Prasenjit Mukherjee Vs State of West Bengal and Ors on 02 Sep 2021

Posted on May 24, 2022 by ShadesOfKnife

A single judge of Calcutta High Court held as follows:

On an examination of the controversy involved in the present case in the background of the law laid down in Rakesh Malhotra (supra) once it comes to the knowledge of the learned Magistrate that the marriage between the parties have been dissolved by a decree of divorce under the relevant provisions of Section 13B of the Hindu Marriage Act and it is found that the wife has received a lump-sum amount as onetime payment towards maintenance, what would be the procedure adopted in the following circumstances:
(a) A fresh case under Section 125 of the Code of Criminal Procedure is filed.
(b) The proceedings under Section 125 of the Code of Criminal Procedure was pending and the Civil Court has dissolved the marriage by decree of divorce and there was no information before the Civil Court regarding the pendency of the proceedings under Section 125 of the Code of Criminal Procedure.
(c) Procedure/steps to be adopted by the learned Magistrate if the proceedings under Section 125 of the Code of Criminal Procedure and the proceedings under Section 13B of the Hindu Marriage Act (which has already been decided) are in different sub-divisions or different districts or different States.
As the aforesaid questions involve serious ramification so far as the proceedings under Section 125 of the Code of Criminal Procedure are concerned, I am of the view that the same is to be referred and settled by a Larger Bench (as there are conflicting judgments of this Court on the point).
Accordingly, the record of the case be placed before The Hon’ble The Chief Justice (Acting), High Court at Calcutta.

The case was ordered to be listed but it’s been over 8 months, the Judges did not find time to look in it…

Prasenjit Mukherjee Vs State of West Bengal and Ors on 10 Sep 2021 (List Matter)

MS Knit Pro International Vs State of NCT Delhi and Anr on 20 May 2022

Posted on May 23, 2022 by ShadesOfKnife

Supreme Court referred to the Part II of the First Schedule of the Cr.P.C. to decide if a penal provision in any law is a cognizable or non-cognizable offence.

5.1 The short question which is posed for consideration before this Court is, whether, the offence under Section 63 of the Copyright Act is a cognizable offence as considered by the Trial Court or a non-cognizable offence as observed and held by the High Court.
5.2 While answering the aforesaid question Section 63 of the Copyright Act and Part II of the First Schedule of the Cr.P.C. are required to be referred to.
5.3 Thus, for the offence under Section 63 of the Copyright Act, the punishment provided is imprisonment for a term which shall not be less than six months but which may extend to three years and with fine. Therefore, the maximum punishment which can be imposed would be three years. Therefore, the learned Magistrate may sentence the accused for a period of three years also. In that view of the matter considering Part II of the First Schedule of the Cr.P.C., if the offence is punishable with imprisonment for three years and onwards but not more than seven years the offence is acognizable offence. Only in a case where the offence is punishable for imprisonment for less than three years or with fine only the offence can be said to be non-cognizable. In view of the above clear position of law, the decision in the case of Rakesh Kumar Paul (supra) relied upon by learned counsel appearing on behalf of respondent no.2 shall not be applicable to the facts of the case on hand. The language of the provision in Part II of First Schedule is very clear and there is no ambiguity whatsoever.

MS Knit Pro International Vs State of NCT Delhi and Anr on 20 May 2022

Citations :

Other Sources :

Prabha Tyagi Vs Kamlesh Devi on 12 May 2022

Posted on May 20, 2022 by ShadesOfKnife

A division bench of Apex Court as follows,

From Para 52,

52. In view of the above discussion, the three questions raised in this appeal are answered as under:
“(i) Whether the consideration of Domestic Incidence Report is mandatory before initiating the proceedings under Domestic Violence Act, 2005 in order to invoke substantive provisions of Sections 18 to 20 and 22 of the said Act?” It is held that Section 12 does not make it mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order under the D.V. Act. It is clarified that even in the absence of a Domestic Incident Report, a Magistrate is empowered to pass both ex parte or interim as well as a final order under the provisions of the D.V. Act.
“(ii) Whether it is mandatory for the aggrieved person to reside with those persons against whom the allegations have been levied at the point of commission of violence?” It is held that it is not mandatory for the aggrieved person, when she is related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family, to actually reside with those persons against whom the allegations have been levelled at the time of commission of domestic violence. If a woman has the right to reside in the shared household under Section 17 of the D.V. Act and such a woman becomes an aggrieved person or victim of domestic violence, she can seek reliefs under the provisions of D.V. Act including enforcement of her right to live in a shared household.
“(iii) Whether there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed?” It is held that there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed vis-à-vis allegation of domestic violence. However, it is not necessary that at the time of filing of an application by an aggrieved person, the domestic relationship should be subsisting. In other words, even if an aggrieved person is not in a domestic relationship with the respondent in a shared household at the time of filing of an application under Section 12 of the D.V. Act but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application under Section 12 of the D.V. Act.

Prabha Tyagi Vs Kamlesh Devi on 12 May 2022

Citations : [2022 SCC ONLINE SC 607]

Other Sources :

https://indiankanoon.org/doc/85317640/

https://www.casemine.com/judgement/in/627eb23ab50db90fd1943198

https://www.indianemployees.com/judgments/details/prabha-tyagi-vs-kamlesh-devi

Right to residence under DV Act not restricted to actual residence; Domestic relationship not necessary to be subsisting at the time of filing of application: SC

This decision (with respect to shared householding requirement in DV cases) overrules decision by Andhra Pradesh High Court here.

Index of DV Cases here.

Doongar Singh and Ors Vs The State Of Rajasthan on 28 Nov 2017

Posted on May 20, 2022 by ShadesOfKnife

A division bench of Supreme Court passed the following guidelines…

13. To conclude:
(i) The trial courts must carry out the mandate of Section 309 of the Cr.P.C. as reiterated in judgments of this Court, inter alia, in State of U.P. versus Shambhu Nath Singh and Others, Mohd. Khalid versus State of W.B. and Vinod Kumar versus State of Punjab.
(ii) The eye-witnesses must be examined by the prosecution as soon as possible.
(iii) Statements of eye-witnesses should invariably be recorded under Section 164 of the Cr.P.C. as per procedure prescribed thereunder.

Doongar Singh and Ors Vs The State Of Rajasthan on 28 Nov 2017

Citations : [2017 SCC ONLINE SC 1391], [2017 SCALE 13 752], [2018 SCC 13 741], [2019 SCC CRI 1 410], [2017 CTC 6 883], [2018 KLT 1 629], [2018 AIC 183 5], [2018 ECRN 1 667], [2017 AIR SC SUPP 328]

Other Sources :

https://indiankanoon.org/doc/99075271/

https://www.casemine.com/judgement/in/5a261fe74a9326744f39e37e

Anurag Saxena Vs Union of India on 17 May 2022

Posted on May 19, 2022 by ShadesOfKnife

The Full Bench of Apex Court dismissed this frivolous PIL with Costs. The petitioners are practicing advocates at Apex Court!

The petitioners, who are practicing lawyers of this Court, have filed the present petition seeking several reliefs, including a direction to allow the vehicles to run till the end of their registered life in both diesel and petrol variants.
Before the petitioner in person – Mr.Anurag Saxena commenced his arguments, we forewarned him that the reliefs claimed by him are contrary to the orders passed by this Court as well as the National Green Tribunal. The petitioner in person insisted that he had a good case and he would convince the Court if he is granted 8 minutes time. We again forewarned him that we will permit him to do so, but in the event, if we find that the petition is without substance, we will saddle a cost of rupees one lakh per minute, that is, 8 lakhs. He, however, insisted on arguing the matter.
We uninterruptedly permitted Mr.Saxena to argue the matter for 8 minutes.
We find that the present petition is nothing but an abuse of process of law. At least a lawyer practicing before this Court is expected to know that a
petition under Article 32 of the Constitution of India, cannot be filed to seek any reliefs which are contrary to the orders passed by this Court. In spite of the forewarning, the petitioner in person continued to argue the matter. We therefore, passed an order dismissing the petition.
Mr. Saxena did not even stop after we passed the order dismissing the petition. He still continued with his endeavour to argue the impossible.
We could have very well imposed the cost of rupees 8 lakhs while dismissing the petition, which we indicated at the beginning of the hearing. However, we do not propose to be harsh to an ill-advised parties in person who fortunately or unfortunately are lawyers. We are therefore, inclined to take a lenient view of the matter.
We dismiss the Special Leave Petition with costs which are quantified at Rs.50,000/- The same may be paid to the Supreme Court Legal Services Committee within a period of two weeks from today.
However, before closing, we warn the petitioners that if they indulge into such sort of misadventurism hereinafter, the Court would be required to take a stern view of the matter.
Anurag Saxena Vs Union of India on 17 May 2022

Sumer Singh Salkan Vs Asstt Director and Ors on 11 Aug 2010

Posted on May 15, 2022 by ShadesOfKnife

Hon’ble Delhi High Court had issued certain guidelines to be followed for issuing Look Out Circulars.

A. Recourse to LOC can be taken by investigating agency in cognizable offences under IPC or other penal laws, where the accused was deliberately evading arrest or not appearing in the trial court despite NBWs and other coercive measures and there was likelihood of the accused leaving the country to evade trial/arrest.
B. The Investigating Officer shall make a written request for LOC to the officer as notified by the circular of Ministry of Home Affairs, giving details & reasons for seeking LOC. The competent officer alone shall give directions for opening LOC by passing an order in this respect.
C. The person against whom LOC is issued must join investigation by appearing I.O or should surrender the court concerned or should satisfy the court that LOC was wrongly issued against him. He may also approach the officer who ordered issuance of LOC & explain that LOC was wrongly issued against him. LOC can be withdrawn by the authority that issued and can also be rescinded by the trial court where case is pending or having jurisdiction over concerned police station on an application by the person concerned.
D. LOC is a coercive measure to make a person surrender to the investigating agency or Court of law. The subordinate courts’ jurisdiction in affirming or cancelling LOC is commensurate with the jurisdiction of cancellation of NBWs or affirming NBWs.

Sumer Singh Salkan Vs Asstt Director and Ors on 11 Aug 2010

Citations : [2010 JCC 4 2401], [2010 ILR DEL 6 706], [2010 DMC 2 666], [2010 CCR 4 134], [2010 SCC ONLINE DEL 2699]

Other Sources :

https://indiankanoon.org/doc/26846768/

https://www.casemine.com/judgement/in/56ea8d9d607dba371ebca94a

Index of judgments about Look Out Circular Notices is here.

Are State Bar Councils Statutorily empowered to Levy Fees for Gaps in academics during Enrollment?

Posted on May 15, 2022 by ShadesOfKnife

Goal: To question the legal basis on which Bar Council of AP is charging fees for any gaps in academics of a LL.B Graduate during Advocate enrollment process, apart from taking an affidavit to that effect.

Note: Similar efforts initiated here to tackle the illegal fees charged for Transferring enrolment from one State to another. Pathetic that one has to fight his own parent organizations.

During my enrollment process, Bar Council of Andhra Pradesh (BC-AP) had asked me to pay Rs.7000/- towards 10+ years of gap between my last graduation and LL.B degree. Since I did not believe then that BC-AP (no State Bar Council, for that matter!) never had any statutory power to levy and collect such fees, I paid the said fees duly through SBI Bank challan. My enrollment finished successfully with BC-AP on 17 March 2022 and I became an advocate enrolled with BC-AP (AP/646/2022)… Yippeee!!!

But later, I noticed from other friends who enrolled with Other State Bar Councils, that they were NOT charged any fees for gaps in their academics. This led me to dig deeper and to my astonishment, yes, indeed, no State Bar Council has any statutory power to levy any fees other than that is prescribed in Advocates Act 1961. This decision from Kerala High Court nailed it here (WP before single bench) and here (appeal to Division Bench). The icing on the cake is Hon’ble Supreme Court dismissed the SLPs with a 1-liner here. Armed with this information, I decided to challenge BC-AP on this aspect and recover my fees from them.

Steps Taken:

1. Filed a 1-page Representation to BC-AP

2. Filed a 1-page RTI application to BC-AP

I received a missed call from Bar Council landline on 23-May-2022, but none spoke when I called back. Hmmmm!

3. Received this reply from BC-AP. Interesting Answers!

2022-06-02 Reply to RTI application

Interestingly, BCI has earlier in March replied to my RTI application stating that, they do NOT have any knowledge if any State Bar Council is charging fees for gaps in academics. The following is the proof. So BC-AP doing naughty things without knowledge of (AND necessary ratification/approval from) BCI. Spooky…!

2022-03-05 BCIND R E 22 00126-No Knowledge as to State BC taking fee for Gap during enrollment

4. Filed another RTI seeking more information about the resolution that BC-AP passed basis which they are levying unauthorized fees for gaps in academics.

5. Got a reply on 27-Jun-2022.

P10 2022-06-27 Reply to RTI application dt 2022-06-14

6. WP against BC-AP and make BCI as respondent no.2. Petition ready. To be filed on 23rd August, 2022. After 3 weeks of to and fro with Filing Section, the Writ Petition is numbered and will be listed next Monday, tentatively.

Here is the copy of petition filed.

2022-09-12 WP against Gap fees by BC-AP v2.0

7. The WP is listed before Court-14, for Sep 19, 2022 Monday for Initial hearing before Hon’ble Single Bench to issue notices to Respondents. But the Judge was on leave so obtained a new date from Justice Ninnala Jayasurya.

8. As per the interim Order passed, the WP was supposed to be listed on 21-Sep-2022, but it was not listed. What do I do now?

2022-09-19 Sandeep Pamarati Vs the Secretary BCAP and Anr

9. Today noticed that a senior advocate has filed vakalath in the case. Nice…

10.Sent an email to BCI (at [email protected]) hoping for some positive help…

… and waiting for listing of the case… Not going to mention the matter. Let’s see…

11. The email kind of worked! Actually I had reached out to the Standing Counsel for BCI at AP High Court also with same request to transfer my WP also to Supreme Court just like others here. But I was made aware about this case by my dear friend Dr. Parasar Sarvepalli (https://498anlr.wordpress.com) in March 2024!!!

… Phewwwwwwwwww… In total there are 10 more cases tagged with mine… Hehe… Mine got tagged to them…

Since I was not aware about this case until March 2024, I could not participate in the case proceedings virtually. Considering that my original WP at AP High Court is no longer relevant, I stopped pursuing it before APHC. One less headache.

2023-Oct-17

My petition [hehe actually BCI’s transfer petition against my WP at APHC: Transfer Petition (Civil) No.2734/2023)] was listed and heard.

Secretary BCI Vs Sandeep Pamarati and Anr on 17 Oct 2023

Notice was issued, but I received no notice, that is because my address in the memo of parties is old address where I do not live anymore. 🙁 So sent another email on 08-Mar-2024 (Mahasivarathri)…

The bundle was last listed on 2024-01-17. Next computer-generated date is on 18-03-2024 before 3-Judge FULL bench (Court-1 of CJI)

Do not know what happened on 18-03-2024 but the case (and the bundle) is adjourned to 08-04-2024.

2024-03-18 Gaurav Kumar Vs Union of India and Ors on 18 Mar 2024

Seems my case was not reached on 08-04-2024. The case is adjourned to 22-04-2024.

22-04-2024:

Arguments heard and concluded. Judgment reserved.

2024-04-22 Gaurav Kumar Vs Union of India and Ors on 22 Apr 2024

30-07-2024:

Judgment pronounced. I won. But not all prayers are granted.

2024-07-30 Gaurav Kumar Vs Union of India and Ors on 30 Jul 2024

18-12-2024:

Filed the below Written Arguments, only to get this WP closed. I have no hope that HC Registry will close it proactively.

2024-12-16 Written Arguments in W.P. No. 30232 of 2022

15-02-2025

Phew!! At last the WP is closed.

2025-03-21 Sandeep Pamarati Vs the Secretary BCAP and Anr

Index of the Bar Council Antics is here.

Index of my life goals here.

Parekh Jaisalkumar Vinodbhai Vs State of Gujarat on 29 Apr 2022

Posted on May 12, 2022 by ShadesOfKnife

A Division bench of Gujarat High Court levied costs of 10000 on the delusioned wife who doesn’t want to cohabit with her husband because of different sub-castes, after living with him for 4 years. Most probably, a case of illegal affair taking shape here!

From paras 2 to 4,

2. Today when she is called, she has chosen not to change her mind. She reiteratively stated that the petitioner has no fault, she has no complaint against him, however, she does not want to continue this relationship and she is completely guided by her parents in her decision. She is no wrong in being influenced and guided by the parents in this matter although, they had courtship for about four years.
3. We find it extremely unfortunate that the educated couple needs to end the relationship in such a fashion just because there is a strong resistance on the part of the parents and taken in exert this kind of influence. We could notice that the petitioner inconsolably cried & is desolated because of this decision, however, it is for the parties to respectively chose their own forum for their respective rights. We have no answer for certain unfairness in the relationship.
4. We were unable to fathom anything from the repeated queries raised by us as to why she has chosen not to continue this relationship. The petitioner with all his hopes, aspirations and dreams had approached this Court and when he has met this destiny of his, we are of the firm opinion that that this is on account of unreasonable premise and unsubstantiated reason, we are constrained to award the cost of Rs.10,000/- (Rupees Ten Thousand Only) to the petitioner from the private respondent, to be paid within a period of four weeks from the date of receipt of a copy of this order. If not paid within a stipulated time period, consequences shall follow.

Parekh Jaisalkumar Vinodbhai Vs State of Gujarat on 29 Apr 2022

Citations :

Other Sources :

Shades of Knife

True Colors of a Vile Wife

Month: May 2022

MS Knit Pro International Vs State of NCT Delhi and Anr on 20 May 2022

Prabha Tyagi Vs Kamlesh Devi on 12 May 2022

Doongar Singh and Ors Vs The State Of Rajasthan on 28 Nov 2017

Anurag Saxena Vs Union of India on 17 May 2022

Sumer Singh Salkan Vs Asstt Director and Ors on 11 Aug 2010

Are State Bar Councils Statutorily empowered to Levy Fees for Gaps in academics during Enrollment?

Parekh Jaisalkumar Vinodbhai Vs State of Gujarat on 29 Apr 2022