Relying on landmark judgment of Apex Court here, a Division bench of AP High Court comprising the Chief Justice held that the rule [Rule 5(2)(a)(i) of Andhra Pradesh State Judicial Service Rules, 2007] which mandates 3 years of practice as requirement from Junior Civil Judge positions in State of AP was unconstitutional and the Notification issued on 03 Dec 2020 was set aside.
Another case got filed at Supreme Court here which was later withdrawn.
A 2-judge bench of Apex Court held that, in this particular case, the Police officer can not be saddled with IPC 211 and prosecuted u/s 340 CrPC read with 195 CrPC. But the necessary ingredients are clearly articulated and hence this case law has to be relied upon as landmark judgment to file perjury against the person who made the false complaint (FIR need not be registered).
From Para 8,
8. In this Court, Shri Gupta has very forcefully contended that on the material on the record this direction is wholly unjustified, if not positively illegal, being based on misreading of evidence and on erroneous view of law. According to the submission, the appellant had neither lodged the FIR nor otherwise instituted any criminal proceeding or falsely charged Izhar Hussain within the contemplation of Section 211 IPC. Besides, there is absolutely no material on the record on which the High Court could have formed an opinion that it is expedient in the interest of justice that a complaint under Section 211 IPC should be filed against the appellant.
From Para 10,
… The short question posed, therefore, is, if by giving false evidence as a witness against Izhar Hussain the appellant can be said to have charged him within the contemplation of Section 211 IPC. If this question is answered in the affirmative, then it will have to be determined whether there is in fact a false accusation and finally whether it is expedient in the interest of justice on the facts and circumstances of the present case to direct a complaint to be filed under Section 211 IPC. This section as its marginal note indicates renders punishable false charge of offence with intent to injure. The essential ingredient of an offence under Section 211 IPC is to institute or cause to be instituted any criminal proceeding against a person with intent to cause him injury or with similar intent to falsely charge any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge. Instituting or causing to institute false criminal proceedings assume false charge but false charge may be preferred even when no criminal proceedings result. It is frankly conceded by Shri Kohli that the appellant cannot be said to have instituted any criminal proceeding against any person. So that part of Section 211 IPC is eliminated. Now, the expression “falsely charges” in this section, in our opinion, cannot mean giving false evidence as a prosecution witness against an accused person during the course of a criminal trial. To “falsely charge” must refer to the original or initial accusation putting or seeking to put in motion the machinery of criminal investigation and not when speaking to prove the false charge by making deposition in support of the charge framed in that trial. The words “falsely charges” have to be read along with the expression “institution of criminal proceeding”. Both these expressions, being susceptible of analogous meaning should be understood to have been used in their cognate sense. They get as it were their colour and content from each other. They seem to have been used in a technical sense as commonly understood in our criminal law. The false charge must, therefore, be made initially to a person in authority or to someone who is in a position to get the offender punished by appropriate proceedings. In other words, it must be embodied either in a complaint or in a report of a cognizable offence to the police officer or an officer having authority over the person against whom the allegations are made. The statement in order to constitute the “charge” should be made with the intention and object of setting criminal law in motion. Statement on oath falsely supporting the prosecution case against an accused person more appropriately amounts to an offence under Sections 193 and 195 IPC and not under Section 211 IPC. We do not think that the offences contemplated by Sections 193/195 IPC on the one hand and Section 211 IPC on the other were intended by the legislature in this context, to overlap so as to make it optional whether to proceed under one or the other. ..…
From Para 11,
Every incorrect or false statement does not make it incumbent on the court to order prosecution. The Court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. The court orders prosecution in the larger interest of the administration of justice and not to gratify feelings of personal revenge or vindictiveness or to serve the ends of a private party. Too frequent prosecutions for such offences tend to defeat its very object. It is only in glaring cases of deliberate falsehood where conviction is highly likely that the court should direct prosecution.
Original:
Casemine Version.
Citations : [1973 AIR SC 2190], [1974 BLJR 22 877], [1973 SCC 2 406], [1974 SCR 1 78], [1973 CAR 316], [1973 CRLR SC 473], [1973 SCC CR 828], [1973 SCC CRI 828], [1973 CRLJ SC 1176]
Other Sources :
https://indiankanoon.org/doc/56524/
https://www.casemine.com/judgement/in/5609ab94e4b014971140cd11
Index of Perjury judgments here.
A 2-judge bench of Supreme Court held that Counterblast cases/proceedings must be quash as per Category 7 of Bhajan Lal judgment here. It held as follows in Para 10.
10. The case at hand squarely falls within the parameters indicated in category (7) of Bhajan Lal’s case (supra). The factual scenario as noted above clearly shows that the proceedings were initiated as a counterblast to the proceedings initiated by the appellants. Continuance of such proceedings will be nothing but an abuse of the process of law. Proceedings are accordingly quashed.
Citations : [2009 JCC 1 260], [2009 LW CRL 1 284], [2008 SCALE 15 60], [2008 SCALE 14 1], [2008 SCC 16 763], [2009 BC 1 193], [2009 SLT 1 576], [2009 OCR 42 139], [2008 AIOL 1268], [2009 CRIMES SC 1 144], [2008 JT 12 661], [2008 SCR 16 7], [2008 SUPREME 8 559], [2010 SCC CRI 4 425], [2009 ECRN SC 1 422], [2009 AIC SC 73 198]
Other Sources :
https://indiankanoon.org/doc/312043/
https://www.casemine.com/judgement/in/5609ae6de4b0149711413d41
A 3 judge bench citing Bhajan lal judgment here, held as follows:
In dealing with the last case, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of private complainant as unleash vendetta to harass any person needlessly.
Finally, it was held that, there were grounds to Quash the proceedings, by saying,
the involvement of excise officials cannot be ruled out and when they have been indicated to be witnesses, likelihood of prejudice cannot be ruled out. It was also noted that there was no “definite evidence” to show that accused nos. 1&2 were directly involved. Finally, it was observed that there was no material to hold that the accused persons had committed theft of “Letter Heads” from Karnataka Bank Ltd., and/or they had committed forgery for the purpose of cheating or have used genuine forged documents or had cheated the government. Finally, it was observed that there was no evidence to infer common intention to commit such offences.
Citations : [2002 SCC 3 89], [2002 SCALE 1 176], [2002 AIR SC 671], [2002 SCR 1 275], [2002 CRLJ SC 998], [2002 SCC CRI 539], [2002 UJ SC 1 362], [2002 AIR SC 286], [2002 SUPREME 1 192], [2002 ACR SC 1 605], [2002 ALD CRI 1 412], [2002 SCSUPPL CHN 2 21], [2002 UC 1 294], [2002 AIR SCW 286], [2002 JT SC 1 213]
Other Sources :
https://indiankanoon.org/doc/1014506/
https://www.casemine.com/judgement/in/5609adc4e4b0149711412362
In this landmark judgment, Apex Court held that Right to speedy trial is implicit to Article 21 of Constitution of India and also passed guidelines to ensure that this right is not violated, and it violated, Constitutional Courts have a duty to fix such violation appropriately.
From Para 14,
14. Time and again this Court has emphasized the need for speedy investigations and trial as both are mandated by the letter and spirit of the provisions of the CrPC. (In particular, Sections 197, 173, 309, 437 (6) and 468 etc.) and the constitutional protection enshrined in Article 21 of the Constitution. Inspired by the broad sweep and content of Article 21 as interpreted by a seven-Judge Bench of this Court in Maneka Gandhi Vs. Union of India & Anr., in Hussainara Khatoon & Ors. Vs. Home Secretary, State of Bihar, this Court had said that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except according to procedure established by law; that such procedure is not some semblance of a procedure but the procedure should be ‘reasonable, fair and just’; and therefrom flows, without doubt, the right to speedy trial. It was also observed that no procedure which does not ensure a reasonably quick trial can be regarded as ‘reasonable, fair or just’ and it would fall foul of Article 21. The Court clarified that speedy trial means reasonably expeditious trial which is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.
From Para 15,
15. The exposition of Article 21 in Hussainara Khatoon’s case (supra) was exhaustively considered afresh by the Constitution Bench in Abdul Rehman Antulay & Ors. Vs. R.S. Nayak & Anr.11. Referring to a number of decisions of this Court and the American precedents on the Sixth Amendment of their Constitution, making the right to a speedy and public trial a constitutional guarantee, the Court formulated as many as eleven propositions with a note of caution that these were not exhaustive and were meant only to serve as guidelines. For the sake of brevity, we do not propose to reproduce all the said propositions and it would suffice to note the gist thereof. These are:
(i) fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily;
(ii) right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial;
(iii) in every case where the speedy trial is alleged to have been infringed, the first question to be put and answered is —
who is responsible for the delay?;
(iv) while determining whether undue delay has occurred (resulting in violation of right to speedy trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions and so on— what is called, the systemic delays;
(v) each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case;
(vi) ultimately, the court has to balance and weigh several relevant factors—’balancing test’ or ‘balancing process’—and determine in each case whether the right to speedy trial has been denied;
(vii) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open and having regard to the nature of offence and other circumstances when the court feels that quashing of proceedings cannot be in the interest of justice, it is open to the court to make appropriate orders, including fixing the period for completion of trial;
(viii) it is neither advisable nor feasible to prescribe any outer time-limit for conclusion of all criminal proceedings. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint;
(ix) an objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis.
From Para 17,
17. It is, therefore, well settled that the right to speedy trial in all criminal persecutions is an inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep the preceding police investigations as well. The right to speedy trial extends equally to all criminal persecutions and is not confined to any particular category of cases. In every case, where the right to speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into consideration all the attendant circumstances, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case. Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, may be quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time for conclusion of trial.
Citations : [2008 RCR CRI 4 890], [2008 AIR SC 0 5165], [2008 JT 8 109], [2008 AIR SC 3077], [2008 RAJ 6 293], [2008 SCC 16 117], [2008 WLC 2 677], [2008 MLJ CRI 2 1649], [2009 SCJ 1 998], [2008 SCALE 9 760], [2008 CCR 3 176], [2008 DLT CRI 3 533], [2008 SLT 6 233], [2008 AIOL 2116], [2008 ANJ SC 2 173], [2008 BOMCR CRI SC 2 590], [2010 SCC CRI 4 217], [2008 AIC SC 68 93], [2009 LLN 2 798], [2009 FLR 122 790], [2008 CRLJ SC 3944], [2008 AIR SCW 5165]
Other Sources:
https://indiankanoon.org/doc/1223002/
https://www.casemine.com/judgement/in/5609ae6ae4b0149711413c8f
3-Judge bench of Apex Court held that mere pendency of civil proceeding (divorce, maintenance, dvc etc) is not a good ground and justification to not register and investigate an FIR if a criminal offence has been committed.
Citations : [2020 SCC ONLINE SC 341], [2020 (2) Crimes 261 (SC)], [2020 (5) CTC 464]
Other Sources :
https://indiankanoon.org/doc/37685877/
https://www.casemine.com/judgement/in/5e78e5bf3321bc362da2b770
https://www.indianemployees.com/judgments/details/m-subramaniam-and-another-versus-s-janaki-and-another
Division bench of Apex Court held as follows in a case where in only circumstantial evidence is available.
From Para 6,
6. Admittedly, there is no direct evidence connecting any of the accused with the commission of the crime. The case of the prosecution is based upon circumstantial evidence. It is often said that witnesses may lie but the circumstances cannot. To convict a person on the basis of circumstantial evidence all the circumstances relied upon by the prosecution must be clearly established. The proved circumstances must be such as would reasonably exclude the possibility of innocence of the accused. The circumstantial evidence should be consistent with the guilt of the accused and inconsistent with his innocence. The chain of circumstances, furnished by the prosecution, should be so complete as not to lead any reasonable ground for conclusion consistent with the innocence of the accused. Medical evidence in such a case may be an important circumstance giving assurance to the existence of the other circumstances alleged against the culprit. This Court has consistently held that when the evidence against the accused, particularly when he is charged with grave offence like murder consists of only circumstances, it must be qualitatively such that on every reasonable hypothesis the conclusion must be that the accused is guilty; not fantastic possibilities nor freak inferences but rational deductions which reasonable minds make from the probative force of facts and circumstances.
Citations: [2000 AIR SC 4012], [2000 SUPREME 7 516], [2001 AIR SC 142], [2000 SCALE 7 348], [2000 CRIMES SC 4 234], [2000 JT SUPP 2 467], [2001 CRLJ SC 170], [2000 SCC 8 598], [2001 UJ SC 1 293], [2001 SCC CRI 49], [2000 ACR SC 3 2730], [2001 ALD CRI 1 93], [2001 ALLMR CRI SC 170], [2001 CRILJ 170], [2000 JT SUPPL SC 2 467], [2001 PLJR 1 68], [2000 RCR CRIMINAL 4 667], [2000 SUPP SCR 4 440], [2000 AIR SCW 4012], [2001 UJ 1 293]
Other Sources :
https://indiankanoon.org/doc/1918867/
https://www.casemine.com/judgement/in/5609ad8de4b0149711411acd
The baseless allegation of Insider Trading (?) in the acquisition of lands for Amaravati by the State Government, citing which Capital shifting was mooted fell flat on the chin in the AP High Court. Some snippets follow:
From Para 20, Setting the tone for the judgment, what is about to come!!!
20) Having regard to the magnitude of the vital issues and contentions raised by the prosecution and also the petitioners, as elaborately discussed supra, and particularly as the findings that may be recorded in this judgment in the given facts and circumstances of the case, would have far reaching consequences on all the sale transactions that have already taken place and that may take place in future, I have given my earnest, anxious and thoughtful consideration to the aforementioned rival contentions raised by both the parties.
Intro: A criminal angle fished out (manufactured) from a purely civil land sale purchase transaction… age old trick of fraudsters-in-power…
22) This is a very peculiar and very interesting case and in fact a case of first of its kind where the prosecution seeks to criminalize private sale transactions entered into between the petitioners as buyers of the land and the sellers of the land long back about six years ago by invoking the concept/theory of offence of insider trading applying the same relatively to the facts of the case, primarily on the ground that the petitioners as
buyers of the land did not disclose to the owners of the land that the capital city is going to be located in the said area and thereby concealed the said material fact and cheated the owners of the land and on the ground that as the location of the capital was officially declared subsequently that there is a phenomenal increase in the value of the land and the owners of the land sustained loss on account of concealment of the said fact.
Key Point-1: Locus Standi Of The De Facto Complainant To Lodge Report With The Police
Basing on A.R. Antulay v. Ramdas Sriniwas Nayak and Ors., Court held as follows (from Paras 29 and 30):
29) So, in view of the law enunciated in the aforesaid judgments, the contention of the petitioners that the de facto complainant has no locus standi to initiate criminal prosecution by way of lodging a report with the police has no merit and it is liable to be rejected. The cavil is answered accordingly in favour of the prosecution.
30) However, though the plea relating to locus standi raised by the petitioners is not legally sustainable, justification on the part of the stranger to the alleged sale transactions in question, who is the de facto complainant, in lodging a report with the police initiating criminal prosecution against the
petitioners and that too after lapse of six years and its genuineness is certainly a relevant factor which requires consideration and the same will be adverted to at the appropriate time while dealing with the same during the course of discussion of this judgment.
Key Point-2: Concept Of Insider Trading And Its Application To The Facts Of The Case:-
From Para 31,
31) Ferreting out the origin and history of the offence of insider trading reveal that basically the offence of insider trading relates to trading of a public company’s stock or other securities (such as bonds or stock options) based on material, nonpublic information about the company. In various countries, some kinds of trading based on insider information is illegal, because it is seen as unfair to other investors who do not have access to the information, as the investor with insider information could potentially make larger profits than a typical investor could make. The study on the subject reveals that the rules governing the offence of insider trading are complex and vary significantly from country to country. The extent of enforcement also varies from one country to another. Trading by specific insiders, such as employees, is commonly permitted as long as it does not rely on material information not in the public domain. Rules prohibiting or criminalizing insider trading on material nonpublic information exist in most jurisdictions around the world, but the details and the efforts to enforce them vary considerably. In the United States, Sections 16(b) and 10(b) of the Securities Exchange Act, 1934 directly and indirectly address insider trading. The United States Congress enacted this law after the stock market crashed in 1929.
Finally, from Paras 38 and 39,
38) When the said concept of offence of insider trading is not made applicable to purchase of any immovable property like lands of private individuals and when the same is only confined to purchase of securities and bonds under the SEBI Act, the same cannot be even contextually or relatively applied or invoked to criminalize the private sale transactions relating to purchase of a land which is an immovable property in the guise of the offence of insider trading. The provisions of Sections 12-A and 15-G of the SEBI Act or any of its provisions cannot be read into and imported into the provisions of the IPC much less into Section 420 of IPC. It is not at all the intention of the Parliament to attribute any criminal liability to such private sale transactions of immovable property either under Section 420 IPC or under any provisions in the scheme of I.P.C. Therefore, this Court has absolutely no hesitation to hold that the said concept/theory of the offence of insider trading which is essentially an offence dealing with illegal sale of securities and bonds of the company cannot be applied to the private sale transactions relating to sale and purchase of lands to criminalize the said transactions under any of the provisions of the IPC much less under Section 420 of IPC. It is legally impermissible to prosecute the petitioners for the offences under Sections 420, 406, 409 and 120-B of IPC by applying the said concept of insider trading and in the guise of the said concept of insider trading.
39) Learned Advocate General would contend that the said concept of the offence of insider trading is to be relatively applied to the present facts of the case as the present facts of the case are somewhat akin to the said offence of insider trading as envisaged under the SEBI Act. By the said argument, obviously, the idea that is sought to be conveyed by the learned Advocate General is that as the allegations in the F.I.R. show that the petitioners obtained prior information from the higher officials in the Government and political leaders regarding exact location of the capital and thereby purchased the lands in the said area based on the said information, that the facts of the case constitute an offence akin to insider trading in purchasing the said lands. This Court is unable accede the said contention. It is elaborately discussed supra, while dealing with the concept of offence of insider trading and found that the said offence of insider trading essentially deals with only sale and purchase of securities and bonds based on non-public material information under the special enactment with the object of protecting the capital market and to instill investors’ confidence in the capital market. Therefore, when it is only confined to the sale and purchase of securities and bonds in the field of capital market, as already held supra, the same cannot be read into the provisions of IPC much less into Section 420 IPC. Parliament never intended to make private sale transactions relating to landed property an offence by applying the concept of insider trading or to bring the same within the purview of the said concept of insider trading. Therefore, the said contention holds no water.
Key Point-3: Right To Acquire Property Is A Constitutional Right And A Legal Right:-
From Para 40,
40) Earlier Article 19(1)(f) and Article 31 of the Constitution of India are part of Chapter III of the Constitution dealing with fundamental rights of a citizen. Article 19(1)(f) guaranteed to the Indian citizen a right to acquire, hold and dispose of property. Article 31 provided that “no person shall be
deprived of his property save by authority of law”. Therefore, in view of Article 19(1)(f) and Article 31 of the Constitution, right to property was part of fundamental right of a citizen. Subsequently, by 44th constitutional amendment both Article 19(1)(f) and Article 31 were repealed with effect from 20.06.1979. So, the right to property ceased to be a fundamental right. However, the right to acquire property continues to be a constitutional right, legal right and also a human right. Provision akin to Article 31 has been incorporated under Article 300-A in Chapter-IV of the Constitution under the rubric “right to property”.
Finally, from Paras 44 and 45,
44) From the aforesaid exposition of law, it is now abundantly made clear that a citizen has a legal and constitutional right to acquire and hold property. The said right of an individual to hold a property apart from being a legal right, has also been held to be a human right.
45) Since the prosecution seeks to criminalize the private sale transactions validly entered into by the petitioners as buyers with their sellers for a valid sale consideration under valid registered sale deeds by which they acquired the landed property in question, the aforesaid right of the petitioners as citizens of the country to acquire property as part of their constitutional right, legal right, and human right assumes significance in this context. Therefore, for that limited purpose, the aforesaid legal position has been dealt with in this case.
Key Point-4: One after the other, each section laid on the petitioners is dismantled by the division bench… Chief Justice started to realize this is a motivated case…. or there is a strong possibility of it…
From Paras 92 and 93,
92) Thus, in the light of the above legal position, viewed from any angle, even if the petitioners really got any information regarding location of the capital in the said area where the lands are purchased, the mere non-disclosure of the said information to the sellers at the time of purchasing the said lands cannot be construed as a dishonest concealment of fact for the purpose of fastening criminal liability to the petitioners for the offence under Section 420 IPC.
93) Another significant fact needs to be noticed is that the sale transactions relate to sale of land that took place long back about six years ago in the year 2014. The owners of the land, who sold their lands, had absolutely no demur whatsoever from any quarter for all this length of time in respect of sale of the said lands. They never expressed any grievance at any point of time earlier that they have been cheated by the petitioners by suppressing the fact that the capital city is going to be located in their area at the time of selling the lands. They did never raise their finger in this regard for all this length of time even after notifying the location of the capital city. Now, abruptly when some stranger lodged a report with the police who had nothing to do with the sale transactions, the sellers allegedly came up with the above said version before the police that they have been cheated by the petitioners by not informing them that the capital is going to come in their area at the time of selling their lands. So, in the said circumstances, the credibility and authenticity of the said belated version now introduced is really at stake. Therefore, the prosecution version now introduced by way of the said statements of the sellers would certainly be incredulous. If really they got grievance in this regard, they would have initiated both civil and criminal action in this regard long back when location of the capital city was notified on 30.12.2014 itself about six years back. They did not initiate any civil action to declare the sale as void on the ground of fraud or deception or on the ground of suppression of material fact. They also did not launch any criminal prosecution based on the above grounds. Therefore, the above belated version now introduced by the prosecution by way of alleged statements of sellers is far from truth. In view of the said reasons, it throws any amount of doubt on the justification of the de facto complainant who is a stranger to the said sale transactions in lodging the present report. Therefore, in the said circumstances, the contention of the petitioners that there are vested interests behind the de facto complainant who engineered the preparation of the said report lodged by him with a concocted story to illegally prosecute the petitioners cannot be completely ruled out.
Key Point-5: Recitals Of The Sale Deed Belie The Version Of The Sellers:
From Paras 95, 96, 97 and 98,
95) While the facts of the prosecution case as projected and the submissions made on behalf of the prosecution as discussed supra do not find favour to attract any offence under Section 420 IPC, in the light of the above discussion, even the factual aspects emanating from the record also do not support the case of the prosecution. A meticulous perusal of the recitals of the registered sale deeds executed by the sellers in favour of the petitioners selling their lands to them clearly proves that it is not the petitioners as buyers who have approached the sellers to sell the property to them. The recitals of the sale deed show that it is the sellers who offered to sell their lands to the petitioners to meet their legal necessities.
96) The contents of the sale deeds show that as lands are not found to be profitable to the vendors and as they are in dire necessity of money either for the purpose of meeting their family expenses or to discharge their debts that the owners have decided to sell away their lands and thereby offered to sell the lands to the petitioners and the petitioners have accepted their offer and sale consideration to a tune of lakhs of rupees was arrived at by consensus between both of them and on receipt of the said sale consideration that the sale deeds have been registered by the owners of the lands in favour of the petitioners. Therefore, it is now evident that the petitioners did not approach the owners of the land with a request to sell the lands to them so as to believe or say that the petitioners have induced them to sell the lands by suppressing the fact that the capital is going to be located in the said area. Therefore, the recitals in the sale deeds completely belies the version of the prosecution that the petitioners induced the sellers to sell the land by offering high value of sale price and by suppressing the fact that the capital is going to be located in that area. Recitals of the sale deeds clinchingly establishes that the offer to sell the lands was made by the owners/sellers of the land and the petitioners accepted the said offer and purchased the said lands. When that be the case, the question of informing the owners of the lands by the petitioners that the capital is going to be located in the said area completely loses its significance and the same does not arise at all. So, the evidence in the form of recitals of the sale deeds completely negate the contention of the prosecution. There is absolutely no dispute regarding the fact that the sale deeds contain the said recitals that the owners have offered to sell the lands to the petitioners to meet their legal necessities. In fact, in the last column of the table appended to the written submissions made by the learned Public Prosecutor, the prosecution itself elicited the said recitals in the sale deeds showing that for the purpose of meeting the family necessities of the owners of the said lands, they have sold the same to the petitioners, both in Telugu and in the translated version in English. So, these recitals absolutely clinch the issue and prove that there is no truth in the version of the prosecution that the petitioners approached the owners of the lands with a request to sell the lands by suppressing the said material fact.
97) The submission of the learned Advocate General that recitals in all the sale deeds are stereo type recitals and they are usual recitals which find mention in the sale deeds and as such they cannot be considered to disbelieve the present version of the sellers is devoid of any merit and the same cannot be countenanced. Accepting the said contention amounts to distortion of true facts borne out by record and would also result into travesty of truth. It would also be taking an erroneous view contrary to express recitals of the sale deeds which is not permissible under law.
98) No doubt, during the course of investigation it is shown that some of the owners of the lands, who sold their lands to the petitioners i.e. L.Ws.3 to 11 and 13 to 16 stated in their statements before the police given under Section 161 Cr.P.C. that one Srinivas, who is the broker/mediator, approached him on behalf of the petitioners to sell the lands and when they initially rejected his request to sell the lands, that subsequently, he convinced them by offering high sale price and that the owners have sold their lands after accepting the said sale price and that at that time the owners do not know that the capital is going to be located in the said area and subsequently they came to know that the Government notified their area as the capital region and that the petitioners without disclosing the said fact to them have purchased their lands and on account of increase in the value of the lands, thereafter, that they are put to loss and they are and they have been accordingly cheated. The recitals of the sale deeds completely belie the said version given by L.Ws.3 to 11 and 13 to 16 in their 161 Cr.P.C. statements. As already discussed supra, their own unequivocal declaration made in the sale deeds show that they voluntarily offered to sell their lands to the petitioners to meet their legal necessities and family necessities. Therefore, they are now estopped from contending contrary to their own declaration made in the form of recitals in the registered sale deeds which are admittedly signed by them before the competent registering authority. So, there cannot be any truth in the subsequent version given by them before the police that some real estate broker approached them on behalf of the petitioners and requested them to sell their lands and that there is suppression of material fact in the said process.
Key Point-6: Information Relating To Location Of Capital Is Very Much In Public Domain:-
From Paras 99 to 107
99) Be that as it may, even the version of the prosecution that the proposal of the Government to locate capital city in the area between the Krishna District and the Guntur District by the side of the Krishna river and adjacent to the highway is not known to the sellers of the land and the petitioners
clandestinely obtained the said information from the top officials and the political leaders in the then government unauthorisedly and thereby purchased the lands on the basis of the said information without disclosing the said fact to the owners of the land is far from truth. The material placed before this Court by the petitioners in the form of paper publications completely belies the said version. It is noticed supra that the ppointed day for formation of the residuary State of Andhra Pradesh under the A.P. Reorganisation Act, 2014, is 02.06.2014. The new Government for the said State was formed after General Assembly Elections on 09.06.2014. The Chief Minister sworn in on 09.06.2014. These facts are incontrovertible facts. Immediately after the swearing-inceremony, the then Chief Minister declared publicly that the capital city is going to come within the Krishna District and the Guntur District by the side of the Krishna river. This news has been widely published in all the widely circulated Telugu and English newspapers. On 10.06.2014 it was published in English newspaper with the headlines “AP capital near Guntur, Naidu says he wants capital between Guntur and Vijayawada”. The news reads as under:
“It is official. The new capital of Andhra Pradesh will come up between Vijayawada and Guntur. Andhra Pradesh Chief Minister N. Chandrababu Naidu announced this on Monday (i.e. on 09.06.2014).
Speaking to the media at his residence, Mr.Naidu said that if the capital comes up between Vijayawada and Guntur it will develop like Hyderabad city.”
100) In Andhra Jyothi, Telugu daily newspaper, it was published on 10.06.2014 that the new capital will be between Vijayawada and Guntur as it is geographically in centre. It is stated in the news that it was clarified by the Chief Minister of newly formed Andhra Pradesh Nara Chandrababu Naidu that the new capital will be between Vijayawada and Guntur as they are geographically centrally located in Seemandhra. So, inclined to form capital at that place.
101) In Eenadu, Telugu daily newspaper, which is another widely circulated local news paper, it was published on 02.07.2014 that the Andhra Pradesh Government is contemplating to establish the new capital for the State would be established by the side of Krishna river, making Amaravati as main centre and that the Government is also contemplating to construct big flyover bridges connecting all the areas in the capital region. It has been stated in the said news that the capital is to be developed on both sides of river Krishna to be linked with heavy bridges and the State Government is working
out on the collection of details of Government lands in the said area. In Times of India, English newspaper, also it was published on 02.07.20214 with the headline “AP capital in Amaravati? “Low land prices swing it in favour of ancient Satavahana Town”. The news published in the said newspaper
reads as follows:
“The new capital city of Andhra Pradesh will be built around the ancient town of Amaravti.”
102) Again on 23.07.2014 a news was published in Sakshi, Telugu daily newspaper, which is another widely circulated newspaper in the State, with the caption “Capital will be in between Krishna and Guntur and it is the suitable place for building capital city said by Chairman of Advisory Committee Narayana. It has been published in the said news that the Advisory Committee Chairman and the Minister for Municipal Administration Dr.P.Narayana, informed that they met Sri Sivaramakrishnan in Delhi and apprised him that the area between Krishna and Guntur Districts would be suitable for building new capital city in the State as it would be in equal distance to North Coastal Districts and Rayalaseema Districts apart from having water sources, airport, rail and road facilities etc. The photograph showing the Advisory Committee Chairman and Kambhampati Rammohan Rao talking to Sri Sivaramakrishnan was also published.
103) Again in Eenadu, Telugu daily newspaper, a news was published on 24.09.2014 stating that the capital city would be on ring road and it may be anywhere throughout the length of 184 K.Ms as the farmers are now coming forward and that 30,000 acres are necessary and the aerial photograph of Putrajaya Nagara was also published in the newspaper. On 05.09.2014 it was published in Economic Times, which is a English daily newspaper, with the caption “Andhra Pradesh’s new capital will be in Vijayawada region announces CM N.Chandrababu Naidu”. The news reads that putting an end to months of speculation over the issue even as some ambiguity remained on the exact location, Chief Minister N. Chandrababu Naidu announced in the State Assembly on Thursday that the new capital of Andhra Pradesh will be located in Vijaywada region. On 26.10.2014 it was published in Andhra Jyothi, Telugu daily newspaper, that the capital city will be located within the purview of Tulluru Mandal and 14 villages in the said Mandal are identified and in the first spell 30,000 acres of land is going to be acquired from the farmers under Land Pooling Scheme. On 30.10.2014 The Economic Times published the news that the Andhra Pradesh will have a “riverfront” capital on the south side of river Krishna as the State Government ended months of suspense and speculation today by announcing that 17 villages in the existing Guntur District would be developed
as new capital city. It is also stated that it is for the first time that the Telugu Desam Party lead government had come out with a clear location of the new capital as it had so far been saying it would come within Vijayawada region. Most importantly it is to be noted that the names of the proposed
villages that would form part of the new capital area are published in the above news paper stating that Neerukonda, Kurugallu and Nidamarru in Mangalagiri Mandal; Borupalem, Tulluru, Nelapadu, Nekkallu, Sakhamuru, Mandadam, Malkapuram, Velagapudi, Mudalingayapalem, Uddandarayapalem, Lingayapalem, Rayapudi, Apparajupalem and Dondapadu in Tulluru Mandal would form part of capital area.
104) In Deccan Chronicle, English daily newspaper, it was published on 31.10.2014, stating that in tune with the dream of Chief Minister N. Chandrababu Naidu of building a “riverfront capital”, the Cabinet sub-committee, on land pooling, met here on Thursday, identified 17 villages – 14 in Tulluru Mandal and three in Mangalagiri of Guntur District and most of the villages that will be formed part of the A.P. capital on the banks of the
river Krishna. Learned counsel for the petitioners submit that same news has been widely announced in T.V. channels also. But, they did not produce evidence to that effect.
105) The prosecution did not deny publication of the above news relating to the proposal of the Government to locate the capital city by the side of Krishna river between the Krishna District and the Guntur District in newspapers. So, publication of the aforesaid news is again an incontrovertible fact. Therefore, the above news which was widely published both in Telugu and English widely circulated newspapers in the State of Andhra Pradesh, clearly establishes that the information relating to the proposal of the Government to locate the capital in the said area is very much in the public domain right from June, 2014 when the present State of Andhra Pradesh was formed with effect from 02.06.2014. The above news also bears ample testimony of the fact that there is wide spread speculation and anticipation among the people in the public circle that the capital city is going to be located between the Krishna and Guntur Districts by the side of Krishna river and by the side of the highway. When that be the fact, it cannot be said that the said information is only within the exclusive knowledge of the concerned top government officials and political leaders and it is a non-public information as has been contended by the learned Advocate General. In fact, the said information relating to location of the capital area at a particular region is very much in the public domain as it was announced by no less than a responsible authority like the very Chief Minister of the State immediately on the date of his swearing-in-ceremony itself i.e. on 09.06.2014 which was published in the newspapers on 10.06.2014. Therefore, it cannot be said that the petitioners have secured the information unauthorisedly from the top government officials and political leaders regarding the area where the capital would be located. It cannot also be said that the sellers are not aware of the said fact or information. In fact, it is an information known to the whole world on account of wide publicity given to the said news in the newspapers. So, not only the petitioners, even the
owners of the land are aware of the said information relating to the proposal of the government to locate the capital city in the said area. Therefore, the sellers of the land cannot now plead ignorance of the said information that the capital is going to be located in their area and contend that the said information was suppressed and not disclosed to them at the time of selling the lands and as such they sustained loss. At the cost of repetition
it is to be held that the said information is very much in the public domain and the whole world knows about the same. The evidence in the form of the aforesaid wide publication in the newspapers bespeaks to that effect.
106) As per the submissions made by the learned Advocate General, the Cabinet took decision regarding location of capital on 01.09.2014 and it was announced in the Legislative Assembly on 02.09.2014. Therefore, on account of announcement of the said information relating to the area where the capital would be located in the Legislative Assembly, the said news is again in public domain.
107) So, when the said information is very much in the public domain and when even the sellers are aware of the same, it cannot be legitimately contended that there has been concealment of material fact dishonestly as required under Explanation appended to Section 415 IPC to attribute any
criminal liability of deception to the petitioners. In fact the plan submitted by the Investigating Officer along with the C.D. file show that not only the petitioners, but there are several other people who have purchased lands in and around the proposed capital region. Probably on account of the information that is available to them in the public domain, which is published in newspapers, all of them have purchased lands in the said area. As the right to acquire and own property is a constitutional right, legal right and human right, none can find fault with the said buyers in purchasing the lands as any citizen is entitled to acquire lands in exercise of their constitutional and legal right. So, no criminal liability can be fastened to the petitioners or any persons who purchased lands in the proposed capital region to prosecute them for any offence under criminal law. Therefore, no offence under Section 420 IPC is made out or constituted from the facts of the case.
Key Point-7: Applicability Of Sections 406 And 409 Of Ipc To The Facts Of The Case:
From Para 111,
111) So, the predominant requirement which is essential to attract the offence under Section 409 IPC is that the accused must be a public servant or a banker or a merchant or an agent and the property is to be entrusted to him in any one of the above capacities and while holding domain over the said property in his capacity as a public servant, banker, merchant or agent, broker or attorney, if he commits any criminal breach of trust in respect of the said property, it is said that an offence under Section 409 IPC is committed. Therefore, the prosecution has to necessarily establish that the accused is a public servant or a banker or an agent and that the property was entrusted to him in the said capacity and he has committed any criminal breach of trust in respect of the said property. Admittedly, it is not at all the case of the prosecution that the petitioners are public servants or bankers or merchants or agents and that any property was entrusted to them in any such capacity and that they have committed any criminal breach of trust in respect of the said property. Therefore, the necessary ingredients contemplated under law which are required to establish the said offence under Section 409 IPC are totally lacking in this case. Therefore, no offence whatsoever is constituted against the petitioners from the contents of the F.I.R. or from the material collected during the course of investigation against the petitioners under Section 409 IPC. Ergo, Section 409 of IPC is also wholly inapplicable to the facts of the case.
Key Point-8: Offence Under Section 120-B of IPC:
From Para 119,
119) In fact, criminalizing any such private sale transactions and prosecuting the buyers of the land in the given facts and circumstances of the case on the premise of concealment of a fact even if true and on the ground that there has been loss to the sellers of the land in view of the subsequent increase in the value of the lands would create a very dangerous trend in the field of criminal law and it would open the flood gates of the criminal prosecution, as every vendor/seller of lands, who sold away their lands may subsequently make an attempt to prosecute every buyer of the land whenever there is phenomenal increase in the value of the lands subsequently. Law does not permit such criminal prosecution of the buyer of the land on the said ground. Undoubtedly, it is a sort of speculative criminal prosecution that was launched by the State against the petitioners in this case, which is not permissible under law. Therefore, it is undoubtedly an attempt by the prosecution to fire a blind shot in a dark room to prosecute these petitioners in the above facts and circumstances of the case.
Previous Orders:
On 19 Nov 2020:
On 27 Nov 2020:
On 01 Dec 2020:
Supreme Court dismissed the SLP filed by the State Government here.
A very good judgment regarding PWDV Act 2005 (Act) and the procedure to be following, in detail. Snippets from the same follow along with the 14 directions issued for the Judicial Magistrate to be followed by them in disposing DV cases in Tamil Nadu.
UPDATE: This judgment is overruled by Supreme Court here.
From Paras 3 and 4,
3. Upon a close reading of the D.V Act, this Court found that the nature of rights that were protected and enforced under the Act were purely civil in nature. However, considering the forum which was dealing with such applications, and the procedure adopted, a criminal color has been unwittingly given to these proceedings. Like a chameleon changing its colour depending on the situation, the proceedings under the D.V Act were also camouflaged due to the nature of the forum provided under the Act.
4. On the flip side, this faulty understanding of the nature of the proceedings has also given rise to a tendency to misuse these proceedings as a weapon of harassment against parties who are unrelated to the proceedings by making them stand before a Magistrate like accused persons. It is mainly on account of this abuse of process that a deluge of petitions came to be filed for quashing the proceedings under Section 12 of the D.V. Act. This sorry state of affairs was a clear clarion call that impelled this Court to undertake this exercise to bring the situation under control by laying down certain guidelines for the disposal of the applications under Section 12 of the D.V Act.
Proceedings and Offences under the Act
18. Before examining this issue, it is necessary to notice the nature of the jurisdiction exercised by the Magistrate under the D.V Act. The procedure to be followed by a Magistrate in dealing with an application for reliefs under Chapter IV is set out in Section 28 of the Act. A close reading of Section 28 would show that it draws a distinction between “proceedings” (Section 12, 18 to 23) and “offences” (Sections 31 & 33) and states that they will be governed by Cr.P.C. This general rule is subject to two exceptions. The first exception is contained in the opening words of Section 28(1) of the Act which begins with the expression “save as otherwise provided by this Act”, the effect of which is to exclude the application of the Code in areas where the procedure has been expressly set out in the D.V Act or the Protection of Women from Domestic Violence Rules, 2006 (hereinafter referred to as “D.V Rules” or “the Rules”). The second exception is found in Section 28(2) of the Act which is in the nature of a non-obstante clause expressly authorizing the Court to deviate from the procedure set out in Section 28(1) and lay down its own procedure for disposal of an application under Section 12 or a proceeding under Section 23(2) of the Act.
19. In the first instance, it is, therefore, necessary to examine the areas where the D.V. Act or the D.V. Rules have specifically set out the procedure thereby excluding the operation of Cr.P.C as contemplated under Section 28(1) of the Act. This takes us to the D.V Rules. At the outset, it may be noticed that a “complaint” as contemplated under the D.V. Act and the D.V Rules is not the same as a “complaint” under Cr.P.C. A complaint under Rule 2(b) of the D.V Rules is defined as an allegation made orally or in writing by any person to a Protection Officer. On the other hand, a complaint, under Section 2(d) of the Cr.P.C. is any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown has committed an offence. However, the Magistrate dealing with an application under Section 12 of the Act is not called upon to take action for the commission of an offence. Hence, what is contemplated is not a Officer as contemplated under Rule 4(1) of the D.V Rules.
20. Rule 6(1) sets out that an application under Section 12 of the Act shall be as per Form II appended to the Act. Thus, an application under Section 12 not being a complaint as defined under Section 2(d) of the Cr.P.C, the procedure for cognizance set out under Section 190(1)(a) of the Code followed by the procedure set out in Chapter XV of the Code for taking cognizance will have no application to a proceeding under the D.V. Act. To reiterate, Section 190(1)(a) of the Code and the procedure set out in the subsequent Chapter XV of the Code will apply only in cases of complaints, under Section 2(d) of Cr.P.C, given to a Magistrate and not to an application under Section 12 of the Act.
21. Consequently, the stage for issuance of process contemplated under Section 204, Cr.P.C has no application to a proceeding under the D.V Act as the Magistrate, in an application under Section 12 of the D.V Act, is not taking cognizance of any offence, but is only dealing with an application for civil reliefs. Furthermore, as has already been pointed out, the respondent before the Court in an application under Section 12 of the Act is not an accused. Hence, the requirement of framing a charge does not arise either. (See V. Palaniammal v. Thenmozhi (2010) 1 MWN Cri 217).24. A close reading of the aforesaid provisions would show that the procedure set out in the D.V Act and the Rules makes a conscious deviation from the traditional modes of a criminal court taking cognizance, issuing process and then trying the accused under the provisions of the Cr.P.C. save in the case of offences under Section 31 & 33 of the Act. Thus, the application of the Cr.P.C. to an application under Section 12 is residuary in nature by virtue of the mandate of Section 28(1) of the D.V Act.
So, 482 CrPC does not apply to a DV proceeding, which is civil in nature…
40. As the proceedings before a Magistrate exercising jurisdiction under Chapter IV is not a criminal proceeding before a Criminal Court, the next question is whether a petition under Section 482 of the Code would lie to quash an application under Section 12 of the D.V. Act. It is settled law that a petition under Section 482, Cr.P.C would lie only against an order of a criminal court.
41. As pointed out by a Division Bench of this Court in Rajamanickam v State of Tamil Nadu, 2015 (3) MWN Cri 379, Section 482 Cr.P.C preserves only the inherent criminal jurisdiction of the High Court. Thus, a petition under Section 482, Cr.P.C would be maintainable only if the order complained of is passed by a criminal Court or by a Court in exercise of powers under the Cr.P.C. Quashing an application under Section 12 of the D.V Act does not fall in either category, as what the Court is called upon to do at that stage is to interdict the exercise of civil jurisdiction by the Magistrate at the threshold. As indicated supra, since the Magistrate is exercising only a civil jurisdiction in granting reliefs under Chapter IV of the Act, it follows that a Magistrate is not a criminal court for the purposes of proceedings under Chapter IV of the Act. It follows that an application under Section 482, Cr.P.C does not lie to quash an application under Section 12 of the D.V Act.
So, no remedy then…? (IMHO, apart from Article 227, a petition under sec 151 C.P.C. should also be available to quash the DV proceeding, if it is necessary for the ends of justice or to prevent abuse of the process of the Court.)
42. This does not, however, mean that an aggrieved respondent is remediless. The Magistrate exercising jurisdiction under Chapter IV of the D.V Act, is certainly a subordinate Court for the purposes of Article 227, and a petition under Article 227 of the Constitution would still be available challenging the proceedings under Chapter IV of the D.V Act, in an appropriate case.
Class for the lower trial Courts…
51. It has been brought to the notice of this Court that in several cases, Magistrates continue to mechanically follow the drill of the procedure set out in Sections 190(1)(a), 200 to 204, Cr.P.C and issue summons as if the respondents before it are accused of offences. To compound the confusion, in most of these cases all and sundry are roped in as respondents before the Magistrate. These respondents, upon being summoned, file petitions under Section 205, Cr.P.C to dispense with their personal attendance and thereafter file petitions under Section 482, Cr.P.C to obtain a stay of all further proceedings in the case, and in most cases their personal appearance before the Magistrate is also dispensed with, and the case is then thrown into the backburner. All of this, it appears, is on account a perceptible lack of clarity in the procedure followed by the Magistrates while deciding applications under the Act.
Directions follow:
52.While it is no doubt true that the Court of Magistrate is invested with a great deal of flexibility under Section 28(2) of the Act to devise its own procedure for disposal of an application under Section 12 of the Act, the twin principles of consistency and clarity dictate that this Court must now lay down some broad guidelines, in exercise of its power of superintendence under Article 227 of the Constitution & in respect of Judicial Magistrates under Section 483 of the Cr.P.C, for the proper disposal of applications under Section 12 of the D.V Act. A corrective mechanism is available in the D.V Act itself for aggrieved parties to agitate their grievances and obtain redress.
The following directions are, therefore, issued:
i. An application under Section 12 of the D.V. Act, is not a complaint under Section 2(d) of the Cr.P.C. Consequently, the procedure set out in Section 190(1)(a) & 200 to 204, Cr.P.C as regards cases instituted on a complaint has no application to a proceeding under the D.V Act. The Magistrate cannot, therefore, treat an application under the D.V Act as though it is a complaint case under the Cr.P.C.
ii.An application under Section 12 of the Act shall be as set out in Form II of the D.V Rules, 2006, or as nearly as possible thereto. In case interim ex-parte orders are sought for by the aggrieved person under Section 23(2) of the Act, an affidavit, as contemplated under Form III, shall be sworn to.
iii. The Magistrate shall not issue a summon under Section 61, Cr.P.C to a respondent(s) in a proceeding under Chapter IV of the D.V Act. Instead, the Magistrate shall issue a notice for appearance which shall be as set out in Form VII appended to the D.V Rules, 2006. Service of such notice shallbe in the manner prescribed under Section 13 of the Act and Rule 12 (2) of the D.V Rules, and shall be accompanied by a copy of the petition and affidavit, if any.
iv. Personal appearance of the respondent(s) shall not be ordinarily insisted upon, if the parties are effectively represented through a counsel. Form VII of the D.V Rules, 2006, makes it clear that the parties can Magistrate either in person or through a duly authorized counsel. In all cases, the personal appearance of relatives and other third parties to the domestic relationship shall be insisted only upon compelling reasons being shown. (See Siladitya Basak v State of West Bengal (2009 SCC Online Cal 1903).
v. If the respondent(s) does not appear either in person or through a counsel in answer to a notice under Section 13, the Magistrate may proceed to determine the application ex-parte.
vi. It is not mandatory for the Magistrate to issue notices to all parties arrayed as respondents in an application under Section 12 of the Act. As pointed out by this Court in Vijaya Baskar (cited supra), there should be some application of mind on the part of the Magistrate in deciding the respondents upon whom notices should be issued. In all cases involving relatives and other third parties to the matrimonial relationship, the Magistrate must set out reasons that have impelled them to issue notice to such parties. To a large extent, this would curtail the pernicious practice of roping in all and sundry into the proceedings before the Magistrate.
vii. As there is no issuance of process as contemplated under Section 204, Cr.P.C in a proceeding under the D.V Act, the principle laid down in Adalat Prasad v Rooplal Jindal (2004 7 SCC 338) that a process, under Section 204, Cr.P.C, once issued cannot be reviewed or recalled, will not apply to a proceeding under the D.V Act. Consequently, it would be open to an aggrieved respondent(s) to approach the Magistrate and raise the issue of maintainability and other preliminary issues. Issues like the existence of a shared household/domestic relationship etc., which form the jurisdictional basis for entertaining an application under Section 12, can be determined as a preliminary issue, in appropriate cases. Any person aggrieved by such an order may also take recourse to an appeal under Section 29 of the D.V Act for effective redress (See V.K Vijayalekshmi Amma v Bindu. V, (2010) 87 AIC 367). This would stem the deluge of petitions challenging the maintainability of an application under Section 12 of the D.V Act, at the threshold before this Court under Article 227 of the Constitution.
viii. Similarly, any party aggrieved may also take recourse to Section 25 which expressly authorises the Magistrate to alter, modify or revoke any order under the Act upon showing change of circumstances.
ix. In Kunapareddy (cited supra), the Hon’ble Supreme Court upheld the order of a Magistrate purportedly exercising powers under Order VI, Rule 17 of The Code of Civil Procedure, 1908 (hereinafter referred to as “C.P.C.”), to permit the amendment of an application under Section 12 of the D.V Act. Taking a cue therefrom, it would be open to any of the respondent(s), at any stage of the proceeding, to apply to the Magistrate to have their names deleted from the array of respondents if they have been improperly joined as parties. For this purpose, the Magistrate can draw sustenance from the power under Order I Rule 10(2) of the C.P.C. A judicious use of this power would ensure that the proceedings under the D.V Act do not generate into a weapon of harassment and would prevent the process of Court from being abused by joining all and sundry as parties to the lis.
x. The Magistrates must take note that the practice of mechanically issuing notices to the respondents named in the application has been deprecated by this Court nearly a decade ago in Vijaya Baskar (cited supra). Precedents are meant to be followed and not forgotten, and the Magistrates would,
therefore, do well to examine the applications at the threshold and confine the inquiry only to those persons whose presence before it is proper and necessary for the grant of reliefs under Chapter IV of the D.V Act.
xi. In Satish Chandra Ahuja (cited supra), the Hon’ble Supreme Court has pointed out the importance of the enabling provisions under Section 26 of the D.V Act to avoid multiplicity of proceedings. Hence, the reliefs under Chapter IV of the D.V can also be claimed in a pending proceeding before a civil, criminal or family court as a counter claim.
xii. While recording evidence, the Magistrate may resort to chief examination of the witnesses to be furnished by affidavit (See Lakshman v Sangeetha, 2009 3 MWN (Cri) 257. The Magistrate shall generally follow the procedure set out in Section 254, Cr.P.C while recording evidence.
xiii. Section 28(2) of the Act is an enabling provision permitting the Magistrate to deviate from the procedure prescribed under Section 28(1), if the facts and circumstances of the case warrants such a course, keeping in mind that in the realm of procedure, everything is taken to be permitted unless
prohibited (See Muhammad Sulaiman Khan v Muhammad Yar Khan, 1888 11 ILR All 267).
xiv. A petition under Article 227 of the Constitution may still be maintainable if it is shown that the proceedings before the Magistrate suffer from a patent lack of jurisdiction. The jurisdiction under Article 227 is one of superintendence and is visitorial in nature and will not be exercised unless there exists a clear jurisdictional error and that manifest or substantial injustice would be caused if the power is not exercised in favour of the petitioner. (See Abdul Razak v. Mangesh Rajaram Wagle (2010) 2 SCC 432, Virudhunagar Hindu Nadargal Dharma Paribalana Sabai v. Tuticorin Educational Society, (2019) 9 SCC 538.) In normal circumstances, the power under Article 227 will not be exercised, as a measure of self-imposed restriction, in view of the corrective mechanism available to the aggrieved parties before the Magistrate, and then by way of an appeal under Section 29 of the Act.
Citations :
Other Sources :
Supreme Court talks as follows regarding Mental Cruelty:
The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1) (i-a) of the Act. The position of law in this regard has come to be well settled and declared that leveling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.
Precisely,
As to what constitute the required mental cruelty for purposes of the said provision, in our view, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct, but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only, the Courts perhaps need consider the further question as to whether their continuance or persistence over a period time render, what normally would, otherwise, not be a so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonable conclude that the maintenance of matrimonial home is not possible any longer. A conscious and deliberate statement leveled with pungency and that too placed on record, through the written statement, cannot so lightly be ignored or brushed aside, to be of no consequence merely because it came to be removed from the record only.
Citations : [2003 SCC 6 334], [2003 ALLMR SC 3 777], [2003 AIR SC 2530], [2003 SUPREME 3 416], [2003 AIR SC 2462], [2003 SCALE 4 134], [2004 BOMCR SC 2 384], [2003 ALD SC 3 124], [2003 AWC SC 3 2101], [2003 BLJR 3 1658], [2003 DMC SC 1 685], [2003 JCR SC 3 1], [2003 JT SC 4 85], [2003 LW 4 609], [2003 MLJ SC 3 115], [2003 PLJR 2 200], [2003 SCR 3 607], [2003 UC 2 1211], [2003 UJ 2 947], [2003 AIR SCW 2530]
Other Sources :
https://indiankanoon.org/doc/1228342/
https://www.casemine.com/judgement/in/5609ade1e4b01497114126d8
https://www.indianemployees.com/judgments/details/vijay-kumar-ramachandra-bhate-vs-neela-vijay-kumar-bhate
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