MS Knit Pro International Vs State of NCT Delhi and Anr on 20 May 2022

Posted on May 23 by ShadesOfKnife

Supreme Court referred to the Part II of the First Schedule of the Cr.P.C. to decide if a penal provision in any law is a cognizable or non-cognizable offence.

5.1 The short question which is posed for consideration before this Court is, whether, the offence under Section 63 of the Copyright Act is a cognizable offence as considered by the Trial Court or a non-cognizable offence as observed and held by the High Court.
5.2 While answering the aforesaid question Section 63 of the Copyright Act and Part II of the First Schedule of the Cr.P.C. are required to be referred to.
5.3 Thus, for the offence under Section 63 of the Copyright Act, the punishment provided is imprisonment for a term which shall not be less than six months but which may extend to three years and with fine. Therefore, the maximum punishment which can be imposed would be three years. Therefore, the learned Magistrate may sentence the accused for a period of three years also. In that view of the matter considering Part II of the First Schedule of the Cr.P.C., if the offence is punishable with imprisonment for three years and onwards but not more than seven years the offence is acognizable offence. Only in a case where the offence is punishable for imprisonment for less than three years or with fine only the offence can be said to be non-cognizable. In view of the above clear position of law, the decision in the case of Rakesh Kumar Paul (supra) relied upon by learned counsel appearing on behalf of respondent no.2 shall not be applicable to the facts of the case on hand. The language of the provision in Part II of First Schedule is very clear and there is no ambiguity whatsoever.

Citations :

Other Sources :

Prabha Tyagi Vs Kamlesh Devi on 12 May 2022

Posted on May 20 by ShadesOfKnife

Prabha Tyagi Vs Kamlesh Devi on 12 May 2022

Citations :

Other Sources :

https://indiankanoon.org/doc/85317640/

https://www.casemine.com/judgement/in/627eb23ab50db90fd1943198

https://www.indianemployees.com/judgments/details/prabha-tyagi-vs-kamlesh-devi

Right to residence under DV Act not restricted to actual residence; Domestic relationship not necessary to be subsisting at the time of filing of application: SC

Doongar Singh and Ors Vs The State Of Rajasthan on 28 Nov 2017

Posted on May 20 by ShadesOfKnife

A division bench of Supreme Court passed the following guidelines…

13. To conclude:
(i) The trial courts must carry out the mandate of Section 309 of the Cr.P.C. as reiterated in judgments of this Court, inter alia, in State of U.P. versus Shambhu Nath Singh and Others, Mohd. Khalid versus State of W.B. and Vinod Kumar versus State of Punjab.
(ii) The eye-witnesses must be examined by the prosecution as soon as possible.
(iii) Statements of eye-witnesses should invariably be recorded under Section 164 of the Cr.P.C. as per procedure prescribed thereunder.

Doongar Singh and Ors Vs The State Of Rajasthan on 28 Nov 2017

Citations : [2017 SCC ONLINE SC 1391], [2017 SCALE 13 752], [2018 SCC 13 741], [2019 SCC CRI 1 410], [2017 CTC 6 883], [2018 KLT 1 629], [2018 AIC 183 5], [2018 ECRN 1 667], [2017 AIR SC SUPP 328]

Other Sources :

https://indiankanoon.org/doc/99075271/

https://www.casemine.com/judgement/in/5a261fe74a9326744f39e37e

Jagannath Verma and Ors Vs State of UP and Anr on 23 Sep 2014

Posted on May 1 by ShadesOfKnife

A Full bench of Allahabad High Court held that, an order of the magistrate rejecting an application under Section 156 (3) of the Code for the registration of a case by the police and for investigation is not an interlocutory order. Such an order is amenable to the remedy of a criminal revision under Section 397′

In view of the discussion above and for the reasons which we have furnished, we have come to the following conclusion:
(i) Before the Full Bench of this Court in Father Thomas, the controversy was whether a direction to the police to register a First Information Report in regard to a case involving a cognizable offence and for investigation is open to revision at the instance of a person suspected of having committed a crime against whom neither cognizance has been taken nor any process issued. Such an order was held to be interlocutory in nature and, therefore, to attract the bar under sub-section (2) of Section 397. The decision in Father Thomas does not decide the issue as to whether the rejection of an application under Section 156 (3) would be amenable to a revision under Section 397 by the complainant or the informant whose application has
been rejected;
(ii) An order of the magistrate rejecting an application under Section 156 (3) of the Code for the registration of a case by the police and for investigation is not an interlocutory order. Such an order is amenable to the remedy of a criminal revision under Section 397; and
(iii) In proceedings in revision under Section 397, the prospective accused or, as the case may be, the person who is suspected of having committed the crime is entitled to an opportunity of being heard before a decision is taken in the criminal revision.

Jagannath Verma and Ors Vs State of UP and Anr on 23 Sep 2014

Citations : [2015 ALLMR CRI 129], [2014 JIC 3 930], [2015 ALLCC 88 1], [2014 UPLBEC 4 2665], [2014 KLT SN 4 109], [2014 CTC 6 353], [2014 AIR ALL 214], [2014 ADJ 8 439], [2015 CCR ALL 2 59], [2015 RCR CRIMINAL 1 414], [2014 SCC ONLINE ALL 11859], [2014 MWN CRI 3 161], [2014 ALL LJ 6 405]

Other Sources :

https://indiankanoon.org/doc/128706736/

https://www.casemine.com/judgement/in/56b49301607dba348f003b58

Ramkripal Charmakar Vs State of Madhya Pradesh on 19 Mar 2007

Posted on May 1 by ShadesOfKnife

Apex Court explained about offence of rape and the necessary ingredients to make out a case u/s 376 IPC.

Coming to the question as to whether Section 354 of the Act has any application, it is to be noted that the provision makes penal the assault or use of criminal force to a woman to outrage her modesty. The essential ingredients of offence under Section 354 IPC are:
(a) That the assault must be on a woman.
(b) That the accused must have used criminal force on her.
(c) That the criminal force must have been used on the woman intending thereby to outrage her modesty.
What constitutes an outrage to female modesty is nowhere defined in IPC. The essence of a woman’s modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word ’modesty’ is not defined in IPC. The Shorter Oxford Dictionary (Third Edn.) defines the word ’modesty’ in relation to woman as follows:
“Decorous in manner and conduct; not forward or lower; Shame-fast; Scrupulously chast.”
Modesty is defined as the quality of being modest;and in relation to woman, “womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct.” It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. As observed by Justice Patterson in Rex v. James Llyod (1876) 7 C&P 817 in order to find the accused guilty of an assault with intent to commit a rape, court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part. The point of distinction between an offence of attempt to commit rape
and to commit indecent assault is that there should be some action on the part of the accused which would show that he was just going to have sexual connection with her.

And finally,

A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if he fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word ’attempt’ is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it; and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation.
An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission or consummation/completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt.
The sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. Definition of “rape” as contained in Section 375 IPC refers to “sexual intercourse” and the Explanation appended to the Section provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Intercourse means sexual connection. In the instant case that connection has been clearly established. Courts below were perfectly justified in their view.

Ramkripal Charmakar Vs State of Madhya Pradesh on 19 Mar 2007

Citations : [2007 SCC 11 265], [2007 AIR SC 0 2198], [2007 ALD CRI 2 940], [2007 ALT CRI 3 135], [2007 JT 4 393], [2007 SCALE 4 438], [2007 SUPREME 5 297], [2007 AIR JHAR R 2 905], [2007 OLR 1 803], [2007 CRLR 308], [2007 RCR CRI 2 390], [2007 DLT CRI 2 108], [2007 SLT 3 726], [2007 AIOL 306], [2007 AIR SC 49], [2007 BOMCR CRI SC 1 200], [2008 SCC CRI 1 674], [2007 SCR 4 125], [2007 AIC SC 54 131], [2007 CRIMES SC 3 115], [2007 AIR SCW 2198], [2008 MLJ CRL 1 172], [2007 CRLJ SC 2302]

Other Sources :

https://indiankanoon.org/doc/1308370/

https://www.casemine.com/judgement/in/5609ae60e4b0149711413a7a

https://www.indianconstitution.in/2021/12/ramkripal-so-shyamlal-charmakar-vs.html

Robarto Nieddu Vs State of Rajasthan and Anr on 20 Nov 2021

Posted on April 29 by ShadesOfKnife

Relying on Supreme Court judgment here, Single bench of Rajasthan High Court at Jodhpur held that non-citizen women residing in India temporarily also are classified as ‘aggrieved person’.

It is noted that as per section 2(a) of the Act of 2005, the definition of ‘aggrieved person’ is given and as per the definition itself, any woman including a foreign citizen who is subjected to domestic violence can maintain an application before the trial court under the Act of 2005.

Not only this, section 12 of the Act of 2005 provides that even an aggrieved person can prefer an application through protection officer seeking the relief under the Act of 2005.

The fact that the respondent No.2 is resident of Jodhpur for last about 25 years and after having solemnized marriage with the petitioner, the incident which is reported in the complaint also took place at Jodhpur and therefore, in view of definitions enumerated under sections 2 (a) and 12 of the Act of 2005, it is held that the application preferred by the respondent No.2 before the trial court is maintainable. The observations of the Supreme Court in the case of Shyamlal Devda & Ors. V/s Parimala reported in AIR 2020 SC 762 also fortifies the fact of maintainability of the application under section 12 of the Act of 2005 in the present case. Para 10 of the judgment rendered in the case of Shyamlal Devda.

A plain reading of Act of 2005 also reveals that protection under this Act is also extended to the persons who are temporarily resident of India being covered under the definition of aggrieved person as per section 2 (a) of the Act of 2005.
Even Article 21 of the Constitution of India extends the benefit of protection not only to every citizen of this country, but also to a “person” who may not be a citizen of the Country. Article 21 states that no person shall be deprived of his life or personal liberty except according to a procedure established by law. Therefore, looked at from that angle, a person aggrieved i.e. respondent No.2 is very much entitled to get protection of section 12 of the Act of 2005.

Robarto Nieddu Vs State of Rajasthan and Anr on 20 Nov 2021

D.Suryaprakash Venkata Rao Vs State of AP on 06 Dec 2019

Posted on April 27 by ShadesOfKnife

A single judge bench of AP High Court held as follows:

Time and again this Court is coming across many cases, wherein the deposit of passport is being ordered by the Courts at the time of granting bail etc. The Hon’ble SupremeCourt of India in Suresh Nanda’s case (1 supra) has very clearly laid down that impounding of passport is not power that is available to the police. The police have a right tomerely seize the passport under Section 102 Cr.P.C., but they do not have the power to retain the passport. The Hon’ble Supreme Court of India has already clearly held that the retention of a passport for a long time also amounts to impounding of the passport. This is very clearly laid down in the judgment of Suresh Nanda’s case (1 supra). Apart from that the Hon’ble Supreme Court of India also clearly held thatafter the passport is seized and if the State was of the opinion that the petitioner was likely to flee the country or that he is at a flight risk, the only option available to the State or theprosecution is to file an appropriate application before the Passport Authorities to impound the passport for the reasonsmentioned in Section 10(3) of the Act. The Passport Authorities shall give a notice to the accused and after hearing the accused, they will have to pass an order. Sincethe cancellation of the passport is an order having severe civilconsequences, the accused also has a right of being heardbefore the passport is impounded. The Passport Act, being a special law will prevail over the general law.

Next Para,

In that view of the matter, irrespective of the fact that whether in the present case the issue relates to the voluntary deposit of the passport or deposit pursuant to an order of the Court, the fact remains that neither case is supported by the law. If the counsel made a wrong concession, the same cannot be enure to the benefit of the prosecution. A party should not suffer for any mistake committed by the counsel. If the same is a part and parcel of the lower Courts order, then it is clearly opposed by the law as interpreted by the Hon’ble Supreme Court of India in Suresh Nanda’s case (1 supra). Therefore, for both these reasons, this Court holds that the condition about the deposit of the passport cannot be imposed by a Court while granting bail or for any other reason. The only option left in such cases, when the passport is seized is to take steps under the Act for cancellation/impounding. Learned Public Prosecutor has stated that the original passport is lost and the accused has applied for a duplicate passport and has flouted the Court
order. Basing on the written instructions received by him, he states that petitioner/A.1 is also liable for contempt of Court. This is also not correct and the order of the Court does not seem to suggest this. As mentioned earlier, neither the Court can impose such a condition nor can the counsel give a
concession and deposit the passport. Even if the passport is deposited pursuant to the concession made by a counsel, the same cannot be retained indefinitely by the Court or the Police till the trial is concluded.
In fact, in the decision of Suresh Nanda (1supra), the Hon’ble Supreme Court of India noticed that under Section 10(a) of the Act, even the Central Government can only retain the passport for four weeks. Thereafter, a further order from Passport Authorities is necessary for retention of the passport.
After clarifying the law on the subject and holding that the impugned order passed by the I Additional Chief Metropolitan Magistrate is contrary to law, this Court leaves it open to the prosecution to take such steps as are warranted by law, if they are so advised to cancel the passport of the accused.

D.Suryaprakash Venkata Rao Vs State of AP on 06 Dec 2019

Muthu Karuppan Vs Parithi Ilamvazhuthi and Anr on 15 Apr 2011

Posted on April 26 by ShadesOfKnife

A division bench of Apex Court held that procedural lapses are crucial in proceedings under Contempt of Courts Act 1971.

From Para 23,

23) We have already pointed out that while dealing with criminal contempt in terms of Section 2(c) of the Act, strict procedures are to be adhered. In a series of decisions, this Court has held that jurisdiction to initiate proceedings for contempt as also the jurisdiction to punish for contempt are discretionary with the court. Contempt generally and criminal contempt certainly is a matter between the court and the alleged contemnor. No one can compel or demand as of right initiation of proceedings for contempt. The person filing an application or petition before the court does not become a complainant or petitioner in the proceedings. He is just an informer or relator. His duty ends with the facts being brought to the notice of the court. It is thereafter for the court to act on such information or not. [Vide Om Prakash Jaiswal vs. D.K. Mittal, (2000) 3 SCC 171] Further Section 15 of the Act as well as the Madras High Court Contempt of Court Rules insist that, particularly, for initiation of criminal contempt, consent of the Advocate General is required. Any deviation from the prescribed Rules should not be accepted or condoned lightly and must be deemed to be fatal to the proceedings taken to initiate action for contempt. In the present case, the above provisions have not been strictly adhered to and even the notice issued by the then Division Bench merely sought for explanation from the appellant about the allegations made by Respondent No. 1.

Muthu Karuppan Vs Parithi Ilamvazhuthi and Anr on 15 Apr 2011

Citations : [2011 AIR SC 1645], [2011 CRI LJ 2680], [2011 CRIMES SC 2 163], [2011 CTC 3 520], [2011 JCR SC 3 23], [2011 JT SC 4 268], [2011 KCCR SN 3 329], [2011 RCR CRIMINAL 2 829], [2011 SCALE 4 664], [2011 SCC 5 496], [2011 SCC CRI 2 709], [2011 SCR 5 329], [2011 UC 2 922], [2011 UJ 2 1658], [2011 AIR SC 2588], [2012 CUTLT 113 822], [2011 AIC 102 74], [2011 AIOL 291], [2011 CRLJ SC 2680], [2011 JT 4 273], [2011 SUPREME 3 217], [2011 SUPREME 3 228], [2011 LW CRL 1 666], [2011 SCC CR 2 709], [2011 SCJ 4 82], [2011 MLJ CRI 3 542], [2011 CCR 2 214], [2011 SLT 3 438], [2011 RCR CRIMINAL SC 2 829], [2011 KCCRSN 3 329], [2012 CUT LT 113 822], [2011 MLJ CRL 3 54], [22011 KHC SN 2 212011 CRLJ 2680], [2011 AIR SCW 2588], [2011 JT 4 268], [2011 CRILJ 2680]

Other Sources :

https://indiankanoon.org/doc/1204818/

https://www.casemine.com/judgement/in/5609aef4e4b014971141544e

Index of all Perjury case laws is here.

D.K. Basu Vs State of West Bengal on 18 Dec 1996

Posted on April 26 by ShadesOfKnife

A division bench of Apex Court laid down certain guidelines to be followed in cases of arrest and detention till legal provisions are made in that behalf as preventive measures. The said guidelines read as follows:-

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a
relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

D.K. Basu Vs State of West Bengal on 18 Dec 1996

Citations : [1997 ACR SC 21 277], [1997 AIR SC 610], [1997 ALD CRI 1 248], [1998 BLJR 1 161], [1997 CRILJ 743], [1996 CRIMES SC 4 233], [1997 GLR 2 1631], [1997 JT SC 1 1], [1997 RCR CRIMINAL 1 372], [1997 RLW SC 1 94], [1996 SCALE 9 298], [1997 SCC 1 416], [1996 SUPP SCR 10 284], [1997 SCC CRI 92], [1996 SUPPSCR 10 284]

Other Sources :

https://indiankanoon.org/doc/501198/

https://www.casemine.com/judgement/in/5609ace1e4b014971140fee9#

Dr. Rini Johar and Anr Vs State of MP and Ors on 03 Jun 2016

Posted on April 26 by ShadesOfKnife

A division bench of Supreme Court granted compensation to victims of police harassment.

From Para 27,

27. In the case at hand, there has been violation of Article 21 and the petitioners were compelled to face humiliation. They have been treated with an attitude of insensibility. Not only there are violation of guidelines issued in the case of D.K. Basu (supra), there are also flagrant violation of mandate of law enshrined under Section 41 and Section 41-A of CrPC. The investigating officers in no circumstances can flout the law with brazen proclivity. In such a situation, the public law remedy which has been postulated in Nilawati Behra (supra), Sube Singh v. State of Haryana9, Hardeep Singh v. State of M.P.10, comes into play. The constitutional courts taking note of suffering and humiliation are entitled to grant compensation. That has been regarded as a redeeming feature. In the case at hand, taking into consideration the totality of facts and circumstances, we think it appropriate to grant a sum of Rs.5,00,000/- (rupees five lakhs only) towards compensation to each of the petitioners to be paid by the State of M.P. within three months hence. It will be open to the State to proceed against the erring officials, if so advised.

Dr. Rini Johar and Anr Vs State of MP and Ors on 03 Jun 2016

Citations : [2016 AIOL 3407], [2016 SCC ONLINE SC 594], [2016 SCC 11 703], [2017 SCC CRI 1 364], [2016 AIR SC 2679], [2016 AIC 163 98], [2016 CRI LJ 3156], [2016 GUJ LH 2 607], [2016 KLJ 3 613], [2016 KLT 3 502]

Other Sources :

https://indiankanoon.org/doc/103942103/

https://www.casemine.com/judgement/in/5790b545e561097e45a4e6b3

Shades of Knife

True Colors of a Vile Wife

Tag: Landmark Case

MS Knit Pro International Vs State of NCT Delhi and Anr on 20 May 2022

Prabha Tyagi Vs Kamlesh Devi on 12 May 2022

Doongar Singh and Ors Vs The State Of Rajasthan on 28 Nov 2017

Jagannath Verma and Ors Vs State of UP and Anr on 23 Sep 2014

Ramkripal Charmakar Vs State of Madhya Pradesh on 19 Mar 2007

Robarto Nieddu Vs State of Rajasthan and Anr on 20 Nov 2021

D.Suryaprakash Venkata Rao Vs State of AP on 06 Dec 2019

Muthu Karuppan Vs Parithi Ilamvazhuthi and Anr on 15 Apr 2011

D.K. Basu Vs State of West Bengal on 18 Dec 1996

Dr. Rini Johar and Anr Vs State of MP and Ors on 03 Jun 2016