Neetu Tripathi Vs State of Uttar Pradesh and Anr on 01 Apr 2022

Posted on November 12, 2023 by ShadesOfKnife

A division bench of Apex Court said as follows:

We are informed by the complainant that there are four private witnesses. The grievance made is that whenever the first witness is under cross examination and after couple of questions the matter is deferred. If it is so, we cannot appreciate it. Once the witness is in the witness box and is being cross examined every endeavour must be made to ensure that the cross examination is completed on that day. This is more so looking into the nature of the case before the Court which is not a complex criminal trial.

Aditi Sharma (alias Mithi) Vs Jitesh Sharma on 06 Nov 2023

Posted on November 8, 2023 by ShadesOfKnife

A division bench of Apex Court, recorded that Trial Courts are not following Rajnesh Vs Neha Guidelines and directed the circular to be re-issued for strict adherence and compliance.

From Para 8,

8. The manner in which maintenance payable under Section 24 of the Hindu Marriage Act, 1955 or Section 125 Cr.P.C. is to be assessed, was considered by this Court in its celebrated judgment in Rajnesh v. Neha and Another, (2021) 2 SCC 324. Detailed guidelines were issued. It was noticed that the terms of maintenance are decided on the basis of pleadings of parties and on the basis of some amount of guess work. It is often seen that both the parties submit scanty material and do not disclose correct details. The tendency of the wife is to exaggerate her needs, whereas the husband tends to conceal his actual income. Keeping that in view, this Court laid down the procedure to streamline grant of maintenance. The judgments of various courts were referred to and response from various State Legal Services Authorities was sought. This Court even requested the National Legal Services Authority to submit a report on the suggestions received from the State Legal Services Authorities for framing guidelines on the affidavit of disclosure of assets and liabilities to be filed by the parties. Guidelines were issued in exercise of powers under Article 136 read with Article 142 of the Constitution of India, prescribing a uniform format of Affidavit of Disclosure of Assets and Liabilities to be filed in maintenance proceedings. The judgment was delivered on 04.11.2020. The affidavit was to be submitted in all maintenance proceedings including pending proceedings.

From Para 14,

14. Nothing is evident from the record or even pointed out by the learned counsel for the appellant at the time of hearing that affidavits were filed by both the parties in terms of judgment of this Court in Rajnesh’s case (supra), which was directed to be communicated to all the High Courts for further circulation to all the Judicial Officers for awareness and implementation. The case in hand is not in isolation. Even after pronouncement of the aforesaid judgment, this Court is still coming across number of cases decided by the courts below fixing maintenance, either interim or final, without their being any affidavit on record filed by the parties. Apparently, the officers concerned have failed to take notice of the guidelines issued by this Court for expeditious disposal of cases involving grant of maintenance. Comprehensive guidelines were issued pertaining to overlapping jurisdiction among courts when concurrent remedies for grant of maintenance are available under the Special Marriage Act, 1954, Section 125 Cr.P.C., the Protection of Women from Domestic Violence Act, 2005, Hindu Marriage Act, 1955 and Hindu Adoptions and Maintenance Act, 1956, and Criteria for determining quantum of maintenance, date from which maintenance is to be awarded, enforcement of orders of maintenance including fixing payment of interim maintenance. As a result, the litigation which should close at the trial level is taken up to this Court and the parties are forced to litigate.

From Para 16,

16. Considering the facts of the case in hand and the other similar cases coming across before this Court not adhering to the guidelines given in Rajnesh’s case (supra), we deem it appropriate to direct the Secretary General of this Court to re-circulate the aforesaid judgment not only to all the Judicial Officers through the High Courts concerned but also to the National Judicial Academy and the State Judicial Academies, to be taken note of during the training programmes as well. Ordered accordingly.

Aditi Sharma Vs Jitesh Sharma on 06 Nov 2023

Earlier ‘cryptic’ Judgment of Madhya Pradesh High Court at Gwalior is below.

Jitesh Sharma Vs Aditi Sharma on 28 Jun 2023

Citations: [2023 SCC OnLine SC 1451], [2023 INSC 981], []

Other Sources:

https://indiankanoon.org/doc/182154741/

https://www.casemine.com/judgement/in/65570ae40c546b25c61fa465

https://legiteye.com/in-criminal-appeal-no-3446-of-2023-sc-supreme-court-directs-re-circulation-of-rajnesh-v-neha-guidelines-on-maintenance-to-ensure-adherence-in-similar-cases-justice-vikram-nath-justice-rajesh-bindal-06-11-2023/

https://lawfyi.io/aditi-alias-mithi-vs-jitesh-sharma-on-6-november-2023/

https://www.indianemployees.com/judgments/details/aditi-alias-mithi-versus-jitesh-sharma

[Landmark Judgement] Aditi V. Jitesh Sharma (2023)

https://www.latestlaws.com/adr/case-analysis/supreme-court-orders-re-circulation-of-rajnesh-versus-neha-judgment-saying-parties-are-forced-to-litigate-where-litigation-should-close-at-trial-level-208275

Rajnesh Vs Neha case is here.

Index of Maintenance cases is here.

MS Godrej Sara Lee Limited Vs Excise and Taxation Officer cum AO and Ors on 01 Feb 2023

Posted on October 25, 2023 by ShadesOfKnife

A division bench of Supreme Court held that, Not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for a Writ’s dismissal.

Further it was held that, A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest.

From Para 4,

4. Before answering the questions, we feel the urge to say a few words on the exercise of writ powers conferred by Article 226 of the Constitution having come across certain orders passed by the high courts holding writ petitions as “not maintainable” merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ jurisdiction. The power to issue prerogative writs under Article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself. Profitable reference in this regard may be made to Article 329 and ordainments of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the high court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal. It is axiomatic that the high courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not. One of the self-imposed restrictions on the exercise of power under Article 226 that has evolved through judicial precedents is that the high courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the high court under Article 226 has not pursued, would not oust the jurisdiction of the high court and render a writ petition “not maintainable”. In a long line of decisions, this Court has made it clear that availability of an alternative remedy does not operate as an absolute bar to the “maintainability” of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. Though elementary, it needs to be restated that “entertainability” and “maintainability” of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to “maintainability” goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of “entertainability” is entirely within the realm of discretion of the high courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. Hence, dismissal of a writ petition by a high court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper.

MS Godrej Sara Lee Limited Vs Excise and Taxation Officer cum AO and Ors on 01 Feb 2023

Citations : [2023 INSC 92], [2023 SCC ONLINE SC 95]

Other Sources :

https://indiankanoon.org/doc/62928741/

https://www.casemine.com/judgement/in/63dc0f95831db01604ba254b

https://www.courtkutchehry.com/Judgement/Search/AdvancedV2?docid=2368646

https://www.indianemployees.com/judgments/details/m-s-godrej-sara-lee-ltd-vs-the-excise-and-taxation-officer-cum-assessing-authority

https://www.verdictum.in/court-updates/supreme-court/godrej-taxation-alternative-remedy-not-absolute-writ-petition-maintainability-entertainability-apex-court-1460513

Godrej Sara Lee Limited Vs The Excise and Taxation officer-cum-Assessing Authority & Ors (Supreme Court)

Bimla Tiwari Vs State of Bihar and Ors on 16 Jan 2023

Posted on October 12, 2023 by ShadesOfKnife

In this reportable decision of Supreme Court, it was held that the process of criminal law, particularly in matters of grant of bail, is not akin to money recovery proceedings. Recovery of money is essentially within the realm of civil proceedings.

From Paras 9-11,

9. We have indicated on more than one occasion that the process of criminal law, particularly in matters of grant of bail, is not akin to money recovery proceedings but what has been noticed in the present case carries the peculiarities of its own.
10. We would reiterate that the process of criminal law cannot beutilised for arm-twisting and money recovery, particularly while opposing the prayer for bail. The question as to whether pre-arrest bail, or for that matter regular bail, in a given case is to begranted or not is required to be examined and the discretion isrequired to be exercised by the Court with reference to the material on record and the parameters governing bail considerations. Putting it in other words, in a given case, theconcession of pre-arrest bail or regular bail could be declined even if the accused has made payment of the money involved oroffers to make any payment; conversely, in a given case, the concession of pre-arrest bail or regular bail could be granted irrespective of any payment or any offer of payment.
11. We would further emphasize that, ordinarily, there is nojustification in adopting such a course that for the purpose of being given the concession of pre-arrest bail, the personapprehending arrest ought to make payment. Recovery of money is essentially within the realm of civil proceedings.

From Para 15,

15. Thus, it is noticed that these criminal proceedings are being prosecuted only as money recovery proceedings. We have expressed reservations even as regards the aforesaid order dated 10.03.2022, wherein the High Court has proceeded on the propositions of offer made by the co-accused of payment of the sum of Rs.6,00,000/- (six lakhs) and acceptance thereof by the informant (present petitioner). However, since the said order is not before us, we would refrain from making any directions in that regard and else, in our view, even the said order too, on the proposition of granting bail with reference to payment, has its own shortcomings.
16. Even when we are not modifying the condition in the said order dated 10.03.2022 for the same being not before us, so far as the impugned order dated 14.11.2022 is concerned, in our view, it shall be in the interest of justice to annul the requirement of payment of a sum of Rs. 75,000/- (seventy-five thousand) by the accused-respondent No. 2. Hence, the order granting pre-arrest bail to the respondents stands affirmed but, the condition therein, of payment of Rs.75,000/- (seventy-five thousand) by the respondent No.2, stands annulled.

Bimla Tiwari Vs State of Bihar and Ors on 16 Jan 2023

Index of all Bail Matters is here.

Shane George Dsouza Vs State of NCT of Delhi on 04 Oct 2023

Posted on October 12, 2023 by ShadesOfKnife

A division bench of Supreme Court held that criminal proceedings cannot be converted into recovery proceedings.

This Court has repeatedly held that the condition of deposit of such amount cannot be a condition of bail. In this case, the appellant had not volunteered to deposit the sum of Rs.10,00,000/- (Rupees ten lakhs). The direction in the order dated 18th January, 2023 is not only of imposing a condition on the appellant of bringing a sum of Rs.10,00,000/- (Rupees ten lakhs) to the Trial Court but a permission has been granted to release the amount to the victim. It is a settled law that criminal proceedings cannot be converted into recovery proceedings.
Hence, in the facts of the case, there was no justification for imposing the condition of deposit of Rs.10,00,000/- (Rupees ten lakhs). Accordingly, the appeal must succeed and we set aside clause (a) of the operative part of the order dated 18th January, 2023 passed by the Additional Sessions Judge-05, New Delhi District, Patiala House Courts, New Delhi. The rest of the conditions shall remain as it is.

Shane George Dsouza Vs State of NCT of Delhi on 04 Oct 2023

Index of all Bail matters is here.

National Insurance Company Ltd Vs MS National Building Construction India Ltd and Ors on 12 Sep 2023

Posted on October 1, 2023 by ShadesOfKnife

A division bench of Supreme Court held as follows,

On behalf of the petitioner, it has been urged that the provision of Order V Rule 2 of the Code of Civil Procedure requires service of summons with
plaint.
We accept the petitioner’s argument on the legal proposition that service contemplated in terms of Order V Rule 2 of the Code would imply service of summons along with the copy of the plaint.

NIC Ltd Vs MS NBCI Ltd and Ors on 12 Sep 2023

Bhawna Vs Bhay Ram and Ors on 17 Feb 2023

Posted on September 14, 2023 by ShadesOfKnife

A division bench of Apex Court declared the act of imposing cost of DV complainant to examine witnesses.

The appellant is the complainant in a case under the Protection of Women from Domestic Violence Act, 2005. In the trial, the right of the appellant to lead evidence was closed and the complaint was rejected. Therefore, the appellant had filed an appeal. The Appellate Court allowed the appeal directing the trial court to reopen the case and allow the appellant to lead evidence subject to her paying cost of Rs.20,000/- per witness. When the appellant moved the High Court against the said order, the High Court reduced the cost to Rs.10,000/- per witness. In addition, the Appellate Court as well as the High Court said that the appellant will not be entitled to maintenance during the said period.
In a complaint filed under the Protection of women from Domestic Violence Act, 2005, it is not open to the Court to impose such onerous conditions upon the appellant, who claims to be a victim of domestic violence. What the Appellate Court and the High Court have ordered are actually in the nature of penalty for the appellant not proceeding with the trial. In the first instance, it is impermissible in law.
Therefore, the appeal is allowed and that portion of the order of the Appellate Court and the High Court imposing the cost upon the appellant for examination of every witness and also depriving the appellant of interim maintenance is set aside.
The trial court shall permit the appellant to lead evidence without imposing the onerous conditions.
Physical presence of the parents-in-law of the appellant, who are also the respondents herein, shall be dispensed with by the trial court.

Bhawna Vs Bhay Ram and Ors on 17 Feb 2023

Index of DV cases is here.

Career Institute Educational Society Vs Om Shree Thakurji Educational Society on 24 Apr 2023

Posted on September 12, 2023 by ShadesOfKnife

A Division bench of Apex Court discussed the distinction between Ratio Decidendi and Obiter Dicta.

The distinction between obiter dicta and ratio decidendi in a judgment, as a proposition of law, has been examined by several judgments of this Court, but we would like to refer to two, namely, State of Gujarat & Ors. vs. Utility Users’ Welfare Association & Ors.8 and Jayant Verma & Ors. vs. Union of India & Ors.9

Testing for Ratio Decidendi:

The first judgment in State of Gujarat (supra) applies, what is called, “the inversion test” to identify what is ratio decidendi in a judgment. To test whether a particular proposition of law is to be treated as the ratio decidendi of the case, the proposition is to be inversed, i.e. to remove from the text of the judgment as if it did not exist. If the conclusion of the case would still have been the same even without examining the proposition, then it cannot be regarded as the ratio decidendi of the case.

What is vital for decision making?

In Jayant Verma (supra), this Court has referred to an earlier decision of this Court in Dalbir Singh & Ors. vs. State of Punjab10 to state that it is not the findings of material facts, direct and inferential, but the statements of the principles of law applicable to the legal problems disclosed by the facts, which is the vital element in the decision and operates as a precedent, albeit operates as res judicata. Even the conclusion does not operate as a precedent. Thus, it is not everything said by a Judge when giving judgment that constitutes a precedent. The only thing in a Judge’s decision binding as a legal precedent is the principle upon which the case is decided and, for this reason, it is important to analyse a decision and isolate from it the obiter dicta.

Career Institute Educational Society Vs Om Shree Thakurji Educational Society on 24 Apr 2023

Sindhu Janak Nagargoje Vs The State of Maharashtra and Ors on 08 Aug 2023

Posted on August 14, 2023 by ShadesOfKnife

Relying on the landmark decision in Lalita Kumari case here, a division bench of Apex Court held that when a complaint disclosed cognizable offence, a FIR has to be registered u/s 154(1) CrPC and proceeded with investigation.

In view of the decision rendered by the Constitution Bench in the case of “Lalita Kumari vs. State of Uttar Pradesh & Ors.,” reported in (2014) 2 SCC 1, we are of the opinion that the registration of FIR is mandatory under Section 154 of CrPC, if the information discloses commission of cognizable offence. We may reiterate summary of law stated therein: –
“120. In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3 If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4 The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
120.5 The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
120.6 As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/ family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without
satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
120.7 While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and, in any case, it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
120.8 Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information
relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.”

Sindhu Janak Nagargoje Vs The State of Maharashtra and Ors on 08 Aug 2023

Citations:

Other Sources:

S.P. Mani and Mohan Dairy Vs Dr Snehalatha Elangovan on 16 Sep 2022

Posted on August 12, 2023 by ShadesOfKnife

Shades of Knife

True Colors of a Vile Wife

Category: Supreme Court of India Judgment or Order or Notification

Neetu Tripathi Vs State of Uttar Pradesh and Anr on 01 Apr 2022

Aditi Sharma (alias Mithi) Vs Jitesh Sharma on 06 Nov 2023

MS Godrej Sara Lee Limited Vs Excise and Taxation Officer cum AO and Ors on 01 Feb 2023

Bimla Tiwari Vs State of Bihar and Ors on 16 Jan 2023

Shane George Dsouza Vs State of NCT of Delhi on 04 Oct 2023

National Insurance Company Ltd Vs MS National Building Construction India Ltd and Ors on 12 Sep 2023

Bhawna Vs Bhay Ram and Ors on 17 Feb 2023

Career Institute Educational Society Vs Om Shree Thakurji Educational Society on 24 Apr 2023

Sindhu Janak Nagargoje Vs The State of Maharashtra and Ors on 08 Aug 2023

S.P. Mani and Mohan Dairy Vs Dr Snehalatha Elangovan on 16 Sep 2022