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Whether Caveat Application is legally permissible to be filed under section 148(a) of CPC

Whether in a criminal proceeding a Caveat Application is legally permissible to be filed as provided under section 148 (a) of the code of civil procedure, 1908?

A Caveat is a Latin term which means 'let a person beware' originated in mid 16th Century. In law, it may be understood as a notice, especially in probate, that certain actions may not be taken without informing the person who gave the notice. It may simply be understood as a warning. In the Code of Civil Procedure, 1908 the provision of lodging Caveat Petition was inserted under Section 148-A upon the recommendations of Law Commission of India's 54th Report by the Civil Procedure Code (Amendment) Act 104 of 1976.

Section 148-A of Code of Civil Procedure, 1908 reads as under;

148-A. Right to lodge a caveat
(1) 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.

(2) Where a caveat has been lodged under sub-section (1), the person by whom the caveat has been lodged (hereinafter referred to as the caveator) shall serve a notice of the caveat by registered post, acknowledgement due, on the person by whom the application has been, or is expected to be, made under sub-section (1).

(3) Where, after a caveat has been lodged under sub- section (1), any application is filed in any suit or proceeding, the Court, shall serve a notice of the application on the caveator.

(4) Where a notice of any caveat has been served on the applicant, he shall forthwith furnish the caveator at the ceveator's expense, with a copy of the application made by him and also with copies of any paper or document which has been, or may be, filed by him in support of the application.

(5) Where a caveat has been lodged under sub-section (1), such caveat shall not remain in force after the expiry of ninety days from the date on which it was lodged unless the application referred to in sub-section (1) has been made before the expiry of the said period.

The Section 148-A of Code of Civil Procedure, 1908 talks in brief about the Caveat Petition. A Caveat Petition is a precautionary measure which is undertaken by people usually when they are having a very strong apprehension that some case is expected to be filed in the Court of Law, regarding their interest in any manner.

The word 'Caveat' is not defined in the Code of Civil Procedure, 1908, however, in the case titled Nirmal Chand Vs Girindra Narayan, AIR 1978 Calcutta 492, the Hon'ble High Court defined the word 'Caveat' as under;
The term 'caveat' is very common in testamentary proceedings. A caveat is a caution or warning giving notice to the Court not to issue any grant or take any step without notice being given to the party lodging the caveat. It is a precautionary measure taken against the grant of probate or letters of administration, as the case may be, by the person lodging the caveat.

The object of the introduction of the provision for lodging a caveat in the CPC. seems to be to safeguard the interest of a person against an order that may be passed on an application filed or expected to be filed by a party in a suit or proceeding instituted or about to be instituted. Such a person lodging a caveat may not be a necessary party to such an application, but he may be affected by an order that may be passed on such an application.

Further, another object behind the provision ofSection148-A is to avoid multiplicity of proceedings. A person, against whom an order is passed on an application in a suit or proceeding to which he is not a party, has to take resort to legal proceedings for the purpose of getting rid of the order. The application referred to in Sub-section(1) ofSection148-A must be a substantive application and the person who may be affected by an order that may be passed on such an application may file the caveat for the purpose of opposing the application.

Under the aforesaid provisions, a person claiming a right to appear before the Court where an application is made or expected to be made in a suit or proceeding instituted or about to be instituted, may lodge caveat in such court in respect thereof. The whole concept and the object behind giving right to a person to lodge caveat in such a suit or proceedings before any Court, is to ensure that before any order is passed at the instance of the person instituting the suit, the person whose interest is likely to be affected, be given an opportunity of hearing. In essence, it is intended to ensure that the person likely to be affected, has a right to oppose the prayer of the applicant in such suit or proceedings and that applicant or the plaintiff may not get an ex-parte order in his favour in the absence of 'Caveator' / 'Applicant' who has a interest in the matter.

Ordinarily, it cannot be disputed that Section 148-A of Code of Civil Procedure, 1908which finds place in Code of Civil Procedure, 1908, applies to civil proceedings. The Code of Civil Procedure, 1908 regulates the procedure for conducting proceedings in civil suit. Preamble to Code of Civil Procedure, 1908makes it clear, which reads as under:
An Act to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature.

It is also beyond the pale of doubt that the Code of Civil Procedure, 1908 is a complete code in itself. It applies to the proceedings, which are initiated under Code of Civil Procedure, 1908 and all rights and remedy provided in Code of Civil Procedure, 1908have to be looked into, in respect of those proceedings, under Code of Civil Procedure, 1908. All other manners or all procedures are impliedly prohibited.

This principle has been reiterated by the Patna High Court in the case of Kapildeo Prasad Vs. Ramanand Prasad, AIR 2007 Pat 1.
Section 9 of the Code of Civil Procedure, 1908 further makes it abundantly clear that it applies to suits of a civil nature. It is also clear from the language of Section 148A of the Code of Civil Procedure, 1908 that it applies to application in a suit or proceedings instituted or about to be instituted in a Civil Court. The expression in a suit or proceeding instituted or about to be instituted in a Court occurring under Section 148A of the Code of Civil Procedure, 1908 necessarily relates to civil proceedings in a Civil Court, as this expression has to be read in the light of Section 9 of Code of Civil Procedure, 1908, which stipulates that Courts shall have jurisdiction to try all suits of a civil nature.

The Code of Criminal Procedure, 1973 is an Act to consolidate and amend the law relating to criminal procedure. Section 4of Criminal Procedure, 1973 provides that all offences under the Indian Penal Codeshall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained. Section 4of Criminal Procedure, 1973 is in relation to the trial of the offence under the Indian Penal Code and other laws.

Section 4of Criminal Procedure, 1973 reads as under:
4. Trial of offences under the Indian Penal Code and other laws
;(1) All offences under the Indian Penal Code(45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

It is, therefore, evident that under the Code of Criminal Procedure, 1973 in a criminal case at any stage of inquiry, trial or appeal, no such specific provision of filing a 'Caveat', as governed by Section 148-A of the Code of Civil Procedure, 1908 exists. There are no other provisions under Code of Criminal Procedure under which a private party / complainant / informant can file a 'Caveat' to oppose the proceeding initiated at the behest of the accused.

Attempts have been made by the accused persons in criminal cases to obtain hearing before passing of the order of cognizance. The Hon'ble Supreme Court inSmt. Nagawwa Vs Veeranna Shivalingappa Konjali, AIR 1976 SC 1947 has categorically held as under:
It is not province of the Magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one. In proceedings under Section 202the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not.

Unless an order of cognizance is recorded against the accused no accused is entitled to address the Court. The only aspect which has been recognised is that the accused may remain present to watch the proceedings. Thus, unlike the civil proceedings, wherein, the original and appellate proceedings, an adversary is entitled to hearing, however, in criminal matters an accused has been denied hearing before any order is passed by the Criminal Court taking cognizance.

In criminal matters apart from the accused the other party is the State. The right of the accused as has been noted aforesaid has been denied by Hon'ble the Supreme Court of India. When the accused has no right of hearing, the State has also not been granted any opportunity of hearing by way of 'Caveat'. In bail matters a provision has been made that as and when an application for bail is to be considered by the Court a notice to the Public Prosecutor is a must. There too it is only a mandatory notice.

The State is not granted hearing by virtue of any 'Caveat' Proviso to Section 439 (1)is referred in this regard, which reads as under:

Section 439, Special powers of High Court or Court of Session regarding bail

1. A high Court or Court of Session may direct-
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purpose mentioned in that sub-section;

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified;
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

Provided that the High Court of the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of Section 376 or Section 376AB or Section 376DA or Section 376 DB of the Indian Penal Code, give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.

1A. The presence of the informant or any person authorized by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of Section 376 or Section 376 AB or Section 376 DA or Section 376 DB of the Indian Penal Code.

2. A high Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody,
Thus in the scheme of criminal law, the provisions of caveat have not only been provided but is generally not enforced also.

Hon'ble Division Bench of Delhi High Court Vide its Judgement dated 11th May 2001 passed in WPC No. 1703/2001 in the case of Deepak Khosla Vs Union of India & Ors., had also the occasion to consider as to Whether a Caveat Application is maintainable in a criminal matter to oppose the prayer of the accused person seeking an interim order from the Court? Hon'ble Delhi High Court after considering the provisions of the Code of Civil Procedure, 1908 andCode of Criminal Procedure, 1973, came to an authoritative conclusion that;
15. What is not to be forgotten is that Section 148-A of the CPC finds place in the Codeof Civil Procedure which Code is meant to regulate civil suits triable by civil courts.

As per Section 9, the Courts (commonly called as Civil Courts) are to try the case of civil nature. Section 148 A of the CPC also applies to application in a suit or proceeding instituted or about to be instituted in a court' which has reference to Civil Court. In this backdrop the relevant question would be as to whether Code of Civil Procedure will have any application to the proceedings under Section of the CrPC. as these are the contemplating proceedings in which the petitioner has lodged the caveat. Plainly, answer has to be in the negative.

Those proceedings unquestionably are under CrPC. and by no stretch of imagination provisions of CPC can be made applicable. Furthermore, these proceedings, which are likely to be filed, emanate from the orders passed by the Learned Metropolitan Magistrate in a FIR registered under various provisions of Indian Penal Code.

The Learned Metropolitan Magistrate has passed orders dated 22nd February, 2011 after taking cognizance of the offences under theIndian Penal Codeand has summoned the accused persons. These are definitely criminal proceedings which are governed by CrPC. and even in those proceedings none of the provisions of the CPC is applicable or can be invoked. In so far as CrPC. is concerned, no provision for such a caveat is made. Therefore, caveat under Section 148A of the CPC cannot be filed in these proceedings.

We are in agreement with the view taken by the Kerala High Court in Harikishan Vs. Jacob (supra) and by Rajasthan High Court in Sahab Ram & Anr. (supra). Civil Procedure Codeand Code of Criminal Procedure are two distinct Codes which prescribe procedure in respect of the proceedings in civil suits and criminal proceedings respectively as stipulated in these Codes. Whereas, provision for caveat is made in CPC, Legislature in its wisdom has not provided for any such provisions in this regard in so far as Code of Criminal Procedure is concerned. We thus, hold that caveat as filed by the petitioner in criminal proceeding is not maintainable.

Ii is interesting again to notice that equally the Statement of objects and reasons under the Prefatory note to the Code of Criminal Procedure, 1973 relating to criminal procedure applicable to all criminal proceedings is contained in the Code of Criminal Procedure, whereas, the law relating to the procedure in suits and civil proceedings is contained in the Code of civil Procedure 1908. Section 148-A of the Code Civil Procedure, 1908 cannot be invoked in criminal proceedings.

What is important is to see as to whether there is any provision regarding caveat in the Code of criminal Procedure, 1973as are available regarding caveat under Section 148A of the Code of Civil Procedure, 1908. There is no express power contained in the Code of Criminal Procedure, 1973recognising the right to institute a caveat. Thus, in the substantive Law, governing the procedural aspect of the criminal matters, the provision relating to 'Caveat' has altogether been excluded. From the aforesaid discussions, the only conclusion that can be drawn is that there is no scope for filing a 'Caveat' as required under Section 148-A of the Code of Civil Procedure, 1908 in a criminal proceeding.

That a criminal proceeding is not a proceeding for vindication of a private grievance but it is a proceeding initiated for the purpose of punishment to the offender in the interest of the society. The objective being maintenance of stability and orderliness in the society, private interest will not come into picture. The punishment of the offender in the interest of the society is one of the objects behind the penal statute enacted for the larger good of the society.

Written by: Dinesh Singh Chauhan, Advocate
B. Sc. LL.B D. Criminology & Police Sciences
High Court of Judicature, Jammu.
Email: [email protected], [email protected]
Ph no: +9419190816

Caveat Filing in Suporeme Court

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