BNSS Sec 144 – Order for maintenance of wives, children and parents

Posted on June 8, 2024 by ShadesOfKnife

144. Order for maintenance of wives, children and parents:-
(1) If any person having sufficient means neglects or refuses to maintain—
(a) his wife, unable to maintain herself; or
(b) his legitimate or illegitimate child, whether married or not, unable to maintain itself; or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself; or
(d) his father or mother, unable to maintain himself or herself,
a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such female child, if married, is not possessed of sufficient means:
Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.
Explanation.—For the purposes of this Chapter, “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation.—If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.
(4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

Note:
Major difference between this section and Sec 125 CrPC is that, All traces of the word ‘minor‘ including the definition given for this word under Explanation of Sec 125(1) CrPC are removed in BNSS Sec 144 leading to the consequence that, now a major child also can claim maintenance, if he/she/it is unable to maintain themselves.

BNSS Sec 145 is here.

Entire Sanhita available here.

Maintenance Judgments under Section 125 CrPC [Section 144 BNSS] are here.

MS SAS Infratech Pvt Ltd Vs State of Telangana and Anr on 14 May 2024

Posted on June 1, 2024 by ShadesOfKnife

A division bench of the Apex Court held as follows,

From Paras 8-11,

8. In view of the above, it is clear that when the Magistrate in exercise of his judicial discretion directs investigation under Section 156(3) of Cr. P.C., he cannot be said to have taken cognizance of any offence. It is only when the Magistrate after applying his mind prefers to follow the procedure under Chapter XV of Cr.P.C. by resorting to Sections 200, he can be said to have taken cognizance of the offence.
9. The learned counsel for Respondent No.2 has placed reliance of the decision of this Court in “Priyanka Srivastava And Another Versus State of Uttar Pradesh And Others” (2015) 6 SCC 287 to submit that the complaint filed by the appellant – complainant was not supported by an affidavit. In our opinion, the said observation has been made in the said case by way of abundant caution to see that frivolous complaints are avoided.
10. In the instant case, as transpiring from the order passed by the Trial Court, the said Court had perused the complaint and the documents in support thereof, and also the submissions made by the learned counsel for the appellant – complainant and after having been prima facie satisfied, it had exercised its judicial discretion directing investigation under Section 156(3) of Cr. P.C. Such order being just, legal and proper, the High Court should not have interfered with the same, more particularly while exercising limited powers under Section 482 of Cr. P.C.
11. In that view of the matter, the impugned order passed by the High Court is set aside and the order dated 30-6-2023 passed by the Trial Court is restored.

MS SAS Infratech Pvt Ltd Vs State of Telangana and Anr on 14 May 2024

Citations:

Other Sources:

The decision of the Telangana High Court is here.

From Paras 4 and 5 [Consequences to the Lack of understanding of the procedures between Sec 156(3) CrPC and Sec 200 read with Sec 190 of CrPC)]

3. The docket order dated 30.06.2023 passed in S.R.No.3297 of 2023 by the Principal Junior Civil Judge-cum-XI Additional Metropolitan Magistrate, Medchal-Malkajgiri District, Kukatpally, reads as follows:
“Complainant called present. The learned counsel for the complainant is present. Heard the learned counsel for the complainant. Perused the complaint and on scrutiny of the complaint, documents and also the submission made by the learned counsel for the complaint, this Court found prima-face case, hence this complaint is referred to SHO, PS Bachupally U/Sec. 156 (3) of Cr.P.C for investigation and report.”
4. It is the contention of the learned counsel for the petitioner/accused No.3 that the learned Magistrate has not applied judicial mind for forwarding the complaint to the police for investigation under Section 156 (3) of Cr.P.C and further no reasons have been assigned by the trial Court while disposing of the matter and therefore, seeks to set aside the said docket order.
5. As per the procedure laid down under Section 200 of Cr.P.C, a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate. If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202 of Cr.P.C, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.

Manne Mahesh Yadav Vs State of Telangana on 14 Sep 2023

BNSS Sec 258 – Judgment of acquittal or conviction

Posted on June 1, 2024 by ShadesOfKnife

258. Judgment of acquittal or conviction.—
(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case, as soon as possible, within a period of thirty days from the date of completion of arguments, which may be extended to a period of forty-five days for reasons to be recorded in writing.
(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 401, hear the accused on the questions of sentence, and then pass sentence on him according to law.

CrPC 235. Judgment of acquittal or conviction.—
(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the questions of sentence, and then pass sentence on him according to law.

Entire Sanhita available here.

BNSS Sec 254 – Evidence for prosecution

Posted on June 1, 2024 by ShadesOfKnife

254. Evidence for prosecution.—
(1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution:
Provided that evidence of a witness under this sub-section may be recorded by audio-video electronic means.
(2) The deposition of evidence of any public servant may be taken through audio-video electronic means.
(3) The Judge may, in his discretion, permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.

CrPC 231. Evidence for prosecution.—
(1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution.
(2) The Judge may, in his discretion, permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.

Entire Sanhita available here.

BNSS Sec 251 – Framing of charge

Posted on June 1, 2024 by ShadesOfKnife

251. Framing of charge.—
(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which—
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused within a period of sixty days from the date of first hearing on charge.
(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused present either physically or through audio-video electronic means and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.

CrPC 228. Framing of charge.—
(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which—
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.

BNSS Sec 250 – Discharge is here.

Entire Sanhita available here.

BNSS Sec 250 – Discharge

Posted on June 1, 2024 by ShadesOfKnife

250. Discharge.—

(1) The accused may prefer an application for discharge within a period of sixty days from the date of commitment of the case under section 232.
(2) If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

CrPC 227. Discharge.—
If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

BNSS Sec 251 – Framing of charge is here.

Entire Sanhita available here.

Bharatiya Nagarik Suraksha Sanhita 2023 (CrPC)

Posted on June 1, 2024 by ShadesOfKnife

The Parliament passed the Bharatiya Nagarik Suraksha Sanhita 2023 (Act No. 46 of 2023) and received the assent of the President on the 25th Dec 2023.

Bharatiya Nagarik Suraksha Sanhita, 2023 (CrPC)

Old CrPC is here and amendments to it is available here.

Entire Sanhita available here.

Jaspal Kaur alias Pinki and Ors Vs State of Punjab and Anr on 24 Apr 2023

Posted on May 30, 2024 by ShadesOfKnife

A single judge of Punjab and Haryana High Court passed the following guidelines

From Para 10,

10. This Court has observed that everyday petitions are filed before this Court under Section 482 Cr.P.C assailing petition filed under Section 12 and notice under Section 13 of DV Act. It has further been noticed that parties are filing revision petition under Section 397/401 Cr.P.C. against order passed by Appellate Court under Section 29 of DV Act.
In view of judgments of Hon’ble Supreme Court, Full Bench of Madras High Court and with intent to minimise litigation especially against distant and sundry relatives, before parting with this judgment, this Courts finds it appropriate to issue following directions to Magistrates posted within the jurisdiction of this Court:
(i) In case of petition under Section 12 of DV Act, all the respondents may not be mechanically issued notice under Section 13 of DV Act. Notice at the first instance may not be issued to distant relatives. The Magistrate is expected to apply his mind qua distant and sundry relatives of the respondents arrayed by aggrieved person.
(ii) The presence of respondents may not be required where respondents are represented through counsel;
(iii) In case application is filed by the respondents on the ground of jurisdiction or maintainability or deletion from array of respondents, the Magistrate is expected to pass an appropriate order;
(iv) In case an application is filed seeking alteration, modification or revocation of order passed under the Act, the Magistrate in terms of Section 25 of DV Act is expected to pass an order, if parties are able to show change of circumstances.
11. Disposed of in above terms.
12. The Registrar General of this Court is directed to circulate copy of this judgment to all District and Sessions Judges of Sessions Divisions, which are falling within jurisdiction of this Court.

Jaspal Kaur alias Pinki and Ors Vs State of Punjab and Anr on 24 Apr 2023

Citations:

Other Sources:

Index of DVC Judgments is here.

N Syamasundara Naidu Vs Dakshinamoorthy and Ors on 21 Jun 2022

Posted on May 29, 2024 by ShadesOfKnife

A single judge of Madras High Court held as follows,

From Paras 5 and 6,

5. The Hon’ble Supreme Court of India in Shiv Kumar Vs. Hukam Chand and Another3, after considering the nature of Sections 301 and 302 of the Code of Criminal Procedure, categorically held that a reading of the Sections 301 and 302 of the Code of Criminal Procedure, it would be clear that Section 302 of the Code of Criminal Procedure would be applicable for the Magistrate Court and Section 301 of the Code of Criminal Procedure will be applicable only for the other Courts. It is useful to extract the paragraph No.12 of the said judgment, which reads as follows:-
“ 12. In the backdrop of the above provisions we have to understand the purport of Section 301 of the Code. Unlike its succeeding provision in the Code, the application of which is confined to Magistrate Courts, this particular section is applicable to all the courts of criminal jurisdiction. This distinction can be discerned from employment of the words “any court” in Section 301. In view of the provision made in the succeeding section as for Magistrate Courts the insistence contained in Section 301(2) must be understood as applicable to all other courts without any exception.”
Therefore, the entire reasoning, which is based on Section 301 of the Code of Criminal Procedure, is unsustainable as it is not applicable to the Magistrate Courts.
6. Secondly, the passage extracted by the learned Magistrate from the judgment of Rekha Murarka Vs. The State of West Bengal (cited supra), which is reproduced hereunder, reads as follows:-
“12.5. However, even if there is a situation where the Public Prosecutor fails to highlight some issue of importance despite it having been suggested by the victim’s counsel, the victim’s counsel may still not be given the unbridled mantle of making oral arguments or examining witnesses. This is because in such cases, he still has a recourse by channelling his questions or arguments through the Judge first. For instance, if the victim’s counsel finds that the Public Prosecutor has not examined a witness properly and not incorporated his suggestions either, he may bring certain questions to the notice of the Court. If the Judge finds merit in them, he may take action accordingly by invoking his powers under Section 311 of the CrPC or Section 165 of the Indian Evidence Act, 1872. In this regard, we agree with the observations made by the Tripura High Court in Smt. Uma Saha v. State of Tripura 2014 SCC OnLine Tri 859 that the victim’s counsel has a limited right of assisting the prosecution, which may extend to suggesting questions to the Court or the prosecution, but not putting them by himself.”
(Emphasis supplied)
Thus, it may be seen that even in the said case, it has been held that the victim‘s learned Counsel cannot take the role of conducting the prosecution himself by examining the witnesses or making arguments, but, certainly, it would be within his right to bring it to the notice of the Court and if the learned Judge finds merits in any of the shortcomings complained, it is the Court which invokes its powers and acts accordingly. In the instant case also, P.W.1, victim, has filed an application bringing to the notice of the Court about the fact that certain specific charges are omitted to be framed, arising out of the self-same allegations, for which there need not be further investigation or additional evidence and therefore, it is for the Court to consider the same on merits. Therefore, on the mere reason that same is not emanating from the learned Public Prosecutor/Police, it cannot be thrown out. Therefore, the order of the learned Magistrate is unsustainable.

N Syamasundara Naidu Vs Dakshinamoorthy and Ors on 21 Jun 2022

Citations:

Other Sources:

M.Sreenivasulu and Ors Vs State of AP and Ors on 15 May 2024

Posted on May 25, 2024 by ShadesOfKnife

AP High Court held that once marriage is declared null and void ab-initio, no criminal proceedings for cruelty u/s 498A IPC are maintainable and on that ground discharge petition filed must be allowed.

From Para 16,

16. Learned counsel for the Petitioners contends that even upon conducting the trial, the ultimate conclusion of the proceedings is anticipated to result in the acquittal of the accused individuals. Consequently, it is asserted that the trial Court, given this foreseeable outcome, should have exercised its discretion to discharge the accused persons from further legal proceedings. In support of their contention, the Petitioners have also placed reliance on the judgment of the Hon’ble Apex Court in P. Siva Kumar & ors. V. State Rep., by the Deputy Superintendent of Police and ors7, wherein it held that:
7. Undisputedly, the marriage between the appellant No.1 and PW-1 has been found to be null and void. As such the conviction under Section 498-A IPC would not be sustainable in view of the judgment of this Court in the case Shivcharan Lal Verma’s case supra. So far as the conviction under Sections 3 and 4 of the Dowry Prohibition Act is concerned, the learned trial Judge by an elaborate reasoning, arrived at after appreciation of evidence, has found that the prosecution has failed to prove the case beyond reasonable doubt. In an appeal/revision, the High court could have set aside the order of acquittal only if the findings as recorded by the trial Court were perverse or impossible.

From Paras 17 and 18,

17. The learned counsel representing the Petitioners ardently asserts that in instances where a marriage is deemed null and void, the pursuit of legal proceedings under sections 3 and 4 of the Dowry Prohibition Act becomes untenable. Central to this argument is the delineation of “dowry” as envisaged within the Act, positing it as a demand for property or valuable security intricately intertwined with the institution of marriage. Emphasizing the exhaustive scope of dowry as defined in section 2 of the Dowry Prohibition Act, counsel underscores its inclusive nature, encompassing a wide array of assets and properties exchanged directly or indirectly in connection with matrimonial alliances. Furthermore, counsel contends that once a marriage is declared null and void, any purported demand for dowry in relation to said marriage loses legal validity. Notably, in the case of P. Siva Kumar’s case as referred to supra, the Hon’ble Apex Court independently scrutinized the trial court’s decision, despite the nullification of the marriage, to assess the applicability of charges under sections 3 and 4 of the Dowry Prohibition Act.
18. Learned counsel for the Petitioners has apprised the Court of an admission made by the 2nd Respondent herein (wife/Defacto Complainant) during the Family Court proceedings. The order passed in F.C.O.P.No.1275 of 2015 reveals that the wife/Defacto Complainant did not raise any objection to the declaration of the marriage as null and void, but sought leave to contest other allegations pertaining to the recovery of amounts and ornaments through separate proceedings. Additionally, it appears that both parties have reached an amicable compromise, rendering the continuation of the proceedings unnecessary. In light of these circumstances, this Court is inclined to believe that the Petitioners have established a case warranting the allowing of the Revision Case.

M.Sreenivasulu and Ors Vs State of AP and Ors on 15 May 2024

Index of Divorce judgments is here.

Shades of Knife

True Colors of a Vile Wife

Author: ShadesOfKnife

BNSS Sec 144 – Order for maintenance of wives, children and parents

MS SAS Infratech Pvt Ltd Vs State of Telangana and Anr on 14 May 2024

BNSS Sec 258 – Judgment of acquittal or conviction

BNSS Sec 254 – Evidence for prosecution

BNSS Sec 251 – Framing of charge

BNSS Sec 250 – Discharge

Bharatiya Nagarik Suraksha Sanhita 2023 (CrPC)

Jaspal Kaur alias Pinki and Ors Vs State of Punjab and Anr on 24 Apr 2023

N Syamasundara Naidu Vs Dakshinamoorthy and Ors on 21 Jun 2022

M.Sreenivasulu and Ors Vs State of AP and Ors on 15 May 2024