Sivasankaran Vs Santhimeenal on 13 Sep 2021
Other Sources :
Sivasankaran Vs Santhimeenal on 13 Sep 2021
Other Sources :
A division bench of Apex Court held as follows
From Para 2, Issue was fixed.
2. Whether a Magistrate after accepting a negative final report submitted by the Police can take action on the basis of the protest petition filed by the complainant/first informant? The above question having been answered in the affirmative by the Allahabad High Court, this appeal has been filed by the accused.
From Para 7, issue was answered.
Rakesh and Anr Vs State of UP and Anr on 13 Aug 2014
7. If we are to go back to trace the genesis of the views expressed by this Court in Gopal Vijay Verma (supra), notice must be had of the decision of this Court in H.S. Bains vs. State (Union Territory of Chandigarh) 3 wherein it was held that after receipt of the police report under Section 173, the Magistrate has three options –
“(1) he may decide that there is no sufficient ground for proceeding further and drop action;
(2) he may take cognizance of the offence under Section 190 (1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report;
(3) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.”
8. The second and third options available to the Magistrate as laid down in H.S. Bains (supra) has been referred to and relied upon in subsequent decisions of this Court to approve the action of the Magistrate in accepting the final report and at the same time in proceeding to treat either the police report or the initial complaint as the basis for further action/enquiry in the matter of the allegations levelled therein.
Citations : [2014 RCR CRIMINAL SC 4 52], [2014 MPWN SC 3 73], [2014 AIR SC 3509], [2014 SCALE 9 347], [2014 AIOL 490], [2014 CRIMES SC 4 183], [2014 CRLJ SC 4195], [2014 JLJR SC 4 16], [2014 BOMCR CRI SC 4 643], [2014 SUPREME 7 286], [2014 SLT 7 183], [2014 SCC 13 133], [2014 SCC CRI 5 611], [2014 SCC ONLINE SC 619], [2014 AIC 142 75], [2014 ACR SC 3 3091], [2014 UC 3 1651], [2014 ALLCC 87 299], [2014 SCJ 9 159], [2014 ALT CRL AP 3 531], [2014 ALLMR CRI SC 3782], [2014 AJR 4 387], [2015 LW CRL 1 229], [2014 CCR SC 3 577], [2014 PLJR 4 176], [2014 MLJ CRL SC 4 113], [2014 ALL LJ 6 82]
Other Sources :
A single judge of Karnataka High Court held that, an offence under the PWDV Act alone is subject to limitation under CrPC but not the application filed belatedly u/s 12 of the Act.
From Paras 16-17,
16. To attract Section 468 of Cr.P.C, essentially the Act alleged must be an offence. Under the DV Act, the offence is not defined, as defined in Section 40 of IPC. Therefore, we have to revert to the General Clauses Act, 1897. Section 3(38) of the General Clauses Act defines the offences as follows:
“3(38). “Offence” shall mean any act or omission made punishable by any law for the time being in force.
17. Perusal of the above provision makes it clear that to call an act as offence, act or omission must be made punishable under law. As already pointed out, under Sections 12, 20 and 21 of the DV Act have not made the domestic violence alleged thereunder punishable or defined them as offence. Section 12 of the DV Act is only an enabling provision to initiate enquiry to find out whether such act or omission is committed.
From Para 19-20, Conclusions
19. Perusal of Section 31 of the DV Act makes it clear that only breach of the protection order or interim protection order etc. passed under Section 12 of the DV Act constitutes an offence and made punishable. As held by Punjab High Court in Vikas’s case referred to supra, Section 12 of the DV Act is only enabling provision. Therefore it is clear that the act or omission contemplated under Section 31 of the DV Act is an offence and the application under Section 12 of the DV Act itself is not an offence.
20. When the application under Section 12 of the DV Act is not covered under the term ‘offence’, Section 468 of Cr.P.C. is inapplicable. Therefore the application of Section 468 of Cr.P.C. to an application under Section 12 of the DV Act is clearly a misconception.
From Paras 24-26,
Puttaraju Vs Shivakumari on 01 Apr 2021
24. Distinguishing judgment in Inderjit Singh Grewal’s case, the Hon’ble Supreme Court in subsequent judgment in Krishna Bhattacharjee’s case referred to supra held that the observation regarding domestic relationship in Inderjit Singh Grewal’s case were based on the facts and circumstances of the said case and they are not of general application.
25. Further in para 32 of the judgment in Krishna Bhattacharjee’s case referred to supra, the Hon’ble Supreme Court held that the definition of the aggrieved person and domestic relationship remains and the act of domestic violence attracts the term ‘continuing offence’, therefore does not get time barred.
26. In the judgments of the Hon’ble Supreme Court referred to above, the interplay of Section 3(38) of the General Clauses Act, Section 31 of the DV Act and Section 468 of Cr.P.C. had not fallen for consideration. In view of the later judgment of the Hon’ble Supreme Court in Krishna Bhattacharjee’s case referred to supra the judgments of this Court in Srinivas’s case and Gurudev’s case cannot be followed. Therefore this Court does not find any merit in the contention that the petition was time barred. Under the circumstances the respondent is entitled for withdrawal of the amount. The application is allowed.
Other Sources :
Single Judge bench of AP HC held as follows:
From Para 6,
6. The points for determination in these proceedings are
(1) whether the order of maintenance passed in M.C. No. 18/84 stood cancelled ?
(2) Whether under Section 125(3), Cr.P.C. the wife can seek imprisonment of the husband for non-payment of maintenance accumulated beyond a period of 12 months ?
(3) Whether the payment of Rs. 3,250/- paid as per the directions of this court can be appropriated to the maintenance due for the first 25 months as claimed by the wife ?
From Para 11, Point (2) was answered.
11. Considering the different views expressed by the various High Courts I prefer to follow the Division Bench decision of the Calcutta High Court reported in Moddari Bin v. Sukdeo Bin, (1967 Cri LJ 335). The other decisions are judgments or single Judges. In my humble opinion the contraction put forward by the Division Bench of the Calcutta High Court is harmonesus construction and interpretation of the proviso making the proviso applicable to both the limbs of procedure contemplated under sub-section 3 of Section 125, Cr.P.C. I hold on point No. 2 that the wife the maintenance-holder cannot accumulate the maintenance for a period beyond 12 months. No application for execution of the maintenance order can be entertained for a period exceeding 12 months immediately preceding the date of application. I hold this point in favour of the petitioner. In this context I make it clear that they remedy provided under S. 125(3), Cr.P.C. is a speedy and expeditious remedy. By virtue of the order of maintains granted in M.C. 18/84 the right vested in the wife to receive maintenance from the date of the application i.e. 7-12-83. She may not be able to recover the earlier arrears by resorting to an application under Section 126(3), Cr.P.C., but still she would certainly be entitled to claim those arrear by filing a civil suit on the basis that the amount is die to her by virtue of the court order. But at the same time it should be remembered that under civil laws also her claim should be within the period of limitation. For instance, for the maintenance payable for the period 7-12-83 to 7-1-84 she should file a suit on or before 7-1-87. At the most she can recover arrears of maintenance for 3 years by resorting to a civil suit. Unfortunately in this case the right to file a civil suit for the earlier arrears is also barred by time.
Indiankanoon Version:Jangam Srinivasa Rao Vs Jaagam Rajeshwari and Anr on 13 Mar 1989 (IK Ver)
Casemine Version:Jangam Srinivasa Rao Vs Jaagam Rajeshwari and Anr on 13 Mar 1989 (CM Ver)
Citations : [1990 CRILJ 2506], [1989 ALT 2 295], [1989 SCC ONLINE AP 66], [1989 AP LJ 2 41], [1989 ALT NRC 2 8]
Other Sources :
Relying on earlier decision here, single judge bench of Madras High Court held as follows:
From Para 12,
12. Mr. V. Karthik has also brought to the notice of the Court the following decisions in Jagatbhai Punjabhai Palkhiwala and others v. Vikrambhai Punjabhai Palkhiwala and others, AIR 1985 Gujarat 112; K. Nagarajan v. K.S Ramasamy, 2003 (3) M.L.J 211; and K.R. Sengottuvelu v. Karuppa Naicker, 2005 (5) CTC 91. The above decisions are relating to Civil cases, wherein it has been held that since the documents are in the custody of the Court, the parties cannot take xerox copies of the same without the permission of the Court, but that does not mean that the Court can refuse such permission only on the ground that they have not become part of the record of the Suit.
From Para 16,
16. The main objection raised by the learned counsel for the respondent is that since the documents filed along with the Complaint have not been marked, the accused, at this stage, are not entitled to get certified copies of the same. In support of the said contention, the learned counsel relied upon the decision of the Apex Court reported in AIR 1970 SC 962, cited supra. It has to be pointed out that in the said decision, the Hon’ble Apex Court has held that the High Court was not justified, in indirectly applying to cases instituted on Private Complaints the requirements of Section 173(4), Cr.P.C In the said decision what the Hon’ble Court has held is that it was impermissible for the High Court to read into Section 94, Cr.P.C, the
requirements of Section 173(4), Cr.P.C on the ground that Section 173(4), Cr.P.C is not applicable to Private Complaints. On the said reasoning, the direction issued by the High Court directing the prosecution to furnish copies of the documents to the accused was set aside. But it has to be pointed out that in that decision, the question as to whether the accused is entitled to get certified copies of the documents filed along with the Private Complaint did not come up for consideration and hence, the said decision is not of any help to the respondent.
From Para 18,
18. In this context, it is pertinent to point out that the learned counsel for the respondent has not referred to any provision in the Criminal Procedure Code containing any prohibition to furnish certified copies of the documents filed along with the Private Complaint. The prohibition like the one contained under Section 173(4), Cr.P.C is not there as far as the documents filed along with the Private Complaint are concerned. Therefore, unless there is a statutory prohibition, it cannot be said that the accused is not entitled to get certified copies of the documents filed along with the Private Complaint.
From Para 20,
20. Similarly, in a Criminal case taken cognizance on the basis of the Private Complaint also if the allegations contained in the Complaint and the documents accompanied with the Complaint do not prima facie reveal the commission of any offence and the ingredients of the offence are not made out, it is always open to the accused to approach the High Court under Section 482, Cr.P.C seeking for quashing of the proceedings. For taking recourse under Section 482, Cr.P.C, it is necessary for the accused to produce before the Court a copy of the Complaint as well as the documents filed along with the Complaint. Since before taking cognizance, the learned Judicial Magistrate is bound to apply his judicial mind not only to the allegations contained in the Complaint but also to the documents accompanying the same and an order taking cognizance is a judicial order and as such the accused is entitled to challenge the cognizance taken in the case. As per Section 363(5), Cr.P.C, Save as otherwise provided in subsection (2), any person affected by an order passed by the Court on an Application made in this behalf and on payment of the prescribed charges be given a copy of such order or of any deposition or other part of the record. If the question is considered in the light of Section 363(5), Cr.P.C, it could be held that since, as pointed out above, an order taking cognizance is a judicial order, Section 363(5) is attracted and on that ground also the accused is entitled to get a copy of the part of the record of a Criminal case to enable him to seek appropriate remedy before the higher forum. In my considered view, Rule 339 of the Criminal Rules of Practice is in consonance with the provisions contained in Section 363(5), Cr.P.C It is also to be pointed out that by furnishing of certified copies of the documents filed along with the Private Complaint, no prejudice whatsoever is going to be caused to the complainant, whereas, if the request of the accused is rejected, it will definitely prejudice the right of the accused in seeking appropriate legal remedy before the higher Courts.
From Para 22,
22. A reading of the aforesaid provision shows that in a case instituted otherwise than on a police report, if it appears to the Magistrate issuing process under Section 204, Cr.P.C, that the offence is triable exclusively by the Court of Session, he shall furnish to the accused a copy of each of the documents filed along with the Complaint. That Sections casts duty on the Court to furnish the said documents free of cost. But similar duty is not cast on the Magistrate to furnish copies of the documents free of cost if the case is not triable exclusively by the Court of Session. It would mean that it is not incumbent on the part of the learned Judicial Magistrate to furnish copies of the documents free of cost either at the time of sending the process or on the appearance of the accused. There is no other provision which prohibits the accused from applying for certified copies of those documents filed along with the Complaint. As pointed out above, in the absence of any specific prohibition in the Cr.P.C either expressly or impliedly, in the considered view of this Court, the accused cannot be deprived of his right to get certified copies of the documents filed along with the Complaint so as to defend himself in the case as long as such furnishing of certified copies would not prejudice the case of the respondent.
Casemine Version:Rev. Samuel D. Stephens and Ors Vs Pastor A. Samuel Ramasamy on 27 Feb 2009 (CM Ver)
Citations : [2009 LW CRL 1 386], [2009 SCC ONLINE MAD 576], [2009 MWN CRI 1 298], [2009 MLJ CRL 2 436]
Other Sources :
A Full Bench gave this decision upon a reference from a Division bench of AP High Court on the question as to whether the law laid down by a Division Bench of this Court in Ayyala Rambabu v. State of Andhra Pradesh, 1993 (1) Andh LT (Cri) 73 and by a learned single Judge of this Court in Nunna Venkateswarlu v. State of A. P., 1996 Cri LJ 108 is good law.
The answer was a NO.
From Paras 17-19,
17. The definition of “dowry”, the object of the Act and the above decisions of the Apex Court clearly show that any property or valuable security given or agreed to be given comes within the purview of “dowry” on three occasions in which any property or valuable security comes within its purview. They are — (i) before the marriage, (ii) at the time of marriage, and (iii) “at any time” after the marriage. The third occasion may appear to be an unending period, but the crucial words are “in connection with the marriage of the parties”. This means, giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties.
18. The Legislature in its wisdom while providing for the definition of “dowry” has emphasized that any money, property or valuable security given as consideration for marriage “before, at or any time after” the marriage would be covered by the expression “dowry”, and this definition as contained in Section 2 of the Act has to be read whenever the expression “dowry” occurs in the Act, The meaning of expression “dowry” as commonly used and understood is different from the peculiar definition thereof under the Act.
19. Under Section 3 of the Act, if a person gives or takes are abets the giving or taking dowry shall be punished. Under Section 4 of the Act mere demand of dowry is sufficient to bring home the offence to an accused. Thus, any demand of money, property or valuable security, made from the bride or her parents or other relatives, or the bridegroom or his parents or other relatives, or vice versa, would fall within the mischief of “dowry” under the Act, where such demand is not properly referable to legally recognized claim and relatable only to the consideration of the marriage.
Indiankanoon version:Public Prosecutor, High Court of A.P, Hyd Vs Nese Jilakara Sreeramulu on 29 Aug 2003 (IK Ver)
Casemine version:Public Prosecutor, High Court of A.P, Hyd Vs Nese Jilakara Sreeramulu on 29 Aug 2003 (CM Ver)
Citations : [2004 EASTCRIC 3 48], [2004 ALT 2 504], [2004 ALD CRI 1 519], [2003 SCC ONLINE AP 830], [2003 SUPP ACC 875], [2004 CRI LJ 1629], [2004 HLR 2 144]
Other Sources :
A Full bench of Apex Court held in a murder case as follow…
Virsa Singh Vs State of Punjab on 11 Mar 1958
To put it shortly, the prosecution must prove the following before it can bring a case under s. 300 Indian Penal Code third clause.
(1) It must establish, quite objectively, that a bodily injury is present.
(2) The nature of the injury must be proved; these are purely objective investigations.
(3) It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
(4) It must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature.
This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under s. 300, 3rdly. It does not matter that there was no intention to cause death. It does not matter that there was Do intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only
escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional.
Citations : [1958 AWR 28 572], [1958 MYSLJ SC 36 723], [1958 SCR 1 1495], [1958 SCR 0 1495], [1958 SCJ 0 772], [1958 AIR SC 458], [1958 AIR SC 463], [1958 SCR 0 1945], [1958 AIR SC 365], [1958 SCR 0 1450], [1958 CRLJ SC 818], [1958 AIR SC 465]
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Citing various caselaws, Division bench of Kerala High Court held that a General Power of Attorney Holder can ask as an agent of the witness in a Court and depose on his behalf.Sethi P V and Shansa Ramesh Vs Nil on 26 Feb 2021
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A wonderful decision by Supreme Court of India around High Court’s inherent power under section 482 CrPC against the Revisional Powers u/s 401 CrPC.
From Para 8,
Dhariwal Tobaco Products Ltd and Ors Vs State of Maharastra and Anr on 17 Dec 2008
8. Indisputably issuance of summons is not an interlocutory order within the meaning of Section 397 of the Code. This Court in a large number of decisions beginning from R .P. Kapur v. State of Punjab, AIR 1960 SC 866 to Som Mittal v. Govt. of Karnataka , [ (2008) 3 SCC 574 ] has laid down the criterion for entertaining an application under Section 482. Only because a revision petition is maintainable, the same by itself, in our considered opinion, would not constitute a bar for entertaining an application under Section 482 of the Code.
Even where a revision application is barred, as for example the remedy by way of Section 115 of the Code of Civil Procedure, 1908 this Court has held that the remedies under Articles 226/227 of the Constitution of India would be available. (See Surya Dev Rai v. Ram Chander Rai and others, [ (2003) 6 SCC 675 ] ).
Even in cases where a second revision before the High Court after dismissal of the first one by the Court of Sessions is barred under Section 397 (2) of the Code, the inherent power of the Court has been held to be available.
Citations : [2009 SCC 2 370], [2009 CRLJ SC 974], [2008 SCALE 16 240], [2009 SCC CRI 1 806], [2009 BOMCR CRI SC 1 802], [2008 AIOL 1468], [2008 SCR 17 844], [2009 AIR SC 1032], [2009 AIC SC 75 265], [2009 ECRN SC 2 284]
Other Sources :
A division bench consisting the legendary Justice P.N. Bhagvati, held that a subsequent petition under 482 CrPC is maintainable if the facts and circumstances are different from earlier application. Here Section 561-A is current Section 482 CrPC.
Section 561-A preserves the inherent power of the High Court to make such orders as it deems fit to prevent abuse of the process of the Court or to secure the ends of justice and the High Court must, therefore, exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked. The High Court was in the circumstances entitled to entertain the subsequent application of Respondents 1 and 2 and consider whether on the facts and circumstances then obtaining the continuance of the proceeding against the respondents constituted an abuse of the process of the Court or its quashing was necessary to secure the ends of justice.
Indiankanoon version:Superintendent and Remembrancer of Legal Affairs West Bengal Vs Mohan Singh and Ors
Casemine version:Superintendent and Remembrancer of Legal Affairs West Bengal Vs Mohan Singh and Ors (Casemine)
Citations : [1975 AIR SC 1002], [1975 PLR 77 147], [1975 SCC 3 706], [1974 CRLR 0 691], [1975 AIR SC 100], [1975 SCJ 11 478], [1976 MLJ CRL 1 1], [1975 SCC CRI 156], [1975 CRLJ SC 812]
Other Sources :
Index of Quash judgments is here.
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