Based on Joseph Shine landmark judgment here, Supreme Court has struck down the adultery section 497 in the Jammu and Kashmir Ranbir Penal Code 1932 as well.
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Landmark judgment from Apex Court which struck down Sec 497 IPC as ultravires with Articles 14, 21 of Constitution of India.
Citations :
Other Sources :
Apex Court held as follows, in last paragraph,
“Be that as it may, an agent cannot become a pleader for the party in criminal proceedings, unless the party secures permission from the court to appoint him to act in such proceedings. The respondent-couple have not even moved for such permission and hence no occasion has arisen so far to consider that aspect.”
Key passages from the judgment are,
The definition [of a Pleader u.s 2(q) of CrPC] envelopes two kinds of pleaders within its ambit. The first refers to legal practitioners who are authorised to practise law and the second refers to any other person. If it is the latter its essential requisite is that such person should have been appointed with the permission of the court to act in such proceedings. This is in tune with Section 32 of the Advocates Act 1961 which empowers a Court to permit any person, who is not enrolled as an advocate to appear before it in any particular case. But if he is to plead for another person in a criminal court, such permission should be sought for by that person.
It is not necessary that the pleader so appointed should be the power of attorney holder of the party in the case. What seems to be condition precedent is that his appointment should have preceded by grant of permission of the court. It is for the court to consider whether such permission is necessary in the given case and whether the person proposed to be appointed is capable of helping the court by pleading for the party, for arriving at proper findings on the issues involved in the case.………..
But if the person proposed to be appointed by the party is not such a qualified person the court has first to satisfy itself whether the expected assistance would be rendered by that person. The reason for the Parliament for fixing such a filter in the definition clause [Sec.2(q) of the Code] that prior permission must be secured before a non-advocate is appointed by the party to plead his cause in the court, is to enable the court to verify the level of equipment of such person for pleading on behalf of the party concerned.
Precedent used is here
Indiankanoon.org link: https://indiankanoon.org/doc/1728750/
Citation: [1999 SCC 3 614], [1999 AIR SC 1385], [1999 AIR SC 1062], [1999 SUPREME 3 308], [1999 SCC CRI 455], [1999 CRLJ SC 2092], [1999 SCALE 2 359], [1999 ACR SC 1 915], [1999 ALT CRI 1 226], [1999 CTC 1 720], [1999 GLH 1 829], [1999 KLJ 1 879], [1999 KLT SC 2 156], [1999 LW CRL 2 658], [1999 RCR CRIMINAL 2 373], [1999 SCR 2 305], [1999 JT SC 2 494], [1999 AIR SCW 1062]
This is a landmark judgment from Supreme Court of India which clarified the legal position around sections 304B and 498A IPC.
From Para 6,
Now we shall consider the question as to whether the acquittal of the appellants of the offence punishable under Section 498-A makes any difference. The submission of the learned counsel is that the acquittal under Section 498-A IPC would lead to the effect that the cruelty on the part of the accused is not established. We see no force in this submission. The High Court only held that Section 304-B and Section 498-A IPC are mutually exclusive and that when once the cruelty envisaged in Section 498-A IPC culminates in dowry death of the victim, Section 304-B alone is attracted and in that view of the matter the appellants were acquitted under Section 498-A IPC. It can therefore be seen that the High Court did not hold that the prosecution has not established cruelty on the part of the appellants but on the other hand the High Court considered the entire evidence and held that the element of cruelty which is also an essential of Section 304-B IPC has been established. Therefore the mere acquittal of the appellants under Section 498-A IPC in these circumstances makes no difference for the purpose of this case. However, we want to point out that this view of the High Court is not correct and Sections 304-B and 498-A cannot be held to be mutually exclusive. These provisions deal with two distinct offences. It is true that “cruelty” is a common essential to both the sections and that has to be proved. The Explanation to Section 498-A gives the meaning of “cruelty”. In Section 304-B there is no such explanation about the meaning of “cruelty” but having regard to the common background to these offences we have to take that the meaning of “cruelty or harassment” will be the same as we find in the explanation to Section 498-A under which “cruelty” by itself amounts to an offence and is punishable. Under Section 304-B as already noted, it is the “dowry death” that is punishable and such death should have occurred within seven years of the marriage. No such period is mentioned in Section 498-A and the husband or his relative would be liable for subjecting the woman to “cruelty” any time after the marriage. Further it must also be borne in mind that a person charged and acquitted under Section 304-B can be convicted under Section 498-A without charge being there, if such a case is made out. But from the point of view of practice and procedure and to avoid technical defects it is necessary in such cases to frame charges under both the sections and if the case is established they can be convicted under both the sections but no separate sentence need be awarded under Section 498-A in view of the substantive sentence being awarded for the major offence under Section 304-B.
And the benevolence of the judges overflows for women like juices… yakkk thuuu
From Para 8,
Further both the appellants are women. Under these circumstances, a minimum sentence of seven years’ rigorous imprisonment would serve the ends of justice. Accordingly the convictions are confirmed but the sentence of imprisonment for life under Section 304-B IPC of each of the accused appellant is set aside and instead each of them is sentenced to undergo seven years’ rigorous imprisonment.
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In this landmark judgment, Apex Court held that offence under Section 498-A of the I.P.C. is a continuing offence and that there would be a new starting point of limitation on each occasion on which the victim was subjected to cruelty. It was specifically held that the last act of cruelty was committed when the victim was forced to leave matrimonial home.
Citation: [1999 ACR SC 2 1456], [1999 CRI LJ 3479], [1999 CRIMES SC 3 90], [1999 DMC SC 2 247], [1999 JT SC 4 421], [1999 OLR 2 364], [1999 RCR CRIMINAL 2 828], [1999 SCALE 3 724], [1999 SCC 4 690], [1999 SCR 3 719], [1999 UJ 2 968], [1999 SCC CRI 629], [1999 AIR SC 0 2071], [1999 SCC CR 0 629], [1999 AIR SC 207], [1999 RCR CRI 2 828], [1999 CRLJ 0 3479], [1999 CALCRILR 0 297], [1999 AIR SC 0 1793], [1999 SCC 4 691], [2000 BOMCR SC 1 233], [1999 SUPREME 5 458]
Other Source links: https://indiankanoon.org/doc/1494464/ or https://www.casemine.com/judgement/in/5609ad5de4b0149711411319 or https://mynation.net/judgments/arun-vyas-anr-vs-anita-vyas-on-14-may-1999/
Orissa High Court passed a similar judgment here.
A very good judgment from Apex Court, which directs the complaining party to file an affidavit of her income which would be in the format as prescribed in the judgment of the High Court of Delhi in the case of ‘Kusum Sharma v. Mahinder Kumar Sharma’ decided on 14.01.2015 (FAO No. 309/1996).
The Kusum Sharma v. Mahinder Kumar Sharma is here.
The Case Index is available here.
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This is another judgment from Supreme Court of India, where in it was held that Women In Live-In Relationships Entitled To Maintenance under PWDV Act.
3. In fact, under the provisions of the DVC Act, 2005 the victim i.e. estranged wife or live-in-partner would be entitled to more relief than what is contemplated under Section 125 of the Code of Criminal Procedure, 1973, namely, to a shared household also.
Citations: [2018 SCC ONLINE SC 2301], [2019 SCC 13 796], [2019 SCC CRI 4 701], [2018 AIR SC SUPP 2583]
Other Source links:
https://indiankanoon.org/doc/6354756/
https://www.casemine.com/judgement/in/5d848cea714d58266e07f49e
The index page is here.
Another landmark judgment from Justice Jasti Chalameswar on the Supervisory Authority of High Courts on Lower Courts in a state and how and why it should have been invoked in this case gainfully. If not under 193 IPC, invocation of 211 IPC was very much desirable in this case.
Another observation is that one can file Perjury under section 340 CrPC even after getting acquittal.
Citations : [2015 NCC 1 678], [2014 SCC 5 377], [2014 SCC CRI 2 591], [2014 SCC ONLINE SC 46], [2014 CTC 1 664], [2014 AIC 135 224], [2014 AIOL 32], [2014 AIR SC 993], [2014 BOMCR CRI SC 2 70], [2014 CRLJ SC 1454], [2014 JT 2 180], [2014 SCALE 1 406], [2014 SLT 1 680], [2014 KLJ 1 688], [2014 AICLR 1 828], [2014 MLJ CRI 1 505], [2014 RAJ 1 30], [2014 SCJ 3 152], [2014 LW CRL 1 793], [2014 KCCR SN 3 166], [2014 AIR SCW 993], [2014 RCR CRIMINAL SC 1 851], [2014 CUT LT 118 22]
Other Sources :
https://indiankanoon.org/doc/25369927/
https://www.casemine.com/judgement/in/5609af43e4b0149711415fb6
In this judgment, Hon’ble Supreme Court has saddled the person with heavy exemplary costs, who lied through the teeth in the writ petition. Actually, Costs of Rs.50,00,000/- was brought down to Rs.5,00,000/-
From Para 4,
Writ Petition No.111 of 2011, even if not complete in its form, was maintainable and the same could not have been dismissed by the Court as the prayer by the appellant in that writ petition for habeas corpus was maintainable in view of the right to life and liberty of the petitioners stated therein, as enshrined in Article 21 of the Constitution of India, was violated. The petition had been filed by the appellant as next friend and had not seen the alleged detenues since 4th January, 2007 when they were last seen in Amethi. According to the appellant the representations made to various authorities had failed to yield any results. Thus, that petition was not liable to be dismissed.
Abuse of the process of Court :Unclean Hands
This Court has had many occasions where it dealt with the cases of this kind and it has clearly stated the principles that would govern the obligations of a litigant while approaching the court for redressal of any grievance and the consequences of abuse of the process of court. We may recapitulate and state some of the principles. It is difficult to state such principles exhaustively and with such accuracy that would uniformly apply to a variety of cases. These are:
(i) Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the Courts, initiated proceedings without full disclosure of facts and came to the courts with ‘unclean hands’. Courts have held that such litigants are neither entitled to be heard on the merits of the case nor entitled to any any relief.
(ii) The people, who approach the Court for relief on an ex parte statement, are under a contract with the court that they would state the whole case fully and fairly to the court and where the litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant.
(iii) The obligation to approach the Court with clean hands is an absolute obligation and has repeatedly been reiterated by this Court.
(iv) Quests for personal gains have become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the court proceedings. Materialism, opportunism and malicious intent have over-shadowed the old ethos of litigative values for small gains.
(v) A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final.
(vi) The Court must ensure that its process is not abused and in order to prevent abuse of the process the court, it would be justified even in insisting on furnishing of security and in cases of serious abuse, the Court would be duty bound to impose heavy costs.
(vii) Wherever a public interest is invoked, the Court must examine the petition carefully to ensure that there is genuine public interest involved. The stream of justice should not be allowed to be polluted by unscrupulous litigants.
(vii) The Court, especially the Supreme Court, has to maintain strictest vigilance over the abuse of the process of court and ordinarily meddlesome bystanders should not be granted “visa”. Many societal pollutants create new problems of unredressed grievances and the Court should endure to
take cases where the justice of the lis well-justifies it.
Citations: [(2013) 2 SCC 398], [AIR 2012 SC (Supp) 699], [MANU/SC/0892/2012], [JT (2012) 10 SC 393]
Indiankanoon.org or Casemine link: https://indiankanoon.org/doc/172073149/ or https://www.casemine.com/judgement/in/5609af1be4b0149711415a1b
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A clear attempt to link circumstances to a pre-judged conclusion by Hon’ble CJ of India himself. At best, this is just an attempt to let go off one of the many grounds husband’s can take in their Discharge and Quash petitions, going against such landmark precedents.
If this assumption is allowed to continue, ablanaris will claim, her hubby dear comes in her dreams and molests, threatens, harasses, violates her & thereby it is a continuing offence as per Black&White Dictionary and attracts 179 CrPC squarely, and consequently your’s truly will wag their tails (heads may be) to it too.
One Gem from this Judgment:
Even the silence of the wife may have an underlying element of an emotional distress and mental agony.
Alright. Little bit of difficulty in travel involved. We will use 20 other grounds, Mr. CJI. We also have clubbing of cases judgment and many more judgments on our side.
Frankly speaking, one has to see the caveat laid by Supreme Court in this judgment. Only when the Prosecution can establish that there was threat to the life and/or limb of the knife due to which the false case if institute out side the Jurisdiction, where the alleged offence has happened as mentioned in the Complaint, this judgment can be gainfully invoked.
The Key element is this “compelled the wife to leave the matrimonial home and take shelter with her parents“. As long as the Prosecution documents do not prima facie exhibit the above criteria, the ground of Territorial Jurisdiction is still a valid ground to see Discharge or Quash from a false case.
Go here.
My Note:
This is a bad judgment because, we all know the complainant may invoke Zero FIR at her place of residence/parental/shelter home which may be transferred to the location where there is actual territorial jurisdiction to the alleged offence. Or the parents or relative or any good Samaritan can file a report under sec 154(1) to a nearby police station, and again that PS has to register a Zero FIR. Moreover, the complaint’s case is fought by the State via Public Prosecutor and the Chief examination is done via affidavit these days and even that may be one of the instances when the complaint has to appear before Court. Due to technological advances which are expedited by COVID-19 pandemic, even the oath taken at such instance can be made via Video conference. Even the Cross can be conducted via Video conference.
Then what was the need to muddle the sacred principle of territorial jurisdiction enshrined under CHAPTER XIII provisions of Cr.P.C.?
Citations: [2019 SCC 5 384], [2019 SCC ONLINE SC 493], [2019 AIR SC 1790], [2019 KLJ 2 601]
Other Source links:
https://indiankanoon.org/doc/78252061/
https://www.legitquest.com/case/rupali-devi-v-state-of-uttar-pradesh/11C400
https://www.casemine.com/judgement/in/5cb00bc54a9326247ab05a22
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