V.Bharath Kumar Vs State of Telangana

Posted on March 5, 2022 by ShadesOfKnife

A single bench decision from Telangana High Court passed these guidelines.

Hence, this Court feels that an alternative mechanism shall be evolved to address the plight of these under-trial prisoners / accused:

Parties Advocates shall download the order copy from the High Court’s Website along with case details which are available in the case status information

While filing the memo on behalf of accused for furnishing sureties, the Advocate shall state in the Memo that he / she has downloaded the order copy from the High Court’s Website. The Administrative Officer Chief Ministerial Officer of the Court concerned shall verify the order from the High Court’s Website and make an endorsement to that effect and then shall place the same before the Court.

The Public Prosecutor shall also obtain necessary instructions in this regard and assist the Court.

The Presiding Officer, on the same day, shall dispose of the same and dispatch the release order to the jail authorities concerned forthwith through e-mail or any other electronic mode.

In cases of anticipatory bail, the burden to verify the authenticity of the copy is on the Station House Officer concerned and if necessary, he should obtain necessary instructions from the Public Prosecutor’s Office and complete the process on the same day expeditiously as per law.

The jail authorities on receipt of the release order shall release the accused forthwith.

Registrar (Judicial) shall communicate copy of this order to:

The Principal Secretary for Home Affairs, State of Telangana,

The Director General of Police, State of Telangana,

The Director of Prosecution, who, in turn, shall sensitize the police officers Station House Officers / Public Prosecutors and ensure implementation of this order

Registrar (Judicial) shall communicate copy of this order to all the Principal District Judges in the State, who, in turn, shall sensitize all the Presiding Officers and ensure implementation of this order.

Registrar (Judicial) is further directed to circulate the copy of this order to all the Bar Associations in the State through the Principal District Judges, so that they can effectively address their client’s cause.

Registrar (Judicial) shall also issue a separate notification in this regard and the same shall be displayed in the High Court’s Website.

These directions will apply to all bail application including bails in Criminal Revision as well as Criminal Appeals.
This order shall come into force from 22.11.2021.

Rakesh Kumar Vs Vijayanta Arya (DCP) and Ors on 07 Dec 2021

Posted on March 5, 2022 by ShadesOfKnife

A police officer was punished with 1 day imprisonment (suspended the same so that an appeal may be filed) for breaching Arnesh Kumar Guidelines.

From Paras 1 and 2,

1. The court has already held R-3 guilty of committing contempt of court. He arrested the petitioner in breach of directions passed by the Supreme Court in Arnesh Kumar Vs State of Bihar, Criminal Appeal No. 1277/2014. The requisite notice was not served upon the petitioner. There were mere allegations of criminal breach of trust against the petitioner, which entailed a maximum sentence of three years. It did not warrant the arrest of a person in the manner in which it was done. The petitioner’s own complaints to the police were not responded to. The highhandedness of the police officer, in specific breach of the Supreme Court’s directions is evident. Arnesh Kumar (supra) holds that in the event of non-service of notice under section 41A of the Cr.P.C., contempt proceedings would be initiated.
2. The petitioner’s right to personal liberty is ensured by the Constitution of India. It can be curtained only by a procedure prescribed established by law. The Supreme Court has said in Arnesh Kumar that notice under s. 41A Cr.P.C. is requisite. The notice was not served. The law has been breached. It is not the petitioner only who has suffered the humiliation and the indignity of being arrested; the ordeal would have affected the reputation of his family i.e. his children, wife and parents. No amount of explanation to the neighbours or those who may have seen the arrest, would undo the
embarrassment and indignity suffered by the petitioner and his relatives. Arrest and incarceration destroys a person and collaterally affects many other innocent relatives. Subsequent release or acquittal of an innocent, is of no solace and offers no reparation to the loss of reputation or for the temporary loss of precious personal liberty. A stigma gets attached to the person who has been taken away, detained and/or put behind bars by the police. R-3 is deemed to have due knowledge of the rights of a citizen and the procedure prescribed in law.

Rakesh Kumar Vs Vijayanta Arya (DCP) and Ors on 07 Dec 2021

Smitha Vs State of Kerala and Ors on 27 Jan 2022

Posted on February 21, 2022 by ShadesOfKnife

Law point held by Kerala High Court is: The principle of locus standi is alien to criminal jurisprudence

From Para 2,

2. Petitioner is the wife of the injured in a road traffic accident. It is alleged that on 16.10.2021, petitioner’s husband Thankachan, a carpenter by avocation, sustained injuries while proceeding to the place of work travelling on the pillion seat of the motor cycle bearing Registration No.KL-32/Q-0114 ridden by the accused, through Elamakkara-Puthukkalavattom Road; in front of Skyline Apartments, due to the rash and negligent riding as to endanger human life, since he had abruptly twisted, the vehicle capsized and her husband fell down and sustained grievous injuries. He was immediately rushed to the MAJ Hospital, Edappally. Ext.P1 indicates that Thankachan was taken there at 9.20 am on 16.10.2021 with the alleged history of road traffic accident. Ext.P2 discharge summary indicates that on the same day, he was taken to the Department of Orthopaedics and Rehabilitation, Lisie hospital where he was admitted with the history of pain and swelling on left ankle following alleged history of road traffic accident. Diagnosis was fracture trimalleolar left ankle for which he underwent surgery on 19.10.2021 and was discharged on 21.10.2021. The grievance of the petitioner is that despite Ext.P1 intimation given by the CMO, MAJ Hospital to the Sub Inspector, Elamakkara Police Station, crime was not registered. It is alleged that on 11.11.2021, petitioner lodged a complaint before the City Police Commissioner, Ernakulam which also was not acted upon and thus, on 19.1.2022, she approached the Judicial First Class Magistrate-II, Aluva. It is specifically averred that after sustaining grievous injuries, her husband is in immobile stage and is under complete rest and thus, she approached the court alleging offences under Sections 279, 337
and 338 IPC. But astonishingly enough, the complaint was returned stating that ‘the petition was filed by the wife of the complainant’. The most disturbing aspect is that a note seen put on the last page of the complaint, as follows:-
“19/01/22
Verified within the jurisdiction. Receipt of complaint at Commissioner Office is not seen produced. Hence for orders.
Id/-
Petition filed by wife of the complainant. Hence may be returned, for orders.
Id/-
Returned
sd/-”
It is clear that the signed order was passed by the Magistrate. It is pointed out that the Magistrate has returned the complaint on the premise that it was filed by the wife of the complainant which is illegal.

From Para 4,

4. I have no doubt that the order passed by the Magistrate is illegal and unsustainable. It is the settled proposition of law that criminal law can be set in motion by any person. Here, on the ground that after sustaining grievous hurt, her husband is unable to move out and hence, she has taken initiative to prefer the complaint. The principle of locus standi is alien to criminal jurisprudence.

From Para 5,

5. More disturbing is the Court acting upon office notes put up by the ministerial staff. This Court takes strong exception to such a conduct. In judicial matters, the staff members cannot make any note or suggestion. The learned Magistrate has not applied his mind before returning the complaint. The reason stated is illegal. The order is quashed and the Magistrate is directed to entertain the complaint and pass orders, in accordance with law, within a period of seven days from today.

Smitha Vs State of Kerala and Ors on 27 Jan 2022

Neha Vs Vibhor Garg on 12 Nov 2021

Posted on December 13, 2021 by ShadesOfKnife

A single judge bench of the Punjab and Haryana High Court held that,

At the same time, it cannot be ignored that acceptance of the CD in question shall amount to a clear breach of fundamental right of the petitioner-wife i.e., her right to privacy, as has been upheld in various judicial pronouncements. The Hon’ble Supreme Court in People’s Union for Civil Liberties Vs. Union of India, (1997)1 SCC 301, has observed as under:-
“18. The right to privacy- by itself- has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as “right to privacy”. Conversations on the telephone are often of an intimate and confidential character. Telephone-conversation is a part of modern man’s life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of a man’s private life. Right to privacy would certainly include telephone-conversation in the privacy of one’s home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.”
Thus, recording of telephonic conversation of the wife without her knowledge, is a clear cut infringement of her privacy.

Neha Vs Vibhor Garg on 12 Nov 2021

Citations:

Other Sources:

https://indiankanoon.org/doc/195720592/

https://www.casemine.com/judgement/in/635a65aef364724175a72b6e

This decision is appealed at Apex Court here and it was allowed also.

Ajay Kumar Saboo Vs State of Bihar on 30 Jun 2017

Posted on December 1, 2021 by ShadesOfKnife

A single-judge bench of Patna High Court held as follows,

It appears from the averment made in the instant petition that at the relevant time the petitioner was Managing Director and whole time Director of the Company and the complaint was filed by Registrar of the Company under section 58(A) of the Companies Act read with Rule-3 (i)(a) proviso (i) Rule 10 of the Company within (Acceptance and Deposits) Rules, 1975. The reason for rejection of the application under Section 205 Cr. P.C. as appears from Annexure-2 that the offence is non-bailable. The court below committed error of jurisdiction in ignoring the fact that in the instant case after taking cognizance, summon was issued by the court below and in view of the judgment of the Division Bench in the case of Ram Harsh Das case reported in 1998(1) PLJR 502, the court was required to consider the application of the petitioner on its own merits without being prejudiced by the facts that the offence as alleged is non-bailable. In similar circumstances, a Bench of this Court in Cr. Revision Nos. 543, 454 of 2006 in the case of Manish Giri vs. State of Bihar reported in 2007 (1) PLJR has discussed the scope under section 205 Cr.P.C. and noticing the Division Bench judgment in the case of Ram Harsh Das (supra) and various other judgments held out that power to refuse permission under section 205 Cr.P.C. should not be used as a substitute for ultimate punishment which could be awarded. The court decided the matter but also in the last paragraph issued direction to the Registrar to circulate the copy of the order for to all the Civil Courts in the State of Bihar for guidelines of Judicial Officers in future.
Notwithstanding the aforesaid judgment which was circulated to all the Civil Courts, the court below rejected the application of the petitioner filed to dispense with personal appearance vide order dated 9.12.2010 and even the revisional court in Cr. Revision No. 97 of 2011 has failed to exercise judicial discretion for the ends of justice and as such the petitioner was constraint to approach this Court by way of filing the instant application.

Ajay Kumar Saboo Vs State of Bihar on 30 Jun 2017

Casemine version:

Ajay Kumar Saboo Vs State of Bihar on 30 Jun 2017 (CM ver)

Sukla Mukherjee Vs State on 13 Dec 1994

Posted on December 1, 2021 by ShadesOfKnife

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

The Ld. Magistrate dismissed that application on the ground, inter alia, that Section 205 of the Cr. P.C. is not applicable in a case which is instituted on police report. That is not the interpretation of Section 205. Sub-section (1) of Section 205 does not limit the application only to a complaint case, it can also be applied even in a case instituted on police report. So, the reason that has been given by the Ld. Magistrate for refusing the personal exemption of the petitioner is not at all logical and it is illegal.

Casemine version:

Sukla Mukherjee Vs State on 13 Dec 1994

Citations:

Other Sources :

https://indiankanoon.org/doc/294422/

https://www.lawyerservices.in/Sukla-Mukherjee-Versus-State-1994-12-13

Index here.

Md. Naim @ Md. Naimuddin Vs. State of Bihar and Ors on 08 Dec 2006

Posted on December 1, 2021 by ShadesOfKnife

Single judge bench of Patna High Court held as follows,

First two paras

1. Heard. Present application is directed against the Trial Court’s order dated 16.6.2006 by which the petitioner’s prayer for exemption from personal appearance in terms of Section 205 Cr.P.C., has been rejected on the sole ground, that the prosecution is for an offence under Section 498A which is a warrant case, and, as such, the privilege under Section 205 Cr.P.C. cannot be extended.
2. To my mind, such an order is not sanctioned in law and shows the inability of the learned Magistrate to read the provision correctly. Section 205 Cr.P.C. is preconditioned on summons being issued at the first instance. Here, it is not disputed and is apparent from the impugned order itself, that summons were issued at the first instance. Summons for appearance predicates appearance through Lawyer or in person, it does not provide that a person has to appear in person. Therefore, it is simple that if pursuant to summons issued, a person to whom summons are issued appears through Lawyer, then compliance is complete and his appearance is valid. In such a case, no Court can then reject the appearance and direct that the persons summoned, must appear in person as by appearance through the lawyer, he has already submitted to the jurisdiction of the Court. He can now be taken into custody only, if, pursuant to his appearance and the bond executed for continuing to appear he defaults and not otherwise.

Casemine version:

Md. Naimuddin Vs State of Bihar and Ors on 08 Dec 2006 (CM)

Legal Quest version:

Md. Naimuddin Vs State of Bihar and Ors on 08 Dec 2006 (LQ)

Citations : [2006 SCC ONLINE PAT 977], [2007 PLJR 2 260]

Other sources:

Index here.

Arunkumar N Chaturvedi Vs The State of Maharashtra and Anr on 24 Dec 2013

Posted on November 24, 2021 by ShadesOfKnife

Hon’ble single-judge bench at Bombay High Court held as follows,

4 Since the Applicant was ready to appear before the Magistrate after cancellation of warrant and since there was reasonable apprehension in the mind of the Applicant that he might be put beyond the bars if he appeared before cancellation of warrant, the learned Magistrate should have considered the application on merits.
5 In my considered opinion, there is no law that the accused shall personally remain present for cancellation of warrant. If the lawyer makes an application for cancellation of warrant, the same needs to be considered on merits by the learned Magistrate without insisting the for appearance of the Applicant/accused. It is noted by this Court that many Writ Petitions are filed in this Court only because the learned Magistrate straight way take a view that warrant cannot be cancelled unless accused appears before the Court. The view taken by a few of the Magistrates particularly in the city of Bombay, in my opinion, is not correct. It is high time that this Court lets the Magistrate note that the appearance of the applicant/accused is not necessary when application for cancellation of warrant is made.

Arunkumar N Chaturvedi vs The State of Maharashtra and Anr on 24 Dec 2013

Citations : [2013 SCC ONLINE BOM 1607]

Other Sources :

https://www.casemine.com/judgement/in/58117fdb2713e1794795896e

https://mynation.net/docs/4429-2013/

https://www.lawyerservices.in/Arunkumar-N-Chaturvedi-Versus-The-State-of-Maharashtra-and-Another-2013-12-24

https://www.hellocounsel.com/arun-kumar-n-chaturvedi-vs-state-of-maharashtra/

Index here.

Bhagwan Premchandani Vs State of A.P. and Anr on 4 Nov 1997

Posted on November 24, 2021 by ShadesOfKnife

Justice Sri B S A Swamy has passed this reasoned order with regards to mechanical issuing of non-bailable warrants to accused by the trial courts.

From para 3,

3. I have already taken a view that the trial Court can proceed with the case without insisting for the presence of the accused vide Crl.M.P.Nos.4424/97 and 4422/97 dated 29-10-1997. Further, the action of the Magistrate in issuing N.B.W. having dismissed the application filed for dispensing with his presence cannot be appreciated by this Court.
As per Section 73 of the Criminal Procedure Code an N.B.W. can be issued only to secure the presence of any escaped convict, proclaimed offender or the person who is evading the arrest. In the instant case, being summons case, the question of arrest also will not arise. Further, the petitioner filed an application seeking dispensation of his presence on that day for the reasons stated in the affidavit. Instead of allowing the application, the learned Magistrate not only dismissed the application, but also even without giving time for his appearance issued N.B.W. Such conduct on the part of the Magistrate is depricated. The discretion vested in them should be properly exercised to secure the ends of justice but not to penalise or harass an individual with the procedural wrangles of the Court more so without visualising the evil consequences that will flow from the order that is going to be passed. This Court is often coming across with such type of orders passed by the Magistrates. Hence this Court would like lo emphasize that the Magistrates should shed the wrong practice of issuing N.B.Ws. the moment the accused fail to appear in the Court without giving an opportunity to explain the circumstances under which the accused failed to appear in the Court and in the light of the language employed in Section 73 of Criminal Procedure Code an N.B.W. can be issued sparingly that to after coming to the conclusion that there is no other way to secure the presence of the accused. In fact in Ramojt Rao v.V.V. Rajam in Cr.M.P.No.4424/97 dated 29-10-1997 this Court explained the legal position with regard to the appearance of the accused before a Magistrate and held that the Magistrate is having ample power to proceed with the case by dispensing with the presence of the accused even in a warrant case.

Indiankanoon copy:

Bhagwan Premchandani Vs State of A.P. and Anr on 4 Nov 1997

Citations :

Other Sources :

https://indiankanoon.org/doc/1025663/

https://www.casemine.com/judgement/in/5608f767e4b014971113fe0e

http://document.manupatra.com/ap/1955-2000/ap1998/a980838.htm

https://www.lawyerservices.in/BHAGWAN-PREMCHANDANI-VERSUS-STATE-OF-A-P-1997-11-04

Index here.

Dinesh Mahajan Vs Vishal Mahajan on 26 Oct 2021

Posted on November 10, 2021 by ShadesOfKnife

In this short order, the single-judge bench of Justice JK Maheswari held as follows:

In Ground ‘D’ of the Transfer Petition, an apprehension of threat of life merely on receiving notice on the above-mentioned complaint, has been shown. No complaint has been lodged by the petitioner to the authorities concerned or before any Court. Mere apprehension of threat of life is not a sufficient ground to transfer a case, without lodging a complaint or substantiating the said ground.

Dinesh Mahajan Vs Vishal Mahajan on 26 Oct 2021

Shades of Knife

True Colors of a Vile Wife

Tag: 1-Judge Bench Decision

V.Bharath Kumar Vs State of Telangana

Rakesh Kumar Vs Vijayanta Arya (DCP) and Ors on 07 Dec 2021

Smitha Vs State of Kerala and Ors on 27 Jan 2022

Neha Vs Vibhor Garg on 12 Nov 2021

Ajay Kumar Saboo Vs State of Bihar on 30 Jun 2017

Sukla Mukherjee Vs State on 13 Dec 1994

Md. Naim @ Md. Naimuddin Vs. State of Bihar and Ors on 08 Dec 2006

Arunkumar N Chaturvedi Vs The State of Maharashtra and Anr on 24 Dec 2013

Bhagwan Premchandani Vs State of A.P. and Anr on 4 Nov 1997

Dinesh Mahajan Vs Vishal Mahajan on 26 Oct 2021