A.C.Narayanan Vs State of Maharashtra and Anr on 13 Sep 2013

Posted on September 15 by ShadesOfKnife

A Full Bench of the Apex Court held as follows regarding a query, whether a PoA Holder can file a complaint u/s 200 CrPC in a NI Act case.

From Para 26,

26) While holding that there is no serious conflict between the decisions in MMTC (supra) and Janki Vashdeo Bhojwani (supra), we clarify the position and answer the questions in the following manner:
(i) Filing of complaint petition under Section 138 of N.I Act through power of attorney is perfectly legal and competent.
(ii) The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint.
However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions.
(iii) It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case.
(iv) In the light of section 145 of N.I Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the N.I. Act.
(v) The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person.

A.C.Narayanan Vs State of Maharashtra and Anr on 13 Sep 2013

Citations: [2014 ALT CRL AP 1 44], [2013 SCALE 11 360], [2013 KERLT 4 21], [2014 AIR SC 630], [2014 CALLT SC 1 53], [2014 PLJR 1 216], [2013 OLR 2 884], [2013 BC 4 212], [2013 CTC 5 560], [2014 SCC 11 790], [2013 CLA SC 117 4], [2013 COMPCAS SC 180 258], [2014 AKR 1 314], [2013 KLJ 4 279], [2014 LW 1 698], [2013 PLR 4 733], [2013 NCC 2 854], [2014 ALD CRL SC 1 649], [2013 KHC 3 885], [2013 WLN SC 4 25], [2013 ALLCC 83 583], [2014 LW CRL 1 154], [2014 SCC CIV 4 343], [2013 SUPREME 6 705], [2014 CRLJ SC 576], [2013 AIOL 611], [2013 JT 12 524], [2013 SLT 8 133], [2014 DCR SC 1 135], [2013 SCC ONLINE SC 839], [2013 AIC 131 160], [2014 ECRN 1 486], [2013 BOMCR CRI SC 4 307], [2013 JCC NI SC 4 214], [2013 RCR CIVIL SC 4 382], [2014 JLJR SC 1 48], [2013 BOMCR SC 6 424], [2013 RCR CRIMINAL SC 4 306], [2013 ALLMR CRI SC 4048], [2013 MLJ CRL 4 213]

Other Sources:

https://indiankanoon.org/doc/47858029/

https://www.casemine.com/judgement/in/5609af2ae4b0149711415b31

https://www.legalauthority.in/judgement/a-c-narayanan-vs-state-of-maharashtra-4779

CPIO SCI Vs Subhash Chandra Agarwal on 13 Nov 2019

Posted on July 28 by ShadesOfKnife

A constitution bench of Apex Court held as follows:

From Para 59,

59. Reading of the aforesaid judicial precedents, in our opinion, would indicate that personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of
medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive.

CPIO SCI Vs Subhash Chandra Agarwal on 13 Nov 2019 Para 59

Citations : [2019 SCC ONLINE SC 1459]

Other Sources :

https://indiankanoon.org/doc/101637927/

https://www.casemine.com/judgement/in/5dcc51443321bc4f5eaf25b5

Commissioner of Income Tax and Ors Vs Chhabil Dass Agarwal on 8 Aug 2013

Posted on July 24 by ShadesOfKnife

A division bench of Supreme Court held as follows,

From Para 15,

15. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See: State of U.P. vs. Mohammad Nooh, AIR 1958 SC 86; Titaghur Paper Mills Co. Ltd. vs. State of Orissa, (1983) 2 SCC 433; Harbanslal Sahnia vs. Indian Oil Corpn.
Ltd., (2003) 2 SCC 107; State of H.P. vs. Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499).
16. The Constitution Benches of this Court in K.S. Rashid and Sons vs. Income Tax Investigation Commission, AIR 1954 SC 207; Sangram Singh vs. Election Tribunal, Kotah, AIR 1955 SC 425; Union of India vs. T.R. Varma, AIR 1957 SC 882; State of U.P. vs. Mohd. Nooh, AIR 1958 SC 86 and K.S. Venkataraman and Co. (P) Ltd. vs. State of Madras, AIR 1966 SC 1089 have held that though Article 226 confers a very wide powers in the matter of issuing writs on the High Court, the remedy of writ absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted.
(See: N.T. Veluswami Thevar vs. G. Raja Nainar, AIR 1959 SC 422; Municipal Council, Khurai vs. Kamal Kumar, (1965) 2 SCR 653; Siliguri Municipality vs. Amalendu Das, (1984) 2 SCC 436; S.T. Muthusami vs. K. Natarajan, (1988) 1 SCC 572; Rajasthan SRTC vs. Krishna Kant, (1995) 5 SCC 75; Kerala SEB vs. Kurien E. Kalathil, (2000) 6 SCC 293; A. Venkatasubbiah Naidu vs. S. Chellappan, (2000) 7 SCC 695; L.L. Sudhakar Reddy vs. State of A.P., (2001) 6 SCC 634; Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha vs. State of Maharashtra, (2001) 8 SCC 509; Pratap Singh vs. State of Haryana, (2002) 7 SCC 484 and GKN Driveshafts (India) Ltd. vs. ITO, (2003) 1 SCC 72).

From Para 19,

19. Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.

Commissioner of Income Tax and Ors Vs Chhabil Dass Agarwal on 8 Aug 2013

Citations : [2013 AD SC 8 620], [2013 CTR SC 261 113], [2013 ITR SC 357], [2013 JLJR 4 35], [2013 JT SC 11 387], [2013 PLJR 4 179], [2013 SCALE 10 326], [2014 SCC 1 603], [2013 TAXMAN SC 217 143], [2013 SCC ONLINE SC 717], [2013 TAXMANNCOM SC 36]

Other Sources :

https://indiankanoon.org/doc/51987756/

https://www.casemine.com/judgement/in/5609af2ce4b0149711415ba2

Whirlpool Corporation Vs Registrar of Trade Marks Mumbai and Ors on 26 Oct 1998

Posted on July 23 by ShadesOfKnife

Landmark judgment from a division bench of the Apex Court.

From Paras 14 and 15,

14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for “any other purpose”.
15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case- law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.

Whirlpool Corporation Vs Registrar of Trade Marks Mumbai and Ors on 26 Oct 1998 (CM Ver)

Citations : [1998 SCC 8 1], [1999 AIR SC 22], [1998 AIR SC 3345], [1999 BOMCR SC 2 70], [1998 JT 7 243], [1998 SCALE 5 655], [1998 SUPREME 8 176], [1998 AIR SCW 3345]

Other Sources :

https://www.casemine.com/judgement/in/575fd361607dba63d7e6e044

UOI and Ors Vs Tantia Construction Pvt Ltd on 18 Apr 2011

Posted on July 23 by ShadesOfKnife

A division bench held that an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High Court or the Supreme Court and that without exhausting such alternative remedy, a writ petition would not be maintainable.

From Paras 27 and 28,

27. Apart from the above, even on the question of maintainability of the writ petition on account of the Arbitration Clause included in the agreement between the parties, it is now well-established that an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High Court or the Supreme Court and that without exhausting such alternative remedy, a writ petition would not be maintainable. The various decisions cited by Mr. Chakraborty would clearly indicate that the constitutional powers vested in the High Court or the Supreme Court cannot be fettered by any alternative remedy available to the authorities. Injustice, whenever and wherever it takes place, has to be struck down as an anathema to the rule of law and the provisions of the Constitution. We endorse the view of the High Court that notwithstanding the provisions relating to the Arbitration Clause contained in the agreement, the High Court was fully within its competence to entertain and dispose of the Writ Petition filed on behalf of the Respondent Company.
28. We, therefore, see no reason to interfere with the views expressed by the High Court on the maintainability of the Writ Petition and also on its merits. The Special Leave Petition is, accordingly, dismissed, but without any order as to costs.

UOI and Ors Vs Tantia Construction Pvt Ltd on 18 Apr 2011

Citations : [2011 SCC 5 697], [2011 AIOL 293], [2011 SUPREME 3 294], [2011 SCALE 4 745], [2011 RCR CIVIL SC 3 821], [2011 SCC CIV 3 117], [2011 LW 3 691], [2011 ARBLR SC 2 115], [2012 PLJR 1 455], [2011 JCR SC 3 8], [2011 UJ 4 2210], [2011 KLJ 2 15], [2011 AWC SC 5 4568], [2011 SCR 5 397], [2011 JT SC 5 59]

Other Sources :

https://indiankanoon.org/doc/609434/

https://www.casemine.com/judgement/in/5609aeffe4b01497114154a4

Satender Kumar Antil Vs CBI and Anr on 11 Jul 2022

Posted on July 12 by ShadesOfKnife

A division bench of Apex Court passed the following guidelines with respect to Arrest and Bails

From Para 24,

24.Section 41A deals with the procedure for appearance before the police officer who is required to issue a notice to the person against whom a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists that he has committed a cognizable offence, and arrest is not required under Section 41(1). Section 41B deals with the procedure of arrest along with mandatory duty on the part of the officer.
25.On the scope and objective of Section 41 and 41A, it is obvious that they are facets of Article 21 of the Constitution. We need not elaborate any further, in light of the judgment of this Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273:
26.We only reiterate that the directions aforesaid ought to be complied with in letter and spirit by the investigating and prosecuting agencies, while the view expressed by us on the non-compliance of Section 41 and the consequences that flow from it has to be kept in mind by the Court, which is expected to be reflected in the orders.
27.Despite the dictum of this Court in Arnesh Kumar (supra), no concrete step has been taken to comply with the mandate of Section 41A of the Code. This Court has clearly interpreted Section 41(1)(b)(i) and (ii) inter alia holding that notwithstanding the existence of a reason to believe qua a police officer, the satisfaction for the need to arrest shall also be present. Thus, sub-clause (1)(b)(i) of Section 41 has to be read along with sub-clause (ii) and therefore both the elements of ‘reason to believe’ and ‘satisfaction qua an arrest’ are mandated and accordingly are to be recorded by the police officer.
28.It is also brought to our notice that there are no specific guidelines with respect to the mandatory compliance of Section 41A of the Code. An
endeavour was made by the Delhi High Court while deciding Writ Petition (C) No. 7608 of 2017 vide order dated 07.02.2018, followed by order dated
28.10.2021 in Contempt Case (C) No. 480 of 2020 & CM Application No.25054 of 2020, wherein not only the need for guidelines but also the effect of
non-compliance towards taking action against the officers concerned was discussed. We also take note of the fact that a standing order has been passed by the Delhi Police viz., Standing Order No. 109 of 2020, which provides for a set of guidelines in the form of procedure for issuance of notices or orders by the police officers. Considering the aforesaid action taken, in due compliance with the order passed by the Delhi High Court in Writ Petition (C) No.7608 of 2017 dated 07.02.2018, this Court has also passed an order in Writ Petition (Crl.) 420 of 2021 dated 10.05.2021 directing the State of Bihar to look into the said aspect of an appropriate modification to give effect to the mandate of Section 41A. A recent judgment has also been rendered on the same lines by the High Court of Jharkhand in Cr.M.P. No. 1291 of 2021 dated 16.06.2022.
29.Thus, we deem it appropriate to direct all the State Governments and the Union Territories to facilitate standing orders while taking note of the standing order issued by the Delhi Police i.e., Standing Order No. 109 of 2020, to comply with the mandate of Section 41A. We do feel that this would certainly take care of not only the unwarranted arrests, but also the clogging of bail applications before various Courts as they may not even be required for the offences up to seven years.
30.We also expect the courts to come down heavily on the officers effecting arrest without due compliance of Section 41 and Section 41A. We express our hope that the Investigating Agencies would keep in mind the law laid down in Arnesh Kumar (Supra), the discretion to be exercised on the touchstone of presumption of innocence, and the safeguards provided under Section 41, since an arrest is not mandatory. If discretion is exercised to effect such an arrest, there shall be procedural compliance. Our view is also reflected by the interpretation of the specific provision under Section 60A of the Code which warrants the officer concerned to make the arrest strictly in accordance with the Code.

Satender Kumar Antil Vs CBI and Anr on 11 Jul 2022

Citations :

Other Sources :

Malhan and 17 Ors Vs State of UP and Anr on 07 Feb 2022

Posted on July 11 by ShadesOfKnife

A division bench of Allahabad High Court held that, Once the written statement contains an admission in favor of the plaintiff, the amendment of such admission of the defendants cannot be allowed to be withdrawn and such withdrawal would amount to totally displacing the case of the plaintiff which would cause him irretrievable prejudice. In the present case the question now is whether the admission made by the defendant in favour of the plaintiff can be withdrawn and the answer in the language of the apex court is ‘not permissible’.

From Para 4,

4. We have heard Sri Madan Mohan Chaurasiya, learned counsel for the review applicants, and requested him to explain the delay in filing the review application, to which he gave a strange reply that he advised his clients that they may take a chance by filing this review application after a period of six years. We are pained to note that an advocate should not give such an advise when there is no error apparent on the face of record nor was there any other reason that why the matter be re-agitated after it was finally decided.

From Para 7,

7. The expression “sufficient cause” in Section 5 of Act, 1963 has been held to receive a liberal construction so as to advance substantial justice and generally a delay in preferring appeal may be condoned in interest of justice where no gross negligence or deliberate inaction or lack of bona fide is
imputable to parties, seeking condonation of delay. In Collector, Land Acquisition Vs. Katiji, 1987(2) SCC 107, the Court said, that, when substantial justice and technical considerations are taken against each other, cause of substantial justice deserves to be preferred, for, the other side cannot claim to have vested right in injustice being done because of a non deliberate delay. The Court further said that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

Malhan and 17 Ors Vs State of UP and Anr on 07 Feb 2022

Gopika Jayan and Anr Vs Faisal on 22 Jun 2022

Posted on June 29 by ShadesOfKnife

A division bench of Kerala High Court, issued notices to Police and Judicial officers, in a Contempt Case against them.

From Para 1,

1. The afore captioned Contempt of Court case has been instituted alleging patent and flagrant violation of the directives and guidelines issued by the Apex Court in the Celebrated case Arnesh Kumar Vs. State of Bihar (2014(8) SCC 273)=2014 (3) KLJ 330.

From Para 6,

The case papers produced in this contempt petition do not show any application of mind. On the other hand, Annexure A1 FIR and Annexure A8 FIS were registered on 21.01.2022 at 8 pm on the premise of a mere man missing report in regard to the first petitioner. No allegation of deliberate abandonment or desertion of the child has been made even in Annexure A8 email. It was later that false allegations were raised that the first petitioner had deliberately abandoned the child and the respondent Police Officer has without any application of mind and without satisfying himself on the basis of any objective enquiry has sought for the arrest and remand of the petitioners. When the petitioners were called to the Police Station,
they were on the bonafide belief that the FIR was registered only as a man missing report under Section 57 of the Kerala Police Act. The respondent Police Officer had never properly apprised the petitioners that the offence has been duly altered and the records do not show as to how the respondent Police Officer was satisfied that the case involves deliberate and premeditated abandoning of the child in the facts and circumstances of this case. Further, neither the mother of the first petitioner, nor the Police authorities have any case that the 1st petitioner has at any prior point of time abandoned the child on any previous occasion. From the abovesaid aspects apprised to us by the learned Counsel for the petitioners, we see that a 22 year old young working lady and her colleague have been arrested and remanded at the instance of the respondent Officer. Prima facie, we would also observe in the same breadth that though, the first petitioner had given a statement before the learned Magistrate in terms of Annexure A6, the learned Magistrate has not taken into consideration those aspects regarding the harassment said to have been meted out to her by her so called step father and has not cared to make any proper satisfaction as to whether the case of deliberate and premeditated abandonment of the child is made out. This we say so in view of the first proviso to Section 75 of the JJ Act. Direction no.8 in Paragraph 14 of Arnesh Kumar’s case (supra) would also concede that authorizing detention without recording proper reasons as aforesaid by the Judicial Magistrate concerned shall also be liable for Departmental action by the appropriate High Court etc. It is by now, well established as an elementary proposition of criminal jurisprudence as can be seen from a reading of Arnesh Kumar’s case (supra), D.K.Basu Vs. State of West Bengal, [AIR 1997 SC 610], as well as Jogindar Kumar V. State of UP & Ors. [(1994) 4 SCC 260], that no arrest can be made merely because it is lawful for the Police Officer to do so and the existence of the power to arrest is one thing and justification of the exercise of it is quite another and no arrest shall be made without reasonable satisfaction reached after some investigation about the genuineness and bonafides of a complaint and a reasonable belief that both as per the person’s complicity and even as to the necessity to arrest that person and denial of liberty is a serious matter, etc. These aspects of the matter have also been referred to in the celebrated decisions of the Apex Court in D.K. Basu’s case [AIR 1997 SC 610] and Joginder Kumar Vs. State of UP [AIR 1994 SC 1349].

From Para 8, Conclusion.

8. Accordingly, it is ordered that the Contempt of Court case will stand admitted. Issue notice to the respondent Officer, which shall be served on him through the Commissioner of Police, KochiCity. In case the respondent Officer is not available in the abovesaid address, then notice process shall be duly completed by affixture, in the presence of witnesses and report in that regard shall be duly given to this Court within three days.

From Para 9,

9. The Registrar General will forthwith call for a report from the learned Judicial First Class Magistrate, who has rendered Annexure A7 remand order dated 03.02.2022 on Crime No.44/2022 of Elamakkara Police Station, Ernakulam, as to how he could reach reasonable satisfaction, based on the parameters laid down by the Apex Court in the aforesaid decisions and the applicable legal principles and as to why the arrest and remand of both these accused persons was highly imperative. So also, it shall be explained as to how he has ordered that A1 (1st petitioner) is remanded to the District Jail, Kakkanad and A2 (2nd petitioner) is remanded to the Judicial custody to Borstal School, Kakkanad.
10. The Registrar General will forward a copy of the memorandum of this Contempt Petition with all the Annexures thereto as well as the additional documents to the learned Magistrate, who shall submit his explanation within two weeks from the date of receipt of a communication in that regard by the Registrar General.

Gopika Jayan and Anr Vs Faisal on 22 Jun 2022

Vishnu Kumar Tiwari Vs State of Uttar Pradesh on 09 Jul 2019

Posted on June 27 by ShadesOfKnife

A division bench of the Apex Court held as follows:

From Paras 41 and 42,

41. In the facts of this case, having regard to the nature of the allegations contained in the protest petition and the annexures which essentially consisted of affidavits, if the Magistrate was convinced on the basis of the consideration of the final report, the statements under Section 161 of the Code that no prima facie case is made out, certainly the Magistrate could not be compelled to take cognizance by treating the protest petition as a complaint. The fact that he may have jurisdiction in a case to treat the protest petition as a complaint, is a different matter. Undoubtedly, if he treats the protest petition as a complaint, he would have to follow the procedure prescribed under Section 200 and 202 of the Code if the latter Section also commends itself to the Magistrate. In other words, necessarily, the complainant and his witnesses would have to be examined. No doubt, depending upon the material which is made available to a Magistrate by the complainant in the protest petition, it may be capable of being relied on in a particular case having regard to its inherent nature and impact on the conclusions in the final report. That is, if the material is such that it persuades the court to disagree with the conclusions arrived at by the Investigating Officer, cognizance could be taken under Section 190(1)(b) of the Code for which there is no necessity to examine the witnesses under Section 200 of the Code. But as the Magistrate could not be compelled to treat the protest petition as a complaint, the remedy of the complainant would be to file a fresh complaint and invite the Magistrate to follow the procedure under Section 200 of the Code or Section 200 read with Section 202 of the Code. Therefore, we are of the view that in the facts of this case, we cannot support the decision of the High Court.
42. It is true that law mandates notice to the informant/complainant where the Magistrate contemplates accepting the final report. On receipt of notice, the informant may address the court ventilating his objections to the final report. This he usually does in the form of the protest petition.

From Para 45,

45. If a protest petition fulfills the requirements of a complaint, the Magistrate may treat the protest petition as a complaint and deal with the same as required under Section 200 read with Section 202 of the Code. In this case, in fact, there is no list of witnesses as such in the protest petition. The prayer in the protest petition is to set aside the final report and to allow the application against the final report. While we are not suggesting that the form must entirely be decisive of the question whether it amounts to a complaint or liable to be treated as a complaint, we would think that essentially, the protest petition in this case, is summing up of the objections the second respondent against the final report.

Vishnu Kumar Tiwari Vs State of Uttar Pradesh on 09 Jul 2019

Citations :

Other Sources :

https://indiankanoon.org/doc/80081494/

https://www.lawyerservices.in/Vishnu-Kumar-Tiwari-Versus-State-of-Uttar-Pradesh-and-Others-2019-07-09

Mukesh Bansal Vs State of UP and Anr on 13 Jun 2022

Posted on June 16 by ShadesOfKnife

A judge from Allahabad High Court used choicest words in this judgment.

From Para 8,

[8] The story narrated in the FIR is not only abhorring, full of dirt, filth and venomous accusations where the informant fiercely abused her own husband and in-laws by using all the ways and means in the tone, tenor and texture in the extreme manner. The graphic and vivid descriptions of the incident without any shame or hitch of any sort which, speaks out volume of mental condition and amount of venom and poison in the mind of the informant. She without mincing any word, rather exaggerating the incident to manifolds, had vomitted the snide before the Court. Interestingly, general and sweeping allegations have been fastened against all the family members for committing sodomy, attempt to rape and illegal abortion etc. upon all the family members with special focus upon her husband, Sahib Bansal.

From Para 12,

[12] The police, after probing the matter in depth, has submitted the charge sheet dropping all the offences, wherein the informant had made wild
accusations in the FIR against her husband and his family members. The aforesaid charge sheet has been filed only under sections 498A, 323, 504, 506, 307 IPC and 3 and 4 of D.P. Act. Thus, it is explicitly clear that the FIR is nothing but a virtual canard and full of venom where the informant unmindful of the fact to its far-reaching repercussions, pasted all the filth upon revisionist in wild manner but was unable to produce any documentary evidence/proof to substantiate the levelled allegations and thus, all the sections of unnatural/oral sex, forcible abortion have gone to haywire resultantly dropped from charge sheet. Not only this, names of Chirag Bansal and Ms. Shipra Jain finds no place in the charge sheet, so filed by the police.

From Para 30,

[30] Yet coming to another aspect of the issue which is disturbing and mind-boggling to the Court. After reading the FIR allegedly lodged by Ms.
Shivangi Bansal after 18 days of the incident, which is ever-abhorring, full of dirt and filth. The graphical description portrayed by her in her FIR is deplorable to be condemned in its strongest terms. The FIR is the place where the informant gives the story mobilizing the State Machinery engaging in the commission of cognizable offence. It is not soft porn literature where the graphical description should be made. Hon’ble the Apex Court in its judgment in the case of Priti Gupta Vs State of Jharkhand, 2010(71) SCC 667 has fastened the liability upon the counsels;

From Para 31,

[31] Therefore, the Court is of the opinion that while deciding the present issue, the Court should not take into these graphical description of the accusation made by the complainant and simply over-look these graphic and distressful allegations made by a lady who after receiving legal advice, pasted those dirt and filth upon her husband and other family members. The interesting feature is that she has been unable to substantiate those allegations even at the time of investigation and these allegations were found false and the sections related to it were dropped.
The Court records its strongest exception to such type of language used by the informant. The language of the FIR should be decent one and no amount of atrocitiesfaced by the informant, would justify her to use such type of castic expressions. FIR/complaint is the gateway of any criminal case even soft and decent expressionwould well communicate the alleged atrocities faced by her.

Guidelines issued from para 35,

[35] Thus, It is directed that :-
(i) No arrest or police action to nab the named accused persons shall be made after lodging of the FIR or complaints without concluding the “Cooling-Period” which is two months from the lodging of the FIR or the complaint. During this “Cooling-Period”, the matter would be immediately referred to Family Welfare Committe (hereinafter referred to as FWC) in the each district.
(ii) Only those cases which would be transmitted to FWC in which Section 498-A IPC along with, no injury 307 and other sections of the IPC in which the imprisonment is less than 10 years.
(iii) After lodging of the complaint or the FIR, no action should take place without concluding the “Cooling-Period” of two months. During this “Cooling-Period”, the matter may be referred to Family Welfare Committee in each districts.
(iv) Every district shall have at least one or more FWC (depending upon the geographical size and population of that district constituted under the District Legal Aid Services Authority) comprising of at least THREE MEMBERS. Its constitution and function shall be reviewed periodically by the District & Sessions Judge/Principal Judge, Family Court of that District, who shall be the Chairperson or Co-chairperson of that district at Legal Service Authority.
(v) The said FWC shall comprise of the following members :-
(a) a young mediator from the Mediation Centre of the district or young advocate having the practices up to five years or senior most student of Vth year, Government Law College or the State University or N.L.Us. having good academic track record and who is public spirited young man, OR;
(b) well acclaimed and recognized social worker of that district having clean antecedant, OR;
(c) retired judicial officers residing in or nearby district, who can devote time for the object of the proceeding OR;
(d) educated wives of senior judicial or administrative officers of the district.
(vi) The member of the FWC shall never be called as a witness.
(vii) Every complaint or application under Section 498A IPC and other allied sections mentioned above, be immediately referred to Family Welfare Committee by the concerned Magistrate. After receiving the said complaint or FIR, the Committee shall summon the contesting parties along with their four senior elderly persons to have personal interaction and would try to settle down the issue/misgivings between them within a period of two months from its lodging.
The contesting parties are obliged to appear before the Committee with their four elderly persons (maximum) to have a serious deliberation between them with the aid of members of the Committee.
(viii) The Committee after having proper deliberations, would prepare a vivid report and would refer to the concerned Magistrate/police authorties to whom such complaints are being lodged after expiry of two months by inserting all factual aspects and their opinion in the matter.
(ix) Continue deliberation before the Committee, the police officers shall themselves to avoid any arrest or any coercive action pursuant to the applications or complaint against the named accused persons. However, the Investigating Officer shall continue to have a peripheral investigation into
the matter namely preparing a medical report, injury report, the statements of witnesses.
(x) The said report given by the Committee shall be under the consideration of I.O. or the Magistrate on its own merit and thereafter suitable action should be taken by them as per the provision of Code of Criminal Procedure after expiry of the “Cooling-Period” of two months.
(xi) Legal Services Aid Committee shall impart such basic training as may be considered necessary to the members of Family Welfare Committee from time to time(not more than one week).
(xii) Since, this is noble work to cure abrasions in the society where tempos of the contesting parties are very high that they would melow down the heat between them and try to resolve the misgivings and misunderstanding between them. Since, this is a job for public at large, social work, they are acting on a pro bono basis or basic minimum honrarium as fixed by the District & Sessions Judge of every district.
(xiii) The investigation of such FIRs or complaint containing Section 498A IPC and other allied sections as mentioned above, shall be investigated by dynamic Investigating Officers whose integrity is certified after specialized training not less than one week to handle and investigate such matrimonal cases with utmost sincerity and transparancy.
(xiv) When settlement is reached between the parties, it would be open for the District & Sessions Judge and other senior judicial officers nominated by him in the district to dispose of the proceedings including closing of the criminal case.
At the cost of repetition, it is made clear that after lodging of the F.I.R. or the complaint case without exhausting the “Cooling-Period” of two months, no arrest or any coercive action shall be taken against the husband or his family members in order to derail the proceedings before the Family Welfare Committee.

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