The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.
Author: ShadesOfKnife
Satprakash Meena Vs Alka Meena on 07 Jul 2021
The single-judge bench of Prathiba M. Singh held out a passionate appeal to Union Government to implement long pending Article 44 of the Constitution of India, Uniform Civil Code for all.
From Para 50,
50. Courts have been repeatedly confronted with the conflicts that arise in personal laws. Persons belonging to various communities, castes and religions, who forge marital bonds, struggle with such conflicts. It is with the hope of bringing uniformity and to eliminate these struggles and conflicts, that the Supreme Court way back in 1985, in Mohd. Ahmed Khan v. Shah Bano Begum and Ors, (1985) 2 SCC 556 observed:
“32. It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.”
From Para 51,
51. Again in Ms Jordon Diengdeh v. S.S. Chopra, (1985) 3 SCC 62, the Supreme Court observed in the context of dissolution of marriage between a couple wherein the wife belong to the Naga Tribe and the husband was a Sikh by religion that Article 44 of the Constitution needs to be implemented in its letter and spirit. The Supreme Court notices the various provisions under the personal laws applicable to marriages under the Hindu Marriage Act, Special Marriage Act, Parsi Marriage and Divorce Act, Muslim Law etc. The Court then concluded and observed as under:-
“7. It is thus seen that the law relating to judicial separation, divorce and nullity of marriage is far, far from uniform. Surely the time has now come for a complete reform of the law of marriage and make a uniform law applicable to all people irrespective of religion or caste. It appears to be necessary to introduce irretrievable breakdown of marriage and mutual consent as grounds of divorce in all cases. The case before us is an illustration of a case where the parties are bound together by a marital tie which is better untied. There is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down. We suggest that the time has come for the intervention of the legislature in these matters to provide for a uniform code of marriage and divorce and to provide by law for a way out of the unhappy situations in which couples like the present have found themselves in. We direct that a copy of this order may be forwarded to the Ministry of Law and Justice for such action as they may deem fit to take. In the meanwhile, let notice go to the respondents.”
From Para 52,
52. The decisions in Shah Bano (supra) and Ms Jordon Diengdeh (supra) were rendered way back in 1985 and more than 35 years have been passed. The Supreme Court had expressed hope and observed that the time has come for enacting a uniform code of marriage and divorce and urged for a ‘complete reform’. These very sentiments have been again reiterated in Sarla Mudgal Vs. UOI AIR 1995 SC 1531 and Lily Thomas (2000) 6 SCC 224.
From Para 53,
53. In John Vallamattom and Another v. Union of India, (2003) 6 SCC 611, the Supreme Court considered Sarla Mudgal (supra) and further observed:
“44. Before I part with the case, I would like to state that Article 44 provides that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. The aforesaid provision is based on the premise that there is no necessary connection between religious and personal law in a civilized society. Article 25 of the Constitution confers freedom of conscience and free profession, practice and propagation of religion. The aforesaid two provisions viz. Articles 25 and 44 show that the former guarantees religious freedom whereas the latter divests religion from social relations and personal law. It is no matter of doubt that marriage, succession and the like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution. Any legislation which brings succession and the like matters of secular character within the ambit of Articles 25 and 26 is a suspect legislation, although it is doubtful whether the American doctrine of suspect legislation is followed in this country. In Sarla Mudgal v. Union of India [(1995) 3 SCC 635: 1995 SCC (Cri) 569] it was held that marriage, succession and like matters of secular character cannot be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution. It is a matter of regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies.”
From Para 54,
54. The need for a Uniform Code has been again echoed by the Supreme Court in ABC v. State (NCT of Delhi) (2015) 10 SCC 1, wherein it was held:
“20. It is imperative that the rights of the mother must also be given due consideration. As Ms Malhotra, learned Senior Counsel for the appellant, has eloquently argued, the appellant’s fundamental right of privacy would be violated if she is forced to disclose the name and particulars of the father of her child. Any responsible man would keep track of his offspring and be concerned for the welfare of the child he has brought into the world; this does not appear to be so in the present case, on a perusal of the pleading as they presently portray. Furthermore, Christian unwed mothers in India are disadvantaged when compared to their Hindu counterparts, who are the natural guardians of their illegitimate children by virtue of their maternity alone, without the requirement of any notice to the putative fathers. It would be apposite for us to underscore that our directive principles envision the existence of a Uniform Civil Code, but this remains an unaddressed constitutional expectation.”
From Para 55,
55. Recently, in Jose Paulo Coutinho v. Maria Luiza Valentina Pereira and Another, (2019) 20 SCC 85, the Supreme Court observed:
“..24. It is interesting to note that whereas the Founders of the Constitution in Article 44 in Part IV dealing with the Directive Principles of State Policy had hoped and expected that the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territories of India, till date no action has been taken in this regard. Though Hindu laws were codified in the year 1956, there has been no attempt to frame a Uniform Civil Code applicable to all citizens of the country despite exhortations of this Court in Mohd. Ahmed Khan v. Shah Bano Begum [Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556 : 1985 SCC (Cri) 245] and Sarla Mudgal v. Union of India [Sarla Mudgal v. Union of India, (1995) 3 SCC 635 : 1995 SCC (Cri) 569] .”
From Para 56, a slipper shot to all opponents of UCC
56. The backdrop of all the above decisions and the crux of Art. 44 of the Constitution is well captured in the Constituent Assembly Debates. Dr. B.R. Ambedkar while debating on Article 35 (now Article 44 of the Constitution of India) [Constituent Assembly Debates, Volume 7, 23rd November 1948] said:
“My friend, Mr. Hussain Imam, in rising to support the amendments, asked whether it was possible and desirable to have a uniform Code of laws for a country so vast as this is. Now I must confess that I was very much surprised at that statement, for the simple reason that we have in this country a uniform code of laws covering almost every aspect of human relationship. We have a uniform and complete Criminal Code operating throughout the country, which is contained in the Penal Code and the Criminal Procedure Code. We have the Law of Transfer of Property, which deals with property relations and which is operative throughout the country. Then there are the Negotiable Instruments Acts: and I can cite innumerable enactments which would prove that this country has practically a Civil Code, uniform in its content and applicable to the whole of the country. The only province the Civil Law has not been able to invade so far is Marriage and Succession. It is this little corner which we have not been able to invade so far and it is the intention of those who desire to have article 35 as part of the Constitution to bring about that change. Therefore, the argument whether we should attempt such a thing seems to me somewhat misplaced for the simple reason that we have, as a matter of fact, covered the whole lot of the field which is covered by a uniform Civil Code in this country. It is therefore too late now to ask the question whether we could do it. As I say, we have already done it.”
And finally from Para 57,
57. The need for a Uniform Civil Code as envisioned under Article 44, has been reiterated from time to time by the Supreme Court. Cases like the present one repeatedly highlight the need for such a Code – ‘common to all’, which would enable uniform principles being applied in respect of aspects such as marriage, divorce, succession etc., so that settled principles, safeguards and procedures can be laid down and citizens are not made to struggle due to the conflicts and contradictions in various personal laws. In modern Indian society which is gradually becoming homogenous, the traditional barriers of religion, community and caste are slowly dissipating. The youth of India belonging to various communities, tribes, castes or religions who solemnise their marriages ought not to be forced to struggle with issues arising due to conflicts in various personal laws, especially in relation to marriage and divorce. The hope expressed in Article 44 of the Constitution that the State shall secure for its citizens Uniform Civil Code ought not to remain a mere hope. The Supreme Court had, in 1985 directed that the judgment in Ms. Jordon Diengdeh (supra) to be placed before the Ministry of Law to take appropriate steps. However, more than three decades have passed since then and it is unclear as to what steps have been taken in this regard till date. Accordingly, let the copy of the present judgment be communicated to the Secretary, Ministry of Law & Justice, Government of India, for necessary action as deemed appropriate.
Citations :
Other Sources :
https://indiankanoon.org/doc/106393931/
Neetu Barua Vs Manas Barua on 4 Jul 2018
The wife tried to conceal her income by closing down savings accounts and non-disclosure of safe deposit lockers from the Court. The Court took adverse inference and denied Interim Maintenance u/s 24 of HMA.
Citations :
Other Sources :
https://indiankanoon.org/doc/82477079/
https://purushayog.in/section-19-24-of-the-hindu-marriage-act-dismissed-for-concealing-true-income/
Udai Shankar Awasthi Vs State of U.P. and Anr on 09 Jan 2013
A Division Bench of the Apex Court quash the complaint case filed against the appellants and while doing to enunciated and reiterated lot of legal principles supported by case laws.
From Para 6,
LIMITATION IN CRIMINAL CASES- Section 468 Cr.P.C.:
6. Section 468 Cr.P.C. places an embargo upon court from taking cognizance of an offence after the expiry of the limitation period provided therein. Section 469 prescribes when the period of limitation begins. Section 473 enables the court to condone delay, provided that the court is satisfied with the explanation furnished by the prosecution/complainant, and where, in the interests of justice, extension of the period of limitation is called for. The principle of condonation of delay is based on the general rule of the criminal justice system which states that a crime never dies, as has been
explained by way of the legal maxim, nullum tempus aut locus occurrit regi (lapse of time is no bar to the Crown for the purpose of it initiating proceeding against offenders). A criminal offence is considered as a wrong against the State and also the society as a whole, even though the same has been committed against an individual.
From Para 7, regd delay in registering a complaint
7. The question of delay in launching a criminal prosecution may be a circumstance to be taken into consideration while arriving at a final decision, however, the same may not itself be a ground for dismissing the complaint at the threshold. Moreover, the issue of limitation must be examined in light of the gravity of the charge in question.
From Para 8, regd while condoning delay has to record the reasons
8. The court, while condoning delay has to record the reasons for its satisfaction, and the same must be manifest in the order of the court itself. The court is further required to state in its conclusion, while condoning such delay, that such condonation is required in the interest of justice.
From Para 10,
CONTINUING OFFENCE:
10. Section 472 Cr.P.C. provides that in case of a continuing offence, a fresh period of limitation begins to run at every moment of the time period during which the offence continues. The expression, ‘continuing offence’ has not been defined in the Cr.P.C. because it is one of those expressions which does not have a fixed connotation, and therefore, the formula of universal application cannot be formulated in this respect.
From Para 16,
16. Thus, in view of the above, the law on the issue can be summarised to the effect that, in the case of a continuing offence, the ingredients of the offence continue, i.e., endure even after the period of consummation, whereas in an instantaneous offence, the offence takes place once and for all i.e. when the same actually takes place. In such cases, there is no continuing offence, even though the damage resulting from the injury may itself continue.
From Para
SECOND COMPLAINT ON SAME FACTS-MAINTAINABILITY:
17. While considering the issue at hand in Shiv Shankar Singh v. State of Bihar & Anr., (2012) 1 SCC 130, this Court, after considering its earlier judgments in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar AIR 1962 SC 876; Jatinder Singh & Ors. v. Ranjit Kaur AIR 2001 SC 784; Mahesh Chand v. B. Janardhan Reddy & Anr., AIR 2003 SC 702; Poonam Chand Jain & Anr. v. Fazru AIR 2005 SC 38 held:
“It is evident that the law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. However, second complaint would not be maintainable wherein the earlier complaint has been disposed of on full consideration of the case of the complainant on merit.”
From Para 28,
28. Approaching the court at a belated stage for a rightful cause, or even for the violation of the fundamental rights, has always been considered as a good ground for its rejection at the threshold. The ground taken by the learned counsel for respondent No. 2 that the cause of action arose on 20.10.2009 and 5.11.2009, as the appellants refused to return money and other materials, articles and record, does not have substance worth consideration. In case a representation is made by the person aggrieved and the same is rejected by the competent statutory authority, and such an order is communicated to the person aggrieved, making repeated representations will not enable the party to explain the delay.
Citations : [2013 SCALE 1 212], [2013 JT 1 539], [2013 JCC SC 1 711], [2013 SCC 2 435], [2013 SUPREME 1 590], [2013 AIOL 18], [2013 SLT 1 249], [2013 CRIMES SC 1 231], [2013 SCC CIV 1 1121], [2013 SCC CRI 2 708], [2013 SCC ONLINE SC 41], [2013 AIC 123 137], [2013 UC 1 449], [2013 ACR 1 689], [2013 BLJ 3 28], [2013 NCC 1 549], [2013 AD SC 1 537], [2013 JLJR 1 235], [2013 RCR CRIMINAL 2 503], [2013 SCR 3 935], [2013 MLJ CRI 1 462], [2013 JCC 1 711], [2013 MLJ CRL 1 462], [2013 JT SC 1 539]
Other Sources :
https://indiankanoon.org/doc/39425468/
https://www.casemine.com/judgement/in/5609af3fe4b0149711415eef
https://www.indianemployees.com/judgments/details/udai-shankar-awasthi-vs-state-of-u-p-anr
The High Court judgment is here.
State of Himachal Pradesh Vs Tara Dutt and Anr on 19 Nov 1999
A 3-judge full bench of Apex Court held that the limitation available under section 468 CrPC deals only with taking of the initial cognizance of an offence by a Court.
Indiankanoon version:
Casemine version:
Citations : [1999 ACR SC 3 2841], [2000 AIR SC 297], [2000 ALD CRI 2 278], [1999 JT SC 9 215], [2000 LW CRL 1 379], [2000 OLR 1 153], [2000 RCR CRIMINAL 1 41], [1999 SCALE 7 183], [2000 SCC 1 230], [1999 SUPP SCR 4 514], [2000 SCC CRI 125], [2000 AIR SC 207], [1999 SUPREME 9 421], [1999 AIR SC 4413], [2000 CRIMES SC 1 15], [1999 CCR 4 280], [1999 SLT 9 612], [2000 SRJ 1 79], [2000 JCC 1 121], [2000 UJ SC 1 498], [2000 CRLJ SC 485], [1999 AIR SCW 4413]
Other Sources :
https://indiankanoon.org/doc/1807975/
https://www.casemine.com/judgement/in/5609ad5ae4b0149711411286
Veerabhadraiah Swamy and Ors Vs Veerupakshi and Ors on 23 Jun 2021
Based on Landmark Chengalvaraya Naidu case here, the division bench of Karnataka High Court dismissed the case with heavy cost of Rs1,00,000/-!!!
From Para 4,
4. Having heard the learned counsel for the parties and having perused the original TCR, we decline to grant indulgence in the matter and anguishingly impose heavy costs on the claimant for the following reasons:
(a) The accident allegedly happened on 30.08.2014 at 7.30 a.m. when the offending motorbike bearing Registration No.KA-34/U-1161 had dashed claimant’s motorcycle from behind and as a result thereof he suffered some injuries; all this may be taken to be true, of course with reluctance,
since there is no formal challenge to this finding by the insurer by way of appeal or cross-objection; had it been otherwise, we are not sure that we would have sustained this finding; be that as it may.
(b) Admittedly, claimant had the medical history of coronary problem when the accident happened; because of the alleged injuries caused by the accident, he was treated at the Government College & Hospital i.e., VIMS-Ballari, as an out-patient; the Wound Certificate, dated 30.08.2014, issued by the General Duty Medical Officer at Ex.P.5specifically states that the “injuries are simple in nature”; this opinion was formed by the said Medical Officer after examination & on the basis of radiological tests, as is stated in the very Certificate itself; there being no reason to doubt the same, the said opinion has to be treated as the expert opinion under Section 45 of the Evidence Act, 1872 and therefore, carries a lot of weight, nothing emerging from the record for discounting it’s probative value.
(c) Later, the claimant moved to Narayana Institute of Cardiac Sciences at Bengaluru wherein he had admittedly undergone coronary related operation & treatment in a long hospitalization; in his affidavit-evidence, at para 2, 3 & 4, he has stated that the said accident resulted in “severe
injuries over chest, head, forehead, nose, face, abdomen, hands & legs” and that all this happened only because of the accident which has “decreased his life span due to heart injury”; all this is false, to say the least; neither in his claim petition nor in his affidavit evidence, he has mentioned anything about his pre-existing heart ailment; as already mentioned above, he had not suffered any injury to the chest, much less heart nor to any vital organ; had it been otherwise, the Wound Certificate at Ex.P.5 would have mentioned the same; there is no reason for the Government Doctor in VIMS to write a false or wrong certificate; that is not the case of claimant, either;
(d) Even in the cross-examination, dated 09.06.2016, he falsely asserts that he suffered the heart ailment only because of the accident though the medical records of the Heart Hospital even remotely do not whisper about it; on the contrary, Dr. Lakshmi Narayana K., whom he had examined as P.W.3 himself has stated that the heart ailment of the kind i.e., blockages do not occur abruptly; this apart, by no stretch of imagination, it can be stated that blockages in the heart could happen by the kind of the vehicular accident. A perusal of deposition of the claimant given as P.W.1 not only does not generate confidence but appears to have been designed for extracting huge money from the insurer; this is nothing short of perjury.
(e) The claimant has also suppressed the reimbursement of huge expenses incurred by him for the heart treatment under “Yashashvini Co-operative Health Care for Farmers” a welfare Scheme of the Government, both in his claim petition & affidavit evidence; in his cross-examination, he has not denied the receipt of money but he only feigns ignorance as to the same having been not mentioned in the claim petition; it is said that, truth somewhere & somehow trickles out, and that has happened in this case; Ex.P.9A is the final bill issued by the Heart Hospital; it mentions the Corporate Sponsorship as “Yashashvini Co-operative Farmers Health Care Trust” with Account No.1043; thus, the claimant being a “clandestine liar” cannot be believed at all; he has designed his case on fraud, fabrication & duplicity and therefore, he is liable to be non-suited vide S.P. Chengalvaraya Naidu (dead) by L.Rs. V. Jagannath (dead) by L.Rs. and others, AIR 1994 SC 853.
And the Medical Witness turned out to be a ‘regular liar’ in the Courts!!!
5. As to Dr. Lakshmi Narayana K., of Prakash Clinic, Ballari, & his evidence vide P.W.3 being unworthy of credence,
a) the claimant had examined this doctor as P.W.3 in support of his case; it is submitted at the Bar that his ‘Sanad’ has been suspended on the ground of malpractice; it is also there in his cross-examination; we have noticed several other cases, huge in number wherein he has deposed as a Medical Witness in accident cases; in his cross-examination, dated 07.01.2017, he contradicts the version of the claimant-P.W.1 that the claimant had not visited his hospital personally; he also admits claimant having undergone the operation/treatment for coronary blocks; he also admits having not stated the factors based on which he has issued the Disability Certificate at Ex.P.8; any prudent Medical Practitioner would have mentioned these things including the coronary disease; he has prepared his Disability Certificate dated 17.03.2016 in such a clandestine way that the alleged disability of the claimant is occasioned by the injuries sustained by him in the accident; this is nothing short of perjury, to which claimant is also a party.
So, the High Court said…
(c) We are pained to see cases of the kind coming in considerable numbers nowadays; something has to be done to eradicate the evil of perjury, fraud & fabrication; a mere non-suiting of the unscrupulous litigants by throwing their case papers out through the court window would be militantly insufficient; something more drastic needs to be devised, so that message reaches out loudly to the unscrupulous class; in this case, we are made to spend more than an hour of valuable time in turning every page of the original Trial Court Record that runs into 656 pages, keeping other older cases at a bay; it is a sheer waste of huge public time & money occasioned by this perjured case of the appellant; this is not a happy thing to happen; we are of the considered view that this appeal should be dismissed with exemplary & penal cost of Rs.1,00,000/-.
Also the cherry on top of the cake…
Liberty is reserved to the insurer to take up civil and criminal proceedings for the act of perjury perpetrated by the claimant i.e. P.W.1 and Dr.Lakshmi Narayan K., i.e. P.W.3, who had issued the Disability Certificate at Ex.P.8, in accordance with law; it hardly needs to be stated that the delay brooked in taking such proceedings is liable to be discounted because of pendency of this appeal for all these years.
Citations :
Other Sources :
Index of Perjury Decision here.
S.P Chengalvaraya Naidu Vs Jagannath on 27 Oct 1993
Landmark judgment by a division bench of the Supreme Court of India around perjury/fraud committed upon the Courts. Just read the below line to understand how far the frauds take the Courts for a ride.
This Civil Appeal was numbered 994 of 1972, but got decided on October 27, 1993!
Twenty One (21) years lost at Supreme Court itself!!!
From Para 5,
5. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that “there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence”. The principle of “finality of litigation” cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who’s case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.
From Para 6,
6. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another’s loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Ex. B-15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non-mentioning of the release deed at the trial is tantamount to playing fraud on the court. We do not agree with the observations of the High Court that the appellants- defendants could have easily produced the certified registered copy of Ex. B-15 and non-suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.
Citations : [1994 AIR SC 853], [1993 SCALE 4 277], [1994 UJ SC 1 1], [1993 BC SC 2 546], [1994 BLJR 1 216], [1994 OLR SC 1 201], [1995 PLR 109 293], [1993 SUPP SCR 3 422], [1994 SCC 1 1], [1994 PLJR 1 39], [1994 APLJ SC 1 66], [1994 LW 1 21], [1994 GLH 1 81], [1993 JT SC 6 331]
Other Sources :
https://indiankanoon.org/doc/1151521/
https://www.casemine.com/judgement/in/5609ac8fe4b014971140f23f
Index of Perjury related judgments is here.
Nasruddin Mian Vs State of Bihar on 21 Jun 2021
A division bench of Patna High Court held that this is not how a judgment is to be written, while acquitting a husband from a conviction given for the alleged offence of murdering his wife.
78. The judgment under consideration is an example of how not to write a judgment. It has repeatedly been emphasized by the Supreme Court that the Courts and Judges must make a dispassionate assessment of evidence and that the Courts and Judges should not be swayed by the horror of crime and the character of the person. The judgment should be made by a Judge uninfluenced by his own imagined norms of the functioning of the society.
79. The Trial Court ought to have avoided the sweeping and disparaging remarks made in para 42 of its judgment regarding the conduct of the appellants.
80. I fail to see as to how the Trial Court held in para 44 of its judgment that the charge was framed against the appellants under Section 498-A of the IPC after the informant filed an application for addition to the original charge. The order dated 08.05.2017 passed by the Trial Court, which has been extracted hereinabove, would clearly show that the original charge under Sections 498-A, 306 and 201/34 of the IPC was altered to Sections 304-B, 302 and 201/34 of the IPC. The trial court did not allow the prayer of the informant regarding addition of Sections 304-B and 302 of the IPC to the original charge already framed against them meaning thereby that due to alteration of the original charge vide order dated 08.05.2017, the charge under Sections 498-A and 306 became non-existent.
81. As a matter of fact, for all practical purposes, after alteration of the charge, the appellants were being tried only for the offences punishable under Sections 304-B, 302 and 201/34 of the IPC.
82. Surprisingly, in para 43 of the judgment, the Trial Court held that the case under Section 306 of the IPC is not made out. After alteration of charge, since there was no charge under Section 306 of the IPC, there was no occasion for the Trial Court to have recorded such finding in respect of Section 306 of the IPC.
83. Evidently, while passing the impugned judgment, the Trial Court had misconceived that the appellants were also being tried for the original charge framed under Sections 498-A and 306 of the IPC.
84. While saying so, I am mindful of the judgment of the Supreme Court in Shanti Vs. State of Haryana, since reported in (1991) 1 SCC 371, wherein it has been held that Sections 304-B and 498-A of the IPC are not mutually exclusive. They deal with two distinct offences. A person charged and acquitted under Section 304-B of the IPC can be convicted under Section 498-A of the IPC without charge being framed, if such a case is made out. But from the point of view of practice and procedure and to avoid technical defects, it is necessary in such cases to frame charges under both
the sections and if the case is established against the accused, they can be convicted under both the Sections but no separate sentence need be awarded under Section 498-A in view of the substantive sentence being awarded for the major offence under Section 304-B.
Citations :
Other Sources :
https://indiankanoon.org/doc/193472418/
Asar Mohammad and Ors Vs State of UP on 24 Oct 2018
Replying on a catena of landmark judgments, a division bench of the Apex Court that the Appellant No.1 is guilty of committing the murder and the Appellant No.2 and 3 are liable to punishment u/s 201 IPC.
Citations : [2018 SCC ONLINE SC 2179], [2019 SCC 12 253], [2019 SCC CRI 4 321], [2018 AIR SC 5264], [2018 CRIMES 4 387], [2019 ALL LJ 1 382], [2018 AIC 192 50], [2019 ECRN 1 148]
Other Sources :
https://indiankanoon.org/doc/28788694/
https://www.casemine.com/judgement/in/5bd343729eff430a1b47f1d9
https://www.indianemployees.com/judgments/details/asar-mohammad-and-ors-versus-the-state-of-u-p
https://crlreview.in/asar-mohammad-v-state-of-up/
Rahul S Shah Vs Jinendra Kumar Gandhi on 22 Apr 2021
Supreme Court passed these mandatory guidelines which “All Courts dealing with suits and execution proceedings shall follow”.
From Para 42,
42. All Courts dealing with suits and execution proceedings shall mandatorily follow the below-mentioned directions:
1. In suits relating to delivery of possession, the court must examine the parties to the suit under Order X in relation to third party interest and further exercise the power under Order XI Rule 14 asking parties to disclose and produce documents, upon oath, which are in possession of the parties including declaration pertaining to third party interest in such properties.
2. In appropriate cases, where the possession is not in dispute and not a question of fact for adjudication before the Court, the Court may appoint Commissioner to assess the accurate description and status of the property.
3. After examination of parties under Order X or production of documents under Order XI or receipt of commission report, the Court must add all necessary or proper parties to the suit, so as to avoid multiplicity of proceedings and also make such joinder of cause of action in the same suit.
4. Under Order XL Rule 1 of CPC, a Court Receiver can be appointed to monitor the status of the property in question as custodia legis for proper adjudication of the matter.
5. The Court must, before passing the decree, pertaining to delivery of possession of a property ensure that the decree is unambiguous so as to not only contain clear description of the property but also having regard to the status of the property.
6. In a money suit, the Court must invariably resort to Order XXI Rule 11, ensuring immediate execution of decree for payment of money on oral application.
7. In a suit for payment of money, before settlement of issues, the defendant may be required to disclose his assets on oath, to the extent that he is being made liable in a suit. The Court may further, at any stage, in appropriate cases during the pendency of suit, using powers under Section 151 CPC, demand security to ensure satisfaction of any decree.
8. The Court exercising jurisdiction under Section 47 or under Order XXI of CPC, must not issue notice on an application of third-party claiming rights in a mechanical manner. Further, the Court should refrain from entertaining any such application(s) that has already been considered by the Court while adjudicating the suit or which raises any such issue which otherwise could have been raised and determined during adjudication of suit if due diligence was exercised by the applicant.
9. The Court should allow taking of evidence during the execution proceedings only in exceptional and rare cases where the question of fact could not be decided by resorting to any other expeditious method like appointment of Commissioner or calling for electronic materials including photographs or video with affidavits.
10. The Court must in appropriate cases where it finds the objection or resistance or claim to be frivolous or mala fide, resort to Sub-rule (2) of Rule 98 of Order XXI as well as grant compensatory costs in accordance with Section 35A.
11. Under section 60 of CPC the term “…in name of the judgment- debtor or by another person in trust for him or on his behalf” should be read liberally to incorporate any other person from whom he may have the ability to derive share, profit or property.
12. The Executing Court must dispose of the Execution Proceedings within six months from the date of filing, which may be extended only by recording reasons in writing for such delay.
13. The Executing Court may on satisfaction of the fact that it is not possible to execute the decree without police assistance, direct the concerned Police Station to provide police assistance to such officials who are working towards execution of the decree. Further, in case an offence against the public servant while discharging his duties is brought to the knowledge of the Court, the same must be dealt stringently in accordance with law.
14. The Judicial Academies must prepare manuals and ensure continuous training through appropriate mediums to the Court personnel/staff executing the warrants, carrying out attachment and sale and any other official duties for executing orders issued by the Executing Courts
Citations :
Other Sources :
https://indiankanoon.org/doc/93073896/
https://www.casemine.com/judgement/in/6085af43c07b9e7eacd85ef8
https://www.indianemployees.com/judgments/details/rahul-s-shah-versus-jinendra-kumar-gandhi-ors
