A division bench of Gauhati HC passed practice directions, relying of a decision passed by Delhi HC.
A notification was also issued
Author: ShadesOfKnife
Pathapati Subba Reddy (Died) By LRs and Ors Vs Special Deputy Collector (LA) on 08 Apr 2024
A division bench of Apex Court passed these guidelines with respect to condoning the delay in filing appeals…
From Para 26,
26. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that:
(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;
(ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;
(iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;
(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence;
(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal;
(vii) Merits of the case are not required to be considered in condoning the delay; and
(viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision.
Y.G. Rajesh Vs M Ramya and Anr on 08 Feb 2024
A single judge of Karnataka High Court held as follows,
From Para 6-10,
6. Upon considering the submissions of the learned counsel for the petitioner/husband, though there is savings of exorbitant quantum of amount made deductible just to negate giving maintenance to the wife and child, what are the compulsorily amounts to be deducted are income tax and professional tax. But considering deductions from the salary of petitioner/husband, those are provident fund contribution, house rent recovery, furniture recovery, towards loan obtained by the petitioner/husband, LIC premium and festival advance, these are all deductions accruing to the benefit of petitioner only. These amounts cannot be made deductible while considering for assessment of maintenance amount.
7. While appreciating salary/income of the husband above stated deductions cannot be considered while calculating salary of husband. If this is allowed, then in every case of petition filed under Section 125 of Cr.P.C. there would be tendency by the husband to create artificial deductions making an attempt to show lesser take home salary with an intention to mislead the Courts in order to negate to give maintenance or an attempt to award to make lesser amount of maintenance. Therefore, if the Court finds that the deductions are artificial deductions in the manner above discussed, then the Court has to consider the entire evidence on record on all its preponderance of probabilities while awarding quantum of maintenance amount. The deductions as above stated will ultimately enure to the benefit of the husband only. Suppose if the husband raises loan for purchase of site, house or car and the deduction is made from the salary and shown in his salary certificate, ultimately that raising of loan is for the benefit of husband only and just because deductions are made in this regard, it is not the ground to award lesser quantum of maintenance.
8. In the present case, the deductions is more than 50%, hence, it is proved that the husband has made an arrangement to show more deductions with an intention to pay lesser amount of maintenance. Therefore, the said deductions above discussed cannot be the factor to award lesser quantum of maintenance to the wife. In the present case, it is admitted that the petitioner/husband is a Branch Manager working in State Bank of India receiving salary of more than Rs.1,00,000/- per month. Then the Family Court is correct in awarding maintenance award of Rs.15,000/- per month to the wife and Rs.10,000/- per month to the child/daughter, which needs no interference by this Court.
9. Therefore, it is proved that the respondents have become destitute at the hands of the petitioner and the petitioner is working as Manager in State Bank of India and receiving a lucrative salary per month and thus upon considering all these facts and circumstances, it is proved that the petitioner is financially capable person to maintain his wife and daughter. Thus, order passed by the Family Court need not be interfered with and as such, the petition is dismissed being devoid of merits with cost of Rs.15,000/- payable to the respondents by the petitioner herein.
Index of Maintenance cases u/s 125 CrPC are here.
B Venkat Rao Vs State of Telangana on 07 Nov 2023
A single judge of Telangana High Court held as follows,
From Paras 3 and 4,
3. The petitioner who is the husband filed an application under Section 91 of Cr.P.C seeking a direction from the learned Magistrate for producing the passport copy of PW1. The learned Magistrate dismissed the said application on the ground that 91 Cr.P.C cannot be invoked against the witness and it would amount to testimonial compulsion.
4. The document sought to be produced is the passport of PW1. PW1 is a witness, not accused. In fact, in her cross examination on 01.11.2022, she stated that she can produce the passport if necessary. In the said circumstances, when the witness herself has volunteered to produce the passport, the same can be permitted. PW1 shall produce her passport for the purpose of cross examination.
This Order was challenged before the Apex Court here.
Mainoddin Vs State of Karnataka on 02 Feb 2024
A division bench of Apex Court held that, ‘vague,general and omnibus allegations against the family members/relatives implicating them in matrimonial disputes are an abuse of process of
law.’
From Paras 4 and 5,
4. The present appellant is the younger brother of the husband of complainant-respondent no.2 and the only allegation made against him in the last
paragraph of the complaint is that all the family members of the husband joined together and used foul language against the complainant of not
getting dowry from her family.
5. It is already well settled by this Court in the case of Geeta Mehrotra & Anr. vs. State of U.P. and Anr. reported in (2012) 10 SCC 741 and also in the case of Kahkashan Kausar @ Sonam & Ors. vs. State of Bihar & Ors. in Criminal Appeal No.195 of 2022 decided on 08.02.2022, that such vague, general and omnibus allegations against thefamily members/relatives implicating them in matrimonial disputes are an abuse of process of law.
Index of landmark quash judgements is here.
Bezawada Chandravadana Vs State of Telangana and Anr
A division bench of the Apex Court held as follows,
On 15-Mar-2024,
3. Heard Mr. Abid Ali Beeran P, learned counsel appearing for the petitioner. The counsel submits that the petitioner is the complainant and the respondent No. 2 who is her husband, is facing the proceeding in CC No. 249 of 2012 before the Magistrate’s Court at Hyderabad. In course of the said proceeding, the petitioner was examined as PW-1 and on the basis of her response in the cross-examination, the respondent No. 2 had filed the application under Section 91 of the Cr.P.C. for a direction on the petitioner to produce her passport for the purpose of further cross-examination. According to the counsel, the said prayer was rightly rejected by the learned Magistrate under her order dated 14.07.2023 (Annexure P/4). However, the High Court under the impugned order has erroneously ordered for production of the petitioner’s passport to substantiate her claim on the travel from USA to India.
4. The counsel would argue that this was an incorrect decision by the High Court as in the application filed by the respondent No. 2, the petitioner was not arrayed as a party. It will also have implication for the privacy of the petitioner.
Earlier order from Telangana High Court here.
Joseph Salvaraj A Vs State of Gujarat and Ors on 4 Jul 2011
A division bench of the Apex Court held as follows,
From Para 11,
11.The Appellant, thereafter, was constrained to file the petition under Section 482 of the Code in the High Court of Gujarat at Ahmedabad, with a prayer for quashing of the FIR bearing C.R. No. I-371/2006 registered with Odhav Police Station and to stay further investigation in the case. The said
application came to be considered before the learned Single Judge on 11.1.2007. By that time, charge sheet was already filed before the Competent Criminal Court. Thus, learned Single Judge, was of the opinion that it was not a fit case to be entertained and refused to hear the petition on merits, even though the appellant was given liberty to file an application for his discharge before the Trial Court. It may be noted that even in its impugned order the learned Single Judge has emphasized that he had not considered the case on merits. Thus the Appellant’s petition was dismissed and interim order granted in his favour was vacated.
From Paras 15 and 16,
15. The allegations in the F.I.R. clearly discloses a civil dispute between the parties and the FIR seems to have been filed only with an intention to harass and humiliate the Appellant. This was a pre-emptive move by the Complainant.
16. A summary Civil Suit under Order 37 Rule II of Code of Civil Procedure (hereinafter to be referred as ‘CPC’) has already been filed by Dharmendra P. Rami @ Laläbhai against the Appellant and the Respondent No.4, Complainant herein, before the City Civil Court, Ahmedabad claiming a sum of Rs. 10 lacs together with interest thereon. In the said suit an unconditional leave to defend has already been granted to the Appellant and the matter is still pending. In the light of the aforesaid submissions, it was contended that it is a fit case where the FIR deserves to be quashed otherwise the same would amount to abuse of the process of law.
From Paras 21-23,
21. Criminal breach of trust is defined under Section 405 of the IPC and 406 thereof deals with punishment to be awarded to the accused, if found guilty for commission of the said offence i.e. with imprisonment for a term which may extend to three years, or with fine, or with both.
22. Section 420 of the IPC deals with cheating and dishonestly inducing delivery of property. Cheating has been defined under Section 415 of the IPC to constitute an offence. Under the aforesaid section, it is inbuilt that there has to be a dishonest intention from the very beginning, which is sine qua non to hold the accused guilty for commission of the said offence. Categorical and microscopic examination of the FIR certainly does not reflect any such dishonest intention ab initio on the part of the appellant.
23. Section 506 of the IPC deals with punishment for criminal intimidation. Criminal intimidation, insult and annoyance have been defined in Section 503 of the IPC but the FIR lodged by complainant does not show or reflect that any such threat to cause injury to person or of property was ever given by the Appellant to the Complainant.
24. Thus, from the general conspectus of the various sections under which the Appellant is being charged and is to be prosecuted would show that the same are not made out even prima facie from the Complainant’s FIR. Even if the charge sheet had been filed, the learned Single Judge could have still examinedwhether the offences alleged to have been committed by the Appellant were prima facie made out from the complainant’s FIR, charge sheet, documents etc. ornot.
25. In our opinion, the matter appears to be purely civil in nature. There appears to be no cheating or a dishonest inducement for the delivery of propertyor breach of trust by the Appellant. The present FIR is an abuse of process of law. The purely civil dispute, is sought to be given a colour of a criminal offence to wreak vengeance against theAppellant. It does not meet the strict standard of proof required to sustain a criminal accusation.
From Para 27,
27. In fact, all these questions have been elaborately discussed by this Court in the most oft quoted judgment reported in 1992 (Suppl) 1 SCC 335 State of Haryana Vs. Bhajan Lal, where seven cardinal principles have been carved out before cognizance of offences, said to have been committed, by the accused is taken. The case in hand unfortunately does not fall in that category where cognizance of the offence could have been taken by the court, at least after having gone through the F.I.R., which discloses only a civil dispute.
Index of Quash judgments is here.
Mamta Shailesh Chandra Vs State of Uttarakhand and Ors on 29 Jan 2024
A division bench of the Apex Court held as follows,
We do not agree with the reasoning of the High Court for dismissing the writ petition of the appellant, having regard to the ratio of the judgment of this Court delivered on 04.07.2011 in the case of Joseph Salvaraj A. vs. State of Gujarat & Ors. reported in 2011 (7) SCC 59. That was a case arising from the quashing plea of an F.I.R., where chargesheet was submitted after institution of the petition under Section 482 of the Code of Criminal Procedure 1973. A Coordinate Bench of this Court opined that even if the charge sheet had been filed, the Court could still examine if offences alleged to have been committed were prima facie made out or not on the basis of the F.I.R., chargesheet and other documents.
Index of Quash judgments is here.
Abhishek Gour Vs State of MP on 31 Aug 2023
A full bench of the Apex Court passed this order,
From Para 8, (Police merely replicated the contents of the FIR and added nothing further on the strength of their investigation, observes Supreme Court of India, karma!)
8. Om Prakash, Bhawna’s father, also made a statement before the police on 08.09.2013 on the same lines. He said that her marriage was performed at Indore on 02.07.2007 and as per his status, he had given cash,gold, jewellery, clothes etc., totalling to ₹.5 lakhs, in dowry. He said that, whenever Bhawna came to meet them, she used to tell him and all the neighbours that her husband, Nimish, mother-in-law, Kusum Lata, and brothers-in-law, Abhishek and Sourabh, used to tell her that her father had given nothing in dowry and when she went to her parental home, she should bring .2 lakhs in cash, a car and gold jewellery. ₹ He stated that they had been harassing his daughter mentally and physically for dowry. He alleged that, on Karvachauth day, Bhawna’s mother-in-law had demanded 100 sarees but he had refused. Renubala, Bhawna’s mother, also made a statement on 08.09.2013 on identical lines. Two of their neighbours, Sushila Bai andMohan, also gave statements on the same day, supporting Bhawna’s version. According to them, whenever Bhawna came to meet her parents, she used to tell them that her in-laws were torturing her mentally and physically for dowry.On the other hand, Shailendra and Radhey Shyam, who lived in the neighbourhood where Nimish’s father had his residence, stated to the effect that there were no demands made of Bhawna or her family for dowry and that she was never harassed on that ground. In their final report dated20.09.2013, the police merely replicated the contents of the FIR and added nothing further on the strength of their investigation.
From Para 9, (Attempts to terrorize)
9. Certain other facts are also of pertinence and may be noted. Abhishek entered judicial service as a Civil Judge six or seven months after the marriage of Bhawna with Nimish. He was posted at Ujjain and, thereafter,at Neemuch in Madhya Pradesh. Kusum Lata used to reside with Abhishek. Saurabh, Bhawna’s other brother-in-law, is an architect and was working at Delhi since the year 2007. Nimish made written representations to the police authorities at Narsinghpur on 09.09.2012 and 17.11.2012 complaining of intimidation by and at the behest of Bhawna. Prior thereto, an anonymous complaint was made to the Chief Justice, Madhya Pradesh High Court, against Abhishek, making scandalous allegations to the effect that he was undeserving of judicial office. A complaint was also made to the Anti-Corruption Bureau, Mumbai, purportedly in the name of one Sanyogita Mishra. Again, the allegations therein were directed against Abhishek.
From Para 11,
11. This being the factual backdrop, we may note at the very outset that the contention that the appellants’ quash petition against the FIR was liable to be dismissed, in any event, as the chargesheet in relation thereto was submitted before the Court and taken on file, needs mention only to be rejected. It is well settled that the High Court would continue to have the power to entertain and act upon a petition filed under Section 482 Cr.P.C. to quash the FIR even when a chargesheet is filed by the police during the pendency of such petition [See Joseph Salvaraj A. vs. State of Gujarat and others {(2011) 7 SCC 59}]. This principle was reiterated in Anand Kumar Mohatta and another vs. State (NCT of Delhi), Department of Home and another [(2019) 11 SCC 706]. This issue, therefore, needs no further elucidation on our part.
From Para 13,
13. Instances of a husband’s family members filing a petition to quash criminal proceedings launched against them by his wife in the midst of matrimonial disputes are neither a rarity nor of recent origin. Precedents aplenty abound on this score. We may now take note of some decisions of particular relevance. Recently, in Kahkashan Kausar alias Sonam and others vs. State of Bihar and others [(2022) 6 SCC 599], this Court had occasion to deal with a similar situation where the High Court had refused to quash a FIR registered for various offences, including Section 498A IPC. Noting that the foremost issue that required determination was whether allegations made against the in-laws were general omnibus allegations which would be liable to be quashed, this Court referred to earlier decisions wherein concern was expressed over the misuse of Section 498A IPC and the increased tendency to implicate relatives of the husband in matrimonial disputes. This Court observed that false implications by way of general omnibus allegations made in the course of matrimonial disputes, if left unchecked, would result in misuse of the process of law. On the facts of that case, it was found that no specific allegations were made against the in-laws by the wife and it was held that allowing their prosecution in the absence of clear allegations against the in-laws would result in an abuse of the process of law. It was also noted that a criminal trial, leading to an eventual acquittal, would inflict severe scars upon the accused and such an exercise ought to be discouraged.
From Para 21, (unexplained delay)
21. Most damaging to Bhawna’s case is the fact that she did nothing whatsoever after leaving her matrimonial home in February, 2009, and filed a complaint in the year 2013 alleging dowry harassment, just before her husband instituted divorce proceedings.
Index of Quash judgments is here.
