Yogesh Chhibbar Vs State of U.P. on 6 Dec 1999

Single judge bench of Allahabad High Court made pertinent comments on how not to interpret a provision of law.

From Para 6,

6. It is not disputed that the learned Magistrate had taken cognizance on the complaint filed by Dowry Prohibition Officer. Section 7(1)(b) of Dowry Prohibition Act bars taking cognizance of an offence under this Act except upon a complaint by the person aggrieved by the offence or a parent or other relative of such person, or by any recognized welfare institution or organisation. In this case undisputedly, the complaint was not filed by opposite party No. 2, or her parents or other relatives. Dowry Prohibition Officer has not been authorised by above section to file complaint. No doubt, Section 8B of Dowry Prohibition Act says that the State Government may appoint as many Dowry Prohibition Officer as it thinks fit and specified area in respect of which they shall exercise their jurisdiction and powers under this Act.

From Paras 8-11,

8. The learned Additional Sessions Judge has observed that though the Dowry Prohibition Officer was not authorised to file complaint, but he had power to collect evidence as may be necessary for the prosecution of persons committing offence under the Act and it appears that it was the intention of the Legislature to empower the District Dowry Prohibition Officer to move to the Court for prosecution of the person, who is found guilty of taking or demanding dowry. He further observed that if he was not empowered to file complaint for prosecution of guilty person, he cannot prevent the taking of dowry and his act of collecting evidence will go waste. In these circumstances, the Dowry Prohibition Officer has got power to collect evidence and also got powers to file complaint. The above observation of the learned Additional Sessions Judge shows that he acted beyond the scope of Section 7(1)(b) of the Act. If the Legislature actually intended to confer power of filing complaint on Dowry Prohibition Officer, it ought to have been mentioned in Section 7(1)(b) of the Act itself.

9. The power to file complaint, therefore, cannot be inferred from the analogy of the powers of Dowry Prohibition Officer enumerated in Section 8B. Anything which is not in the Act cannot be inserted by Courts. The Court does not possess law-making power. The Courts may interpret the law contained in the Act and not insert any fresh provision, which has deliberately not been incorporated by the Legislature. Therefore, the above observation of the learned Additional Sessions Judge that Dowry Prohibition Officer has got power to file the complaint is against the provisions of law.

10. The learned Additional Sessions Judge has further observed that Section 7(1)(b)(ii) and the Explanation to said section says that Court shall take cognizance of a complaint filed by a recognised welfare institution or organisation. The Harijan Welfare Department of the State of U.P. is a welfare institution and if its officer has filed complaint under the provisions of Dowry Prohibition Act, the Magistrate will take cognizance over it under Section 7(1)(b)(ii). This observation of the learned Additional Sessions Judge is also against the provisions of law. The complaint was not filed by Harijan Welfare Department allegedly a recognised welfare institution, but by Dowry Prohibition Officer. If the law requires that complaint should be filed by an institution, then it must be filed by institution and not by other Authority. It may be true that Dowry Prohibition Officer was appointed by Harijan Welfare Department, but that officer did not become the Department itself and no action has been taken by the Department, as there is no such indication in the complaint that it was filed by Harijan Welfare Department through Dowry Prohibition Officer. Therefore, above observations of the learned Additional Sessions Judge are against the provisions of law and cannot be accepted.

11. In the result it is clear that complaint was not filed by person enumerated in Clause (b) of Sub-section (1) of Section 7 of Dowry Prohibition Act and, therefore it was without authority. Therefore, the cognizance against the applicants on the complaint filed by unauthorised person could not have been taken. Therefore, there was legal bar for taking cognizance against the applicants and cognizance was wrongly taken. The prosecution of applicants on the complaint of unauthorised and incompetent person was nothing but abuse of process of law and on this ground the cognizance as well as proceedings arising out of it are liable to be quashed under the exercise of powers conferred under Section 482, Cr.P.C. Thus, the application succeeds.

Indian kanoon version:

Yogesh Chhibbar Vs State of U.P. on 6 Dec 1999 (IK Ver)

Casemine Version:

Yogesh Chhibbar Vs State of U.P. on 6 Dec 1999 (CM Ver)

Citations : [2000 ACR 1 65], [2000 ALLCC 40 459], [2000 RCR CRIMINAL 3 206], [2000 DMC 2 537], [2000 JIC 2 575], [1999 SCC ONLINE ALL 1527], [2000 ALL LJ 1053], [2000 CRI LJ 2849], [2001 HLR 1 676]

Other Sources :

https://indiankanoon.org/doc/553049/

https://www.casemine.com/judgement/in/5767b12de691cb22da6d5ab0

Ramapada Basak and Anr Vs State of West Bengal and Ors on 23 Jul 2021

Posted on July 27 by ShadesOfKnife

Single judge bench of Calcutta High Court held as follows:

It is now well settled that the children and their spouses living in the senior citizen’s house are at best “licensees”. Such licence comes to an end once the senior citizens are not comfortable with their children and their families. This principle has also been followed by the Delhi High Court in in WP(C) 2761/2020 (Sandeep Gulati Vs. Divisional Commissioner), decided on 13.03.2020 and the Punjab and Haryana High Court in the cases of (a) Manmohan Singh Vs. U.T. Chandigarh and Ors. (Case No. 1365/2015), (b) Samsher Singh Vs. District Magistrate, U.T. Chandigarh (Case No. 2017 CWP 6365) and (c) Gurpreet Singh Vs. State of Punjab (Case No. 2016(1) RCR (Civil) 324)
Two issues would come up for consideration. The first of which is the availability of alternative remedy under the provisions of the Maintenance and Welfare of Parents Senior Citizens Act, 2007. The other is a right of a daughter-in-law of residence to be provided by either the husband or the father-inlaw, if directed by a competent court under the provisions of the Domestic Violence Act, 2005.
The Hon’ble Supreme Court in the case of S. Vanitha Vs. Deputy Commissoner, Bangaluru Urban District and Ors. reported in 2020 SCConline SC 1023 has said that since both, the Senior Citizens Act, 2007 as also the Domestic Violence Act, 2005 are special legislations, the two must be construed harmoniously and applied suitably by a writ court hearing a plea of the senior citizens that they do not want their children to live with them. At paragraphs 35-40 the Hon’ble Supreme Court has elaborately dealt with the principle under the headline “E. Harmonising competing reliefs under the PWDV Act 2005 and Senior Citizens Act 2007”.
In the instant case, it is seen that no right of residence has been sought under any Statute by the daughter-in-law. Hence, this Court is of the view that there is no impediment in allowing exclusive residentiary rights to the senior citizens and to direct eviction of the son and daughter-in-law.
On the question of alternative remedy, this Court is conscious of the principles laid down by the Hon’ble Supreme Court in the case of Whirlpool Corporation Vs. Registrar of Trademark reported in (1998) 8 SCC 1 and upheld recently in the year 2021 in the case of Radha Krishan Industries Vs.
State of Himachal Pradesh and Ors. reported in 2021 SCCOnline SC 334.
However, the right of senior citizen to exclusively reside in his own house, must be viewed from the prism of Article 21 of the Constitution of India. To compel a senior citizen to approach either a civil court (the jurisdiction of which is any way barred under Section 27 of the 2007 Act) or take recourse to a special Statute like the 2007 Act would in most cases be extremely erroneous and painful for a person in the sunset days of life. This Court is therefore of the view that the principle of alternative remedy cannot be strictly applied to Senior Citizens and a Writ Court must come to the aid of a Senior Citizen in a given case.
A nation that cannot take care of its aged, old and infirm citizens cannot be regarded as having achieved complete civilization.

Ramapada Basak and Anr Vs State of West Bengal and Ors on 23 Jul 2021

Citations :

Other Sources :

https://indiankanoon.org/doc/9363669/

Children living in parents’ house are at best licensees: Cal HC says senior citizens’ exclusive residentiary rights to be viewed from prism of Art. 21

Rajeshwaridevi Vijaypalsingh Jadon Vs State of Gujarat on 16 Sep 2016

Posted on July 24 by ShadesOfKnife

Single judge of Gujarat High Court directed the petitioner to go for Discharge at Trial Court and if unhappy with the outcome, the petitioners shall always take legal recourse which include application under section 482 of the Criminal Procedure Code.

From Para 2,

2. This Court notices that the investigation has culminated into filing of the chargesheet. The charges are not as yet framed. The petitioner has efficacious remedy available for moving an application for discharge. Let the same be resorted to. If unhappy with the outcome, the petitioners shall always take legal recourse which include application under section 482 of the Criminal Procedure Code. This Court has not expressed any opinion on the merits of this case. This disposal shall not come in the way of the petitioner in pursuing the case. Petition stands disposed of accordingly.

Rajeshwaridevi Vijaypalsingh Jadon Vs State of Gujarat on 16 Sep 2016

Citations :

Other Sources :

https://www.casemine.com/judgement/in/580ab2112713e175bec1bc26

Adv KG Suresh Vs UOI and Ors on 30 Mar 2021

Posted on July 23 by ShadesOfKnife

A division bench of Kerala High Court struck down Sec 17 of Senior Citizens Act 2007 as it was ultravires with Sec 30 of Advocates Act 1961.

From Para 57,

57. As Section 30 of the Advocates Act, 1961 has been brought into force from 15.06.2011, Advocates enrolled under the said Act have been conferred with an absolute right thereof, to practice before all the Courts and Tribunals. By virtue of Section 30 of the Advocates Act, 1961, coming into force, from 15.06.2011, the restriction imposed is taken away and in such circumstances, Article 19 of the Constitution of India, which guarantees the freedom to practice any profession, enables the Advocates to appear before all the Courts and the Tribunals, subject to Section 34 of the Advocates Act, 1961.
In the light of the above discussion and decisions, Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, is declared as ultra vires of Section 30 of the Advocates Act, 1961 and thus, the petitioner is entitled for a declaration that he has a right to represent the parties before the Tribunal/ Appellate Tribunal/Court, constituted under Act 56 of 2007. Accordingly, this writ petition is allowed.

Adv KG Suresh Vs UOI and Ors on 30 Mar 2021

Citations :

Other Sources :

ADVOCATES ENTITLED TO APPEAR IN MAINTENANCE TRIBUNALS; BAR ON LEGAL REPRESENTATION UNCONSTITUTIONAL: KERALA HIGH COURT

https://www.legalservicesindia.com/law/article/1924/39/Advocates-Entitled-To-Appear-In-Maintenance-Tribunals;-Bar-On-Legal-Representation-Unconstitutional-Kerala-HC

Taruna Saxena Vs Union of India and Ors on 16 Apr 2021

Posted on July 23 by ShadesOfKnife

Relying on decision of the Division bench of Kerala High Court, Justice Prathiba M Singh also struck down Sec 17 of of Senior Citizens Act 2007 as it was ultra-vires with Sec 30 of Advocates Act 1961.

From Para 4,

4. Insofar as the first issue is concerned, ld. Counsel for the Petitioner relies upon the judgment of the Kerala High Court in Adv. K.G. Suresh v. Union of India & Ors. [W.P.(C) No. 21946/2011, decided on 30th March, 2021]. He submits that Section 17 of the Act has been declared to be ultra vires Section 30 of the Advocates Act, 1961.

From Para 9,

9. In view of the above, since Section 17 has been declared ultra vires Section 30 of the Advocates Act, 1961, it would obviously mean that an advocate would have the right to represent parties before the Tribunal under the Act. Ordered accordingly.

Taruna Saxena Vs Union of India and Ors on 16 Apr 2021

Citations :

Other Sources :

https://indiankanoon.org/doc/86693117/

https://www.indianemployees.com/judgments/details/taruna-saxena-versus-union-of-india-ors

Harkanwalpreet Singh Vs Harshpreet Kaur on 17 Jan 2014

Posted on July 21 by ShadesOfKnife

A division declared a null and void marriage, a null and void marriage. hehehe. Check the list of events/dates…

a divorce petition between the respondent-Harshpreet Kaur and said Varinder Singh Thandi was filed on 23.12.2006
the marriage between the parties was solemnized on 21.2.2007
a divorce petition was pending between the respondent-Harshpreet Kaur and said Varinder Singh Thandi was decided on 18.1.2010
the copy of the judgment dated 18.1.2010 (Ex.P-3) and copy of decree sheet dated 18.1.2010 (Ex.P-4) whereby divorce was granted to the respondent in respect of her earlier marriage
she was in India as she arrived on 01.1.2012
husband came to know that the respondent-Harshpreet Kaur was already married with one Varinder Singh Thandi in June, 2012
there was no cohabitation between the parties after June, 2012
thereafter she left for USA on 05.10.2012.
She had again come to India on 10.1.2014 and was residing with her parents.

Finally,

In the facts and circumstances, the respondent has admitted the case of the appellant. It is accepted by her that she had a spouse living at the time of her marriage with the appellant. This indeed contravenes Section 5(i) of the Act. As such merely because they have been married for a considerable time, it cannot per se be said that they are acting in collusion with each other. It is better if the marriage is declared null and void on the basis of the accepted position rather than making the parties go through a protracted litigative process. Besides, it is the statutory provision of Section 5(i) of the Act, which has been infringed and there is no estoppel against a statute. Therefore, in view of the admission on the part of the respondent that she had a spouse living at the time when her marriage was solemnized with the appellant-Harkanwalpreet Singh, we find no reason, why the marriage between the parties should not be declared void as it contravenes Section 5(i) of the Act.
Accordingly, the appeal is allowed and the judgment and decree of the learned trial Court is set aside and the marriage between the parties is declared void. There shall be no order as to costs.

Harkanwalpreet Singh Vs Harshpreet Kaur on 17 Jan 2014

Citations : [2015 DMC P&H 1 225], [2014 AIR P&H 60], [2014 SCC ONLINE P&H 1049]

Other Sources :

https://indiankanoon.org/doc/120220289/

https://www.casemine.com/judgement/in/56099ebae4b01497113dccfa

Virsa Singh Vs State of Punjab on 11 Mar 1958

Posted on July 21 by ShadesOfKnife

A Full bench of Apex Court held in a murder case as follow…

To put it shortly, the prosecution must prove the following before it can bring a case under s. 300 Indian Penal Code third clause.
(1) It must establish, quite objectively, that a bodily injury is present.
(2) The nature of the injury must be proved; these are purely objective investigations.
(3) It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
(4) It must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature.

This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under s. 300, 3rdly. It does not matter that there was no intention to cause death. It does not matter that there was Do intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only
escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional.

Virsa Singh Vs State of Punjab on 11 Mar 1958

Citations : [1958 AWR 28 572], [1958 MYSLJ SC 36 723], [1958 SCR 1 1495], [1958 SCR 0 1495], [1958 SCJ 0 772], [1958 AIR SC 458], [1958 AIR SC 463], [1958 SCR 0 1945], [1958 AIR SC 365], [1958 SCR 0 1450], [1958 CRLJ SC 818], [1958 AIR SC 465]

Other Sources :

https://indiankanoon.org/doc/1296255/

https://www.casemine.com/judgement/in/5609aafee4b014971140b6ea

Sethi P V and Shansa Ramesh Vs Nil on 26 Feb 2021

Posted on July 20 by ShadesOfKnife

Citing various caselaws, Division bench of Kerala High Court held that a General Power of Attorney Holder can ask as an agent of the witness in a Court and depose on his behalf.

Sethi P V and Shansa Ramesh Vs Nil on 26 Feb 2021

Citations :

Other Sources :

https://indiankanoon.org/doc/143432928/

State of AP Vs Chekka Guru Murali Mohan and Ors on 19 Jul 2021

Posted on July 19 by ShadesOfKnife

After getting kicked in the nuts by AP High Court here, the Cabal went to Supreme Court and got the balls crushed.

State of AP Vs Chekka Guru Murali Mohan and Ors on 19 Jul 2021

Citations :

Other Sources :

Dhariwal Tobaco Products Ltd and Ors Vs State of Maharastra and Anr on 17 Dec 2008

Posted on July 19 by ShadesOfKnife

A wonderful decision by Supreme Court of India around High Court’s inherent power under section 482 CrPC against the Revisional Powers u/s 401 CrPC.

From Para 8,

8. Indisputably issuance of summons is not an interlocutory order within the meaning of Section 397 of the Code. This Court in a large number of decisions beginning from R .P. Kapur v. State of Punjab, AIR 1960 SC 866 to Som Mittal v. Govt. of Karnataka , [ (2008) 3 SCC 574 ] has laid down the criterion for entertaining an application under Section 482. Only because a revision petition is maintainable, the same by itself, in our considered opinion, would not constitute a bar for entertaining an application under Section 482 of the Code.
Even where a revision application is barred, as for example the remedy by way of Section 115 of the Code of Civil Procedure, 1908 this Court has held that the remedies under Articles 226/227 of the Constitution of India would be available. (See Surya Dev Rai v. Ram Chander Rai and others, [ (2003) 6 SCC 675 ] ).
Even in cases where a second revision before the High Court after dismissal of the first one by the Court of Sessions is barred under Section 397 (2) of the Code, the inherent power of the Court has been held to be available.

Dhariwal Tobaco Products Ltd and Ors Vs State of Maharastra and Anr on 17 Dec 2008

Citations : [2009 SCC 2 370], [2009 CRLJ SC 974], [2008 SCALE 16 240], [2009 SCC CRI 1 806], [2009 BOMCR CRI SC 1 802], [2008 AIOL 1468], [2008 SCR 17 844], [2009 AIR SC 1032], [2009 AIC SC 75 265], [2009 ECRN SC 2 284]

Other Sources :

https://indiankanoon.org/doc/1891955/

https://www.casemine.com/judgement/in/5609ae9ee4b0149711414586

Shades of Knife

True Colors of a Vile Wife

Author: ShadesOfKnife

Yogesh Chhibbar Vs State of U.P. on 6 Dec 1999

Ramapada Basak and Anr Vs State of West Bengal and Ors on 23 Jul 2021

Rajeshwaridevi Vijaypalsingh Jadon Vs State of Gujarat on 16 Sep 2016

Adv KG Suresh Vs UOI and Ors on 30 Mar 2021

Taruna Saxena Vs Union of India and Ors on 16 Apr 2021

Harkanwalpreet Singh Vs Harshpreet Kaur on 17 Jan 2014

Virsa Singh Vs State of Punjab on 11 Mar 1958

State of AP Vs Chekka Guru Murali Mohan and Ors on 19 Jul 2021

Dhariwal Tobaco Products Ltd and Ors Vs State of Maharastra and Anr on 17 Dec 2008