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Tag: CrPC 482 – Defence Documents may be Examined for Quash

Swapan Kumar Das Vs State of West Bengal on 21 Aug 2023

Posted on August 22, 2023 by ShadesOfKnife

A single judge of Calcutta High Court quash vengeful litigation, terming the same as ‘Legal Terrorism‘.

The basic allegation of offence punishable u/s 498A of IPC has some specific ingredients they are:-
1. Married woman was subjected to cruelty.
2. Such cruelty consisted in
a) in lawful conduct as was likely to drive such women to commit suicide or to cause grave injury or danger to her life, limb or health whether mental or physical.
b) harm to such women with a view coercing her to me unlawful demand for property or valuable security or on account of failure of such woman or not of her relations to him the lawful demand.
c) the women was subjected to such cruelty by her husband or any relation of her husband.

And then…

The legislature has enacted the provision of Section 498A to strike out the dowry menace from the society. But it is observed in several cases that by misusing of said provision new legal terrorism is unleashed. Harassment and torture enumerated in the definition of security u/s 498A cannot be proved solely by the de-facto complainant. The criminal law is allowed, complainant to file a criminal complaint but the same has to be justified by adducing cogent evidences. The four corners of both the CDs recorded no such evidence by which prima facie offence against the present petitioners can be established. The direct allegation against the husband by the de-facto complainant is merely from the version of the de-facto complainant herself. It support no documentary or medical evidence. One neighbour has heard about the quarrel of Banashree her husband; the quarrel of two persons does not mean or prove who is in aggression or who is aggrieved.

Finally,

On perusing the observation of Hon’ble Supreme Court in Ch. Bhajanlal, I am of a view that the instant criminal proceedings initiated by the de-facto complainant against the husband and in-laws does not disclose prima facie offence against them as alleged. The proceeding are instituted only to fulfil personal grudge.
Considering the circumstances I think it necessary to invoke the inherent power of this court to quash the proceedings otherwise the continuation of the criminal proceedings would be tantamount to the abuse of process of court.

Swapan Kumar Das Vs State of West Bengal on 21 Aug 2023
Posted in High Court of Calcutta Judgment or Order or Notification | Tagged 1-Judge Bench Decision CrPC 482 - Defence Documents may be Examined for Quash Legal Terrorism State of Haryana Vs Ch Bhajan Lal Swapan Kumar Das Vs State of West Bengal | Leave a comment

S.P. Mani and Mohan Dairy Vs Dr Snehalatha Elangovan on 16 Sep 2022

Posted on August 12, 2023 by ShadesOfKnife

 

 

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 2-Judge (Division) Bench Decision CrPC 482 - Defence Documents may be Examined for Quash Reportable Judgement or Order S.P. Mani and Mohan Dairy Vs Dr Snehalatha Elangovan | Leave a comment

Dhananjay Mohan Zombade Vs Prachi Dhananjay Zombade on 18 Jul 2023

Posted on August 4, 2023 by ShadesOfKnife

A single judge at Aurangabad Bench of Bombay High Court held as follows,

From Para 9,

9. In the backdrop of aforesaid provisions, if the precedents are considered, then it is clear that the Hon’ble Apex Court no doubt, in the case of Kamatchi (supra) has held that the proceedings under the DV Act are essentially in the nature of civil proceedings. It is however, pertinent to note that the said judgment is passed in the context of challenge to the order passed by the Trial Court holding that the proceeding fled before it is barred by limitation. It is held in paragraph No. 20 of the judgment that :
“20. It is thus clear that the High Court wrongly equated fling of an application under Section 12 of the Act to lodging of a complaint or initiation of prosecution. In our considered view, the High Court was in error in observing that the application under Section 12 of the Act ought to have been fled within a period of one year of the alleged acts of domestic violence.”
Thus, by implication applicability of the provision of Section 468 of Code of Criminal Procedure is excluded. In respectful view of this Court, in the said judgment, the issue whether or not the provisions of Section 482 of the Code of Criminal Procedure has application to DV Act, was not involved nor decided therein.

From Para 13,

13. No doubt, the provisions of Section 482 of the Code of Criminal Procedure cannot be invoked as a matter of course. The Hon’ble Apex Court in the case of Gian Singh vs. State of Punjab, (2012) 10 SCC 303, has held that if the High Court finds that any proceedings is abuse of process of Court then in that case, non-invocation of provisions of Section 482 of the Code of Criminal Procedure would not be justified. It needs to be recorded that merely because the enactment of DV Act is to provide for more effective protection of the right of woman, it would not mean that a proceedings which is palpably not tenable shall be allowed to be continued. If it is allowed so, then it will be nothing less than sheer abuse of process of Court. Thus, in the considered view of this Court, the present application for quashment of proceeding under DV Act is maintainable.

From Paras 16, 17 and 18,

16. Learned counsel for the respondent opposed the said submission by stating that the said issue cannot be decided at this stage as the same would be subject matter of trial after leading evidence.
17. In order to decide this controversy, it would be relevant to take note of provisions which define “aggrieved person” and “domestic relationship”. Section 2(a) of DV Act defines “aggrieved person” which reads thus :-
2(a) “aggrieved person” means any woman who is, or has been, in domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.
Section 2(f) states “domestic relationship” to be “a relationship between two persons who live or have, at any point of time, lived together in a shared
household when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family”.
According to these definitions, domestic relationship between aggrieved person and respondent is sine qua non to maintain any proceeding under DV Act. In order to constitute relationship between two persons as domestic relationship, they must live or at any point of time lived together in a shared household when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. Admittedly, the relationship of respondent with applicants No. 4 to 6 is as a family member. Thus, in order to constitute domestic relationship, the family members of the aggrieved person must be living together with aggrieved person as joint family. It is, therefore, essential that the applicant pleads that there is domestic relationship between her and respondent and that the other family members have lived or are living together as a joint family, to maintain any such complaint/application under the provisions of the DV Act.
18. In the instant case, applicants No. 4 to 6 have come out with a specific case that they never lived as joint family with the respondent. In order to substantiate the said contention,documentary evidence such as Aadhar Card etc. is placed on record. Genuineness thereof is not challenged. On the other hand perusal of the complaint/application to the Magistrate does not show pleadings that these applicants have lived or living with the respondent together as members of joint family. Thus, for want of specific pleadings, and in view of unimpeachable evidence placed on record by these applicants showing their separate place of residence, the application/complaint against such applicants could not have been entertained as these applicants do not come within the definition of domestic relationship with the respondent.

From Para 21,

21. Unfortunately, similar trend seems to have been adopted and proceedings under DV Act are filed at even distant place i.e. place where aggrieved person resides as per Section 2(s) of Act and not only husband and joint family members residing under one roof are made respondents but distant relatives those who have no domestic relationship are also roped in order to cause harassment and to build pressure on husband. In considered view of this Court the observations made by Hon’ble Apex Court, while dealing with offence under Section 498-A of Indian Penal Code, apply to the cases under DV Act, which are filed in clear abuse of process of Court. The present case is squarely covered by illustrations (1), (3) and (7) in case of Bhajanlal (supra) and hence such proceeding cannot be permitted to be continued.

Dhananjay Mohan Zombade Vs Prachi Dhananjay Zombade on 18 Jul 2023

Citations:

Other Sources:

 

https://www.barandbench.com/news/bombay-high-court-concern-rise-trend-women-misusing-domestic-violence-act

 

Bombay High Court Raises Concern Over Misuse of Domestic Violence Act by Estranged Wives

 

Posted in High Court of Bombay Judgment or Order or Notification | Tagged 1-Judge Bench Decision CrPC 482 - Defence Documents may be Examined for Quash CrPC 482 – DVC Proceeding Quashed Dhananjay Mohan Zombade Vs Prachi Dhananjay Zombade Legal Terrorism No Domestic Relationship Exists No Shared Household PWDV Act Sec 2(f) - Domestic Relationship Sandeep Pamarati | Leave a comment

Kunaldev Singh Rathor and others Vs State of MP and another on 02 December, 2016

Posted on December 28, 2018 by ShadesOfKnife

Hon’ble High Court of Madhya Pradesh has quashed the FIR, based on the documents submitted by Defense.

Kunaldev Singh Rathor and others Vs State of MP and another on 02 December, 2016

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Posted in High Court of Madhya Pradesh Judgment or Order or Notification | Tagged CrPC 482 - Defence Documents may be Examined for Quash CrPC 482 – FIR Quashed CrPC 482 – IPC 498A Quashed Kunaldev Singh Rathor and others Vs State of MP and another | Leave a comment

Rukmini Narvekar Vs Vijay Sataredkar & Ors on 3 October, 2008

Posted on June 4, 2018 by ShadesOfKnife

Another awesome judgment emphasizing that “there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such material as are indicated in Section 227 Cr.P.C. can be taken into consideration by the learned magistrate at that stage”.

Justice Markandey Katju notes:

As observed by this Court in Bharat Petroleum Corporation Ltd. & Anr. vs. N.R. Vairamani & Anr AIR 2004 SC 4778, observations of Courts are neither to be read as Euclid’s formula nor as provisions of the statute. Thus in our opinion while it is true that ordinarily defense material cannot be looked into by the Court while framing of the charge in view of D.N. Padhi’s case (supra), there may be some very rare and exceptional cases where some defense material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defense material can be looked into by the Court at the time of framing of the charges or taking cognizance.
18. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the Court look into the material produced by the defense at the time of framing of the charges, though this should be done in very rare cases, i.e. where the defense produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted. We agree with Shri Lalit that in some very rare cases the Court is justified in looking into the material produced by the defense at the time of framing of the charges, if such material convincingly establishes that the whole prosecution version is totally absurd, preposterous or concocted.

Justice Altamas Kabir notes:

In my view, therefore, there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such material as are indicated in Section 227 Cr.P.C. can be taken into consideration by the learned magistrate at that stage. However, in a proceeding taken therefrom under Section 482 Cr.P.C. the Court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. This, in my view, appears to be the intention of the legislature in wording Sections 227 and 228 the way in which they have been worded and as explained in Debendra Nath Padhi’s case (supra) by the larger Bench to which the very same question had been referred.

Rukmini Narvekar Vs Vijay Sataredkar & Ors on 3 October, 2008

 

Posted in Supreme Court of India Judgment or Order or Notification | Tagged Absurd Or After Thought Or Baseless Or False Or General Or Inherently Improbable Or Improved Or UnSpecific Or Omnibus Or Vague Allegations CrPC 482 - Defence Documents may be Examined for Quash Rukmini Narvekar Vs Vijay Sataredkar and Ors Submissions Of Accused to Discharge | Leave a comment

State Of Orissa Vs Debendra Nath Padhi on 29 November, 2004

Posted on June 4, 2018 by ShadesOfKnife

A key question is clarified by the 3-judge bench of Supreme Court in this landmark judgment.

Can the trial court at the time of framing of charge consider material filed by the accused?

The scope of Sections 227 and 228 and scope of Sections 239 and 240 are explained along with scope of Sections 482

At the end the following is the summary arrived at.

  • Under Sections 227 and 228, a Magistrate of the trial court, is supposed to consider only the material sent by prosecution along with the record of the case and the documents sent along with it, at the time of framing of the charge. The accused at that stage has no right to place before the court any material.
  • Under Sections 239 and 240, requires the Magistrate to consider ‘the police report and the documents sent with it under Section 173’ and, if necessary, examine the accused and after giving accused an opportunity of being heard, if the Magistrate considers the charge against the accused to be groundless, the accused is liable to be discharged by recording reasons thereof.
  • Regarding the argument of accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of Constitution of India is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal’s case. Under Section 482 of the Code, along with the petition the accused may file unimpeachable evidence of sterling quality and on that basis seek quashing.

 

Legal point around application under/of CrPC 91

In so far as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document beingnecessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning andproduction is made and the party who makes it whether police or accused. If under Section 227 what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. Under Section 91 summons for production of document can beissued by Court and under a written order an officer in charge of policestation can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof.

Final conclusion: (from Para 29)

We are of the view that jurisdiction under Section 91 of the Code when invoked by accused the necessity and desirability would have to be seen by the Court in the context of the purpose  investigation, inquiry, trial or other proceedings under the Code. It would also have to be borne in mind that law does not permit a roving or fishing inquiry. Regarding the argument of accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of Constitution of India is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal’s case.

State Of Orissa Vs Debendra Nath Padhi on 29 November, 2004

Citations : [2005 AIR SC 359], [2005 ALT CRI 1 1198], [2005 CLT SC 99 348], [2005 GLH 1 312], [2004 JT SC 10 303], [2005 KLT SC 1 80], [2005 OLR SC 1 357], [2005 RLW SC 3 414], [2004 SCALE 10 50], [2005 SCC 1 568], [2005 SCC CRI 415], [2004 SLT 7 339], [2004 SUPREME 8 568], [2005 OCR 30 177], [2005 RCR CRI 1 297], [2005 CALCRILR 1 487], [2005 CRIMES SC 1 1], [2004 AIR SCW 6813], [2005 CTC SC 1 134]

Other Sources :

https://indiankanoon.org/doc/7496/

https://www.casemine.com/judgement/in/5609ae0be4b0149711412c9f


Index of Quash judgments u/s 482 are here.

Posted in Supreme Court of India Judgment or Order or Notification | Tagged CrPC 227 - Discharge CrPC 228 - Framing of charge CrPC 239 - When accused shall be discharged CrPC 240 - Framing of Charge CrPC 482 - Defence Documents may be Examined for Quash CrPC 482 - Saving of inherent powers of High Court CrPC 91 - Summons to produce document or other thing Landmark Case Legal Procedure Explained - Interpretation of Statutes Quash State of Haryana Vs Ch Bhajan Lal State Of Orissa Vs Debendra Nath Padhi Submissions Of Accused to Discharge | Leave a comment

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