Ushaben Vs Kishorbhai Chunilal Talpada & Ors on 23 March, 2012

Posted on July 28, 2018 by ShadesOfKnife

Hon’ble Apex Court has in this judgment held that,

Legal Point #1:

The above provisions indicate that whereas Section 190(1) empowers the Magistrate to take cognizance of any offence, upon receiving complaint of facts which constitute such offence; upon police report of such facts; upon information received from any person other than a police officer or upon his knowledge that such offence has been committed, Section 198 which relates to prosecution of offences against marriage brings in the concept of complaint by an aggrieved person and Section 198(1)(c) explains how far the scope of term ‘aggrieved person’ can be extended in the context of offence under Section 494 of the IPC.

Legal Point #2:

A conjoint reading of the above provisions makes it clear that a complaint under Section 494 of the IPC must be made by the aggrieved person. Section 498A does not fall in Chapter XX of the IPC. It falls in Chapter XXA. Section 198A which we have quoted hereinabove, permits a court to take cognizance of offence punishable under Section 498A upon a police report of facts which constitute offence. It must be borne in mind that all these provisions relate to cognizance of the offence by the court.

Therefore,

Above provisions, lead us to conclude that if a complaint contains allegations about commission of offence under Section 498A of the IPC which is a cognizable offence, apart from allegations about the commission of offence under Section 494 of the IPC, the court can take cognizance thereof even on a police report.

In addition to CrPC 155(4), legislature brought in CrPC 198A specific to IPC 498A.

Ushaben Vs Kishorbhai Chunilal Talpada & Ors on 23 March, 2012

Sachin Vs Sau. Sushma on 6 May, 2014

Posted on July 26, 2018 by ShadesOfKnife

Hon’ble High Court of Bombay in this judgment for recovering maintenance amount, has held that

From Para 5,

Therefore, it is abundantly clear that basically the learned Magistrate has to follow the procedure laid down in the Code of Criminal Procedure for recovery of maintenance either final or interim. Subsection (2) of Section 28 of the Protection of Women from Domestic Violence Act, 2005 can be pressed into service when there is no provision available for implementing a particular order passed under the Protection of Women from Domestic Violence Act, 2005. If the procedure is available in Code of Criminal Procedure, that is necessarily to be followed.

From Para 9,

As such the first option available to the Magistrate was to issue a warrant for levying fine. If whole of the amount was recovered by adopting the procedure under Section 421 of the Code of Criminal Procedure, the question of putting the defaulter in prison did not arise. In case amount was not recovered or part of it was recovered and part of it was not recovered, then the question would have arisen as to how much sentence should be imposed on the defaulter as per the provision laid down in the Code of Criminal Procedure. The stage of issuing warrant comes only after sentencing and not before that.

Sachin Vs Sau. Sushma on 6 May, 2014

U.Suvetha Vs State By Insp.Of Police & Anr on 6 May, 2009

Posted on July 23, 2018 by ShadesOfKnife

Hon’ble Supreme Court has held that, a concubine is not a relative to the husband of the knife, with regards to IPC 498A.

The word ‘cruelty” having been defined in terms of the aforesaid explanation, no other meaning can be attributed thereto. Living with another woman may be an act of cruelty on the part of the husband for the purpose of judicial separation or dissolution of marriage but the same, in our opinion, would not attract the wrath of Section 498A of the Indian Penal Code.

Meaning or definition of “relative”:

In the absence of any statutory definition, the term ‘relative’ must be assigned a meaning as is commonly understood. Ordinarily it would include father, mother, husband or wife, son, daughter, brother, sister, nephew or niece, grandson or grand-daughter of an individual or the spouse of any person. The meaning of the word ‘relative’ would depend upon the nature of the statute. It principally includes a person related by blood, marriage or
adoption.
The word ‘relative’ has been defined in P. Ramanatha Aiyar Advanced Law Lexicon – Volume 4, 3rd Edition as under :-
“Relative, “RELATIVE” includes any person related by blood, marriage or adoption. [Lunacy Act ].
The expression “RELATIVE” means a husband wife, ancestor, lineal descendant, brother or sister. [Estate Duty Act].
“RELATIVE” means in relation to the deceased,
a) the wife or husband of the deceased;
b) the father, mother, children, uncles and aunts of the deceased, and
c) any issue of any person falling, within either of the preceding sub-clauses and the other party to a marriage with any such person or issue [Estate Duty Act].
A person shall be deemed to be a relative of another if, and only if, –
a) they are the members of a Hindu undivided family, or
b) they are husband and wife; or
c) the one is related to the other in the manner indicated in Schedule I-A [Companies Act, 1956].
“RELATIVE” in relation to an individual means –
a) The mother, father, husband or wife of the individual, or
b) a son, daughter, brother, sister, nephew or niece of the individual, or
c) a grandson or grand-daughter of the individual, or
d) the spouse of any person referred to in subclause (b) [Income tax Act].
“RELATIVE” means –
1) spouse of the person ;
2) brother or sister of the person ;
3) brother or sister of the spouse of the person;
4) any lineal ascendant or descendant of the person;
5) any lineal ascendant or descendant of the spouse of the person; [Narcotic Drugs and Psychotropic Substances Act].”

From Para 18,

By no stretch of imagination a girl friend or even a concubine in an etymological sense would be a ‘relative’. The word ‘relative’ brings within its purview a status. Such a status must be conferred either by blood or marriage or adoption. If no marriage has taken place, the question of one being relative of another would not arise.

U.Suvetha Vs State By Insp.Of Police & Anr on 6 May, 2009

Citations: [2009 ACC 67 903], [2009 SCC 6 787], [2009 SCC CRI 3 36], [2009 AIR SC 0 3491], [2009 SUPREME 3 797], [2009 RCR CRI 2 923], [2009 SCC 6 757], [2009 KERLT 2 686], [2009 MLJ CRI 2 1079], [2009 DMC 1 887], [2009 SLT 4 462], [2009 CUTLT SUPPL 1126], [2009 AIOL 675], [2009 AIR SC 1451], [2009 ANJ SC 2 16], [2009 BOMCR CRI SC 3 845], [2009 CRIMES SC 2 357], [2009 JT 7 222], [2009 SCALE 7 149], [2009 SCR 7 902], [2009 AIR SCW 3491], [2009 CRLJ SC 2974]

Other Sources:

https://indiankanoon.org/doc/953117/

https://www.casemine.com/judgement/in/5609aec9e4b0149711414c47

Suresh Nanda vs C.B.I. on 24 January, 2008

Posted on July 22, 2018 by ShadesOfKnife

In this landmark judgment, Hon’ble Supreme Court has held that, no one, except Passport Authority, can impound a passport; nor police nor Courts. Period.

The Apex Court held that

there is a difference between seizing a document and impounding a document. A seizure is made at a particular moment when a person or authority takes into his possession some property which was earlier not in his possession. Thus, the seizure is done at a particular moment of time. However, if after seizing of a property or document, said property or document is retained for some period of time, then such retention amounts impounding of property/or document.

And also

Maintaining that, the Passport Act, 1967 is a special act and thereby prevails over the Cr.P.C. which is a general law, vide G.P. Singh’s Principles of Statutory Interpretation (9th Edition pg. 133). This principle is expressed in the maxim \023Generalia specialibus non derogant\024. Hence, impounding of a passport cannot be done by the Court under Section 104 Cr.P.C. though it can impound any other document or thing.

This judgment has lead to lot of other judgments wherein the various High Courts in India had ordered lower courts to return back the passports of accused, that were either confiscated by the police as part of their search operations or crime investigation or had been surrendered to Courts, as a condition to obtaining Anticipatory Bail. They are listed here.

Suresh Nanda vs C.B.I on 24 January, 2008

Citations : [2008 AIR SC 1414], [2008 AIR SC 0 898], [2008 SCC 3 674], [2008 LW CRL 1 503], [2008 SCALE 2 46], [2008 JT 2 174], [2008 ALL MR CRI 1189], [2008 ALT CRI 2 344], [2008 DLT 147 397], [2008 CCR 1 318], [2008 SLT 2 245], [2008 AIOL 107], [2008 BOMCR CRI SC 2 514], [2008 SCC CRI 2 121], [2008 AIR SCW 898], [2008 CRLJ SC 1599], [2008 MLJ CRL 1 1195]

Other Sources :

https://indiankanoon.org/doc/572504/

https://www.casemine.com/judgement/in/5609ae74e4b0149711413efc

K. Ramachandran Vs V.N. Rajan & Anr on 7 July, 2009

Posted on July 22, 2018 by ShadesOfKnife

In this Landmark judgment from Hon’ble Apex Court, a key legal aspect which was not earlier faced, was deciphered and held. Please read through for yourself.

Categories of case which would justify the High Court in interfering with the finding of acquittal in revision:
“(i) Where the trial Court has no jurisdiction to try the case, but has still acquitted the appellant- accused;
(ii) Where the Trail Court has wrongly shut out evidence which the prosecution wished to produce;
(iii) Where the appellate Court has wrongly held the evidence which was admitted by the Trial Court to be inadmissible;
(iv) Where the material evidence has been overlooked only (either) by the Trial Court or by the appellate Court; and
(v) Where the acquittal is based on the compounding of the offence which is invalid under the law

Of course, these categories were declared by this Court to be illustrative and this Court observed that other cases of similar nature could also be properly held to be exceptional in nature where the High Court could justifiably interfere with the order of acquittal.

K. Ramachandran Vs V.N. Rajan & Anr on 7 July, 2009

Reema Aggarwal Vs Anupam And Ors on 8 January, 2004

Posted on July 21, 2018 by ShadesOfKnife

Defense of Accused:

Before the trial Court the accused persons put the plea that charge under Section 498-A was thoroughly misconceived as both Sections 304-B and 498-A IPC pre-suppose valid marriage of the alleged victim-woman with the offender-husband. It was required to be shown that the victim-woman was the legally married wife of the accused. Since it was admitted that the appellant had married during the lifetime of the wife of respondent no.1, what happened to his first marriage remained a mystery. Prosecution has failed to establish that it stood dissolved legally. Prosecution having failed to bring any material record in that regard, Section 498-A had no application.

From Para 18,

It would be appropriate to construe the expression ‘husband’ to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerce her in any manner or for any of the purposes enumerated in the relevant provisions Sections 304B/498A, whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498A and 304B IPC. Such an interpretation, known and recognized as purposive construction has to come into play in a case of this nature. The absence of a definition of ‘husband’ to specifically include such persons who contract marriages ostensibly and cohabitate with such woman, in the purported exercise of his role and status as ‘husband’ is no ground to exclude them from the purview of Section 304B or 498A IPC, viewed in the context of the very object and aim of the legislations introducing those provisions.

Finally,

Whether the offences are made out is a matter of trial. The High Court was not justified in summarily rejecting the application for grant of leave. It has a duty to indicate reasons when it refuses to grant leave. Any casual or summary disposal would not be proper. (See State of Punjab v. Bhag Singh (2003 (8) Supreme 611). In the circumstances, we set aside the impugned order of the High Court and remit the matter back to the High Court for hearing the matter on merits as according to us points involved require adjudication by the High Court. The appeal is allowed to the extent indicated.

Reema Aggarwal Vs Anupam And Ors on 8 January, 2004

The acquittal of the accused happened at sessions court and a revision on this acquittal at High Court of Punjab and Haryana was dismissed. Read it here.

Citations : [2004 AIR SC 1418], [2004 ALD CRI 1 452], [2004 CALLT SC 3 16], [2004 DMC SC 1 201], [2004 JT SC 1 177], [2004 KLJ 1 825], [2004 KLT SC 2 822], [2004 PLJR 2 64], [2004 SCALE 1 264], [2004 SCC 3 199], [2004 CRIMES SC 1 276], [2004 SCC CRI 699], [2004 SCR 1 378], [2004 SUPREME 1 355], [2004 KHC 0 668], [2004 RCR CRI 1 776], [2004 ACC 48 442], [2004 AIR SC 344], [2004 SRJ 2 49], [2004 CCR 1 163], [2004 JCRIC 1 209], [2004 CRJ 2 432], [2004 SLT 1 466], [2004 AIR SCW 344], [2004 CRLJ SC 892]

Other Sources :

https://indiankanoon.org/doc/1180389/

https://www.casemine.com/judgement/in/5609ae01e4b0149711412ad7

https://vlex.in/vid/crl-no-000025-000025-852345777

Kunapareddy @ Nookala Shanka Balaji Vs Kunapareddy Swarna Kumari On 18 April, 2016

Posted on July 19, 2018 by ShadesOfKnife

Legal point explained: Court (Civil and Criminal) can allow amendments to the complaint/petition, before cognizance of same is taken by Court, either to a curable infirmity or the same cannot be corrected by a formal amendment or if there is likelihood of prejudice to the other side, then the Court shall not allow such amendment in the complaint

This is a judgment from Hon’ble Supreme Court where in the issue that arises is whether a court dealing with the petition/complaint filed under the provisions of the Domestic Violence Act, 2005 (hereinafter referred to as ‘the DV Act’) has power to allow amendment to the petition/complaint originally filed.

Original reliefs requested in DV Case

“a) to provide protection to the life and limb of the complainant in the hands of the respondents;
b) to grant monthly maintenance of Rs. 5,000/- to the complainant and her children each towards her maintenance, medicines etc. and her children education and maintenance;
c) to grant such other relief or reliefs if the Hon’ble Court deems fit and proper in the circumstances of the case.”

These are the dole outs the begging knife requested Court to allow in this instant amendment petition

a) To provide protection to life and limb of the complainant in the hands of the respondent.
b) To grant monthly maintenance of Rs. 15,000/- to the complainant and her 2nd child to their maintenance instead of Rs.5000/-
c) Direct the respondent to return the Sridhana amount of Rs.3,00,000/- and 15 sovereigns of gold ornaments and other sari samanas and marriage batuvu presented to the respondent worth about 2 sovereigns wrist watch, 7 sovereign gold chain presented by the complainant and her parents.
d) Direct the respondent to pay the compensation of Rs.15 lakhs to the complaint for subjecting the compliant to physical and mental harassments besides including acts of Domestic Violence.
e) Direct the respondent to return the sari samans and other goods like worth more than Rs.10,00,000/- as per the list annexed herewith.
f) Direct the respondent to pay the cost of, litigation to the tune of Rs.25,000/- so far spent by the complainant persuing her litigation.
g) Direct the 1st respondent to provide separate residence by taking rent portion with monthly rent of Rs.10,000/-
h) Directing the respondent to return the original study certificates, medical certificates, deposits certificates and receipts etc. in the prayer portion paragraphs the following amendment by deleting the prayer original para
b) to grant monthly maintenance of Rs.5,000/- to the complainant and her children each towards her maintenance, medicines etc. and her children education and maintenance.”

Kunapareddy @ Nookala Shanka Balaji Vs Kunapareddy Swarna Kumari On 18 April, 2016

Citations: [2016 SCC ONLINE SC 531]

Arjun Singh Vs Mohindra Kumar & Ors on 13 December, 1963

Posted on July 10, 2018 by ShadesOfKnife

The Hon’ble Apex Court has explained the following in this landmark judgment

‘principle of res judicata’
difference between words “good cause” for nonappearance in O. IX, r. 7 and “sufficient cause” for the same purpose in O. IX, r. 13
‘res judicata’ could be as much applicable to different stages of the same suit as to findings on issues in different suits.
If the entirety of the “hearing” of a suit has been completed and the Court being competent to pronounce judgment then and there, adjourns the suit merely for the purpose of pronouncing judgment under O. XX, r. 1, there is clearly no adjournment of “the hearing” of the suit, for there is nothing more to be heard in the suit.
ln the present context when once the hearing starts, the Code contemplates only two stages in the trial of the suit:
- (1) Where the hearing is adjourned or
- (2) where the hearing is completed. Where the hearing is completed the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that O. XX, r. 1 permits judgment to be delivered after an interval after the hearing is completed.

Arjun Singh vs Mohindra Kumar & Ors on 13 December, 1963

Markapuram Siva Rao and Ors Vs State of Andhra Pradesh on 30 April, 2013

Posted on July 9, 2018 by ShadesOfKnife

Important Quash Judgment for Hon’ble High Court of Andhra Pradesh.

All 6 (out of total 7 respondents) in this DVC are freed by quashing the DVC proceedings initiated on them as the allegations are replica of those made in IPC 498A Case and moreover the allegations are vague and general in nature.

Observation by Hon’ble Judge:
The allegations made in the said report are verbatim identical with the report lodged with the Project Officer. It appears that a report was prepared and copies of which were sent to police station and Project Officer.

Markapuram Siva Rao & Others Vs State of Andhra Pradesh on 30 April, 2013

Citation:

Indiankanoon.org link: https://indiankanoon.org/doc/160109228/

The index page is here.

Harishankar Rastogi Vs Girdhari Sharma And Anr on 13 March, 1978

Posted on June 25, 2018 by ShadesOfKnife

The Apex Court held as follows in regards to the right or lack thereof of a party to go as in-person in a case in a court. Legendary Judge Krishnaiyer, V.R. has allowed permission to a friend of a Plaintiff, who is not a advocate, to plead his case in court of law.

“1. A private person who is not an Advocate, has no right to barge into Court and claim to argue for a party. He must get the prior permission of the Court for which the motion must come from the party himself. It is open to the Court to grant or withhold permission in its discretion. In fact, the Court may even after grant of permission, withdraw it half-way through if the representative proves himself reprehensible. The antecedents, the relationship, and reasons for requisitioning the services of the private person and a variety of other circumstances must be gathered before grant or refusal of permission.
2. The Advocates are entitled as of right to practice in this Court under S. 30(1) of the Advocates Act, 1961 subject to the reasonable restriction provided under s. 29 of that Act viz. that the only class of persons entitled to practice the profession of law shall be advocates. Even so, it is open to a party, who is unable for some reason or the other to present his case adequately, to seek the help of another person in his behalf. To negative such a plea may be denying justice altogether in certain cases, especially in a land of illiteracy and indigence and judicial processes of sophisticated nature…………….
3. A comprehensive programme of free legal services, is in a sense,a serious obligation of the State if the rule of law were to receive vitality in its observance. Until then, parties should appear through advocates, and where they are not represented by one such, through some chosen friend. Such other person cannot practice the profession of habitually representing parties in Court. If a non-advocate pecialises in practicing in Court, professionally he will be violating the text of the interdict in the Advocates Act, which the Court cannot allow him to do so. Nevertheless it is open to a person who is a party to a proceeding to get himself represented by a non-advocate in a particular instance or case. Practicing a profession means something very different from representing some friend or relation on one occasion or in one case or on a few occasions ,or in a few cases. “

Harishankar Rastogi Vs Girdhari Sharma And Anr on 13 March, 1978

Citation: [1977 ACR SC 363], [1978 AIR SC 1019], [1978 SCC 2 165], [1978 SCC CRI 168], [1978 SCR 3 493], [1978 ALR 4 353], [1978 CAR 174], [1978 CRLR 161], [1978 MLJ CRI 1 640], [1978 UJ SC 301], [1978 CRLJ SC 778]

Other Sources:

https://indiankanoon.org/doc/1704613/

https://www.casemine.com/judgement/in/5609abd1e4b014971140d6a8

Shades of Knife

True Colors of a Vile Wife

Tag: Landmark Case

Ushaben Vs Kishorbhai Chunilal Talpada & Ors on 23 March, 2012

Sachin Vs Sau. Sushma on 6 May, 2014

U.Suvetha Vs State By Insp.Of Police & Anr on 6 May, 2009

Suresh Nanda vs C.B.I. on 24 January, 2008

K. Ramachandran Vs V.N. Rajan & Anr on 7 July, 2009

Reema Aggarwal Vs Anupam And Ors on 8 January, 2004

Kunapareddy @ Nookala Shanka Balaji Vs Kunapareddy Swarna Kumari On 18 April, 2016

Arjun Singh Vs Mohindra Kumar & Ors on 13 December, 1963

Markapuram Siva Rao and Ors Vs State of Andhra Pradesh on 30 April, 2013

Harishankar Rastogi Vs Girdhari Sharma And Anr on 13 March, 1978