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

R.D. Saxena Vs Balram Prasad Sharma on 22 August, 2000

Posted on June 25, 2018 by ShadesOfKnife

This is a wonderful judgment from Hon’ble Supreme Court of India on two aspects

(a) Has the advocate a lien for his fees on the litigation papers entrusted to him by his client?

(b) Does the client has freedom to choose and engage a advocate and change the advocate?

Thus, even after providing a right for an advocate to deduct the fees out of any money of the client remaining in his hand at the termination of the proceeding for which the advocate was engaged, it is important to notice that no lien is provided on the litigation files kept with him. In the conditions prevailing in India with lots of illiterate people among the litigant public it may not be advisable also to permit the counsel to retain the case bundle for the fees claimed by him. Any such lien if permitted would become susceptible to great abuses and exploitation.

… and more…

A litigant must have the freedom to change his advocate when he feels that the advocate engaged by him is not capable of espousing his cause efficiently or that his conduct is prejudicial to the interest involved in the lis, or for any other reason. For whatever reason, if a client does not want to continue the engagement of a particular advocate it would be a professional requirement consistent with the dignity of the profession that he should return the brief to the client. It is time to hold that such obligation is not only a legal duty but a moral imperative.
In criminal cases, every person accused of an offence has the right to consult and be defended by a legal practitioner of his choice which is now made a fundamental right under Article 22(1) of the Constitution. The said right is absolute in itself and it does not depend on other laws. In this context reference can be made to the decision of this Court in State of Madhya Pradesh vs. Shobharam and ors. (AIR 1966 SC 1910). The words of his choice in Article 22(1) indicate that the right of the accused to change an advocate whom he once engaged in the same case, cannot be whittled down by that advocate by withholding the case bundle on the premise that he has to get the fees for the services already rendered to the client.
If a party terminates the engagement of an advocate before the culmination of the proceedings that party must have the entire file with him to engage another advocate.

R.D. Saxena Vs Balram Prasad Sharma on 22 August, 2000

Citations : [2000 AIR SC 3049], [2001 ALLMR CRI SC 375], [2000 ALT SC 5 1], [2001 BLJR 1 174], [2000 CTC 3 757], [2001 GLH 3 624], [2000 JT SC 9 432], [2000 KLT SC 3 438], [2001 LW 1 284], [2001 MHLJ SC 1 23], [2000 MPLJ SC 613], [2000 PLJR 4 161], [2000 RD 91 692], [2000 SCALE 6 42], [2000 SCC 7 264], [2000 SUPP SCR 2 598], [2001 UJ 1 27], [2000 UPLBEC 3 2404], [2000 AIR SC 2912], [2000 CTR 163 32]

Other Sources :

https://indiankanoon.org/doc/151656/

https://www.casemine.com/judgement/in/5609ad8de4b0149711411a9d

https://www.indianemployees.com/judgments/details/r-d-saxena-vs-balram-prasad-sharma

http://www.briefcased.in/r-d-saxena-vs-balram-prasad-sharma/

https://www.legalauthority.in/judgement/r-d-saxena-vs-balram-prasad-sharma-22160

Karnataka High Court Judgments:

NOC not required

Karnataka Power Distribution Vs M RajaShekar on 2 Dec 2016

NOC required:

Bhagya Vs Jayalakshmi on 13 Feb 2019

Other Judgements on this subject here.

Goa Antibiotics and Pharmaceuticals Ltd. Vs R.K. Chawla on 4 July, 2011

Posted on June 25, 2018 by ShadesOfKnife

Hon’ble Apex Court in this judgment, had rejected the application of a Deputy Manager of a Company to appear and argue on behalf of the petitioner-Company.

A natural person can, of course, appear in person and argue his own case personally but he cannot give a power of attorney to anyone other than a person who is enrolled as an advocate to appear on his behalf. To hold otherwise would be to defeat the provisions of the Advocates Act.

Who can be Party in Person?

Section 32 of the Act, however, vests discretion in the court, authority or person to permit any person who is not enrolled as an advocate to appear before the court and argue a particular case. Section 32 of the Act is not the right of a person (other than an enrolled advocate) to appear and argue before the court but it is the discretion conferred by the Act on the court to permit any one to appear in a particular case even though he is not enrolled as an advocate.

… and more…

We make it clear that as regards artificial persons like a company registered under the Indian Companies Act, or a registered co-operative society, or a trust, neither the Director of the Company nor member of the Managing Committee or office bearer of the registered society or a trustee has a right to appear and argue on behalf of that entity, since that entity is distinct from its shareholders or office bearers or directors. However, it is the discretion of the court under Section 32 of the Act to permit such person to appear on behalf of that entity.

From Para 7,

7. There is a distinction between the right to appear on behalf of someone, which is only given to enrolled lawyers, and the discretion in the court to permit a non-lawyer to appear before it. Under Sections 29 and 33 of the Act only those persons have a right to appear and argue before the court who are enrolled as an advocate while under Section 32 of the Act, a power is vested in the court to permit, in a particular case, a person other than an advocate to appear before it and argue the case. A power-of-attorney holder cannot, unless he is an enrolled lawyer, appear in court on behalf of anyone, unless, permitted by the court under Section 32 of the Act, though of course he may sign sale deeds, agreements, etc. and do other acts on behalf of someone else, unless prohibited by law.

Goa Antibiotics and Pharmaceuticals Ltd. Vs R.K. Chawla on 4 July, 2011

Citations : [2011 ACR SC 2 2269], [2011 JKJ SC 3 56], [2011 JT SC 7 559], [2011 KLT SC 3 498], [2011 RCR CIVIL 4 252], [2011 SCALE 7 413], [2011 SCC 15 449], [2011 SCR 7 846], [2014 SCC CIV 2 617], [2011 MWN CR 3 290], [2011 AIOL 469], [2011 RCR CIVIL SC 4 257], [2011 KLT 3 498], [2011 JT 7 559]

Other Sources :

https://indiankanoon.org/doc/170747848/

https://www.casemine.com/judgement/in/5609af02e4b0149711415575

Sanjeev Kumar Mittal Vs The State on 18 November, 2010

Posted on June 13, 2018 by ShadesOfKnife

Citing many landmark Perjury precedents, Justice J.R.Midha of Delhi High Court has rendered this judgment. This CrPC 340 judgment is under Sections 193, 196, 199 and 200 of the Indian Penal Code. Since there was ample evidence for fraud on court, Police were directed to conduct preliminary inquiry.

Sanjeev Kumar Mittal Vs The State on 18 November, 2010

A precedent from Supreme Court of India is available here, which is also relied upon in this instant judgment.

Citations: [2011 DRJ 121 328], [2010 CCR 4 442], [2010 DLT 174 214], [2011 RCR CRI 7 2111], [2010 SCC ONLINE DEL 4006]

Other Sources:

https://indiankanoon.org/doc/83621866/

https://www.casemine.com/judgement/in/56090d95e4b014971117a12d

Iqbal Singh Marwah & Anr Vs Meenakshi Marwah & Anr on 11 March, 2005

Posted on June 12, 2018 by ShadesOfKnife

This is an important judgment from Hon’ble Supreme Court on a contention point as documented in Para 5,

5. The principal controversy revolves round the interpretation of the expression “when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court” occurring in clause (b)(ii) of sub-section (1) of Section 195 Cr.P.C.

Simply put, if a document is forged before being submitted in a court, there is no bar to file a complaint on the accused of the forgery under clause (b)(ii) of sub-section (1) of Section 195 Cr.P.C.

A Magistrate may take cognizance of any offence
(a) upon receiving a complaint of facts which constitute such offence,
(b) upon a police report of such facts, and
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

From a victim standpoint who is facing an offender of forgery, thereafter in this case, the respondents moved an application under Section 340 Cr.P.C. requesting the Court to file a criminal complaint against appellant no.1 as the will set up by him was forged.

From Paras 23-26, very valuable aspect is explained ‘expedient in the interests of justice‘:

23. In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words “court is of opinion that it is expedient in the interests of justice”. This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court may not consider it expedient in the interest of justice to make a complaint. The broad view of clause (b)(ii), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remediless. Any interpretation which leads to a situation where a victim of a crime is rendered remediless, has to be discarded.
24. There is another consideration which has to be kept in mind. Sub-section (1) of Section 340 CrPC contemplates holding of a preliminary enquiry. Normally, a direction for filing of a complaint is not made during the pendency of the proceeding before the court and this is done at the stage when the proceeding is concluded and the final judgment is rendered. Section 341 provides for an appeal against an order directing filing of the complaint. The hearing and ultimate decision of the appeal is bound to take time. Section 343(2) confers a discretion upon a court trying the complaint to adjourn the hearing of the case if it is brought to its notice that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen. In view of these provisions, the complaint case may not proceed at all for decades specially in matters arising out of civil suits where decisions are challenged in successive appellate fora which are time-consuming. It is also to be noticed that there is no provision of appeal against an order passed under Section 343(2), whereby hearing of the case is adjourned until the decision of the appeal. These provisions show that, in reality, the procedure prescribed for filing a complaint by the court is such that it may not fructify in the actual trial of the offender for an unusually long period. Delay in prosecution of a guilty person comes to his advantage as witnesses become reluctant to give evidence and the evidence gets lost. This important consideration dissuades us from accepting the broad interpretation sought to be placed upon clause (b)(ii).
25. An enlarged interpretation to Section 195(1)(b)(ii), whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in court, is capable of great misuse. As pointed out in Sachida Nand Singh after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police until the court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest of the society at large.
26. Judicial notice can be taken of the fact that the courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. It will not be fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of the type enumerated in clause (b)(ii) is either not placed for trial on account of non-filing of a complaint or if a complaint is filed, the same does not come to its logical end. Judging from such an angle will be in consonance with the principle that an unworkable or impracticable result should be avoided.

Iqbal Singh Marwah & Anr Vs Meenakshi Marwah & Anr on 11 March, 2005

Citations : [2005 AIR SC 2119], [2005 SCR 2 708], [2005 JT 3 195], [2005 SCALE 3 93], [2005 AIOL 135], [2005 MHLJ SC 3 530], [2005 BOMCR CRI SC 2 470], [2005 SCC 4 370], [2005 SUPREME 2 549], [2005 CRLJ SC 2161], [2005 SCC CRI 1101]

Other Sources :

https://indiankanoon.org/doc/618763/

https://www.casemine.com/judgement/in/5609ae13e4b0149711412e0a

https://mynation.net/docs/402-2005/

https://www.insaafindia.in/judgements/misc/iqbal-singh-marwah-vs-meenakshi-marwah-forgery/

Maneka Gandhi Vs Union of India on 25 January 1978

Posted on June 12, 2018 by ShadesOfKnife

The landmark judgment from Apex Court which held that any law that deprives the life and liberty must be just and fair.

The composition of the Bench is

BENCH:
BEG, M. HAMEEDULLAH (CJ)
CHANDRACHUD, Y.V.
BHAGWATI, P.N.
KRISHNAIYER, V.R.
UNTWALIA, N.L.
FAZALALI, SYED MURTAZA
KAILASAM, P.S.

Maneka Gandhi Vs Union Of India on 25 January, 1978

Citation: [1978 AIR 597], [1978 SCR (2) 621], [1978 SCC (1) 248]

Indiankanoon link: https://indiankanoon.org/doc/1766147/

List of other case laws around Article 21 are here.

State Of Orissa Vs Debendra Nath Padhi on 29 November, 2004

Posted on June 4, 2018 by ShadesOfKnife

A key question is clarified by the 3-judge bench of Supreme Court in this landmark judgment.

Can the trial court at the time of framing of charge consider material filed by the accused?

The scope of Sections 227 and 228 and scope of Sections 239 and 240 are explained along with scope of Sections 482

At the end the following is the summary arrived at.

Under Sections 227 and 228, a Magistrate of the trial court, is supposed to consider only the material sent by prosecution along with the record of the case and the documents sent along with it, at the time of framing of the charge. The accused at that stage has no right to place before the court any material.
Under Sections 239 and 240, requires the Magistrate to consider ‘the police report and the documents sent with it under Section 173’ and, if necessary, examine the accused and after giving accused an opportunity of being heard, if the Magistrate considers the charge against the accused to be groundless, the accused is liable to be discharged by recording reasons thereof.
Regarding the argument of accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of Constitution of India is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal’s case. Under Section 482 of the Code, along with the petition the accused may file unimpeachable evidence of sterling quality and on that basis seek quashing.

Legal point around application under/of CrPC 91

In so far as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document beingnecessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning andproduction is made and the party who makes it whether police or accused. If under Section 227 what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. Under Section 91 summons for production of document can beissued by Court and under a written order an officer in charge of policestation can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof.

Final conclusion: (from Para 29)

We are of the view that jurisdiction under Section 91 of the Code when invoked by accused the necessity and desirability would have to be seen by the Court in the context of the purpose investigation, inquiry, trial or other proceedings under the Code. It would also have to be borne in mind that law does not permit a roving or fishing inquiry. Regarding the argument of accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of Constitution of India is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal’s case.

State Of Orissa Vs Debendra Nath Padhi on 29 November, 2004

Citations : [2005 AIR SC 359], [2005 ALT CRI 1 1198], [2005 CLT SC 99 348], [2005 GLH 1 312], [2004 JT SC 10 303], [2005 KLT SC 1 80], [2005 OLR SC 1 357], [2005 RLW SC 3 414], [2004 SCALE 10 50], [2005 SCC 1 568], [2005 SCC CRI 415], [2004 SLT 7 339], [2004 SUPREME 8 568], [2005 OCR 30 177], [2005 RCR CRI 1 297], [2005 CALCRILR 1 487], [2005 CRIMES SC 1 1], [2004 AIR SCW 6813], [2005 CTC SC 1 134]

Other Sources :

https://indiankanoon.org/doc/7496/

https://www.casemine.com/judgement/in/5609ae0be4b0149711412c9f

Index of Quash judgments u/s 482 are here.

Shades of Knife

True Colors of a Vile Wife

Tag: Landmark Case

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

R.D. Saxena Vs Balram Prasad Sharma on 22 August, 2000

Goa Antibiotics and Pharmaceuticals Ltd. Vs R.K. Chawla on 4 July, 2011

Sanjeev Kumar Mittal Vs The State on 18 November, 2010

Iqbal Singh Marwah & Anr Vs Meenakshi Marwah & Anr on 11 March, 2005

Maneka Gandhi Vs Union of India on 25 January 1978

State Of Orissa Vs Debendra Nath Padhi on 29 November, 2004