A division bench of Gauhati HC passed practice directions, relying of a decision passed by Delhi HC.
Dipak Nayak Vs State of Assam and Ors 23 Jun 2023A notification was also issued
2024-03-19 Notification regd Practice Directions for POCSO casesA division bench of Gauhati HC passed practice directions, relying of a decision passed by Delhi HC.
Dipak Nayak Vs State of Assam and Ors 23 Jun 2023A notification was also issued
2024-03-19 Notification regd Practice Directions for POCSO casesA division bench of Apex Court passed these guidelines with respect to condoning the delay in filing appeals…
From Para 26,
Pathapati Subba Reddy (Died) By LRs and Ors Vs Special Deputy Collector (LA) on 08 Apr 202426. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that:
(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;
(ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;
(iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;
(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence;
(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal;
(vii) Merits of the case are not required to be considered in condoning the delay; and
(viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision.
A single judge bench of Delhi High Court passed these guidelines to the Mediators…
From Para 42,
Chatter Pal and Ors Vs State and Anr on 16 May 2023(b) Guidelines Apropos Drafting A Settlement Agreement in Matrimonial Disputes with Special Reference to Clauses dealing with Criminal Cases
42. Having discussed the significance of process of mediation in resolution of a dispute, especially those arising out of family and matrimonial cases, and having taken note of complexities that can arise due to inadequate drafting, inconsistencies, omissions or oversights within a settlement agreement achieved between parties subsequent to a successful mediation, this Court deems it appropriate to lay down following guidelines in relation to drafting of a Mediated Settlement Agreement, in addition to the guidelines laid down:
(i) Specify Names of Parties: The agreement must specifically contain names of all the parties to the agreement.
(ii) Avoid Ambiguous Terms: The terms such as ‘respondent’, ‘respondents’, ‘petitioner’ or ‘petitioners’, in absence of their names in the agreement must be avoided in an agreement as it leads to ambiguities and further litigation.
(iii) Include All Details: The terms and conditions of the agreement reached between the parties, howsoever small and minute they may be, must be incorporated in the agreement.
(iv) Timeline For Compliance: The timeline of the fulfilment of terms and conditions as well as their execution must be clearly mentioned. There should be no tentative dates as far as possible.
(v) Default Clause: A default clause should be incorporated in the agreement and the consequences thereof should be explained and enlisted in the agreement itself.
(vi) Mode of Payment: In case any payment is to be made as per settlement, the agreement should specify the method of payment agreed upon between the parties which should also be as per their convenience i.e. electronic mode, by way of a Demand Draft or FDR and the necessary details for fulfilment of this condition.
(vii) Follow-Up Documents: The agreement should also stipulate as to which Follow-up documents are to be prepared and signed by which party. It may also be mentioned as to when, where, how and at whose cost such documents are to be prepared in furtherance of the terms of the agreement, as far as possible.
(viii) Cases involving 498A IPC: Further, especially in cases of matrimonial disputes, where one of the conditions in the Agreement is to cooperate in quashing of FIR, such as those under Section 498A IPC, and filing of affidavit and appearing in the Court for the purpose of the same, it is advisable that the agreement must stipulate the names of all the parties concerned who have been named in the FIR specifically and the fact that the claims have been settled in totality for quashing of entire FIR and proceedings emanating therefrom qua all persons named in the FIR. It be also clarified specifically that the FIR will be quashed in totality against all the persons arrested, not arrested, chargesheeted, not chargesheeted, with their names and whether the entire FIR will be quashed against all of them upon payment by husband or any other person on behalf of the husband.
(ix) Criminal Complaints/Cross-cases: Criminal Complaints filed by parties against each other, pending trial or investigation should also find specific mention with names of all the parties, the Court concerned, and as to how the parties intend to deal with them. The number/details of the complaint, FIR, Sections under which they have been filed, should also be mentioned specifically.
(x) Read and Understood: The agreement should necessarily mention that all the parties have read and understood the contents of the settlement agreement in their vernacular language.
(xi) Signing of Agreement: In case only one or some parties are present during mediation proceedings and only their signatures are obtained on the agreement, it be clearly mentioned and clarified that the agreement is being signed on behalf of those relatives or parties also even in case they are not present, in case the agreement is qua them too and they are not present in person due to age, ailment, distance or any other reason. It is important to do so since in matrimonial offences, the near and distant relatives may, due to above reasons, not be present in person but agreements are reached in totality, especially regarding quashing of FIRs and criminal proceedings and withdrawal of complaints.
(xii) Clarity of Language: At last, the language used in a settlement agreement must be definite enough to understand the real intention of the parties and the goals they wish to achieve by entering into the agreement.
A division bench of Apex Court passed these guidelines with respect to issue of Summons and Warrants and Recall of NBW,
Satender Kumar Antil Vs CBI and Anr on 07 Oct 2021After filing of chargesheet/complaint taking of cognizance
a) Ordinary summons at the 1st instance/including permitting appearance through Lawyer.
b) If such an accused does not appear despite service of summons, then Bailable Warrant for physical appearance may be issued.
c) NBW on failure to failure to appear despite issuance of Bailable Warrant.
d) NBW may be cancelled or converted into a Bailable Warrant/Summons without insisting physical appearance of accused, if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing.
e) Bail applications of such accused on appearance may be decided w/o the accused being taken in physical custody or by granting interim bail till the bail application is decided.
Citations: [(2021) 10 SCC 773], [2022 LiveLaw (SC) 577]
Other Sources:
https://indiankanoon.org/doc/16350770/
https://www.casemine.com/judgement/in/62ba660db50db90d4b55ecaf
Interim directions given considering the States and High Courts did not provide the required information to Amicus
Satender Kumar Antil Vs CBI and Anr on 21 Mar 2023Final Judgment
Satender Kumar Antil Vs CBI and Anr on 13 Feb 2024Index of NBW Judgments is here.
In addition to the guidelines issue in Amardeep Singh Vs Harveen Kaur here, Additional guidelines/factors were issued in this case.
From Para 27,
Amit Kumar Vs Suman Beniwal on 11 Dec 202127. For exercise of the discretion to waive the statutory waiting period of six months for moving the motion for divorce under Section 13B (2) of the Hindu Marriage Act, the Court would consider the following amongst other factors:
(i) the length of time for which the parties had been married;
(ii) how long the parties had stayed together as husband and wife;
(iii) the length of time the parties had been staying apart;
(iv) the length of time for which the litigation had been pending;
(v) whether there were any other proceedings between the parties;
(vi) whether there was any possibility of reconciliation;
(vii) whether there were any children born out of the wedlock;
(viii) whether the parties had freely, of their own accord, without any coercion or pressure, arrived at a genuine settlement which took care of alimony, if any, maintenance and custody of children, etc.
Index of Divorce cases is here.
A Full Bench of the Apex Court passed these broad factors while considering transfer petitions u/s 406 Cr.P.C.
From Para 24,
Nahar Singh Yadav and Anr Vs Union of India and Ors on 19 Nov 201024.Thus, although no rigid and inflexible rule or test could be laid down to decide whether or not power under Section 406 of the Cr.P.C. should be
exercised, it is manifest from a bare reading of sub-sections (2) and (3) of the said Section and on an analysis of the decisions of this Court that an order of transfer of trial is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about the proper conduct of a trial. This power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. Some of the broad factors which could be kept in mind while considering an application for transfer of the trial are:-
(i) when it appears that the State machinery or prosecution is acting hand in glove with the accused, and there is likelihood of miscarriage of justice due to the lackadaisical attitude of the prosecution;
(ii) when there is material to show that the accused may influence the prosecution witnesses or cause physical harm to the complainant;
(iii) comparative inconvenience and hardships likely to be caused to the accused, the complainant/the prosecution and the witnesses, besides the burden to be borne by the State Exchequer in making payment of travelling and other expenses of the official and non-official witnesses;
(iv) a communally surcharged atmosphere, indicating some proof of inability of holding fair and impartial trial because of the accusations made and the nature of the crime committed by the accused; and
(v) existence of some material from which it can be inferred that the some persons are so hostile that they are interfering or are likely to interfere either directly or indirectly with the course of justice.
Citations : [2011 AIR SC 1549], [2011 RCR CRIMINAL SC 1 120], [2011 SCC CRI 1 39], [2011 AIR SC 325], [2011 SCC 1 307], [2010 AIOL 798], [2010 SLT 9 322], [2010 JT 12 641], [2011 CRLJ SC 997], [2010 SCALE 12 199], [2010 SUPREME 7 729], [2010 AIC 96 1], [2011 ECRN 1 717], [2011 KCCR 2 845], [2011 AIR SCW 325], [201 OJ 13 (ADDL.) S.C.R. 851]
Other Sources:
https://indiankanoon.org/doc/668282/
https://www.casemine.com/judgement/in/5609aedde4b0149711414eec
https://vlex.in/vid/nahar-singh-yadav-and-572148534
https://www.latestlaws.com/latest-caselaw/2010/november/2010-latest-caselaw-867-sc/
A division bench of Apex Court, recorded that Trial Courts are not following Rajnesh Vs Neha Guidelines and directed the circular to be re-issued for strict adherence and compliance.
From Para 8,
8. The manner in which maintenance payable under Section 24 of the Hindu Marriage Act, 1955 or Section 125 Cr.P.C. is to be assessed, was considered by this Court in its celebrated judgment in Rajnesh v. Neha and Another, (2021) 2 SCC 324. Detailed guidelines were issued. It was noticed that the terms of maintenance are decided on the basis of pleadings of parties and on the basis of some amount of guess work. It is often seen that both the parties submit scanty material and do not disclose correct details. The tendency of the wife is to exaggerate her needs, whereas the husband tends to conceal his actual income. Keeping that in view, this Court laid down the procedure to streamline grant of maintenance. The judgments of various courts were referred to and response from various State Legal Services Authorities was sought. This Court even requested the National Legal Services Authority to submit a report on the suggestions received from the State Legal Services Authorities for framing guidelines on the affidavit of disclosure of assets and liabilities to be filed by the parties. Guidelines were issued in exercise of powers under Article 136 read with Article 142 of the Constitution of India, prescribing a uniform format of Affidavit of Disclosure of Assets and Liabilities to be filed in maintenance proceedings. The judgment was delivered on 04.11.2020. The affidavit was to be submitted in all maintenance proceedings including pending proceedings.
From Para 14,
14. Nothing is evident from the record or even pointed out by the learned counsel for the appellant at the time of hearing that affidavits were filed by both the parties in terms of judgment of this Court in Rajnesh’s case (supra), which was directed to be communicated to all the High Courts for further circulation to all the Judicial Officers for awareness and implementation. The case in hand is not in isolation. Even after pronouncement of the aforesaid judgment, this Court is still coming across number of cases decided by the courts below fixing maintenance, either interim or final, without their being any affidavit on record filed by the parties. Apparently, the officers concerned have failed to take notice of the guidelines issued by this Court for expeditious disposal of cases involving grant of maintenance. Comprehensive guidelines were issued pertaining to overlapping jurisdiction among courts when concurrent remedies for grant of maintenance are available under the Special Marriage Act, 1954, Section 125 Cr.P.C., the Protection of Women from Domestic Violence Act, 2005, Hindu Marriage Act, 1955 and Hindu Adoptions and Maintenance Act, 1956, and Criteria for determining quantum of maintenance, date from which maintenance is to be awarded, enforcement of orders of maintenance including fixing payment of interim maintenance. As a result, the litigation which should close at the trial level is taken up to this Court and the parties are forced to litigate.
From Para 16,
Aditi Sharma Vs Jitesh Sharma on 06 Nov 202316. Considering the facts of the case in hand and the other similar cases coming across before this Court not adhering to the guidelines given in Rajnesh’s case (supra), we deem it appropriate to direct the Secretary General of this Court to re-circulate the aforesaid judgment not only to all the Judicial Officers through the High Courts concerned but also to the National Judicial Academy and the State Judicial Academies, to be taken note of during the training programmes as well. Ordered accordingly.
Earlier ‘cryptic’ Judgment of NP High Court at Gwalior is below.
Jitesh Sharma Vs Aditi Sharma on 28 Jun 2023Rajnesh Vs Neha case is here.
Index of Maintenance cases is here.
A division bench of Delhi High Court passed these guidelines in order to achieve speedy disposal of Matrimonial and family related matters.
From Para 6,
K.S.Sumi Mol Vs Suresh Kumar E.K. on 31 Jul 20236. In view of the above, and in the absence of any specific Rules regarding the speedy disposal of cases relating to marriage and family affairs within a time frame, we hereby lay down the guidelines for strict observance by all the Family Courts in Delhi, till such time rules are formulated by the State Government in consultation with the High Court of Delhi.
“Guidelines
a. Issue of Summons: When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant:
Provided that no such summons shall be issued when a defendant has appeared at the presentation of plaint and admitted the plaintiff‟s claim:
Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons.
Provided further, the time taken for conciliation, mediation or interaction shall be excluded.
b. Inspection: (1) All parties shall complete inspection of all documents disclosed within thirty days of the date of filing of the written statement. The Court may extend this time limit upon application at its discretion, but not beyond thirty days.
(2) Any party to the proceedings may seek directions from the Court, at any stage of the proceedings, for inspection or production of documents by the other party, of which inspection has been refused by such party or documents have not been produced despite issuance of a notice to produce.
(3) Such application shall be disposed of within thirty days of filing such application, including filing replies and rejoinders (if permitted by Court) and hearing.
(4) If the above application is allowed, inspection and copies thereof shall be furnished to the party seeking it, within five days of such order.
(5) No party shall be permitted to rely on a document, which it had failed to disclose or of which inspection has not been given, save and except with leave of Court.
c. Admission and Denial of Documents: Each party shall submit a statement of admissions or denials of all documents disclosed and of which inspection has been completed, within fifteen days of the completion of inspection or any later date as fixed by the Court.
d. Case Management Hearing: The court shall hold the first Case Management Hearing, not later than four weeks from the date of filing of affidavit of admission or denial of documents by all parties to the suit.
In a Case Management Hearing, after hearing the parties, and once it finds that there are issues of fact and law which require to be tried, the court shall-
(i) frame the issues after examining pleadings, documents and documents produced before it, and on examination conducted by the court under Rule 2 of Order X, if required;
(ii) List the number of witnesses to be examined by the parties;
(iii) Fix the schedule of the dates and evidence led by parties with all endeavour to complete the evidence in six months.
(iv) Fix the date for oral arguments within ten days and it shall be open for the Court to limit the time for oral submissions having regard to the nature and complexity of the matter.
(v) Fix the date for filing the written arguments and a party shall, within four weeks prior to commencing the oral arguments, submit concisely and under distinct headings written arguments in support of their case to the Court and such written arguments shall form part of the record and shall be filed within fifteen days;
(vi)No adjournment shall be granted for the purpose of filing the written arguments unless the Court, for reasons to be recorded in writing, considers it necessary to grant such adjournment.
(vii)Set time limits for parties and their advocates to address oral arguments.
In fixing dates or setting time limits, the court shall ensure that the arguments are closed not later than two months from the date when the evidence of the parties was concluded.
(viii)The interim applications for ‘maintenance pendente lite’, ‘interim custody’ and all other miscellaneous applications relating to marriage/family affairs shall be decided within 90 days from the date of filing.
e. Judgment & Decree: (1) The court, shall, within thirty days of the conclusion of arguments, which shall not extend beyond sixty days, pronounce judgment and copies thereof shall be issued to all the parties to the dispute through electronic mail or otherwise.”
A division bench of Apex Court passed these guidelines, with respect to digitization of Court records in all High Courts as well as District Courts.
From Paras 39-42,
Jitendra Kumar Rode Vs Union of India on 24 Apr 202339. Before parting with the present leave petition another important issue must be dealt with, i.e. the digitization of records. Technology has, in the present time become increasingly enmeshed with the systems of dispute resolution and adjudication with the trends pointing leading to all the more interplay, both supplementary and complimentary between technology and law.
40. On 24.9.2021, the learned E-committee of the Supreme Court of India issued an SOP for digital preservation. Step by step implementation of the digitization process involves eighteen steps therein. Primarily, it requires all High Courts to establish Judicial Digital Repositories (JDR) as well as the
standardized system therefor; A digitisation cell at each of the High Courts is to be established to monitor the progress on day to day basis; It is the work of the cell to manage contracts with vendors for specialized services; an online data tracking system to keep track of the data transferred to the High Courts and to facilitate the receipts for each set of transferred records to the District Courts as well; District Courts to have backups
of all data transferred to the High Court on a monthly basis while maintaining an independent record thereof.
41. It cannot be doubted that had there been properly preserved records of the Trial Court, the issue in the present appeal as to whether the High Court could uphold a conviction having not perused the complete Trial Court record, would not have arisen. Judicial notice can be taken of the fact that, in accordance with the SOP issued, private entities providing specialized service have been contracted, and therefore considering the importance and essentiality of such record, a robust system of responsibility and accountability must be developed and fostered in order to ensure the proper protection and regular updation of all records facilitating the smooth functioning of the judicial process.
42. Therefore, this Court finds it fit to issue the following directions:
1. The Registrar General of the High Courts shall ensure that in all cases of criminal trial, as well as civil suits, the digitization of records must be duly undertaken with promptitude at all District Courts, preferably within the time prescribed for filing an appeal within the laws of procedure.
2. The concerned District Judge, once the system of digitization along with the system of authentication of the digitized records is in place in their judgeship, to ensure that the records so digitized are verified as expeditiously as possible.
3. A continually updated record of Register of Records digitized shall be maintained with periodic reports being sent to the concerned High Courts for suitable directions.
4. Interlocutory application(s), if any, shall stand disposed of.
A 3-judge bench passed these directions, in relation to release of undertrial prisoners/convicts who were granted bail.
In Re Policy Strategy for Grant of Bail (Guidelines Issued) on 31 Jan 2023With a view to ameliorate the problems a number of directions are sought. We have examined the directions which we reproduce hereinafter with
certain modifications:
“1) The Court which grants bail to an undertrial prisoner/convict would be required to send a soft copy of the bail order by e-mail to the prisoner through the Jail Superintendent on the same day or the next day. The Jail Superintendent would be required to enter the date of grant of bail in the e-prisons software [or any other software which is being used by the Prison Department].
2) If the accused is not released within a period of 7 days from the date of grant of bail, it would be the duty of the Superintendent of Jail to inform the
Secretary, DLSA who may depute para legal volunteer or jail visiting advocate to interact with the prisoner and assist the prisoner in all ways possible for his release.
3) NIC would make attempts to create necessary fields in the e-prison software so that the date of grant of bail and date of release are entered by the Prison Department and in case the prisoner is not released within 7 days, then an automatic email can be sent to the Secretary, DLSA.
4) The Secretary, DLSA with a view to find out the economic condition of the accused, may take help of the Probation Officers or the Para Legal Volunteers to prepare a report on the socio-economic conditions of the inmate which may be placed before the concerned Court with a request to relax the condition (s) of bail/surety.
5) In cases where the undertrial or convict requests that he can furnish bail bond or sureties once released, then in an appropriate case, the Court may consider granting temporary bail for a specified period to the accused so that he can furnish bail bond or sureties.
6) If the bail bonds are not furnished within one month from the date of grant bail, the concerned Court may suo moto take up the case and consider whether the conditions of bail require modification/ relaxation.
7) One of the reasons which delays the release of the accused/ convict is the insistence upon local surety. It is suggested that in such cases, the courts
may not impose the condition of local surety.”
We order that the aforesaid directions shall be complied with.
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