Kamal Anant Khopkar Versus Union of India and Anr

Posted on May 28, 2022 by ShadesOfKnife

A full bench of Apex Court began looking into the Constitutional validity of Section 15 – General rules of succession in the case of female Hindus from Hindu Succession Act 1956.

Kamal Anant Khopkar Versus Union of India and Anr on 15 Mar 2019 OR

Learned Additional Solicitor General appears for the Union of India and asks and gets a period of six weeks to file counter affidavit by the Union of India

Kamal Anant Khopkar Versus Union of India and Anr on 25 Mar 2019

More time given… already 4 years passed but the Central government did not file the Counter.

Kamal Anant Khopkar Versus Union of India and Anr on 05 Apr 2022

Another petitioner also challenged the same provision of HSA and this one got tagged with above main case…

Manju Narayan Nathan Vs Union of India and Anr on 16 Mar 2022

MS Knit Pro International Vs State of NCT Delhi and Anr on 20 May 2022

Posted on May 23, 2022 by ShadesOfKnife

Supreme Court referred to the Part II of the First Schedule of the Cr.P.C. to decide if a penal provision in any law is a cognizable or non-cognizable offence.

5.1 The short question which is posed for consideration before this Court is, whether, the offence under Section 63 of the Copyright Act is a cognizable offence as considered by the Trial Court or a non-cognizable offence as observed and held by the High Court.
5.2 While answering the aforesaid question Section 63 of the Copyright Act and Part II of the First Schedule of the Cr.P.C. are required to be referred to.
5.3 Thus, for the offence under Section 63 of the Copyright Act, the punishment provided is imprisonment for a term which shall not be less than six months but which may extend to three years and with fine. Therefore, the maximum punishment which can be imposed would be three years. Therefore, the learned Magistrate may sentence the accused for a period of three years also. In that view of the matter considering Part II of the First Schedule of the Cr.P.C., if the offence is punishable with imprisonment for three years and onwards but not more than seven years the offence is acognizable offence. Only in a case where the offence is punishable for imprisonment for less than three years or with fine only the offence can be said to be non-cognizable. In view of the above clear position of law, the decision in the case of Rakesh Kumar Paul (supra) relied upon by learned counsel appearing on behalf of respondent no.2 shall not be applicable to the facts of the case on hand. The language of the provision in Part II of First Schedule is very clear and there is no ambiguity whatsoever.

MS Knit Pro International Vs State of NCT Delhi and Anr on 20 May 2022

Citations :

Other Sources :

Prabha Tyagi Vs Kamlesh Devi on 12 May 2022

Posted on May 20, 2022 by ShadesOfKnife

A division bench of Apex Court as follows,

From Para 52,

52. In view of the above discussion, the three questions raised in this appeal are answered as under:
“(i) Whether the consideration of Domestic Incidence Report is mandatory before initiating the proceedings under Domestic Violence Act, 2005 in order to invoke substantive provisions of Sections 18 to 20 and 22 of the said Act?” It is held that Section 12 does not make it mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order under the D.V. Act. It is clarified that even in the absence of a Domestic Incident Report, a Magistrate is empowered to pass both ex parte or interim as well as a final order under the provisions of the D.V. Act.
“(ii) Whether it is mandatory for the aggrieved person to reside with those persons against whom the allegations have been levied at the point of commission of violence?” It is held that it is not mandatory for the aggrieved person, when she is related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family, to actually reside with those persons against whom the allegations have been levelled at the time of commission of domestic violence. If a woman has the right to reside in the shared household under Section 17 of the D.V. Act and such a woman becomes an aggrieved person or victim of domestic violence, she can seek reliefs under the provisions of D.V. Act including enforcement of her right to live in a shared household.
“(iii) Whether there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed?” It is held that there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed vis-à-vis allegation of domestic violence. However, it is not necessary that at the time of filing of an application by an aggrieved person, the domestic relationship should be subsisting. In other words, even if an aggrieved person is not in a domestic relationship with the respondent in a shared household at the time of filing of an application under Section 12 of the D.V. Act but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application under Section 12 of the D.V. Act.

Prabha Tyagi Vs Kamlesh Devi on 12 May 2022

Citations : [2022 SCC ONLINE SC 607]

Other Sources :

https://indiankanoon.org/doc/85317640/

https://www.casemine.com/judgement/in/627eb23ab50db90fd1943198

https://www.indianemployees.com/judgments/details/prabha-tyagi-vs-kamlesh-devi

Right to residence under DV Act not restricted to actual residence; Domestic relationship not necessary to be subsisting at the time of filing of application: SC

This decision (with respect to shared householding requirement in DV cases) overrules decision by Andhra Pradesh High Court here.

Index of DV Cases here.

Doongar Singh and Ors Vs The State Of Rajasthan on 28 Nov 2017

Posted on May 20, 2022 by ShadesOfKnife

A division bench of Supreme Court passed the following guidelines…

13. To conclude:
(i) The trial courts must carry out the mandate of Section 309 of the Cr.P.C. as reiterated in judgments of this Court, inter alia, in State of U.P. versus Shambhu Nath Singh and Others, Mohd. Khalid versus State of W.B. and Vinod Kumar versus State of Punjab.
(ii) The eye-witnesses must be examined by the prosecution as soon as possible.
(iii) Statements of eye-witnesses should invariably be recorded under Section 164 of the Cr.P.C. as per procedure prescribed thereunder.

Doongar Singh and Ors Vs The State Of Rajasthan on 28 Nov 2017

Citations : [2017 SCC ONLINE SC 1391], [2017 SCALE 13 752], [2018 SCC 13 741], [2019 SCC CRI 1 410], [2017 CTC 6 883], [2018 KLT 1 629], [2018 AIC 183 5], [2018 ECRN 1 667], [2017 AIR SC SUPP 328]

Other Sources :

https://indiankanoon.org/doc/99075271/

https://www.casemine.com/judgement/in/5a261fe74a9326744f39e37e

Anurag Saxena Vs Union of India on 17 May 2022

Posted on May 19, 2022 by ShadesOfKnife

The Full Bench of Apex Court dismissed this frivolous PIL with Costs. The petitioners are practicing advocates at Apex Court!

The petitioners, who are practicing lawyers of this Court, have filed the present petition seeking several reliefs, including a direction to allow the vehicles to run till the end of their registered life in both diesel and petrol variants.
Before the petitioner in person – Mr.Anurag Saxena commenced his arguments, we forewarned him that the reliefs claimed by him are contrary to the orders passed by this Court as well as the National Green Tribunal. The petitioner in person insisted that he had a good case and he would convince the Court if he is granted 8 minutes time. We again forewarned him that we will permit him to do so, but in the event, if we find that the petition is without substance, we will saddle a cost of rupees one lakh per minute, that is, 8 lakhs. He, however, insisted on arguing the matter.
We uninterruptedly permitted Mr.Saxena to argue the matter for 8 minutes.
We find that the present petition is nothing but an abuse of process of law. At least a lawyer practicing before this Court is expected to know that a
petition under Article 32 of the Constitution of India, cannot be filed to seek any reliefs which are contrary to the orders passed by this Court. In spite of the forewarning, the petitioner in person continued to argue the matter. We therefore, passed an order dismissing the petition.
Mr. Saxena did not even stop after we passed the order dismissing the petition. He still continued with his endeavour to argue the impossible.
We could have very well imposed the cost of rupees 8 lakhs while dismissing the petition, which we indicated at the beginning of the hearing. However, we do not propose to be harsh to an ill-advised parties in person who fortunately or unfortunately are lawyers. We are therefore, inclined to take a lenient view of the matter.
We dismiss the Special Leave Petition with costs which are quantified at Rs.50,000/- The same may be paid to the Supreme Court Legal Services Committee within a period of two weeks from today.
However, before closing, we warn the petitioners that if they indulge into such sort of misadventurism hereinafter, the Court would be required to take a stern view of the matter.
Anurag Saxena Vs Union of India on 17 May 2022

Ramkripal Charmakar Vs State of Madhya Pradesh on 19 Mar 2007

Posted on May 1, 2022 by ShadesOfKnife

Apex Court explained about offence of rape and the necessary ingredients to make out a case u/s 376 IPC.

Coming to the question as to whether Section 354 of the Act has any application, it is to be noted that the provision makes penal the assault or use of criminal force to a woman to outrage her modesty. The essential ingredients of offence under Section 354 IPC are:
(a) That the assault must be on a woman.
(b) That the accused must have used criminal force on her.
(c) That the criminal force must have been used on the woman intending thereby to outrage her modesty.
What constitutes an outrage to female modesty is nowhere defined in IPC. The essence of a woman’s modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word ’modesty’ is not defined in IPC. The Shorter Oxford Dictionary (Third Edn.) defines the word ’modesty’ in relation to woman as follows:
“Decorous in manner and conduct; not forward or lower; Shame-fast; Scrupulously chast.”
Modesty is defined as the quality of being modest;and in relation to woman, “womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct.” It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. As observed by Justice Patterson in Rex v. James Llyod (1876) 7 C&P 817 in order to find the accused guilty of an assault with intent to commit a rape, court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part. The point of distinction between an offence of attempt to commit rape
and to commit indecent assault is that there should be some action on the part of the accused which would show that he was just going to have sexual connection with her.

And finally,

A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if he fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word ’attempt’ is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it; and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation.
An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission or consummation/completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt.
The sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. Definition of “rape” as contained in Section 375 IPC refers to “sexual intercourse” and the Explanation appended to the Section provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Intercourse means sexual connection. In the instant case that connection has been clearly established. Courts below were perfectly justified in their view.

Ramkripal Charmakar Vs State of Madhya Pradesh on 19 Mar 2007

Citations : [2007 SCC 11 265], [2007 AIR SC 0 2198], [2007 ALD CRI 2 940], [2007 ALT CRI 3 135], [2007 JT 4 393], [2007 SCALE 4 438], [2007 SUPREME 5 297], [2007 AIR JHAR R 2 905], [2007 OLR 1 803], [2007 CRLR 308], [2007 RCR CRI 2 390], [2007 DLT CRI 2 108], [2007 SLT 3 726], [2007 AIOL 306], [2007 AIR SC 49], [2007 BOMCR CRI SC 1 200], [2008 SCC CRI 1 674], [2007 SCR 4 125], [2007 AIC SC 54 131], [2007 CRIMES SC 3 115], [2007 AIR SCW 2198], [2008 MLJ CRL 1 172], [2007 CRLJ SC 2302]

Other Sources :

https://indiankanoon.org/doc/1308370/

https://www.casemine.com/judgement/in/5609ae60e4b0149711413a7a

https://www.indianconstitution.in/2021/12/ramkripal-so-shyamlal-charmakar-vs.html

Medicos Legal Action Group Vs Union of India on 29 Apr 2022

Posted on April 30, 2022 by ShadesOfKnife

Apex Court confirmed the decision of Bombay High Court which said, Doctor’s (Healthcare) services are within the ambit of Consumer Protection Act 2019.

Medicos Legal Action Group Vs Union of India on 29 Apr 2022

Citations :

Other Sources :

Bombay High Court decision:

Medicos Legal Action Group Vs Union of India on 25 Oct 2021

Kamlesh Devi Vs Jaipal and Ors on 04 Oct 2019

Posted on April 29, 2022 by ShadesOfKnife

A division bench of Apex Court held that, there is no allegations of domestic violence against the respondents and more importantly, there is no shared household between the complainant and the respondents.

The High Court has rightly found in effect that the ingredients of domestic violence are wholly absent in this case. The petitioner and the respondents are not persons living together in a shared household. There is a vague allegation that the respondents are family members. There is not a whisper of the respondents with the petitioner. They appear to be neighbours.

Kamlesh Devi Vs Jaipal and Ors on 04 Oct 2019

Citations :

Other Sources :

https://indiankanoon.org/doc/46655686/

https://lawsisto.com/legalnewsread/MzAxMg==/Supreme-Court-If-Parties-Are-Not-Living-Together-In-A-Shared-House-Domestic-Violence-Complaint-Not-Maintainable

https://www.lawyerservices.in/Kamlesh-Devi-Versus-Jaipal-and-Others-2019-10-04

https://lawstreet.co/judiciary/complaint-not-maintainable-if-parties-are-living-separately/

Here is the High Court decision:

The learned Judicial Magistrate Ist Class, Narnaul, after discussing the provisions of the Act found that none of the witnesses on record has established any fact to the effect that the respondents and the petitioner have been living in a shared household and the respondents have caused domestic violence upon them. The Court below also held that no violence whatsoever has been alleged of any kind within the premises of shared household. The only allegation is that though they did obscene activities with the daughters of the petitioner, the allegations as per pleadings are that respondents Jaipal, Krishan Kumar and Sandeep used to misbehave with the daughters of the petitioner, namely, Anusaya and Gaytri while they went outside for the purpose of their study and they used to do obscene activities with the daughters of the petitioner. The findings given by the learned Judicial Magistrate Ist Class, Narnaul, are correct as per evidence and law. No illegality has been committed by the learned Judicial Magistrate Ist Class, Narnaul.
From the perusal of the complaint itself, it transpires that the offence, if any, which has been alleged, falls in the provisions of IPC and it does not attract the provisions of the Act. The important fact that accused Jaipal, Krishan Kumar and Sandeep are the nephews itself will not bring the case under the Act.
The appeal filed by the present petitioner against the judgment of the learned Judicial Magistrate Ist Class, Narnaul, before the learned Sessions Judge was also dismissed by giving the reasoning as per law. The learned Sessions Judge also discussed that there is not an iota of evidence that the petitioner Kamlesh Devi and the respondents are living together in share household. Rather, certificate Ex.C.3/Ex.PW.1/C also shows that it has been mentioned therein that Sube Singh alias Shiv Lal, Siri Ram, Chhote Lal and Babu Lal reside separately in separate houses. Protection Officer had also reported that Kamlesh Devi along with her family is residing at Narnaul since a long time and had performed the marriages of her daughters at Narnaul and Smt. Kamlesh Devi and her husband are not residing in Village Gaud. The learned Sessions Judge, Narnaul also held that Kamlesh Devi-petitioner is not aggrieved person under the provision of Section 2(a) of the Act and is not entitled to any protection under Section 18 of the Act. A perusal of the judgments passed by the Courts below shows that the same have been passed as per evidence and law and the same are upheld.

Kamlesh Devi Vs Jaipal and Ors on 16 Sep 2016

Citations :

Other Sources :

https://www.casemine.com/judgement/in/5e24c7f546571b7222aa868e

Sanjay Awasthi Vs State of Uttar Pradesh on 14 Jul 2015

Posted on April 27, 2022 by ShadesOfKnife

A Full Bench of Apex Court passed these guidelines while issuing bail orders.

In the result, we issue the following directions:
(i) Such of the petitioners as have not already furnished bail bonds to the satisfaction of the trial courts concerned shall do so within a period of two weeks from today in which event the protection against arrest shall continue but only subject to their furnishing such bonds.
(ii) The trial court(s) shall satisfy themselves about the deposit of the amount directed by us, in terms of our Order(s) passed in each one of the
cases. In case deposit is not made as directed, the same shall be made within four weeks from the date the trial Court issues a direction to that effect after verification.
(iii) Liberty is reserved to the CBI to move the trial court concerned in case the amount already deposited by the petitioners does not match the amount on a proportionate basis that should be recovered from them having regard to the amount alleged to have been misappropriated or
wrongfully paid/received. Should the petitioner(s) fail to deposit any such further amount directed by the trial court, the bail order granted in his/her favour shall stand cancelled without any further reference to this Court.
(iv) The trial court(s) shall be free to direct deposit of Passports by the accused-persons in such of the cases at it may consider just and proper.
(v) The petitioners shall not tamper with the evidence in any manner whatsoever and if they do so, the Court shall be free to cancel the bail granted to the accused concerned.
(vi) The amount deposited by the petitioners shall be remitted by the trial court(s) to the State Government, Department of Health and Family Welfare, for utilisation in the ongoing NRHM Scheme.
(vii) The trial court(s) shall endeavour to expedite the trial and shall be free to pass appropriate order(s) against the petitioners including an order withdrawing the concession of bail granted to them or any one of them, if the accused do not cooperate or otherwise resort to dilatory tactics.

Sanjay Awasthi Vs State of Uttar Pradesh on 14 Jul 2015

Shades of Knife

True Colors of a Vile Wife

Category: Supreme Court of India Judgment or Order or Notification

Kamal Anant Khopkar Versus Union of India and Anr

MS Knit Pro International Vs State of NCT Delhi and Anr on 20 May 2022

Prabha Tyagi Vs Kamlesh Devi on 12 May 2022

Doongar Singh and Ors Vs The State Of Rajasthan on 28 Nov 2017

Anurag Saxena Vs Union of India on 17 May 2022

Ramkripal Charmakar Vs State of Madhya Pradesh on 19 Mar 2007

Medicos Legal Action Group Vs Union of India on 29 Apr 2022

Kamlesh Devi Vs Jaipal and Ors on 04 Oct 2019

Sanjay Awasthi Vs State of Uttar Pradesh on 14 Jul 2015