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Month: August 2022

State Bank of India and Anr Vs Ajay Kumar Sood on 16 Aug 2022

Posted on August 25, 2022 by ShadesOfKnife

A division bench of Apex Court held as follows:

From Para 10,

10. The judgment of the Division Bench of the High Court of Himachal Pradesh is incomprehensible. This Court in appeal found it difficult to navigate through the maze of incomprehensible language in the decision of the High Court. A litigant for whom the judgment is primarily meant would be placed in an even more difficult position. Untrained in the law, the litigant is confronted with language which is not heard, written or spoken in contemporary expression. Language of the kind in a judgment defeats the purpose of judicial writing. Judgment writing of the genre before us in appeal detracts from the efficacy of the judicial process. The purpose of judicial writing is not to confuse or confound the reader behind the veneer of complex language. The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges. Judgments of the High Courts and the Supreme Court also serve as precedents to guide future benches. A judgment must make sense to those whose lives and affairs are affected by the outcome of the case. While a judgment is read by those as well who have training in the law, they do not represent the entire universe of discourse. Confidence in the judicial process is predicated on the trust which its written word generates. If the meaning of the written word is lost in language, the ability of the adjudicator to retain the trust of the reader is severely eroded.
11. We are constrained to remit the proceedings back to the High Court for consideration afresh. The judgment of the High Court is simply incomprehensible leaving this Court with no option than to remand the proceedings. The High Court must appreciate the delay and expense occasioned as a consequence and must make an effort to record reasons which are understood by all stake-holders.

From Para 13,

13. Amidst an overburdened judicial docket, a view is sometimes voiced that parties are concerned with the outcome and little else. This view proceeds on the basis that parties value the outcome and not the reasoning which constitutes the foundation. This view undervalues the importance of the judicial function and of the reasons which are critical to it. The work of a judge cannot be reduced to a statistic about the disposal of a case. Every judgment is an incremental step towards consolidation and change. In adhering to precedent, the judgment reflects a commitment to protecting legal principle. This imparts certainty to the law. Each judgment is hence a brick in the consolidation of the fundamental precepts on which a legal order is based. But in incremental steps a judgment addresses the need to evolve and to transform by addressing critical issues which confront human existence. Courts are as much engaged in the slow yet not so silent process of bringing about a social transformation. How good or deficient they are in that quest is tested by the quality of the reasons as much as by the manner in which the judicial process is structured.

From Paras 16, 17 and 18,

16. A judgment culminates in a conclusion. But its content represents the basis for the conclusion. A judgment is hence a manifestation of reason. The reasons provide the basis of the view which the decision maker has espoused, of the balances which have been drawn. That is why reasons are crucial to the legitimacy of a judge’s work. They provide an insight into judicial analysis, explaining to the reader why what is written has been written. The reasons, as much as the final conclusion, are open to scrutiny. A judgment is written primarily for the parties in a forensic contest. The scrutiny is first and foremost by the person for whom the decision is meant – the conflicting parties before the court. At a secondary level, reasons furnish the basis for challenging a judicial outcome in a higher forum. The validity of the decision is tested by the underlying content and reasons. But there is more. Equally significant is the fact that a judgment speaks to the present and to the future. Judicial outcomes taken singularly or in combination have an impact upon human lives. Hence, a judgment is amenable to wider critique and scrutiny, going beyond the immediate contest in a courtroom. Citizens, researchers and journalists continuously evaluate the work of courts as public institutions committed to governance under law. Judgment writing is hence a critical instrument in fostering the rule of law and in curbing rule by the law.
17. Judgment writing is a layered exercise. In one layer, a judgment addresses the concerns and arguments of parties to a forensic contest. In another layer, a judgment addresses stake-holders beyond the conflict. It speaks to those in society who are impacted by the discourse. In the layered formulation of analysis, a judgment speaks to the present and to the future. Whether or not the writer of a judgment envisions it, the written product remains for the future, representing another incremental step in societal dialogue. If a judgment does not measure up, it can be critiqued and criticized. Behind the layers of reason is the vision of the adjudicator over the values which a just society must embody and defend. In a constitutional framework, these values have to be grounded in the Constitution. The reasons which a judge furnishes provides a window – an insight – into the work of the court in espousing these values as an integral element of the judicial function.
18. Many judgments do decide complex questions of law and of fact. Brevity is an unwitting victim of an overburdened judiciary. It is also becoming a victim of the cut-copy-paste convenience afforded by software developers. This Court has been providing headings and sub-headings to assist the reader in providing a structured sequence. Introduced and popularized in judgment writing by Lord Denning, this development has been replicated across jurisdictions.

From Paras 20, 21, 22, 23 and 24,

20. It is also useful for all judgments to carry paragraph numbers as it allows for ease of reference and enhances the structure, improving the readability and accessibility of the judgments. A Table of Contents in a longer version assists access to the reader.
21. On the note of accessibility, the importance of making judgments accessible to persons from all sections of society, especially persons with disability needs emphasis. All judicial institutions must ensure that the judgments and orders being published by them do not carry improperly placed watermarks as they end up making the documents inaccessible for persons with visual disability who use screen readers to access them. On the same note, courts and tribunals must also ensure that the version of the judgments and orders uploaded is accessible and signed using digital signatures. They should not be scanned versions of printed copies. The practice of printing and scanning documents is a futile and time-consuming process which does not serve any purpose. The practice should be eradicated from the litigation process as it tends to make documents as well as the process inaccessible for an entire gamut of citizens.
22. In terms of structuring judgments, it would be beneficial for courts to structure them in a manner such that the “Issue, Rule, Application and Conclusion‟ are easily identifiable. The well-renowned “IRAC‟ method generally followed for analyzing cases and structuring submissions can also benefit judgments when it is complemented by recording the facts and submissions.
23. The “Issue” refers to the question of law that the court is deciding. A court may be dealing with multiple issues in the same judgment. Identifying these issues clearly helps structure the judgment and provides clarity for the reader on the specific issue of law being decided in a particular segment of a judgment. The „Rule‟ refers to the portion of the judgment which distils the submissions of counsel on the applicable law and doctrine for the issue identified. This rule is applied to the facts of the case in which the issue has arisen. The analysis recording the reasoning of a court forms the “Application‟ section.
24. Finally, it is always useful for a court to summarize and lay out the “Conclusion‟ on the basis of its determination of the application of the rule to the issue along with the decision vis-à-vis the specific facts. This allows stakeholders, especially members of the bar as well as judges relying upon the case in the future, to concisely understand the holding of the case.

Finally from Para 27,

27. While we have laid down some broad guidelines, individual judges can indeed have different ways of writing judgments and continue to have variations in their styles of expression. The expression of a judge is an unfolding of the recesses of the mind. However, while recesses of the mind may be inscrutable, the reasoning in judgment cannot be. While judges may have their own style of judgment writing, they must ensure lucidity in writing across these styles.

State Bank of India and Anr Vs Ajay Kumar Sood on 16 Aug 2022
Posted in Supreme Court of India Judgment or Order or Notification | Tagged 2-Judge (Division) Bench Decision Issued or Recommended Guidelines or Directions or Protocols to be followed Judiciary Antics Reportable Judgement or Order State Bank of India and Anr Vs Ajay Kumar Sood | Leave a comment

P Parvathi Vs Pathloth Mangamma on 7 Jul 2022

Posted on August 24, 2022 by ShadesOfKnife

A single judge bench of Telangana High Court passed note-worthy guidelines in disposing Domestic Violence cases.

From Paras 6 and 7,

6. The Protection of Women from Domestic Violence Act, 2005 is a legislation enacted to shield the rights of women which are enshrined and guaranteed under the Constitution of India, besides paving way to deal with the matters connected to and arising out of the family disputes in an effective and efficacious manner.
7. When the provisions contained in the said legislation i.e., The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the Act of 2005”, for brevity) are looked into, it is very clear that the proceedings that would be conducted are more civil in nature. The protection orders that would be granted under Section 18, the residence orders that would be granted under Section 19, the monetary reliefs that would be granted under Section 20, the custody orders that would be granted under Section 21 and the compensation orders that would be granted under Section 22, would be based on the applications that would be filed by the aggrieved persons, the domestic incident reports and the defence taken by the respondents therein. All those proceedings are civil in nature. No doubt, Section 28 (1) of the Act of 2005 lays down that the proceedings shall be governed by the provisions of Code of Criminal Procedure. However, it is specifically mentioned under Section 28(2) of the Act of 2005 that the Court is empowered to lay down its own procedure for disposal of the applications filed by the aggrieved persons or the Protection Officers. May be due to the fact that the power to deal with the domestic violence cases is given to the Magistrate, the litigant public are under the impression that the proceedings initiated under the Act of 2005 are purely criminal in nature.

Guidelines passed in Paras 12 and 13,

12. It is brought to the notice of this Court by the learned Assistant Public Prosecutor that number of Criminal Petitions are filed before the High Court seeking to quash the proceedings in domestic violence cases, only because the trial Courts are insisting the physical attendance of the respondents in those cases for each and every adjournment.
13. Therefore, before parting with the case, this Court considers it desirable to lay down certain guidelines for the Courts of Judicial Magistrate of First Class, which are empowered to deal with the domestic violence cases, to follow so that the parties would not rush to the High Court.
(1)The Courts of Judicial Magistrate of First Class which are dealing with the cases filed seeking various kinds of reliefs as laid down under Sections 18 to 22 of the Protection of Women from Domestic Violence Act, 2005 should take note of the fact that the proceedings therein are more civil in nature.
(2)When the aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person presents an application seeking one or more reliefs that are enshrined under Sections 18 to 22 of the Protection of Women from Domestic Violence Act, 2005, upon service of notice as required under Section 13 of the said Act and upon making appearance by the opposite party i.e., respondents therein either in person or through their counsel, the Court shall not insist for their personal appearance for each and every adjournment.
(3)The Courts dealing with the cases under the Protection of Women from Domestic Violence Act, 2005 shall not even insist for filing an application under Section 317 Cr.P.C.
(4)The persons against whom the applications are filed seeking relief in domestic violence cases i.e., the respondents, however, shall appear in person if a specific direction is given for their personal appearance by the Court during the course of proceedings.
(5)The points enumerated above does not however apply during the course of proceedings that are conducted under Section 31 of the Protection of Women from Domestic Violence Act, 2005.
(6) Last but most important is that the Courts of Judicial Magistrate of First Class which are empowered to deal with the matters under the Protection of Women from Domestic Violence Act, 2005 shall make all endeavour to dispose of the applications filed for grant of various reliefs that are provided under Sections 18 to 22 of the Protection of Women from Domestic Violence Act, 2005 within a period of sixty (60) days from the date of first hearing, as required under Section 12(5) of the said Act.

P Parvathi Vs Pathloth Mangamma on 7 Jul 2022

Connects to a PIL here.

Posted in High Court of Telangana Judgment or Order or Notification | Tagged Do you know that there is time limit of 60 days to dispose of a Domestic Violence case in India under sec 12(5) of PWDV Act? Issued or Recommended Guidelines or Directions or Protocols to be followed P Parvathi Vs Pathloth Mangamma PIL - Implement the Statutory Time limit of 60 days to Dispose of a Domestic Violence case as prescribed under Sec 12(5) of the Act PWDV Act Sec 12(5) - Dispose In 60 Days | Leave a comment

Do you know that there is time limit of 60 days to dispose of a Domestic Violence case in India under sec 12(5) of PWDV Act?

Posted on August 20, 2022 by ShadesOfKnife

Legislature set a time limit of 60 days for a Domestic Violence case to be disposed as prescribed under sec 12(5) of Protection of Women from Domestic Violence Act, 2005. Here are the Rules made under this Act. But the ground reality is totally different. And I decided to address this issue. Head-on.

NOTE: Since too much thought was going into decide if this matter has to dealt as a WP or a WP(PIL), I decided to do BOTH. First a WP/CrlP, for my individual case and then a WP(PIL) for public benefit.

RESULTS:

Won the individual battle here…
Won the PIL battle too despite it getting dismissed by the Honourables. Read further down this page.


Go here for other cases I dealt with personally…


Law in question (as it stands today):

12. Application to Magistrate.—
(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:
Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.
(2) xxxxx
(3) xxxxx
(4) xxxxx
(5) The Magistrate shall Endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing.


Support/Inspiration from some High Courts:

  • Andhra Pradesh High Court: https://www.shadesofknife.in/naresh-kumar-yalla-vs-state-of-telangana-on-21-jul-2022/
  • Karnataka High Court: https://www.shadesofknife.in/rajamma-h-vs-thimmaiah-v-on-09-jun-2022/
  • Telangana High Court: https://www.shadesofknife.in/p-parvathi-vs-pathloth-mangamma-on-7-jul-2022/ [Guidelines passed]
  • To-do: Find more useful judgments
  • To-do: Contact Chairpersons of State Women Commissions of various States and ask for timely implementation of DV Act.
  • To-do: Find oldest ‘pending’ DVC cases in each of the 13 districts of AP, to emphasize the traversity.

Current Status in AP:

Action Taken:

Filed RTI to all 13 District Judge Court Complexes in Andhra Pradesh seeking number of cases closed within 60 working days as prescribed u/s 12(5). If no cases disposed off in 3 years, strike down Sec 12(5) from the Act.

On 2022-06-28:

Sent Reg Posts to all 13 District Judge Courts in AP, asking for information on

  1. how many DV cases were filed in 2019, 2020 and 2021 in their jurisdictional district,
  2. how may were disposed in 2019, 2020 and 2021 in their jurisdictional district, and
  3. how many were disposed within 60 days, in 2019, 2020 and 2021 in their jurisdictional district.

They have 30 days time to reply to me. Will file the PIL in August.

As expected the DV cases closed within statutory 60 days is abysmally low.


Parties:

Petitioner-in-person: Sandeep Pamarati
Respondents: From High Court of Andhra Pradesh, Union of India and State of Andhra Pradesh

    1. High Court of Andhra Pradesh, Represented by the Registrar General
      AP High Court Buildings,
      Nelapadu, Amaravathi,
      Guntur District, Andhra Pradesh
      PIN: 522202
    2. Union of India, Represented by its Secretary,
      Ministry of Law and Justice, Dept. of Legal Affairs,
      A Wing, 4th Floor, Shastri Bhawan,
      Dr. Rajendra Prasad Road, New Delhi, 110001
    3. Union of India, Represented by its Secretary,
      Ministry of Parliamentary Affairs
      Shastri Bhawan, Dr. Rajendra Prasad Road,
      New Delhi, 110001
    4. Union of India, Represented by its Secretary,
      Ministry of Women and Child Development
      Shastri Bhawan, Dr. Rajendra Prasad Road,
      New Delhi, 110001
    5. Union of India, Represented by its Secretary,
      Ministry of Social Justice and Empowerment
      Shastri Bhawan, Dr. Rajendra Prasad Road,
      New Delhi, 110001
    6. State of Andhra Pradesh, Rep. by its Principal Secretary,
      Home Department, AP Secretariat,
      Velagapudi, Amaravathi, Guntur District, 522503
    7. State of Andhra Pradesh, Rep. by Secretary to Government,
      Law (Legislative Affairs and Justice) Department, AP Secretariat,
      Velagapudi, Amaravathi, Guntur District, 522503
    8. State of Andhra Pradesh, Rep. by its Principal Secretary,
      Department of Women Development & Child Welfare
      Office of Special Commissioner, 4th Floor Jampani Towers,
      Lodge Centre, Amaravathi Road, Guntur-522006
    9. National Commission for Women, Rep by Chairperson
      Plot No 21, FC33, Institutional Area,
      Jasola, New Delhi, Delhi 110025
    10. Andhra Pradesh State Commission for Women, Rep by Chairperson
      Flat No. 506, 4th Floor, MGM Capital Building, Dr. YSR Arogya Sri Complex,
      Chinakakani, Mangalagiri, Guntur. Pin : 522503
    11. National Judicial Academy, Rep by The Director,
      Bhadbhada Road, Suraj Nagar PO,
      Bhopal, Madhya Pradesh 462044
    12. A.P. Judicial Academy, Rep by The Director,
      Gandhi Nagar, Nehru Nagar Colony, West Marredpally,
      Secunderabad, Telangana 500026
    13. Law Commission of India, Rep by The Member Secretary,
      Lok Nayak Bhavan, ‘B’ Wing, 2nd & 4th Floor,
      Khan Market, New Delhi -110003
    14. Bar Council of India, Rep by the Secretary,
      21, Rouse Avenue, Institutional Area,
      New Delhi Pin Code – 110002
    15. Bar Council of Andhra Pradesh, Rep by The Secretary
      Ground Floor, A.P. High Court Building,
      Nelapadu, Amaravati, Guntur,  Andhra Pradesh
      PIN: 522 239

Remedy:

File a writ u/Act 226 read with Art 227 seeking direction from High Court of AP to all the Trial Courts in the State which deal with Domestic Violence cases, to mandatorily invoke the time limit of 60 days to dispose of a DV case, as prescribed under sec 12(5), whenever an application for interim reliefs, under sec 23(1), was prayed/sought for also in the spirit of Sec 309 CrPC.

Dilemma: To file WP or WP(PIL)? Why not, both?

Drafting: WP Done in the form of CrlP r/w Art 226 and 227 here. WP(PIL) is pending (u/Art 226 and 227)

Reliefs:

  1. Call for records for the DV cases are disposed in 60 days from Srikakulam, Visakhapatnam, Guntur, Chittoor, West Godavari, Kadapa, Krishna Districts as they did not give data to RTI applications.
  2. Acknowledge the total failure of the implementation of Statutory Compliance of Sec 12(5) of PWDV Act.
  3. Appoint an amicus/LCI to study reasons for this failure in State of AP.
  4. Direct all District Unit Heads to ensure the DV cases are disposed in 60 days (To tackle such scenarios, you can use the Supreme Court judgment to force the Trial judge to come up with case calendar for the entire case, which is available here)
  5. Setup a periodic monitoring mechanism to report the delays in DV case disposal publicly on AP High Court website.

 

Supporting Case laws:

  1. Mewa Singh and others Vs Sukhjeet Kaur on 29 April 2013 (PHHC: appearance of respondents disposed off)
  2. Ayishabi Vs Shahul Hameed on 16 July, 2014 (KerHC: Dispose within 3 months)
  3. Kuppusamy Vs Radhika on 21 July, 2017 (MadHC: Dispose DVC in 2 months)
  4. Sushila Devi Vs Vikas Kumar Singhal And Ors on 9 Feb 2018 (RajHC: Dispose within 2 months)
  5. Tillottama Kumari Vs State of Bihar and Ors on 16 May 2019 (PatHC: Dispose DVC in 6 weeks)
  6. Maya and Ors Vs State of U.P. and Ors on 19 Mar 2021 (AllHC: Dispose DVC in 2 months)
  7. Suyalaly and Anr Vs Alphin Jeyasingh and Ors on 29 Nov 2021 (MadHC: Dispose within 2 months)
  8. Vani Santhosh Babu Vs Vijaya Laxmi Vani on 3 Mar 2022 (TelHC: Dispose in 60 days)
  9. Rajamma H Vs Thimmaiah V on 09 Jun 2022 (KarHC: Dispose DVC within 2 weeks)
  10. Mrugesh Wasnik Vs Shweta Mrugesh on 22 Jun 2022 (BomHC: Dispose DVC within 3 months)
  11. P Parvathi Vs Pathloth Mangamma on 7 Jul 2022 (TelHC: Directions issued regd appearance of respondents)
  12. Naresh Kumar Yalla Vs State of Telangana on 21 Jul 2022 (TelHC: Dispose DVC in 1 month)
  13. Sandeep Pamarati Vs State of AP and Anr on 29 Sep 2022 (APHC: Disposal of DVC in 60 days/3 months (around 20 working days in a month); my first win AP HC!)

Writ Public Interest Petition:

Filed this PIL [WP(PIL)/182/2022] in Oct 2022 but got listed on 14 Nov 2022 before Court-1 of AP HC. Prepared well to argue the matter and hoped to get notices issued to 15 respondents on the petition. But the ;category (For Orders of Court) under which this cases was listed’ and ‘no final WP number given’ made it clear to me that this will be dismissed.

Case status:

 

I went to podium and began with intro as PIP and then informed there is no personal interest in this PIL and how. That’s all… It was dismissed as not maintainable. Not sure what legal reasons were mentioned in the dismissal order. CJ said, tomorrow I will come with a petition to early dispose another kind of case type. I don’t think this is a legal reason.

Here is the Writ Petition Copy:

2022-10-11 WP(PIL) against APHC and 14 Ors v0.1

Here is the dismissal order.

Sandeep Pamarati Vs High Court of AP and 14 Ors on 14 Nov 2022

Interesting update…

Just after a week from date of the dismissal of my WP-PIL, the following Circular gets issued by AP HC in Nov 2022. Interesting, because earlier circular, issued in Oct 2022, did NOT have a deadline!!! Seems my now-dismissed-PIL is working it’s magic.

2022-Oct-20 Circular:

2022-10-20 CIR_ROC559-20.10.22 Directions for endeavoring to enhance the disposals

 

…. and then…

2022-Nov-23 Circular:

OPCELL-ROC560-23.11.22

—

The following is the circular forwarded to Anantapur District Judiciary.

2022-11-23 Clearance of Old Cases (ALL those cases instituted prior to 2018)

I AM HAPPY AND SMILING.


MASTER LIST here.

Posted in Judicial Activism (for Public Benefit) | Tagged Do you know that there is time limit of 60 days to dispose of a Domestic Violence case in India under sec 12(5) of PWDV Act? PIL - Implement the Statutory Time limit of 60 days to Dispose of a Domestic Violence case as prescribed under Sec 12(5) of the Act Protection of Women from Domestic Violence Act 2005 PWDV Act Sec 12(5) - Dispose In 60 Days Success Story | Leave a comment

Anil Kumar Talan Vs on State (Govt of NCT of Delhi) on 12 Jul 2022

Posted on August 16, 2022 by ShadesOfKnife

A single judge bench of Delhi High Court held in open to dry the criminal connivance of the petitioner and his family, just because the daughter does not want to live with sol-in-law.

From Para 8,

8. I have given considered thought to the contentions raised.
At the outset, it may be noticed that Abhishek Kumar S/o the complainant remained in custody on the basis of fabrication of incident of disappearance made by Komal Talan. The interim protection to Komal Talan in the aforesaid facts and circumstances has already been declined by this Court during the pendency of her application for anticipatory bail. So far as the present application is concerned, the petitioner’s connivance is supported by the fact that mobile number 9997066979 used by him was provided by Nizamuddin as disclosed during investigation.
At this stage, it cannot be ignored that Komal Talan was in touch with the family members during the aforesaid period and consequently Abhishek Kumar remained in custody. Also, the matter appears to have been highlighted in media on the basis of alleged suicide note, which the prosecution seeks to recover.
A bare perusal of aforesaid factual position reveals that to wreak vengeance for oblique motive, the incident of alleged suicide was fabricated. The same not only led to ignominy, adverse media coverage and misery to the family of complainant but also resulted in undue incarceration of Abhishek Kumar (husband of Komal Talan). The criminal proceedings were initiated as a gross abuse of the process of law. The implication and consequences of such conduct may not have been fully visualized by the petitioner at the aforesaid time but the uncalled for detention of Abhishek Kumar definitely ruined the chances of settlement. The law appears to have been used as a weapon than a shield by fabricating the incident of disappearance and suicide.
I am of the considered view that a serious view needs to be taken of such incidents to ensure that social fabric is not ruined by such fabrication of facts. If false implication by fabricated omnibus allegations against entire family in the course of matrimonial disputes and differences, is allowed, it may lead to further misuse of the process of law and assume serious proportions.
Considering the grave nature of allegations and the fact that criminal proceedings under Section 364 IPC were falsely initiated, in connivance, I do not find the case to be fit for grant of anticipatory bail to the petitioner.

Anil Kumar Talan Vs on State (Govt of NCT of Delhi) 12 Jul 2022
Posted in High Court of Delhi Judgment or Order or Notification | Tagged Anil Kumar Talan Vs on State (Govt of NCT of Delhi) | Leave a comment

CMD Fertilizer Corporation of India Ltd and Anr Vs Rajesh Chandra Shrivastava and Ors on 07 Apr 2022

Posted on August 15, 2022 by ShadesOfKnife

A division bench of Apex Court held as follows:

From Para 20,

20. It is a fundamental principle of law that a party who is in enjoyment of an interim order, is bound to lose the benefit of such interim order when the ultimate outcome of the case goes against him.

Note: If only such illegally obtained benefits are legally reimbursed to the payer!

CMD Fertilizer Corporation of India Ltd and Anr Vs Rajesh Chandra Shrivastava and Ors on 07 Apr 2022
Posted in Supreme Court of India Judgment or Order or Notification | Tagged 2-Judge (Division) Bench Decision CMD Fertilizer Corporation of India Ltd and Anr Vs Rajesh Chandra Shrivastava and Ors Reportable Judgement or Order | Leave a comment

Neera Singh Vs State (Govt of NCT of Delhi) and Ors on 23 Feb 2007

Posted on August 11, 2022 by ShadesOfKnife

Justice Shiv Narayan Dhingra ji highlighted as follows:

From Paras 3 and 4,

3. A perusal of the complaint would show that as per allegations dowry demand was made even before marriage i.e. at the time of engagement and an AC was demanded from her father by her in-laws and her father had assured that AC would be given at the time of marriage. However, she told her father “You have given car and AC at the demand of in laws, what will happen if they demand a flat tomorrow?”. Despite her this conversation with her father and despite her knowing that dowry demand had already been made, she married in the same family irrespective of the fact that she was well-educated lady and was an engineer and her brother was in police. In fact, these kinds of allegations made after breakdown of the marriage show the mentality of the complainant. I consider where these kinds of allegations are made, the police should simultaneously register a case under Dowry Prohibition Act (in short, the Act) against the parents of the complainant as well, who married their daughter despite demand of dowry. Section 3 of the Act prohibits giving and taking of dowry. If a woman of grown up age and well educated gets married to a person despite dowry demand, she and her family becomes accomplice in the crime under Dowry Prohibition Act.
4. Now-a-days, exorbitant claims are made about the amount spent on marriage and other ceremonies and on dowry and gifts. In some cases claim is made of spending crores of rupees on dowry without disclosing the source of income and how funds flowed. I consider time has come that courts should insist upon disclosing source of such funds and verification of income from tax returns and police should insist upon the compliance of the Rules under Dowry Prohibition Act and should not entertain any complaint, if the rules have not been complied with. Rule 2 of the Dowry Prohibition (Maintenance of List of Presents to the Bride and Bridegroom) Rules, 1985 reads as under:

2. RULES IN ACCORDANCE WITH WHICH LISTS OF PRESENTS ARE TO BE MAINTAINED.-
(1) The list of presents which are given at the time of the marriage to the bride shall be maintained by the bride.
(2)The list of presents which are given at the time of the marriage to the bridegroom shall be maintained by the bridegroom.
(3)Every list of presents referred to in Sub-rule(1) or Sub-rule(2)-
(a) shall be prepared at the time of the marriage or as soon as possible after the marriage;
(b) shall be in writing;
(c) shall contain:-
(i) a brief description of each present;
(ii) the approximate value of the present;
(iii) the name of the person who has given the present; and
(iv) where the person giving the present is related to the bride or bridegroom, a description of such relationship.
(d) shall be signed by both the bride and the bridegroom.

5. The Metropolitan Magistrates should take cognizance of the offence under the Act in respect of the offence of giving dowry whenever allegations are made that dowry was given as a consideration of marriage, after demand. Courts should also insist upon compliance with the rules framed under the Act and if rules are not complied with, an adverse inference should be drawn. If huge cash amounts are alleged to be given at the time of marriage which are not accounted anywhere, such cash transactions should be brought to the notice of the Income Tax Department by the Court so that source of income is verified and the person is brought to law. It is only because the Courts are not insisting upon compliance with the relevant provisions of law while entertaining such complaints and action is taken merely on the statement of the complainant, without any verification that a large number of false complaints are pouring in.

Neera Singh Vs State (Govt of NCT of Delhi) and Ors on 23 Feb 2007
Posted in High Court of Delhi Judgment or Order or Notification | Tagged 1-Judge Bench Decision Abuse Or Misuse of Process of Court Justice Shiv Narayan Dhingra Misuse of Women-Centric Laws Neera Singh Vs State (Govt of NCT of Delhi) and Ors PIL - Dowry Givers should be Prosecuted | Leave a comment

Neera Singh Vs State (Govt of NCT of Delhi) and Ors on 21 Feb 2007

Posted on August 11, 2022 by ShadesOfKnife

Justice Shiv Narayan Dhingra ji highlighted the misuse of 498A IPC by some unscrupulous women.

From Para 7,

7. Now-a-days, it has become a tendency to make vague and omnibus allegations against every member of the family of the husband, involving everybody under Section 498A and 406 of the IPC by making one or the other allegations. Hence, it has become very necessary for the Courts to carefully scrutinize the allegations and to find out if the allegations made really constitute the offence and meet the requirements of law at least prima facie. The learned ASJ scrutinized the entire FIR and the statement of complainant and thereafter observed that no case was made out against these two minor girls. I have also gone through the record and find that except above allegations made by the complainant, no other role was assigned to these two minor girls (respondents).

Neera Singh Vs State (Govt of NCT of Delhi) and Ors on 21 Feb 2007
Posted in High Court of Delhi Judgment or Order or Notification | Tagged 1-Judge Bench Decision Abuse Or Misuse of Process of Court Justice Shiv Narayan Dhingra Misuse of IPC 498A Neera Singh Vs State (Govt of NCT of Delhi) and Ors | Leave a comment

Naresh Kumar Yalla Vs State of Telangana on 21 Jul 2022

Posted on August 10, 2022 by ShadesOfKnife

A single judge of Telangana High Court held as follows:

4. When there is a specific direction from this Court to dispose of the matter time bound, it is not known how the case is still pending. However, considering the request of the petitioner, the criminal petition is disposed of with the following directions:-
1) The Court of X Additional Metropolitan Magistrate, Kukatpally, is directed to take up the case in D.V.C.No.61 of 2019 on day-to-day basis and to dispose of the same within a period of one month from the date of receipt of a copy of this order.
2) In case, the case is not disposed of within one month, the Court of X Additional Metropolitan Magistrate, Kukatpally, is directed to submit a report to the Registrar (Judicial) narrating the reasons as to why the case could not be disposed of.
3) The above direction is issued not only basing on the merits of the case, but also as Section 12(5) of the Protection of Women from Domestic Violence Act, 2005, clearly mandates that the case has to be disposed of within a period of sixty (60) days from the date of its first hearing.

Naresh Kumar Yalla Vs State of Telangana on 21 Jul 2022

Connects to a PIL here.

Posted in High Court of Telangana Judgment or Order or Notification | Tagged 1-Judge Bench Decision Naresh Kumar Yalla Vs State of Telangana PWDV Act Sec 12(5) - Dispose In 60 Days | Leave a comment

Pasagadula Sai Kiran Vs Union of India and Ors on 04 Aug 2022

Posted on August 10, 2022 by ShadesOfKnife

A single judge bench of AP High Court held that Regional Passport Officer can be directed by Court to issue Police clearance certificate.

From Paras 4 and 5,

4. The learned Assistant Solicitor General, appearing for the 2nd respondent would submit that the service of issuing a police clearance certificate is a voluntary service being given for the benefit of Indian citizens and there is no underlying duty cast on the 2nd respondent, by virtue of any provision of law or Judgment of the Court, to issue such police clearance certificates. He would further submit that a Writ of Mandamus cannot lie against the 2nd respondent and there is no legal duty cast on the 2nd respondent to undertake such activities. Further, the 2nd respondent cannot give a clean chit to the petitioner and would have to incorporate the details of the aforesaid crime in any certificate that can be issued to the petitioner.
5. In view of the fact that the 2nd respondent has been issuing such certificates to citizens staying abroad, the 2nd respondent cannot take the stand that since it is a voluntary service, there cannot be any direction to the 2nd respondent to issue or not to issue such certificates.

Pasagadula Sai Kiran Vs Union of India and Ors on 04 Aug 2022
Posted in High Court of Andhra Pradesh Judgment or Order or Notification | Tagged Pasagadula Sai Kiran Vs Union of India and Ors Passport Office can issue Police Clearance Certificate | Leave a comment

XXX Vs State of Kerala and Ors on 05 July 2022

Posted on August 8, 2022 by ShadesOfKnife

A single judge bench of Kerala High Court held as follows:

From Para 13,

13. I do not propose to go into the details of this case any further because, through the various interim orders already issued, the petitioner has
obtained relief – including DNA analysis of the foetus she was carrying, under the provisions of the Code of Criminal Procedure (Cr.PC). In fact, the learned counsel for the petitioner – Sri.Dheeraj Rajan, affirmed that no specific orders are now required and that a Final Report has also been filed by the Police.

From Para 14, (Invitation for views)

14. However, the trauma, which the petitioner has experienced and which may be forced upon victims in future, makes this Court to think in terms of having a Protocol for the purpose of empowerment of the victim – being gender neutral – to approach the law enforcement agencies and obtain succor and support in the initial stages of extreme fear, terror and despondency faced.
15. With the afore intent, I threw open discussions in this matter to the Bar, calling for suggestions from anyone who is interested in addressing this Court; and am glad that I did so because, I have had the benefit of the views and inputs from very eminent lawyers, both senior and junior.
16. The principles and imperative requirements of ‘Victim Protection Protocols’ are inexorably attracted whenever a sexual assault occurs; and I, therefore, requested the learned counsel appearing for the parties and who are assisting this Court upon the aforementioned invitation, as also the
learned Special Government Pleader – Smt.Ambika Devi, to offer their suggestions.

From Para 32, (Protocols follow)

Consequently, I order this writ petition, directing that protocols below are scrupulously followed in the case of a complaint regarding sexual attack or child abuse without exception:
a) The Government will, in addition to the steps taken earlier by it, continually publicize the Toll Free Number ‘112’ as an Emergency Support System to be known to every citizen, so that the victim of a child abuse or sexual assault can access it whenever required.
b) Every victim of sexual assault and child abuse must be encouraged to access the afore Toll Free Number or the Police Control Room Number ‘100’; and on such intimation being received, it will be fed into a digital system, to be then brought to the notice of the jurisdictional Police Station, for necessary steps under Section 154 of the Cr.P.C. In this regard, I record the undertaking of the State that a system as afore has already been put in place under the Emergency Response Support System (ERSS) Project.
c) This Court records the further undertaking of the State that calls made to the aforementioned Toll Free Numbers of ‘112’ and ‘100’ will only be
attended and responded to by well sensitized and trained personnel, who will make sure that the victim is given sufficient support from the inception, until the time she/he requires it thereafter.
d) On intimation of a sexual assault or child abuse being received by the afore Toll Free Numbers, the Police Control Room or the jurisdictional Police Station, will take immediate steps to contact the victim either personally or through phone without, however, summoning him/her to the Police Station.
e) While taking the statement of the victim, mandatory provisions of Section 157(1) of the Cr.P.C., namely, that same be recorded at his/her
residence or in the place of his/her choice and as far as practical, by a Police Officer in the presence of his/her parents/guardian/near relatives or social worker, shall be scrupulously complied with.
f) On the FIR being so registered, the investigating officer will forthwith assign a ‘Victim Liaison Officer’ in terms of the applicable circulars issued by the State Police Chief, who shall then contact the victim immediately so that he/she will feel safe and protected, being sure of such support.
(g) Simultaneous to the registration of the FIR or at the time when the Victim Liaison Officer is so assigned, the investigating Officer will disclose to the victim the numbers of the ‘One Stop Crisis Centre’ and that of the ‘VRC’, so that they can involve themselves and ensure that the victim suffers no further traumatisation and obtains the best psychological support and succor which, indubitably, is the sine qua non for the reparatory process of the victim’s psychological trauma.
(h) The Authorities concerned will ensure that the victim has constant access to the Victim Liaison Officer and to the ‘One Stop Crisis Centre/VRC’, as the case may be; and that this is made available 24 hours a day, at any time the victim requires it during his/her most difficult times.
(i) The ‘One Stop Crisis Centre’/’VRC’ is directed to offer not merely psychological assistance to the victim, but also legal support as may be required and will actively promote his/her return to normal life, through every possible facilitation as may be warranted. This shall continue as long as the victim requires, or until such time as the trial is completed.
(j) It is further ordered that the victim Liaison Officer (VLO), as also the ‘One Stop Crisis Centre’/’VRC’, shall make available every assistance necessary to the victim for the processes under Section 164A of the Cr.PC, and must actively guide and instruct, advising her/him of her/his rights under it, thus being able to exercise it diligently and with confidence.
The afore are, of course, not exhaustive; and I, therefore, leave liberty to any person, including the learned counsel for the parties or the members of the Bar, to seek any clarification from this Court, if so found necessary; in which event, more effective protocols for victim protection can certainly be thought of and incorporated.

XXX Vs State of Kerala and Ors on 05 July 2022
Posted in High Court of Kerala Judgment or Order or Notification | Tagged 1-Judge Bench Decision Issued or Recommended Guidelines or Directions or Protocols to be followed XXX Vs State of Kerala and Ors | Leave a comment

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