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Tag: 1-Judge Bench Decision

Rajendra Kumar Vs Rukhmani Bisen on 02 Feb 2023

Posted on May 16, 2023 by ShadesOfKnife

A single bench judge of MP High Court at Jabalpur held as follows,

From Paras 5 and 6, (What is an interlocutory order?)

5. Now question remains for consideration is whether the order of interim maintenance passed under Section 125 of Cr.P.C is an interlocutory order? Consequently, whether criminal revision petition is lie against that order?
6. Term ‘Interlocutory Order’ has not been defined in the Cr.P.C. Hon’ble Apex Court in the case of V.C. Shukla vs State, reported in AIR 1980 (SC) 962, has given following observation in para No.23 regarding the nature of interlocutory order:-
“Thus, summing up the natural and logical meaning of an interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings or finally decides the rights of the parties is only an interlocutory order. In other words, in the ordinary sense of the term, an interlocutory order is one which only decides a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial but which does not however conclude the trial at all. This would be the result if the term interlocutory order is interpreted in its natural and logical sense without having to resort to Criminal Procedure Code or any other statute. ‘That is to say, if we construe interlocutory order in ordinary parlance it would indicate the attributes, mentioned above, and this is what the term interlocutory order means when used in s. 11(1) of the Act.”

From Para 9,

9. In the case of Sumerchand vs Sandhuran Rani and Others, reported in 1987 Cr.L.J. 1396, Sunil Kumar Sabharwal vs Neelam Sabharwal, reported in 1991 Cr.L.J. 2056 High Court of Haryana and a order dated 15.11.18 passed by the High Court of Uttarakhand in the case of Ashu Dhiman vs Smt Jyoti Dhiman, Cr. Misc. Application (C-482) No.434/2018, it has been held that an order passed for interim maintenance under provisions of Section 125 of Cr.P.C is not an interlocutory order, hence, criminal revision petition is maintainable against such order.


Citations:

Other Sources:

Posted in High Court of Madhya Pradesh Judgment or Order or Notification | Tagged 1-Judge Bench Decision Catena of Landmark Judgments Referred/Cited to CrPC 125 or BNSS 144 - Order for Maintenance of Wives Children and Parents Rajendra Kumar Vs Rukhmani Bisen Reportable Judgement or Order | Leave a comment

State of AP Vs Mannem Trivikram Reddy on 28 Jun 2017

Posted on May 3, 2023 by ShadesOfKnife

The JMFC at Kadapa held that Legal Terrorism must be stopped.

From Para 16,

From the evidence of prosecution it is clear that except filing of Maintenance case and a case under Domestic Violence Act seeking monetary relief of one crore rupees, the court cannot come to a safe conclusion that there were cruelty on the part of accused for the want of additional dowry as was also observed by Apex court in the same Judgment at paragraph No.20, as these salutary provisions cannot be allowed to be misused by relatives, parents, etc., the glaring reality cannot be ignored that the early trend of false implication with a view to harass and black mail and innocent spouse and his relatives, is fast emerging. It is time to stop this unhealthy trend which results in unnecessary misery and torture to numerous affected persons. Even with regard to the omissions to make reference of demand in 161 Cr.P.C., statement the observations made in para No.21 can be considered. Apart from all that the investigating officer had not examined the relative of accused also as was specifically contemplated under police standing order 537 more specifically in clause (3) (d) and (g).

State of AP Vs Mannem Trivikram Reddy on 28 Jun 2017
Posted in District or Sessions or Magistrate Court Judgment or Order or Notification | Tagged 1-Judge Bench Decision Absurd Or After Thought Or Baseless Or False Or General Or Inherently Improbable Or Improved Or UnSpecific Or Omnibus Or Vague Allegations Legal Terrorism State of AP Vs Mannem Trivikram Reddy | Leave a comment

Annadurai Vs Jaya on 21 Apr 2023

Posted on April 30, 2023 by ShadesOfKnife

A single judge of Madras High Court held that the maintenance arrears of a deceased daughter are her property and such property is inheritable to her mother under HSA.

From Para 2, (crucial piece of fact)

2.The fact of the case is that the petitioner is the husband. The respondent is the mother-in-law of the petitioner. The petitioner married the respondent’s daughter Saraswathi in the year 1991. Due to misunderstanding, they separated. The petitioner/ husband by filing a divorce petition under Section 13 (1)(i) (b) of Hindu Marriage Act before the Sub Court, Seyyur, got a divorce decree by an order dated 20.01.2005. Thereafter, Saraswathi filed a maintenance case in M.C.No.1 of 2014 before the Judicial Magistrate No.II, Madurantagam. After trial of the maintenance case, the learned Judge awarded a monthly maintenance of Rs.7,500/- payable by the petitioner/husband to his wife Saraswathi on 22.01.2021 and the amount was ordered to pay from the date of petition i.e. on 04.01.2014.

Continuing from same Para,

For collecting the arrears of maintenance, the wife Saraswathi filed an application in CMP.No.678 of 2021 in M.C.No.1 of 2014 before the Judicial Magistrate No.II, Maduranthagam. In the petition, she claimed the arrears of maintenance amount of Rs.6,37,500/-. Pending petition, the wife
Saraswathi died on 05.06.2021. Thereafter, her mother filed CMP.No.2529 of 2021 to implead her as a petitioner and to permit her to recover the
arrears of maintenance amount of Rs.6,22,500/-. The learned Judge, after hearing both the parties, allowed the petition for impleading the mother-in-law of the petitioner as petitioner for collecting the arrears of maintenance amount of Rs.6,22,500/- on the ground that she all along acted as a
guardian to the deceased wife Saraswathi as she was mentally affected and also a legal heir to the deceased daughter. Aggrieved by this order, the
petitioner/husband filed the present criminal revision case, which is under challenge.

My Assessment:

Once the competent Court held that the divorce was granted on the ground of desertion, there is no scope of granting maintenance u/s 125 CrPC, in the view of Sec 125(4) CrPC. All this farce could have been avoided if the Petitioner herein, moves to cancel the maintenance Order, on the weight of divorce on the ground of desertion.

Annadurai Vs Jaya on 21 Apr 2023
Posted in High Court of Madras Judgment or Order or Notification | Tagged 1-Judge Bench Decision Annadurai Vs Jaya CrPC 125 or BNSS 144 - Arrears accrued can be given to mother upon death of Daughter CrPC 125 or BNSS 144 - Maintenance Granted Hindu Succession Act Section 14 Hindu Succession Act Section 15(i)(c) Hindu Succession Act Section 6 | Leave a comment

Javed Ahmad Vs State of U.P. and Anr on 13 Feb 2023

Posted on April 13, 2023 by ShadesOfKnife

A single judge bench of Allahabad High Court held as follows,

It is true that filing of first information report (F.I.R.) is not a condition precedent to exercise the power under Section 438(1) Cr.P.C., as held in Gurbaksh Singh Sibbia Vs. State of Punjab,(1980) 2 SCC 565, but at the same time it is also to be kept in mind, as held in the aforesaid case by the Hon’ble Apex Court, that“when a person apprehends arrest and approaches a court for anticipatory bail, his apprehension (of arrest), has to be based onconcrete facts (and not vague or general allegations) relatable to a specific offence or particular offences. Applications for anticipatory bail should contain clear and essential facts relating to the offence, and why the applicant reasonably apprehends his or her arrest, as well as his version of the facts. These are important for the court which is considering the application, the extent and reasonableness of the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not a necessary condition that an application should be moved only after an FIR is filed; it can be moved earlier,so long as the facts are clear and there is reasonable basis for apprehending arrest.“

Then, What is ‘Reason to Believe‘?

The Hon’ble Apex Court in Adri Dharan Das Vs. State of West Bengal, (2005) 4 SCC 303 has emphasized over this requirement and held as under.
“Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead innocence, since he is not on the date of application for exercise of power under Section 438 CrPC convicted for the offence in respect of which he seeks bail. The applicant must show that he has “reason to believe” that he may be arrested in a non-bailable offence. Use of the expression “reason to believe” shows that the belief that the applicant may be arrested must be founded on reasonable grounds. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant’s apprehension that he may be arrested is genuine. Mere “fear” is not “belief” for which reason it is not enough for the applicant to show that has some sort of vague apprehension that some one is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief on the applicant is based that he may be arrested in non-bailable offence must be capable of being examined. If an application is made to the High Court or the Court of Session, it is for the court concerned to decide whether a case has been made out of for granting of the relief sought. (Para 16)”
The aforesaid theory makes the legal position explicit that Section 438 (1) of Cr.P.C. applies not only at post FIR stage, but it does not require that the offence must have been registered. It is contemplated by this section that if a person is going to apply for anticipatory bail, he must have a reasonable belief that he may be arrested on accusation of having committed a non-bailable offence.

Javed Ahmad Vs State of U.P. and Anr on 13 Feb 2023
Posted in High Court of Allahabad Judgment or Order or Notification | Tagged 1-Judge Bench Decision CrPC 438 - Anticipatory Bail FIR is Not a Consition Precedent for Anticipatory Bail Javed Ahmad Vs State of U.P. and Anr | Leave a comment

Bijumon and Ors Vs The New India Assurance Co on 28 Feb 2023

Posted on March 9, 2023 by ShadesOfKnife

 

 

Bijumon and Ors Vs The New India Assurance Co on 28 Feb 2023

Source:

https://www.livelaw.in/news-updates/kerala-high-court-motor-vehicle-act-road-accident-notional-income-deceased-child-rs-30000-loss-of-dependency-223334

Posted in High Court of Kerala Judgment or Order or Notification | Tagged 1-Judge Bench Decision Bijumon and Ors Vs The New India Assurance Co Issued or Recommended Guidelines or Directions or Protocols to be followed Motor Accident Insurance Claim | Leave a comment

Ayush Mahendra Vs State of Telangana on 05 Jan 2021

Posted on March 8, 2023 by ShadesOfKnife

A single judge bench of Telangana High Court passed this reportable judgment regarding whether a co-accused be a surety to accused in a criminal case.

From Paras 21-26,

21. As discussed supra, the prime object of the surety is to secure the presence of an accused for the purpose of concluding investigation and the trial after filing charge-sheet. A surety should be a fit person. Who is a fit person is not defined or explained anywhere in the Code. Generally, the surety must be a genuine person. He should not be a bogus person. Sureties come to the Court and give undertakings to the Court that he will ensure the presence of accused. If the accused fails to appear before the Court, surety bond executed by the surety will be forfeited. Thus, the Station House Officer has to ascertain the genuineness of surety. It is also relevant to note that there is no prohibition in the Code that the co-accused cannot stand as surety to any accused. It is also relevant to note that the prosecution has not filed any document to show that the mother of the accused is added as accused No. 2 in Crime No. 913 of 2020. Therefore, the Station House Officer, Madhapur Police Station is not justified in refusing to accept the surety of the mother of the accused. The mother of the accused whether she is co-accused or not can stand as a surety.

22. The apprehension of the prosecution is that both the petitioner and her mother are from Lucknow and there is every possibility of accused jumping on bail in which event the Investigating Officer will not be in a position to ensure the presence of the accused in concluding the investigation.

23. In view of the said apprehension, it is relevant to point out that there is provision in the Code to arrest the surety in the event of accused fails to appear before the Investigating Officer or Trial Court for concluding investigation or trial respectively. There is no provision in the Code to take any other step/action against surety except forfeiting the surety amount, and initiating the procedure laid down under Sections 82 and 83 of the Code which is lengthy procedure.

24. At the cost of repetition, as discussed supra, the object surety is to ensure the presence of accused for the purpose of completion of investigation and concluding of trial in case of filing of charge-sheet. The surety should be a fit person and a genuine person. He/She should not be a bogus person. The Court or the Station House Officer has to ascertain and take an undertaking from the surety that he/she will ensure the appearance of the accused for the purpose of completing the investigation and concluding the trial in case of filing charge-sheet. The Station House Officer should be satisfied the genuineness and identity of the surety including residential address of surety. The Station House Officer cannot reject or refuse to accept surety offered by mother of the accused, whether she is a co-accused or otherwise.

25. In the case on hand, the petitioner has filed copies of fixed deposit receipts obtained in the name of the mother of the petitioner, local surety and also filed copies of death certificate of his grandfather, flight tickets etc. After completion of funeral rites of his grandfather, he has reached the Hyderabad to offer sureties. But, the Station House Officer has refused to receive the same. In view of the above discussion, the Station House Officer, Madhapur, cannot refuse to accept the surety offered by the mother of the petitioner whether she is a co-accused or otherwise.

26. In view of the above discussion and also the authoritative principles of law, the Station House Officer, Madhapur Police Station, Cyberabad Commissionerate, is directed to accept the surety of mother of the petitioner-accused in compliance of the order dated 19.11.2020 passed by this Court in Crl. P No. 5782 of 2020. The time granted for surrender of the petitioner in the said order is extended by two weeks from the date of receipt of copy of this order.

Ayush Mahendra Vs State of Telangana on 05 Jan 2021

Citations: [2021 ALT CRI 1 230], [2021 ALD CRI 1 491], [2021 SCC ONLINE TS 1931]

Other Sources:

https://www.casemine.com/judgement/in/60af56e34653d00e3c27c6e2


Earlier Anticipatory Bail Order:

Ayush Mahendra Vs State of Telangana on 19 Nov 2020

 

Posted in High Court of Telangana Judgment or Order or Notification | Tagged 1-Judge Bench Decision Ayush Mahendra Vs State of Telangana Catena of Landmark Judgments Referred/Cited to Legal Procedure Explained - Interpretation of Statutes Reportable Judgement or Order | Leave a comment

Komaravolu Sai Srinivas Vs Komaravolu Gayathri on 10 Oct 2022

Posted on February 28, 2023 by ShadesOfKnife

A single bench of AP High Court, relying on Sangita Saha Vs Abhijit Saha and Ors here, held as follows,

In view of the principle laid down in Sangita Saha V. Abhijit Saha (2020 (3) SCC (Cri) 573), wherein the Hon’ble Apex Court observed that when the petitioner therein was unable to establish any incident of torture or demand for money or physical violence, she is not entitled for any maintenance, this Court is of the opinion that the impugned order needs adjudication.

Komaravolu Sai Srinivas Vs Komaravolu Gayathri on 10 Oct 2022

Citations :

Other Sources:

https://indiankanoon.org/doc/144262882/

Posted in High Court of Andhra Pradesh Judgment or Order or Notification | Tagged 1-Judge Bench Decision Komaravolu Sai Srinivas Vs Komaravolu Gayathri No Evidence for Domestic Violence No Reliefs Sangita Saha Vs Abhijit Saha and Ors | Leave a comment

Nimesh Dilipbhai Brahmbhatt Vs Hitesh Jayantilal Patel on 02 May 2022

Posted on February 4, 2023 by ShadesOfKnife

Relying on landmark judgment here and here, Single judge bench of Gujarat High Court condoned the delay of 3330 days, considering the lapse was on the part of the advocate who did not file the Written Statement in the prescribed time.

Nimesh Dilipbhai Brahmbhatt Vs Hitesh Jayantilal Patel on 02 May 2022
Posted in High Court of Gujarat Judgment or Order or Notification | Tagged 1-Judge Bench Decision Limitation Act 1963 Sec 5 - Extension of prescribed period in certain cases Nimesh Dilipbhai Brahmbhatt Vs Hitesh Jayantilal Patel | Leave a comment

Khushbu Devi @ Kumari Khushbu Vs Shekhar Kumar Swarnkar on 02 Nov 2022

Posted on January 17, 2023 by ShadesOfKnife

A single judge of Jharkhand High Court held as follows,

From Para 4,

Ms. Ayushri, the learned counsel for the appellant has contended that the ex-parte judgment by the Family Court is liable to be set aside on the ground that there was no material before the Family Court to hold that summons was duly served upon the appellant on 21st May 2018.

From Para 8, 9 and 10,

8. The aforesaid mode of services of summons under Rule 9 shall have different requirements upon fulfillment of which the Court may infer or hold that summons was validly served upon the defendant. A valid service of summons upon the defendant is the most important step during 1st stage of any trial and the reason is obvious. It is a fundamental requirement in law that no one should be condemned unheard and therefore no trial of either nature, civil or criminal, can proceed without notice to the other side. For more than one reason, a tracking record cannot be the conclusive proof of valid service of summons upon the defendant. In the first place, a tracking record is required to be placed by the Registry before the Court and it must form a part of the records of the case. Secondly, a tracking record must be supported by an affidavit of Nazir or any other officer of the Court authorised in this behalf. In certain cases, the plaintiff may also lead evidence regarding service of summons with the help of the tracking record. There are other requirements under Rule 9 which have also to be considered by the Court concerned before service of summons upon the defendant is
held valid.
9. Sub-rule (5) provides that there should be an acknowledgment or any other receipt signed by the defendant or his agent, or, where the postal article containing the summons has been received back by the Court the same shall contain an endorsement by a postal employee or by any person authorised by the courier service to the effect that the defendant or his agent had refused to take delivery of the postal article or had refused to accept the summons by any other means specified in sub-rule (3) when tendered or transmitted to him. In case where summons has been returned unserved or has been refused by the defendant, under Rule 19 the serving officer shall be examined by the Court.
10. The proviso to sub-rule (5) provides that the Court may declare that summons has been validly served upon the defendant notwithstanding the acknowledgment having been lost or mislaid or for any other reason if the same has not been received by the Court within thirty days from the date of issue of summons, provided the summons was properly addressed, prepaid and duly sent by registered post acknowledgment due. The acknowledgment or postal receipt is required to be brought on record for another reason also. Under Rule 15 service of summons upon any adult member of the defendant’s family is considered valid service upon the defendant. However, explanation to Rule 15 provides that a servant is not a member of the family within the meaning of this Rule and therefore the Court before holding valid service of summons upon the defendant is required to see to whom the summons was served.

Khushbu Devi @ Kumari Khushbu Vs Shekhar Kumar Swarnkar on 02 Nov 2022
Posted in High Court of Jharkhand Judgment or Order or Notification | Tagged 1-Judge Bench Decision Khushbu Devi @ Kumari Khushbu Vs Shekhar Kumar Swarnkar | Leave a comment

YS Jagan Mohan Reddy Vs Central Bureau of Investigation on 26 Aug 2022

Posted on January 8, 2023 by ShadesOfKnife

The Hon’ble the Chief Justice of Telangana High Court held as follows,

From Para 42.1, 43, 44.1,

42.1. After referring to Section 205 CrPC, Supreme Court held that it is within the powers of the Magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the Magistrate finds that insistence on his personal presence would itself inflict enormous suffering or tribulations on the accused and the comparative advantage would be less.

43. Delhi High Court in Chandramauli Prasad (supra) examined Section 205 CrPC in the light of the decision of the Supreme Court in Bhaskar Industries Limited (supra) and held that provisions requiring the presence of the accused which mandate that the trial be held in his presence are enacted for the benefit of the accused. If the accused person himself does not wish to avail of the right of personal appearance on every date; if he reposes the fullest confidence in the court and in his advocate, and is confident that justice will be meted out to him even in his absence, then, provided his absence does not prejudice him in any way or hinder the progress of the trial, it is not necessary for the trial court to insist on his presence.
44.1. One of the criteria for exercising the power under Section 205 CrPC is that personal appearance of the accused on each and every date of trial should not result in unnecessary harassment of the accused. However, the Court must ensure that exemption from personal appearance is not abused to delay the trial.

And in Para 45,

45. In Hiremagalur Parthsarthy Shamalah (supra), Patna High Court while adverting to Section 205 CrPC and its discretionary nature, opined that power under Section 205 CrPC has to be exercised in a reasonable manner; Court should be liberal in granting exemption from personal appearance except where serious issues or allegations of moral turpitude are involved. Even after issuance of warrant, the High Court may dispense with the personal appearance in exercise of power under Section 482 CrPC if a proper case is made out for the ends of justice. In that case, the revision petitioners were high officials posted at Pune and Shillong while the trial was to be conducted at Patna. It was held that inconvenience would be caused if they were required to be present on each and every date of hearing; more so when the revision petitioners had given undertaking to be physically present in Court when so ordered by the Court. Mere fact that cognizance had been taken and the offences alleged are non-bailable cannot be reasons for rejecting the prayer under Section 205 CrPC.

Finally from Paras 48 and 49,

48. In so far the impugned order is concerned, the trial court has taken note of the changed circumstances i.e., petitioner occupying the constitutional office of Chief Minister of the neighbouring State of Andhra Pradesh. However, trial court referred to certain observations made by this Court in the order dated 31.08.2017 that “offences committed by the petitioner are grave offences affecting the economy of the country”. I am afraid it is not open to the trial court to rely upon such observations at the very threshold. These are allegations against the petitioner brought in the form of charge sheet. At this stage, it cannot be said that petitioner had committed the offence(s). Further, the trial court erred that being away from Andhra Pradesh for two days was not a ground to invoke the discretion of the court. The trial court further erred in taking the view that the changed circumstances has no bearing having regard to the offences and allegations made by the respondent/CBI being grave in nature.
49. In my considered opinion, learned Principal Special Judge fell in grave error by bringing in the above factors while considering the request of the petitioner for exemption from personal appearance. This is further aggravated by the observation of the learned Principal Special Judge that in criminal proceedings trial should be conducted in presence of the accused and therefore, his request for exemption from personal appearance should not be considered. I am afraid learned Principal Special Judge failed to appreciate the fact that the principle that trial has to be conducted in presence of the accused is to ensure that the accused gets a fair trial; nothing is done behind the back of the accused. Provision seeking exemption from  personal appearance is intended for the benefit of the accused. Those cannot be interpreted in a manner which causes hardship and prejudice to the accused.

YS Jagan Mohan Reddy Vs Central Bureau of Investigation on 26 Aug 2022

The earlier order from trial Court is here.

Y.S.Jagan Mohan Reddy Vs CBI on 01 Nov 2019

Index is here.

Posted in High Court of Telangana Judgment or Order or Notification | Tagged 1-Judge Bench Decision CrPC 205 – Magistrate may dispense with personal attendance of accused YS Jagan Mohan Reddy Vs Central Bureau of Investigation | Leave a comment

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