Sandeep Kumar Tekriwal Vs State of Bihar and Anr on 09 Sep 2008

Posted on December 28, 2022 by ShadesOfKnife

A single judge of Patna High Court held as follows,

From Para 15,

15. Section 317, Cr. P.C provides for inquiries and trial being held in the absence of accused in certain cases. However, if the Magistrate finds that personal appearance of the accused is necessary, he would direct that accused would no longer be represented on the next date by a pleader under Section 317, Cr. P.C but would appear in person. If the accused in spite of such order does not appear in person, it would be open for the learned Magistrate to issue warrant of arrest and proceed in accordance with the procedure prescribed in Chapter-VI of the Cr. P.C and may also cancel bail and bail bond and proceed in accordance with Chapter XXXIII of the Cr. P.C It does not appear from the order of the preceding dates i.e 31-1-2008, 26-3-2008 that personal attendance of petitioner would no longer be dispensed with, and he is required to attend in person. The Magistrate in view of Section 317(1) Cr. P.C ought to have given an opportunity to an accused to appear in person who was being allowed to be represented through a pleader. The order of preceding dates in the case on the contrary shows that Magistrate in fact accepted the representation under Section 317, Cr. P.C The magistrate has to follow the procedure prescribed therein, if it does not dispenses with his personal attendance. A Magistrate while rejecting a representation under Section 317 Cr. P.C cannot at the same time cancel bail bond and issue non-bailable warrant of arrest, if on preceding dates has not clearly directed that personal attendance under Section 317, Cr. P.C will no longer be dispensed with. The Court ought to provide a reasonable opportunity to the accused to appear in person whose representation was earlier being allowed under Section 317, Cr. P.C In this case, it appears that trial lingered as a co-accused Prem Prakash was absconding. Learned counsel for the petitioner has also submitted that there have been no latches on his part.

Sandeep Kumar Tekriwal Vs State of Bihar and Anr on 09 Sep 2008

Citations : [2009 AIR JHAR R 2 203], [2009 PLJR 2 260], [2008 SCC ONLINE PAT 254], [2009 (2) PLJR 263], [2009 CRI LJ 523]

Other Sources :

https://www.casemine.com/judgement/in/56b49331607dba348f00518d

Andhra Pradesh High Court Writ Proceedings Rules, 1977 (updated)

Posted on December 27, 2022 by ShadesOfKnife

Here is the Andhra Pradesh High Court Writ Proceedings Rules, 1977 updated up to 18 Jul 2017

2017-07-18 AP HC Writ Proceedings Rules, 1977 NEW up to 18 Jul 2017

Here is the amendment

2017-05-09 AP HC Writ Proceedings Rules, 1977 Amendment 2017

Phani Bhushan Potu Vs State of Telangana and Anr on 16 Aug 2022

Posted on December 27, 2022 by ShadesOfKnife

A single judge bench of Telangana HC held as follows,

From Paras 3-7,

3. Learned counsel for the petitioner submits that the petitioner is arrayed as Accused No.3 in the Calendar Case in question and the trial Court insisted personal appearance of the petitioner for each and every adjournment and the petitioner has to accompany his daughter for her admission into College and, therefore, exemption from appearance may be granted till 10th October, 2022 by setting aside the impugned order dated 19.07.2022.
4. Per contra, the learned Assistant Public Prosecutor contends that the petitioner can invoke Rule 37 of the Criminal Rules of Practice and Circular Orders, 1990.
5. Learned counsel for the petitioner submits that as his personal appearance is insisted by the trial Court, he did not invoke the said provision.
6. When there is dire necessity for the Accused to be present elsewhere and, therefore, cannot attend the trial Court and make personal appearance, the Courts are liable to consider the ground urged and apply a pragmatic approach. Therefore, this Court considers it desirable to dispose of the present Criminal Revision Case making such a direction.
7. Resultantly, this Criminal Revision Case is disposed of directing the Court of III Additional Chief Metropolitan Magistrate, Nampally, Hyderabad, not to insist upon personal appearance of the petitioner/Accused No.3 in C.C.No.280 of 2012 that is pending on the file of the said Court, in case the petitioner files an application either under Section 317/205 Cr.P.C. or under Rule 37 of the Criminal Rules of Practice and Circular Orders, 1990, by raising just and sufficient ground for exemption of personal appearance till 10th October, 2022.

Phani Bhushan Potu Vs State of Telangana and Anr on 16 Aug 2022

State of Kerala Vs Madhu @ Kutti Madhu on 6 Jan 2021

Posted on December 24, 2022 by ShadesOfKnife

A division bench of Kerala High Court held as follows regarding section 165 of Evidence Act.

From Para 80,

This Section is intended to empower the Judge with the most extensive power possible for the purpose of getting at the truth. The effect of this Section is that in order to get to the bottom of the matter before it, the court should be able to look at and inquire into every fact, whatever it be. A trial Judge, in order to discover or to obtain proper proof of relevant facts, may exercise wide powers. He may approach the case from any point of view and is not tied down to the ruts marked out by the parties. He can ask (1) any question he pleases, (2) in any form, (3) at any time, (4) of any witness, (5) or of the parties and (6) about any fact relevant or irrelevant. No party is entitled to object to any such Crl.Appeal No.1357 of 2019 & Crl.Appeal (V) No.33 of 2019 question or order or to cross-examine the witnesses without getting leave of the court. Therefore under Section 165 of the Evidence Act the court has a right to ask the witness any relevant or even irrelevant question and the parties or their counsel cannot raise any objection to any such question (Also see Sanjay Kumar v. State of Bihar- 2014 (1) SCALE 751).

State of Kerala Vs Madhu @ Kutti Madhu on 6 Jan 2021

Citations : [ILR (2021) 1 Ker 247 : 2021 1 KHC 351]

Other Sources :

https://indiankanoon.org/doc/65912246/

Sanjay Kumar Vs State of Bihar and Anr on 28 Jan 2014

Posted on December 24, 2022 by ShadesOfKnife

A Full bench of Apex Court held as follows,

From Para 4,

4. Earlier, this Court had issued notice to the petitioner himself to show cause that in case it was a fake institution, what was the reason or rationale for the petitioner to join the same and to continue to serve there for one year. In reply to the said show cause notice, the petitioner submitted that such pleadings be ignored and may not be taken into account for the purpose of disposal of the instant petition. We do not see any reason to allow a party to make a pleading in the petition and then make a submission to the court to ignore it as such an issue has no bearing on the merits of the case being totally irrelevant. Pleadings have to be true to the knowledge of the parties and in case a person takes such misleading pleadings, he can be refused not only any kind of indulgence by the court but can also be tried for perjury. In case, the pleading taken by the petitioner is true, he cannot ask for ignoring the same. In case, it is false and as such statement had been made on oath, he is liable to be tried for perjury. More so, whether such a pleading is relevant or not is a matter to be decided by the court and under Section 165 of the Indian Evidence Act, 1872, court has a right to ask the party even relevant or irrelevant questions and the parties or their counsel cannot raise any objection to any such question.

From Para 5,

Be that as it may, this Court had insisted at the time of first round of hearing of this case that AOR, Shri Manu Shanker Mishra should remain present in the Court at the time of arguments and also passed over the matter for his appearance. In the second round, it was informed to us that the AOR refused to come to the court. We take a very serious note of the conduct of this AOR, particularly, in view of the judgment of this Court In Re: Rameshwar Prasad Goyal, (2014) 1 SCC 572, wherein this Court has categorically held that in case the AOR does not appear in the court, his conduct may tantamount to criminal contempt of the court. In fact, a very few AsOR have spoiled the working system of the institution of AsOR who simply lend their signatures for petty amount. The AOR involved herein is living in a fool’s paradise if he thinks that he can play hide and seek with any court of law.

In such a chaotic situation, any “Arzi”, “Farzi”, half- baked lawyer under the label of “proxy counsel”, a phrase not traceable under the Advocates Act, 1961 or under the Supreme Court Rules, 1966 etc., cannot be allowed to abuse and misuse the process of the court under a false impression that he has a right to waste public time without any authority to appear in the court, either from the litigant or from the AOR, as in the instant case. The AOR, with impunity was disdainful towards the order of this Court directing him to appear in the court. He had also not filed any appearance for the counsel who had appeared, nor the said counsel disclosed his name. The Court takes serious note of the conduct of the AOR, Shri Manu Shanker Mishra and warns him to behave in an appropriate manner befitting the conduct of an advocate and an AOR otherwise this Court will not hesitate to take action against him. His conduct will be under close watch of this Court.

Sanjay Kumar Vs State of Bihar and Anr on 28 Jan 2014

Citations : [2014 ALLCC 84 1002], [2014 ALT CRL AP 2 242], [2014 CCR SC 2 37], [2014 COMPLJ SC 3 197], [2014 RCR CIVIL 2 285], [2014 SCALE 1 751], [2014 SCC 9 230], [2014 SCJ 4 412], [2014 SCR 1 848], [2014 UC 1 516], [2014 SCC CRI 5 21], [2014 SCC ONLINE SC 67], [2014 AIOL 52], [2014 SCV 1 397], [2014 SLT 3 298], [2014 RAJ 2 401], [2014 AICLR 1 991], [2014 ALLINDCAS 135 270], [2014 RCR CRIMINAL SC 2 711]

Other Sources :

https://indiankanoon.org/doc/199130163/

https://www.casemine.com/judgement/in/5609af4ce4b0149711416146

https://www.legalauthority.in/judgement/sanjay-kumar-vs-state-of-bihar-anr-5665

State of Maharashtra Vs Dr. Praful B. Desai on 01 Apr 2003

Posted on December 16, 2022 by ShadesOfKnife

A division bench of the Apex Court held as follows:

From Paras 11 and 12,

11. This argument found favour with the High Court. The High Court has relied on judgments of various High Courts which have held that Section 273 is mandatory and that evidence must be recorded in the presence of the accused. To this extant no fault can be found with the Judgment of the High Court. The High Court has then considered what Courts in foreign countries, including Courts in USA, have done. The High Court then based its decision on the meaning of the term “presence” in various dictionaries and held that the term “presence” in Section 273 means actual physical presence in Court. We are unable to agree with this. We have to consider whether evidence can be led by way of video-conferencing on the provisions of the Criminal Procedure Code and the Indian Evidence Act. Therefore, what view has been taken by Courts in other countries is irrelevant. However, it may only be mentioned that the Supreme Court of USA, in the case of Maryland vs. Santra Aun Craig [497 US 836], has held that recording of evidence by video-conferencing was not a violation of the Sixth Amendment (Confrontation Clause).

12. Considering the question on the basis of Criminal Procedure Code, we are of the view that the High Court has failed to read Section 273 properly. One does not have to consider dictionary meanings when a plain reading of the provision brings out what was intended.

From Para 19 (Important),

Recording of evidence by video conferencing also satisfies the object of providing, in Section 273, that evidence be recorded in the presence of the Accused. The Accused and his pleader can see the witness as clearly as if the witness was actually sitting before them. In fact the Accused may be able to see the witness better than he may have been able to if he was sitting in the dock in a crowded Court room. They can observe his or her demeanour. In fact the facility to play back would enable better observation of demeanour. They can hear and rehear the deposition of the witness. The Accused would be able to instruct his pleader immediately and thus cross- examination of the witness is as effective, if not better. The facility of play back would give an added advantage whilst cross-examining the witness. The witness can be confronted with documents or other material or statement in the same manner as if he/she was in Court. All these objects would be fully met when evidence is recorded by video conferencing. Thus no prejudice, of whatsoever nature, is caused to the Accused. Of course, as set out hereinafter, evidence by video conferencing has to be on some conditions.

State of Maharashtra Vs Dr. Praful B. Desai on 01 Apr 2003

Citations : [2003 SCALE 3 554], [2003 SCC 4 601], [2003 SCR 3 244], [2003 AIR SC 2053], [2003 AIR SC 1885], [2003 CRIMES SC 2 237], [2003 CRLJ SC 2033], [2003 SCC CRI 815], [2003 MHLJ SC 2 868], [2003 MPLJ SC 2 434], [2003 SUPREME 3 19], [2003 BOMCR CRI SC 1495], [2003 ALT CRI 2 118], [2003 RD 95 158], [2003 CTC 2 787], [2004 UD 2 60], [2003 UC 2 1011], [2003 ACR SC 2 1269], [2003 ALD CRI 1 848], [2003 ALR 51 436], [2003 CGLJ 2 86], [2003 UJ 2 769], [2003 RLW SC 2 268], [2003 GLH 2 447], [2003 RCR CRIMINAL 2 770], [2003 AIR SCW 1885], [2003 JT SC 3 382]

Other Sources:

https://indiankanoon.org/doc/560467/

https://www.casemine.com/judgement/in/5609ade4e4b0149711412786

Gogineni Lakshmi Gowthami Vs State of AP and Anr on 20 Oct 2022

Posted on December 16, 2022 by ShadesOfKnife

A single judge allowed the marking of documents and examination via video conferencing tools.

From Para 2,

2. In the course of the trial of the case, the respondent had filed Crl.M.P.No.76 of 2022 under Section 275(1) Cr.P.C and 285(3) of Cr.P.C to permit the respondent to mark documents and to depose before the Court of Trial via Skype or Blue Jeans or any other alternative electronic media and for costs. This application was allowed by the trial Court by an order dated 31.03.2021 with certain conditions.

From Para 5,

5. Smt.K.Sesha Rajyam, learned Senior counsel appearing on behalf of Smt.Hima Bindu learned counsel for the respondent would submit that the application would be covered by the provisions of Section 273 of Cr.P.C and mere mentioning of a wrong provision in the order would not invalidate the order. She submits that Section 273 of Cr.P.C only stipulates that evidence taken during the course of trial should be in the presence of the accused and there is no restriction as to where the evidence can be recorded. She would further rely upon a Judgment of the Hon’ble Supreme Court in the case of State of Maharastra vs Dr Praful B.Desai1. She contends, on the basis of the above Judgment, that recording of evidence by way of video conferencing is permissible and does not in any manner violate any of the provisions of the Cr.P.C.

From Para 9,

9. Sri Akhil Krishnan, learned counsel for the petitioner would submit that the right of cross examination of the petitioner has been forfeited by the trial Court, during the pendency of the present petition. If an order has been passed, the same shall be disregarded and the trial Court shall afford an opportunity of cross examination to the petitioner as and when the respondent makes necessary arrangements in terms of the order for being examined through video conference. For this purpose, the respondent shall be given two weeks from today to comply with the directions of the trial Court in Crl.M.P.No.76 of 2022.

Gogineni Lakshmi Gowthami Vs State of AP and Anr on 20 Oct 2022

The time limit to finish Cross Examination through Video conferencing was extended considering some difficulty.

Gogineni Lakshmi Gowthami Vs State of AP and Anr on 11 Nov 2022

Life Cycle stages of a Public Interest Litigation (WP-PIL) in a High Court

Posted on December 15, 2022 by ShadesOfKnife

Let’s look at the high level stages in filing a WP-PIL into AP High Court until its’ disposal. Take a look at my file disposed PIL here, for reference and original case documents.

Journey of Idea to Petition

This is a interesting journey from the birth of an idea to eradicate a social evil to turning this idea into a Court-Acceptable Petition. Of Course, one can write a letter and email/post to the Contact address of a High Court (Info here) or Supreme Court (Info here).

Ideation

Look around you. Tell me in which aspect of life, there is no problem. So once you find a problem, you need to know where is the ideal solution lie. Meaning, which part of the Government has the responsibility to fix the problem. This will give answers to what exactly goes into your Prayers and Respondents sections of the WP-PIL.

Who can be a Petitioner in a WP-PIL?

Any public spirited person can espouse any cause impacting any sphere of the life of general public. But the Constitutional Courts (Supreme Court and High Courts) expect the petitioner capable enough to do details research, within his capacity, on the issue being raised and propose one (or more) solutions which would address the issue raised. Since a PIL ‘is NOT a adversary litigation but it is a challenge and an opportunity to the government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice which is the signature tune of our Constitution.‘

As with anything open to public, even PIL are misused and often criticized by Judiciary as Publicity Interest Litigation. Thereafter, Supreme Court [in State Of Uttaranchal vs Balwant Singh Chaufal Ors on 18 January, 2010] directed High Courts to frame rules to be followed by those coming forward to file PILs, to make them responsible for adverse consequences in case their PILs are held to be frivolous or motivated.

Format of a WP-PIL

Each High Court prescribes certain guidelines and a format to be followed while drafting the WP Petition and Affidavit. Additionally, it may require the petitioner to file along, more affidavits declaring various aspects corresponding to various rules. Here is the AP/TS PIL Rules 2015

2015-09-02 High Court of AP, Public Interest Litigation Rules, 2015

Drafting of a WP-PIL

There is no hard and fast rule for drafting. Emphasis must be on explaining the issue briefly under various heads of the PIL format and support the issue with as much evidence as possible from our research. Propose how your solutions are supported under various provisions of laws and principles of natural justice. Objective is to make it lucid enough for the Court (most probably Court-1/Chief Justice Court) to grasp the crux of the issue in one hearing itself.

Filing of a WP-PIL

Once the WP-PIL is drafted, reviewed (as many times as necessary), have it printed and filed into the Court. In most High Courts, the PILs are handled by the Division Bench headed by the Chief Justice of that High Court. Many two copies for the Bench. Make as many extra copies as there are Respondents, except where if same government advocate is going to represent more than one respondent. Make copies of ALL the material papers (technical word for bundle of Annexures) to go with above copies of petitions. You can make good use of the filing clerks in/around the High Court premises. This may become redundant, once paperless Courts become a reality!

There will be a section/wing within Filing Section of the High Court, which accepts and scrutinizes the draft. The section staff will assign a SR number to the bundle as a temporary identifier. If there are any objections/questions from the Scrutiny officer, the bundle will be returned to you (via Returns Section) for you to rectify and re-file the bundle. Once this exercise completes, your PIL will get a final case number.

The Scrutiny officer may want some approval from the Registrar (Judicial) to allow you to appear and argue your own PIL, as petitioner. It may be not required, if you are an advocate. The point here is the person arguing the matter/case, must be competent to assist the Court.

Listing of a WP-PIL

Most probably, the PIL will be listed before the Court-1 (or whichever Court looks into PILs in that High Court) and the business of the day will be to hear the petitioner and make an assessment if notices need to be issued to the respondents or can the PIL be disposed off at this admission stage itself. If the notices are not issued, it is most certain that the PIL was dismissed, for reasons best known to the bench and mentioned in the dismissal order. Like I came to know in above mentioned WP-PIL.

Otherwise, the respondents will have a total of 120 days to respond to the PIL, by filing their Counters. This is as per the AP High Court WP Proceedings 1977 available here. Other High Court have different Rules. Check that High Court’s website or the Filing Section in person. It is another matter that in AP High Court, Court-1 does not see any urgency, when advocates bring to the notice of the Court that the respondents already are in violation of this Rule 12. The Chief Justice himself commented to me in open Court, that there are cases pending even before my case. I am not sure, if this is a matter of pride or shame! I can not stand the lack of empathy towards the WPs filed as PILs here.

Disposal of a WP-PIL

Depending on the issue raised in the PIL petition, the case moves to the next stages involving weighing the contents and objections of the Counters filed by the respondents and the Bench may pass intermittent Orders to unearth the real issues and ways to effectively eradicate them.

Index of various other Life Cycles here.

Atul and Ors Vs State and Anr on 30 Nov 2022

Posted on December 15, 2022 by ShadesOfKnife

A division bench of Bombay High Court held, marrying another woman while having an alive spouse is cruelty u/s 498A IPC.

From Para 5,

5. The cruelty prima facie handed out to non-applicant no. 2 did not stop at physically torturing non-applicant no. 2 but, it went beyond the physical state of pain in the sense that the husband i.e. applicant no. 1 with impunity performed marriage with another woman and that was done with the active aid and assistance of the rest of the applicants. When a husband performs the second marriage while his first marriage is alive, a question arises as to whether such act on the part of husband would amount to cruelty within the meaning of Section 498-A of the IPC. As per explanation to Section 498-A of the IPC, cruelty means; any wilful conduct of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (mental or physical) of the woman. It also includes harassment caused with a view to coercing the woman or any person related to her to meet any unlawful demand for any property or valuable security. Here, we are concerned with wilful conduct of such a nature which has caused or which is likely to cause danger to health of non-applicant no. 2. Marrying another woman by the husband during existence of his first marriage is something which is most likely to cause trauma and grave injury to the mental health of the first wife, unless it has been done with the consent of the first wife. If the act of performance of second marriage during subsistence of the first marriage is not interpreted as amounting to cruelty contemplated under Section 498-A of the IPC, it would frustrate the legislative intent to prevent the torture to a woman by her husband or by relative of her husband and, therefore, that interpretation has to be adopted which sub-serves the object sought to be achieved by the Legislation. Useful reference in this regard may be made to the cases of B.S. Joshi and ors. Vs. State Of Haryana and anr. [2003 Cri L.J. 2028 (SC)] and Reema Aggarwal Vs. Anupam and ors. [(2004) 3 SCC 199]. By these parameters, we find here that the second marriage performed by applicant no. 1 while his first marriage with non-applicant no. 2 was on, prima facie amounted to cruelty. It has been further prima facie aggravated here when the applicant no. 1 made a false representation to other woman with whom he performed marriage during subsistence of the present marriage with non-applicant no. 2 that his first wife had died and the rest of the applicants i.e. both his parents, his siblings and also aunt joined in chorus with applicant no. 1. They falsely told the second woman that the first wife of applicant no. 1 had died. All these details have been graphically stated by the second woman in her statement recorded under Section 161 of the Criminal Procedure Code, 1973 (for short the “Cr.P.C.”). She has also informed the police
that she too had lodged a criminal complaint against applicant no. 1 which was registered by Police Station, Imamwada, Nagpur for certain cognizable offences. Although, it is not known as to exactly which are those offences but, the fact remains that even the second wife of applicant no. 1 has lodged a criminal report against him.

Atul and Ors Vs State and Anr on 30 Nov 2022

Monirul Islam Vs The State of West Bengal on 01 Dec 2022

Posted on December 9, 2022 by ShadesOfKnife

A division bench of Apex Court held that Anticipatory Bail cannot be restricted once granted

Feeling aggrieved and dissatisfied with the impugned order(s) passed by the High Court by which though the High Court has granted the anticipatory bail to the petitioners, the same is restricted only for a period of four weeks and within which time, the petitioners are directed to appear/surrender before the jurisdictional court and pray for regular bail, the original accused in respective FIRs has preferred the present application(s)/petition(s).
Having heard the learned senior counsel/counsel appearing for the respective parties and in the facts and circumstances of the case, we modify the impugned judgment(s) and order(s) passed by the High Court and direct that in case of arrest of the petitioners in connection with the respective FIRs, the petitioners be released on bail on the terms and conditions which will be determined by the learned trial court. However, at the same time, the petitioners to move an appropriate application/applications before the concerned court for regular bail which may be considered in accordance with
law and on its/their own merits without in anyway being influenced by the grant of anticipatory bail and that such application/applications be filed within a period of four weeks from today. Till then, the present order shall operate. With all these observations, special leave petitions stand disposed of.

Monirul Islam Vs The State of West Bengal on 01 Dec 2022

Index is here.

Shades of Knife

True Colors of a Vile Wife

Month: December 2022

Sandeep Kumar Tekriwal Vs State of Bihar and Anr on 09 Sep 2008

Andhra Pradesh High Court Writ Proceedings Rules, 1977 (updated)

Phani Bhushan Potu Vs State of Telangana and Anr on 16 Aug 2022

State of Kerala Vs Madhu @ Kutti Madhu on 6 Jan 2021

Sanjay Kumar Vs State of Bihar and Anr on 28 Jan 2014

State of Maharashtra Vs Dr. Praful B. Desai on 01 Apr 2003

Gogineni Lakshmi Gowthami Vs State of AP and Anr on 20 Oct 2022

Life Cycle stages of a Public Interest Litigation (WP-PIL) in a High Court

Atul and Ors Vs State and Anr on 30 Nov 2022

Monirul Islam Vs The State of West Bengal on 01 Dec 2022