A.S. Praveen Kumar Vs Ashwini and Anr on 14 Mar 2016
A single judge of Karnataka High Court held that, an offence under the PWDV Act alone is subject to limitation under CrPC but not the application filed belatedly u/s 12 of the Act.
From Paras 16-17,
16. To attract Section 468 of Cr.P.C, essentially the Act alleged must be an offence. Under the DV Act, the offence is not defined, as defined in Section 40 of IPC. Therefore, we have to revert to the General Clauses Act, 1897. Section 3(38) of the General Clauses Act defines the offences as follows:
“3(38). “Offence” shall mean any act or omission made punishable by any law for the time being in force.
17. Perusal of the above provision makes it clear that to call an act as offence, act or omission must be made punishable under law. As already pointed out, under Sections 12, 20 and 21 of the DV Act have not made the domestic violence alleged thereunder punishable or defined them as offence. Section 12 of the DV Act is only an enabling provision to initiate enquiry to find out whether such act or omission is committed.
From Para 19-20, Conclusions
19. Perusal of Section 31 of the DV Act makes it clear that only breach of the protection order or interim protection order etc. passed under Section 12 of the DV Act constitutes an offence and made punishable. As held by Punjab High Court in Vikas’s case referred to supra, Section 12 of the DV Act is only enabling provision. Therefore it is clear that the act or omission contemplated under Section 31 of the DV Act is an offence and the application under Section 12 of the DV Act itself is not an offence.
20. When the application under Section 12 of the DV Act is not covered under the term ‘offence’, Section 468 of Cr.P.C. is inapplicable. Therefore the application of Section 468 of Cr.P.C. to an application under Section 12 of the DV Act is clearly a misconception.
From Paras 24-26,
Puttaraju Vs Shivakumari on 01 Apr 2021
24. Distinguishing judgment in Inderjit Singh Grewal’s case, the Hon’ble Supreme Court in subsequent judgment in Krishna Bhattacharjee’s case referred to supra held that the observation regarding domestic relationship in Inderjit Singh Grewal’s case were based on the facts and circumstances of the said case and they are not of general application.
25. Further in para 32 of the judgment in Krishna Bhattacharjee’s case referred to supra, the Hon’ble Supreme Court held that the definition of the aggrieved person and domestic relationship remains and the act of domestic violence attracts the term ‘continuing offence’, therefore does not get time barred.
26. In the judgments of the Hon’ble Supreme Court referred to above, the interplay of Section 3(38) of the General Clauses Act, Section 31 of the DV Act and Section 468 of Cr.P.C. had not fallen for consideration. In view of the later judgment of the Hon’ble Supreme Court in Krishna Bhattacharjee’s case referred to supra the judgments of this Court in Srinivas’s case and Gurudev’s case cannot be followed. Therefore this Court does not find any merit in the contention that the petition was time barred. Under the circumstances the respondent is entitled for withdrawal of the amount. The application is allowed.
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A division bench of Karnataka High Court held that a Son is a son, irrespective of if he is a legitimate son or illegitimate, with regards to compassionate appointments.K Santhosha Vs The Karnataka Power Transmission on 24 Jun 2021
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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.
Veerabhadraiah Swamy and Ors Vs Veerupakshi and Ors on
Other Sources :
Index of Perjury Decision here.
A brain dead person seems to have tried to implicate unrelated person into a false DV case but the single bench of Karnataka High Court quashed such designed…
From Para 2,
Harini H Vs Kavya H and Ors on 17 Jun 2021
2. The argument of the petitioner’s counsel is that the petitioner has been unnecessarily made a party by the 1st respondent in her application before the Magistrate under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (‘Act’ for short). He submits that the only allegation found is that the 1st respondent suspected her husband to be having illegal relationship with the petitioner and he thought of bringing her to his house. Therefore he argued that the petitioner herein should not have been made a party in the application filed under Section 12 of the Act as she does not fall within the meaning of respondent as mentioned under Section 2(q) of the Act. So far as the petitioner is concerned it cannot be said that she has committed domestic violence to prosecute her to claim any relief from her. In fact if the reliefs claimed in the application made under Section 12 of the Act are perused, no relief is claimed against the petitioner and therefore the proceedings against her requires to be quashed.
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The Division Bench clarified the legal position on obtaining NOC from an advocate before engaging the services of another advocate while perusing an earlier case law here.Bhagya and Ors Vs Jayalakshmi and Ors on 13 Feb 2019
Citations : [2019 SCC ONLINE KAR 1974], [2019 KCCR 2 1453], [2019 AIR KAR 133], [2019 AIR KANT R 3 50], [2019 ICC 4 31]
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Karnataka High Court held that (which is wrongly understood by many) once the advocate of a case on record of the Court is discharged, as per procedure established by law (termination letter and communicating the same to advocate), a party has absolute right to engage another advocate and no need of obtaining a separate NOC from the advocate, who was discharged. This was further clarified by a Division Bench here.
From Paras 6 to 9,
Karnataka Power Distribution Vs M RajaShekar on 2 Dec 2016
6. As could be seen from the observations made in the two decisions extracted above, a party to a litigation has an absolute right to appoint an advocate of his choice, to terminate his services, and to appoint a new advocate. A party has the freedom to change his advocate any time and for whatever reason. However, fairness demands that the party should inform his advocate already on record, though this is not a condition precedent to appoint a new advocate.
7. There is nothing known as irrevocable vakalatnama. The right of a party to withdraw vakalatnama or authorization given to an advocate is absolute. Hence, a party may discharge his advocate any time, with or without cause by withdrawing his vakalatnama or authorization. On discharging the advocate, the party has the right to have the case file returned to him from the advocate, and any refusal by the advocate to return the file amounts to misconduct under Section 35 of the Advocates Act, 1961. In any proceeding, including civil and criminal, a party has an absolute right to appoint a new Advocate. Under no circumstance, a party can be denied of his right to appoint a new advocate of his choice. Therefore, it follows that any rule or law imposing restriction on the said right can’t be construed as mandatory. Accordingly, Courts, Tribunals or other authorities shall not ask for ‘no objection’ of the advocate already on record, to accept the vakalatnama filed by a new advocate.
8. As observed in the decisions referred to above, if an Advocate is discharged by his client and if he has any genuine claim against his client relating to the fee payable to him, the appropriate course for him is to return the brief and to agitate his claim in an appropriate forum, in accordance with law.
9. As stated above, under no circumstance, a party can be denied of his right to appoint a new advocate of his choice. The right is absolute and not conditional. Hence, the objection raised by the Registry on the vakalatnama is overruled. Hereafter, the Registry shall not ask for ‘no objection’ of the advocate already on record, to accept the vakalatnama filed by a new Advocate.
Citations : [2016 SCC ONLINE KAR 6470], [2017 ILR KAR 59], [2017 AIR KAR 1], [2017 KCCR 1 383], [2017 AIR KANT R 4 210]
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Karnataka High Court has set aside the dismissal of the discharge petition u/s 227 CrPC against the Petitioners, up on whom vague allegations were made which did not attract the offences alleged in Charge sheet.
From Para 7,
7. I have meticulously gone through the statement of C.W.1-Vedha, because, she has categorically stated about the accident taken place on 25.07.2015 and she actually saw on that day accused Nos.1 and 2 came in a tipper lorry and dashed the Nano car, wherein C.W.1 and her child and parents were there. Due to the said impact, her father and mother died on the spot. C.W.1 and her child sustained injuries. She has also categorically stated that when she questioned her husband as to why he has given complaint as if it is an accident, then, he threatened her with dire consequence of killing her and the child. But, there is no allegation against these petitioners explaining as to how the incident has happened right from the beginning. Except stating that when accused Nos.3 and 4 though informed about the birth of female child, they did not come and see the child because, it is a female child. She has only stated that there was a small quarrel taking place in the family and sometimes, accused Nos.3 and 4 were also telling her to listen to their words, C.W.1 taken advantage of these small incidents in the family to make allegations. Even it has not been stated as to in what manner those small incidents, projected to mentally and physically harass her. Except making a bald and trivial allegation that they were also ill-treating and harassing her, nothing has been given in the statement except stating that they were quarrelling for trivial issues. Therefore, on these factual aspects, she omnibusly states that accused Nos.3 and 4 were also ill-treating and harassing her.
And from Para 9,
Sarva Mangala Vs Station House Officer on 4 Jan 2018
9. Framing of charges against the accused persons depends upon the facts and circumstances of each case. One case cannot be compared with another at all. The nature of the allegations made, strength of those allegations and surrounding circumstances have to be looked into by the Court in each case. In this particular case, till the point of time the incident took place, it appears that no allegations have been made against accused Nos.3 and 4. Though there are certain allegations against accused No.1 i.e., the husband of C.W.1, there is no serious allegations against accused Nos.3 and 4. In the above facts and circumstances, particularly, looking to the facts of this case, I am of the opinion that the trial Court has committed a serious error in ordering to frame charges against these petitioners for the offence under Sections 302 and 201 of IPC. It is apparently materials are lacking against these petitioners. Further, I am of the opinion that the allegations made are omnibus in nature and they are not sufficient to frame charges against accused Nos.3 and 4 even for the offence under Section 498-A of I.P.C. Therefore, I am of the opinion that the petitioners i.e., accused Nos.3 and 4 are entitled to be discharged.
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