice system. Moreover, critics oppose it on the grounds that the death penalty for rehabilitation orientation creates a dead end in all aspects and perpetuates further violent injuries that deny people the possibility of their redemption. Of course, the issue of retaining or abolishing the death penalty in India is much more complicated with respect to justice, human rights or societal values and we would have to balance the competing interests involved carefully.

BIBLIOGRAPHY

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Foreclosure Charges

Aakash Prithivee Ram B — Mon, 24 Nov 2025 05:19:32 +0000

The post Foreclosure Charges first appeared on Nathan and Associates.

Do High courts have rule-making power? If so, what are its limitations?

Aakash Prithivee Ram B — Fri, 21 Nov 2025 11:16:36 +0000

Yes, High courts have rule-making power about proceedings, and other matters connected to
it, which is provided for by Article 225 of the Constitution of India, and Section 28 of the
RTI Act empowers the Chief Justice of the High Court to make rules and carry out provisions
of the RTI Act.
Section 34 of the Advocates Act 1961 enables the High Court to lay down conditions subject
to which an advocate shall be permitted to practice in the High Court.
Section 122 of CPC enables the High Court to amend the Rules laid down by it in its orders.
Since the High Court is the highest judicial authority in a State, such powers have been
conferred upon the HC to amend & alter rules about the administration of justice. This
Section of CPC has been upheld by the Supreme Court in the case of Abooacker Babu Haji &
Ors v. Edakkode Pathummakutty Umma.
All rules made under this section shall be published in the Official Gazette.
Section 477 of CrPC also provides that every High Court, with the previous approval of the
State Government, may make rules related to issues about persons who may be permitted to
act as petition writers in Criminal Courts Subordinate to it and regulation of license to such
persons to conduct business and also to provide a penalty for contravention of any of the rules
so made and determining the authority by which such violation may be investigated.
The limitations to these rules made by the high court can be better understood by the case
Salubai Ramchandra vs Chandu Sadhu. In this case, it was observed that;
 The powers of the High Court to make rules are subjected to the constitution’s
provisions, and these rules cannot be retrospective.
 If any rule made by the High Court is against fundamental rights guaranteed by the
Constitution, then the rule will become void ab inito. 1

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Same-Sex Adoption and Parental Rights in India: Legal Gaps and Social Realities

Aakash Prithivee Ram B — Fri, 31 Oct 2025 07:35:53 +0000

Same–Sex Adoption and Parental Rights in India

Navtej Singh Johar and Others v. Union of India marked the landmark event of legal recognition of same-sex relationships. There has been massive progress in terms of decriminalising homosexuality by striking down section 377 of the Indian Penal Code. The court held that Section 377, insofar as it criminalised consensual sexual acts between adults in private, violated Articles 14, 15, and 21 of the Indian Constitution, which guarantee the rights to equality, non-discrimination, and personal liberty, respectively.

However, despite the decriminalisation of same-sex relationships, Indian laws continue to discriminate against same-sex couples in adoption and marriage rights. Existing legislation fails to evolve with societal changes and constitutional values, violating fundamental rights to equality, non-discrimination, and personal liberty.

There is a lack of legislative reforms or societal acceptance of the matter, making legalisation problematic. Same-sex adoption and parental rights in India are an evolving area of law and policy. There are primarily four statutes that govern and regulate marriage relationships, adoptions and custody in India

The Hindu Adoption and Maintenance Act, 1956
The Guardianship and Wards Act, 1980
The Juvenile Justice (Care and Protection of Children) Act, 2000
Central Adoption Resource Authority Regulations

The Hindu Adoption and Maintenance Act of 1956 allows single individuals to adopt, provided they are of sound mind and have reached the age of majority. However, the Act does not traditionally recognise same-sex couples under its potential adopters, and the language used implies a heterosexual relationship set-up.

Similarly, the Guardian and Wards Act of 1890 allows single individuals to become guardians, but it does not recognise same-sex couples as co-guardians or co-parents. Therefore, it is not possible for a homosexual couple. This deprives same-sex couples of a family status, which is both violative of Article 15 and makes it difficult for them to live with dignity.

On the brighter side, the Juvenile Justice Act 2000 is more inclusive. It allows for adoption by single individuals irrespective of their sexual orientation, but it remains silent on the rights of same-sex couples to adopt jointly.

As defined under Section 2(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, adoption enables a biological child of one set of parents to become the child of another or single parent. The difference between the status of children adopted or born to an individual is sourced from the amendment introduced in the Juvenile Justice Act, 2000, which was conducted to secularise the Act while permitting full adoptions without regard to the individual religions. As for rights, privileges, and relationships, the gap created in this area was filled by the Juvenile Justice (Care and Protection of Children) Act, 2006, wherein adopted children have been accorded the same rights and privileges as biological children.

Central Adoption Resource Authority, or CARA, is an agency of utmost importance in the adoption scenario in India. Under the Ministry of Women and Child Development’s purview, it has its specific guidelines. While not expressly denying the possibility of same-sex adoption under the CARA Regulations, it does not actively facilitate it either. There exists an eligibility for prospective adoptive parents under Section 5, a stipulation of at least two years of continued cohabitation to determine suitability for eligibility for couples, which excludes same-sex couples as their marriages are not recognised in India.

Same-sex couples do not enjoy the right to marry in India. Legal recognition of same-sex marriages and adoption rights would not only affirm the dignity of LGBTQ+ individuals but also provide better opportunities for orphaned children to grow up in nurturing families. Making it necessary for a couple to stay married to adopt jointly indirectly disallows same-sex couples as their marriages don’t enjoy legal recognition or validity. Therefore, adoption laws in India violate Fundamental rights under Article 15.

The LGBTQIA+ face significant challenges in various forms of biological parenthood and Surrogacy. Altruistic surrogacy is forbidden for homosexual couples under the 2021 Surrogacy Regulation Act. This contributes to the stereotypical perception of a family by assuming a heteronormative household dynamic and a lack of female autonomy. According to Indian law, societal norms, and religious doctrine, a child’s holistic development requires that both parents come from different sexes. This idea is based on hypocrisy because it allows widowed and divorced women to use ART services. This is discriminatory and disallows surrogacy for members of the LGBTQIA+ community.

However, the social views and acceptance of this topic are changing with more judicial support. Despite the lack of legislative reform, the judiciary has tried its best to uphold justice.

Arun Kumar Sreeja v. Inspector General of Registration, 2019

The Madras High Court recognised a marriage between a cisgender man and a transwoman, affirming that the term ‘bride’ in the Hindu Marriage Act includes transgender persons. This decision highlighted the judiciary’s evolving stance on LGBTQ+ rights.

Laxmi Kant Pandey v. Union of India, 1984

This case underscored the child’s right to a family, advocating for policies ensuring children develop in a healthy and dignified environment, which could support arguments for same-sex adoption.

Indra Sarma vs . V . K . V . Sarma, 2013

This case broadened the scope of the Domestic Violence Act of 2005 by including unmarried couples and couples in a live-in relationship in the definition of a family for the act. Couples who live under the same roof, perform chores together, and live in a relationship in the nature of a marriage are considered a family under this act.

Suresh Kumar Koushal v. NAZ Foundation,2023

The Suresh Kumar Koushal case highlights the evolving judicial perspective on LGBTQ+ rights in India and underscores the importance of constitutional rights in protecting minorities.

Communities. The ultimate decriminalisation of Section 377 represents a critical milestone in India’s fight for equality and justice.

The Supreme Court’s decision was met with widespread criticism and protests from LGBTQ+ activists, human rights organisations, and the broader public, who viewed it as a setback for human rights in India. Several review petitions were filed against the Supreme Court’s judgement. However, these petitions were initially dismissed. Subsequently, curative petitions were filed, the last judicial resort in India. The Supreme Court admitted these petitions, and the matter was referred to a larger bench in Navtej Singh Johar.

Supriyo @ Supriya Chakraborty & Anr v. Union of India, 2023

In this case, the Supreme Court of India unanimously determined that the Constitution does not guarantee an unqualified fundamental right to marry. The Court upheld the constitutional validity of Section 4 of the Special Marriage Act (SMA) and Section 4 of the Foreign Marriage Act (FMA), which only recognise heterosexual marriages.

The court held that the right to relationship for queer couples might exist but asserted that the judiciary could not create a right to marry without a corresponding statute. The case originated from multiple petitions filed in Indian High Courts seeking legal recognition for the marriages of LGBTQIA+ couples. The Supreme Court consolidated nine similar petitions from the Delhi and Kerala High Courts and referred them to a constitutional bench.

The Court concluded that the right to marry is not a fundamental right and upheld the SMA and FMA provisions. It noted that invalidating these progressive laws would strip various couples of their legal benefits, including those in inter-faith, inter-caste, and international marriages.

The Supreme Court held that integrating queer unions into existing marriage laws would intrude into the State’s legislative domain, necessitating state-made laws to recognise LGBTQIA+ marriages. Additionally, the Court held that not extending marriage rights to LGBTQIA+ individuals does not infringe on their rights to privacy, autonomy, and dignity.

REFERENCES

The Hindu Adoption and Maintenance Act, 1956
The Guardianship and Wards Act, 1980
The Adoption Regulations, 2017 (Central Adoption Resource Authority Regulations)
https://restthecase.com/knowledge-bank/adoption-rights-of-same-sex-couples-in-india
The Juvenile Justice (Care and Protection of Children) Act, 2015
The Surrogacy Regulation Act, 2021
https://timesofindia.indiatimes.com/india/from-same-sex-marriage-to-adoption-rights-for- queer-couples-key-takeaways-from-sc-verdict/articleshow/104502058.cms
https://economictimes.indiatimes.com/news/india/unmarried-couples-including-queer-co uples-can-jointly-adopt-child-cji-in-minority-verdict/articleshow/104505574.cms?from= mdr
https://ijalr.in/volume-3/issue-1/legal-status-of-adoption-by-same-sex-couples-in-india-an around-the-world-a-critical-analysis-by-shraddha-formula/
https://cjp.org.in/a-case-for-same-sex-adoptions/

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Setting Aside of Arbitral Award: Legal Grounds and Procedure

Aakash Prithivee Ram B — Fri, 31 Oct 2025 07:32:13 +0000

SETTING ASIDE OF ARBITRAL AWARD(1) proofread ver.

SETTING ASIDE OF ARBITRAL AWARD

INTRODUCTION

An arbitral award can be set aside by the court if it violates public policy, if there is evidence of partiality by the arbitrator, if one of the parties was under an incapacity if there were procedural irregularities, or if the subject matter of the dispute is not capable of being resolved through arbitration.

GROUNDS FOR SETTING ASIDE OF AN ARBITRAL AWARD

Section 34 of the Arbitration and conciliation act 1996

Sec 34(2) of the said act deals with the arbitral award set aside by the court.

(2) An arbitral award may be set aside by the Court only if—

(a) The party making the application establishes that:
(i) a party was under some incapacity; or
(ii) the arbitration agreement is invalid under the law to which the parties have subjected it, or, in the absence of such indication, under the law for the time being in force; or
(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present their case; or
(iv) the arbitral award addresses a dispute not contemplated by or not falling within the terms of the submission to arbitration; or
(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement conflicts with a provision of this Part from which the parties cannot derogate, or, in the absence of such agreement, was not in accordance with this part or

(b) the Court finds that—

(i) The subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or

(ii) The arbitral award is in conflict with the public policy of India

Nakshatra Infrastructure Ltd. v. Brigade Enterprises Ltd. (2020)

When talking about this specific case, the Karnataka High Court in part decided on the grounds for setting aside arbitral awards and stressed the court’s adopting a hands-off approach in cases where the award is not in violation of public policy or contrary to the fundamental principles of justice and morality.

TIME LIMIT FOR APPLYING FOR THE SETTING ASIDE

According to sec 34(3) of the said act states that the application for setting aside the arbitral award needs to be filed within the three months from date on which the application of arbitral award received or additional award under section 33 of the act had been disposed by the tribunal.

The Court may accept the application within thirty days of this period if it is satisfied that a sufficient cause prevented the applicant from applying in accordance with the above three-month period.

Waaree Energies Limited, vs. Sahasradhara Energy Pvt. Ltd.

The Honble court held that if there is no proper presentation of a petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 within the limitation period prescribed under Section 34(3) of the Arbitration and Conciliation Act, 1996, either on account of non payment of court fees or payment of deficit court fees, condoning the delay in representation beyond the period prescribed under Section 34(3) of the Arbitration and Conciliation Act, 1996 is not permissible.

PROCEDURE FOR APPLICATION

Issuing the prior notice

According to Section 34(5) of the Arbitration and Conciliation Act, 1996, it is required that before submitting an application to set aside an arbitral award, the party must first give prior notice to the other party regarding their intention to file such an application

In Dulal Podda v. Executive Engineer, Dona Canal Division (2003),

the Court held that the appointment of an arbitrator at the request of the appellant of the dispute without sending a notice to the respondent and an ex-parte decree given by the arbitration Tribunal will be held illegal and liable for setting aside.

The application to set aside an arbitral award.

According to section 34(3) an application to set aside an arbitral award cannot be made after three months have passed from the date when the party received the arbitral award or, if a request was made under section 33, from the date when that request was resolved by the arbitral tribunal. However, if the Court determines that the applicant had a valid reason that prevented them from making the application within the initial three-month period, it may consider the application within an additional thirty-day period.

Enforcement

According section 36 of the 1996 act states that if the period for filing an application to set aside the arbitral award under section 34 of the act has expired then the award can be enforced using the procedure in the code of civil procedure 1908.

Angle Infrastructure Pvt.Ltd. vs Ashok Manchanda & Ors.

The Hon’ble court mentioned that “Therefore, enforcement of such settlement would have to be effected in accordance with Section 36 under Chapter-VIII of the Arbitration and Conciliation Act, 1996. It is dealt under Section 36 for Enforcement that an arbitral award would be enforced "under the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were a decree." Hence, such conciliation initiated by voluntary acts as contained in Part-III of the Arbitration and Conciliation Act, 1996 does not envisage intervention of the court except for the purposes of enforcement thereof which has to be by the civil court as it were a decree of the court. A settlement in the conciliation, therefore, would not result in a decree."

CASE LAW

J.G. Engineers Pvt. Ltd. v. Union of India, (2011) 5 SCC 758,

The Supreme Court held that in the event an award decides several claims separately and distinctly, and an error is identified in some of the claims, then the unaffected claims must be segregated and upheld. In this case, the High Court of Guahati had found an error only in relation to some of the claims but it proceeded to set aside the entire award as a whole on the reasoning that if the arbitral tribunal allowed certain counterclaims, the amounts granted under the upheld claims would also have to be adjusted. The Supreme Court, however, disagreed with the reasoning adopted by the High Court. The Supreme Court relied upon the doctrine of severability to uphold the power of courts to partially set aside awards where the claims were separate and distinct.

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Section 156 CrPC: Police Powers to Investigate Cognizable Offences

Aakash Prithivee Ram B — Fri, 31 Oct 2025 07:13:51 +0000

ANALYSIS OF SECTION 156 OF THE CRIMINAL PROCEDURE CODE WITH SPECIAL EMPHASIS ON POWERS OF MAGISTRATE

Introduction

The powers of the police to investigate a crime are delineated under Sections 154 and 156 of the Code of Criminal Procedure. The primary distinction between these provisions lies in the initiation of the investigation. Under Section 154, the police can commence an investigation only upon receiving information. Conversely, under Section 156, the police have the authority to initiate an investigation on their own accord or based on their knowledge.

The scope of Section 156 is limited to situations where the police exercise their powers according to the procedure established by law. This interpretation has been affirmed by the Hon’ble Supreme Court in the case of H.N. Rishbud and Inder Singh v. State of Delhi (1954). [1]If the police exercise their powers illegitimately, the Magistrate has the authority to intervene in the investigation. Additionally, any investigation conducted under Section 156 must comply with Section 173 of the Code, which requires the police to submit the final investigation report to the Magistrate who has jurisdiction to try the case.[2]

Investigations under Section 156 differ from those under Section 202 of the Code. The scope of Section 202 is limited to assisting the Magistrate in determining whether there are sufficient grounds to proceed further with the case. In contrast, Section 156 grants the police unrestricted power to conduct an investigation without the need to complete the formalities of filing a First Information Report (FIR). The latter part of the article provides a more detailed discussion of the differences between these two provisions.

Section 156 of The Criminal Procedure Code, 1973

Section 156 of the Criminal Procedure Code, 1973 is as follows:

Police officer’s power to investigate cognizable case. —

(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned.[3]

Power of Police

Under Section 156 of the Criminal Procedure Code (CrPC), the police are vested with extensive authority to conduct investigations into cognizable offenses. This provision allows the police to initiate and carry out an investigation without requiring prior authorization from a judicial authority. This autonomy ensures that the police can respond swiftly and effectively to criminal activities.

Upon completion of the investigation, the police are mandated to submit a report to the competent Magistrate as stipulated in Section 173 of the CrPC. This final report, often referred to as a charge sheet or closure report, is crucial for the judicial process, as it informs the Magistrate of the findings and the subsequent legal proceedings.

In addition to the initial investigation, the police have the authority to conduct further investigations under Section 173(8) of the CrPC. This provision is significant as it allows for the gathering of additional evidence or the re-examination of existing evidence if new facts or circumstances come to light. Such flexibility is essential in ensuring that justice is served, as it accommodates the dynamic nature of criminal investigations.

Mostly, the Judiciary in this case will play an oversight role. The Magistrate supervises and ensures that the investigations by the police follow the law and due process in their investigation. However, the Magistrate’s ability to intervene in the investigation is limited. Interference is only permissible if the police are found to be exercising their powers illegitimately or in a manner that contravenes legal norms and procedures. This restriction is vital for maintaining the independence of the police force in carrying out their investigative duties while providing a mechanism for judicial oversight to prevent abuse of power.

In summary, Section 156 of the CrPC empowers the police with significant investigative authority over cognizable offenses, ensuring prompt and efficient law enforcement. The requirement to submit investigation reports under Section 173 and the provision for further investigations under Section 173(8) enhance the thoroughness and flexibility of the investigative process. Meanwhile, the limited scope for judicial interference underscores the importance of adherence to legal procedures, balancing the autonomy of the police with necessary judicial oversight to uphold the rule of law.

Power of Magistrate

Section 156(3) of the Criminal Procedure Code (CrPC) empowers a Magistrate to order the police to investigate a cognizable offense. However, the Magistrate must be competent to take cognizance of the case under Section 190 of the CrPC for such an order to be valid. If the Magistrate lacks this competence, any directive to the police for investigation would be rendered invalid.[4]

It is important to note that not all actions by the Magistrate constitute “taking cognizance” under Section 190. For instance, if the Magistrate orders an investigation under Section 156(3) or issues a search warrant to aid the investigation, this does not amount to taking cognizance, as clarified by the Supreme Court in Mohd Yousuf v. Smt. Afaq Jahan and Anr (2004).[5]

In R.R. Chari v. State of U.P. (1951), the Supreme Court held that a Magistrate’s powers under Section 156(3) are not confined solely to cases under Section 190(1)(c), where the Magistrate takes cognizance on his own motion or based on information received. These powers also extend to cases under Section 190(1)(a), where cognizance is taken based on a complaint presented before the Magistrate. Nevertheless, the Magistrate’s authority under Section 156(3) does not include interfering with the police’s investigation process.[6]

Powers of Magistrate under The Criminal Procedure Code, 1973

Section 156(3) of the Criminal Procedure Code (CrPC), which operates at the pre-cognizance stage, empowers a Magistrate, who is authorized to take cognizance under Section 190 of the CrPC, to order an investigation into any cognizable case. The Supreme Court in Panchabhai Popatbhai Bhutani & Others [7]ruled that a petition under Section 156(3) should not be strictly construed as a complaint in terms of Section 2(d) of the Code. The absence of a specific or properly worded prayer or lack of complete and definite details would not invalidate a petition under Section 156(3) as long as it states facts constituting the ingredients of a cognizable offense. Such a petition is maintainable before the Magistrate.

The issue of whether a Magistrate can direct the registration of an FIR against public servants for acts performed in the discharge of their duties without the sanction of the appropriate authority was considered by the Supreme Court in several cases. In Anil Kumar’s case, it was held that the Magistrate could not order the registration of an FIR without sanction by the appropriate authority. This requirement does not apply to individuals who are not public servants.

The Supreme Court has clarified the scope of Section 156(3) CrPC in several rulings. It is well established that the law does not prescribe a specific format for applications under Section 156(3) CrPC, nor does it require a verbatim reproduction of the factual allegations or all the ingredients of the alleged offense. However, it is imperative that the application under Section 156(3) contains facts disclosing a cognizable offense.

If the police fail to exercise their powers under Section 154 CrPC despite receiving intimation, the Magistrate can order an investigation under Section 156(3) CrPC. The Magistrate cannot refer the matter under Section 156(3) CrPC against public servants for acts done in the discharge of their duties without a valid sanction order. The Magistrate’s application of mind should be reflected in the order.[8]

In Priyanka Srivastava’s case[9], the Supreme Court provided detailed guidelines on Section 156(3) CrPC, that;

Magistrates must remain vigilant regarding the allegations and the nature of the allegations and should not issue directions without proper application of mind.
They should ensure that sending the matter for investigation is conducive to justice.
Applications under Section 156(3) CrPC should be supported by an affidavit duly sworn by the applicant
The affidavit ensures that the applicant is responsible and helps to verify the veracity of the allegations.
The Magistrate should only send deserving cases for police investigation.

The Supreme Court has expressed concerns about unwarranted criminal prosecution of police officers. Subjecting police officers to unwarranted criminal prosecution for registering a case can undermine the fair investigation of the crime and negatively impact the morale and effectiveness of the police machinery, which can have serious and far-reaching consequences for society.[10]

Following the Supreme Court’s decision in Lalitha Kumari vs. Government of UP, [11] an initial investigation must be conducted by the police in particular cases to decide whether the information discloses the commission of a cognizable offense. This is done to screen out petty and vexatious complaints so that they reach the Magistrate only genuine cases with which he will have to send to the police for investigation.

Difference Between Investigation under Section 156 (3) and Section 202 of the Criminal Procedure Code

Confusion often arises regarding the relative scope of Section 156(3) and Section 202 of the Code of Criminal Procedure. Many matters have been decided in the past about the difference between these two provisions and whether or not they were applicable. One of the important cases was decided by the Hon’ble Supreme Court in 2021, under the title, Supreme Bhiwandi Wada Manor v. State of Maharashtra, dealing with explaining the differences between the two sections. [12]It stated that an order under Section 156(3) serves as a “pre-emptive reminder or intimation to the police to exercise their primary duty and power of investigation” and is independent of the process under Section 202. The power under Section 156(3) is broader than that under Section 202; it can be exercised even before cognizance is taken. Conversely, Section 202 can only be invoked after the Magistrate has taken cognizance of the issue.

A similar perspective was provided by the Supreme Court in Suresh Chand Jain v. State of Madhya Pradesh (2001), [13]where it was held that Section 156 pertains to the police officer’s authority to investigate cognizable offences, while Section 202 pertains to the Magistrate’s authority to direct an investigation by a police officer. Under Section 156, a Magistrate can order an investigation prior to taking cognizance. However, once cognizance is taken under Section 190, the standard complaint process must be followed.

The case of Ramdev Food Products v. State of Gujarat (2015) [14]further clarified the differences in the nature of cases handled under these provisions. The Supreme Court noted that Section 156(3) requires the Magistrate to apply their mind and can be exercised when credible information is available or when justice necessitates an immediate investigation. In contrast, Section 202 deals with situations where limited material is available, requiring the Magistrate to determine whether there is sufficient ground to proceed. These distinctions have been frequently cited by courts and were recently reaffirmed by a two-judge bench in Kailash Vijayvargiya v. Rajlakshmi Chaudhuri (2023).

Relevant Judgments

Ashok Gyanchand Vohra v. State of Maharashtra (2005)[15]

In this case, an organized crime was reported through a private complaint under Section 9 and Section 23 of the Maharashtra Control of Organized Crime Act, 1991. The Hon’ble Bombay High Court addressed whether the Special Court under this Act could order an investigation under Section 156(3) of the Code of Criminal Procedure (CrPC). Affirmatively, the High Court held that the Special Court possesses the powers of a Magistrate for the purposes of the Act, treating it as a court of original jurisdiction for taking cognizance of any matter.

Laxmi Mukul Gupta @ Lipi v. State of Maharashtra (2018)[16]

In this instance, the petitioner sought the registration of an FIR under Section 156(3) of CrPC against the respondent for an offence under Section 420 of the Indian Penal Code (IPC). The Metropolitan Magistrate granted the application and directed the police to register an FIR. However, the Hon’ble Bombay High Court quashed this order, ruling that a Magistrate’s discretion under Section 156(3) is limited to determining whether the case involves a cognizable offence necessitating police investigation. It emphasized that intervention at the pre-cognizance stage is not permissible under this provision.

C. Kumaravel v. Director General of Police (2019)[17]

The petitioners sought the High Court’s inherent jurisdiction under Section 482 of CrPC to direct the police to register their complaint. The Hon’ble Madras High Court clarified that when the police refuse to register an FIR under Section 154 of CrPC, the appropriate remedy is to resort to Section 156(3). Section 482 should not be used as an alternative. The Court issued guidelines, specifying that petitions under Section 482 must follow compliance with Sections 154 and 156(3) and be accompanied by an affidavit detailing the complaint’s history.

Jaisingh Agrawal v. State of Chhattisgarh (2020)[18]

The petitioners challenged an order by a Special Court under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, directing the police to register an FIR. The primary contention was the Special Court’s lack of jurisdiction under Section 156(3) of CrPC. The Hon’ble Chhattisgarh High Court dismissed this contention, affirming the Special Court’s power under Sections 156 and 193 of CrPC and the Atrocities Act. It concluded that the Special Court could take cognizance and direct investigations without committal proceedings.

Supreme Bhiwandi Wada Manor v. State of Maharashtra (2021)[19]

This case involved an appeal against a Bombay High Court order granting anticipatory bail, which questioned the Magistrate’s order to register an FIR under Section 156(3) without examining the complainant on oath as per Section 200 CrPC. The Hon’ble Supreme Court held that the High Court erred in requiring the complainant’s examination before the police investigation. It clarified that a Magistrate’s power under Section 156(3) is limited to determining if the crime is cognizable and whether police investigation is warranted.

Smt. Rajlakshmi Chaudhuri v. State of West Bengal (2021)[20]

Here, the petitioner’s application under Section 156(3) of CrPC was rejected due to a nearly two-year delay in lodging the complaint. The Hon’ble Calcutta High Court noted that while delay could affect the merits of the case, it should not be the sole reason to reject a Section 156(3) application. The Court emphasized that the Magistrate must either direct a police investigation or, if taking cognizance, proceed under Section 202.

Anjuri Kumari v. State (NCT of Delhi) (2023)[21]

The petitioner, after exhausting remedies at the Magistrate and Sessions levels, sought to invoke the High Court’s inherent jurisdiction under Section 482 of CrPC. The Hon’ble Delhi High Court ruled that such jurisdiction is only permissible in rare cases of grave miscarriage of justice or illegality. It upheld the Magistrate’s discretion under Section 156(3), stating that the Magistrate is not bound to direct an investigation even if a cognizable offence is made out.

X v. Y (2023)[22]

In this case, a quashing petition was filed against an order by a Magistrate directing police investigation under Section 156(3) of CrPC without prior FIR registration. The Hon’ble Andhra Pradesh High Court rejected the petitioner’s contentions, emphasizing the serious fraud allegations and the necessity of a trial. It clarified that a Magistrate’s direction under Section 156(3) need not include detailed reasons, particularly when documents require thorough examination, thereby dismissing the quashing petition.

Recommendations

Magistrates acting under Section 156(3) CrPC should be competent to order the registration of a case (FIR) and the subsequent investigation. It is crucial that when passing such orders, Magistrates must apply their minds, and this application of mind should be clearly reflected in the order. To enhance the responsibility of complainants, the CrPC should be amended to require that applications under Section 156(3) be accompanied by a sworn affidavit. Instead of ordering the immediate registration of an FIR, Magistrates may first direct a preliminary inquiry by the police to verify the truthfulness and genuineness of the complaints. [23]In cases involving public servants, Magistrates should not direct the registration of an FIR without obtaining a valid sanction under Section 197(1) of the CrPC. Additionally, complaints against police officers for registering FIRs should undergo detailed scrutiny to ensure their genuineness, thereby preventing vexatious prosecutions. Ultimately, Magistrates should ensure that only deserving cases are referred for police investigation.

Conclusion

Section 156 of the Criminal Procedure Code (CrPC) endows the police with broad authority to investigate cognizable offenses without requiring prior judicial approval. This section delineates the roles and powers of both the police and the Magistrate in the investigative process. The police can initiate and carry out an investigation on their own accord when a cognizable offense is reported or comes to their notice.

The Magistrate also plays a crucial role under Section 156, with the authority to direct the police to conduct an investigation, when necessary, particularly in instances where the police have failed to take action on a cognizable offense. This ensures that the investigative process is not stalled due to police inaction. It is important to note that the Magistrate’s power to order an investigation is confined to cases involving cognizable offenses.

Moreover, the Magistrate has a supervisory role to ensure that the police comply with the procedures established by law during their investigation. This supervisory function is critical to maintaining the integrity and legality of the investigative process.

However, the Magistrate’s powers are restricted to the pre-cognizance stage of the proceedings. Once the Magistrate has taken cognizance of the offense, he or she cannot direct the police to conduct further investigations. This limitation ensures a clear demarcation of roles and responsibilities between the investigatory and judicial functions, maintaining the balance and checks inherent in the criminal justice system.

In conclusion, Section 156 of the CrPC establishes a framework that grants the police substantial investigative powers while simultaneously ensuring that there is judicial oversight to prevent potential misuse of these powers. On one hand, this provision makes it possible for law enforcement to act with some degree of urgency in respect to cognizable offenses committed against individuals by the other. On the other hand, it does not overlook such procedural safeguard which the individual may have under judicial supervision. This dual mechanism is, in short, required to be able to practice effective and fair criminal justice.

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