S Vs J on 17 Apr 2018

Posted on April 1, 2022 by ShadesOfKnife

The Erudite Judge, Justice JR Midha has passed this decision on framing of issues in a DV Case.

2. The petitioner has challenged the order dated 28th March, 2017 whereby the Family Court dismissed the petitioner’s application under Order XIV Rule 5 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘C.P.C.’) for framing of additional issues.

From Para 9,

9. Summary of principles
9.1. D.V. Act provides a remedy in civil law for the protection of victims of the domestic violence as noted in the Statement of Object and Reasons.
9.2. The aggrieved person can file the application for the reliefs under the D.V. Act to the Magistrate under Section 12 of the D.V. Act.
9.3. If any suit or other legal proceedings affecting the aggrieved person are pending before a Civil Court, Family Court or Criminal Court, Section 26 gives an option to the aggrieved person to approach such Court for reliefs under the D.V. Act. However, no independent application is maintainable before the Civil Court or Family Court, if no proceedings are pending before them affecting the aggrieved person and the respondent.
9.4. The Civil Court, Family Court or Criminal Court dealing with the application under Sections 18 to 22 of the D.V. Act can formulate its own procedure under Section 28(2) of the D.V. Act. The word ‘Court’ in Section 28(2) of the D.V. Act includes Civil Court, Family Court as well as the Criminal Court.
9.5. The Court shall formulate the procedure after completion of pleadings in an application under Section 26 of the D.V. Act.
9.6. After completion of pleadings, the concerned Court shall consider whether evidence is necessary to adjudicate the application under the D.V. Act and if so, the Court shall frame the issues and record the evidence. However, if no evidence is considered necessary, the Court shall list the application for hearing.

From Para 10,

10. Findings
10.1. In the present case, the Family Court is dealing with the petition for dissolution of marriage filed by the petitioner under Section 13(1)(ia) of the Hindu Marriage Act, 1955 and therefore, the petitioner’s application under Section 26 of the D.V. Act seeking reliefs under Section 18, 19, 20, 21 and 22 of the D.V. Act is maintainable before the Family Court.
10.2. The Family Court is empowered to formulate its own procedure for disposal of the petitioner’s application under D.V. Act. In that view of the matter, it is not mandatory for the Family Court to follow Cr.P.C.
10.3. The proper procedure for disposal of the petitioner’s application under Section 26 of the D.V. Act after completion of pleadings is to consider whether evidence is necessary to adjudicate the petitioner’s application under Section 26 of the D.V. Act.
10.4. If the Court finds that the evidence is not necessary, the Court shall list the application for hearing. However, if the evidence is considered necessary, the Court shall frame the issues and record the evidence along with the evidence in the divorce petition.
10.5. The respondent’s defence before the Family Court as well as this Court that the Family Court has no jurisdiction to entertain the petitioner’s application under Section 26 of the D.V. Act, is frivolous and is rejected.
10.6. The respondent attempted to mislead this Court by raising a frivolous defence with respect to the nature of proceedings under Section 26 of the D.V. Act whereas the law is clear and well settled that the Civil Court, Family Court and Criminal Court have jurisdiction to entertain and try an application under Section 26 in pending proceedings affecting the parties and the Court can formulate its own procedure to conduct the proceedings.
10.7. xxxxx

S Vs J on 17 Apr 2018

Citations : [2018 SCC ONLINE DEL 8421], [2018 DLT 248 511], [2018 HLR 2 238], [2019 HLR 1 784]

Other Sources :

https://indiankanoon.org/doc/72057276/

https://www.casemine.com/judgement/in/5ad842949eff430def4a5a08

https://vlex.in/vid/s-vs-j-709886493

Jovita Olga Ignesia Mascarenhase Coutinho Vs Rajan Maria Coutinho and Anr on 24 Aug 2010

Posted on April 1, 2022 by ShadesOfKnife

A Bench at Goa of Bombay High Court, held that, Issues may be framed after Hearing Both Parties in a DVC.

From Para 13,

13. In civil proceedings after perusing the claim and the reply or written statement, issues are framed. Issues are framed when a material proposition of fact or law is affirmed by one party and denied by the other. The object of framing issues plays a distinguished role in a civil proceeding and the whole object is to direct the attention of the parties to the principal questions on which they are at variance and they are required to be framed for the purpose of having the material points in controversy rightly decided, and to bring a finality in the litigation. Unless proper issues are framed, a party who suffers a Judgment on the basis of findings not based on proper issues may have a legitimate grievance to contend that because of such non framing of issues he has been denied the opportunity of leading proper evidence for rebutting relevant facts. Issues can be of fact or of law and the duty is that of the Court to frame the issues. An issue can also be framed on the basis of the reliefs. Although in cases of this nature where there are no pleadings as such and the applications are filed in the prescribed form by ticking the reliefs sought, it would be desirable that the Court after hearing both the parties frames issues on the basis of the reliefs sought by the Petitioner so that each can meet the case of the other and avoid such orders of remand. If this procedure is followed there is no question of any of the reliefs going unnoticed and undecided, like the case at hand. This can also reduce the controversy between the parties, in case the columns in the application, were ticked earlier without much application of mind.

Jovita Olga Ignesia Mascarenhase Coutinho Vs Rajan Maria Coutinho and Anr on 24 Aug 2010

Citations :

Other Sources :

https://www.casemine.com/judgement/in/5b683c3b4a932645d86ec147

Suresh Chand Jain Vs State of Madhya Pradesh and Anr on 10 Jan 2001

Posted on March 21, 2022 by ShadesOfKnife

A division bench of the Apex Court held that, there is no authority for the magistrate to examine the complainant in a 156(3) CrPC proceeding since this is a pre-cognizance stage.

From Para 7,

7. In our opinion, the aforesaid direction given by the learned Single Judge of the Punjab and Haryana High Court in Suresh Kumar v. State of Haryana is contrary to law and cannot be approved. Chapter XII of the Code contains provisions relating to “information to the police and their powers to investigate”, whereas Chapter XV, which contains Section 202, deals with provisions relating to the steps which a Magistrate has to adopt while and after taking cognizance of any offence on a complaint. Provisions of the above two chapters deal with two different facets altogether, though there could be a common factor i.e complaint filed by a person. Section 156, falling within Chapter XII, deals with powers of the police officers to investigate cognizable offences. True, Section 202 which falls under Chapter XV, also refers to the power of a Magistrate to “direct an investigation by a police officer”. But the investigation envisaged in Section 202 is different from the investigation contemplated in section 156 of the code.

From Paras 8 and 9,

8. The investigation referred to therein is the same investigation, the various steps to be adopted for it have been elaborated in Chapter XII of the Code. Such investigation would start with making the entry in a book to be kept by the officer in charge of a police station, of the substance of the information relating to the commission of a cognizable offence. The investigation started thereafter can end up only with the report filed by the police as indicated in Section 173 of the Code. The investigation contemplated in that chapter can be commenced by the police even without the order of a Magistrate. But that does not mean that when a Magistrate orders an investigation under Section 156(3) it would be a different kind of investigation. Such investigation must also end up only with the report contemplated in Section 173 of the Code. But the significant point to be noticed is, when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence.3
9. But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202(1) of the Code would convince that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in Section 202(1). This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him.

And finally from Para 10,

10. The position is thus clear. Any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in section 154 of the code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.

Suresh Chand Jain Vs State of Madhya Pradesh and Anr on 10 Jan 2001

Citations : [2001 ACR SC 1 586], [2001 AIR SC 571], [2001 ALD CRI 1 367], [2001 ALT CRI 1 284], [2001 CGLJ 1 451], [2001 GLH 1 594], [2001 JLJ SC 1 395], [2001 JT SC 2 81], [2001 KLT SC 1 623], [2001 OLR 1 470], [2001 RCR CRIMINAL 1 335], [2001 RLW SC 2 317], [2001 SCALE 1 93], [2001 SCC 2 628], [2001 SCR 1 257], [2001 UC 1 202], [2001 SCC CRI 377], [2001 CCR 1 54], , [2001 AIR SC 189], [2001 CRIMES SC 1 171], [2001 SUPREME 1 129], [2001 CLJ 3 78], [2001 SLT 1 364], [2001 SCJ 1 605], [2001 SRJ 2 100], [2001 JCC 1 78], [2001 CTC 1 500], [2001 AD SC 1 109], [2001 CRLJ SC 954], [2001 AIR SCW 189], [2001 ALLMR CRI SC 775], [2001 UJ SC 1 420]

Other Sources :

https://indiankanoon.org/doc/1373794/

https://www.casemine.com/judgement/in/5609ada0e4b0149711411e8a

MS Supreme Bhiwandi Wada Manor Infrastructure Pvt Ltd Vs State of Maharashtra on 26 Jul 2021

Posted on March 21, 2022 by ShadesOfKnife

A Division bench of the Apex Court held that, there is no scope for examining the complainant (or any witnesses) u/s 200 CrPC, in a 156(3) CrPC proceeding, since that stage is pre-cognizance of any cognizable offence.

From Paras 16 and 17,

16 The primary basis on which the High Court has allowed the applications under Section 438 is that the complaint filed by the first informant was supported by an affidavit dated 6 February 2016. However, the High Court held that the mandate of Section 200 of the CrPC of examining the complainant on oath has not been fulfilled by the Magistrate. On this basis, the High Court held that this raises a serious doubt about the validity of the order which has been passed under Section 156(3).
17 There is a serious error in the view of the Single Judge. First and foremost, the Magistrate’s order under Section 156(3) was not under challenge before the High Court and has attained finality. The High Court was in error in raising a doubt about the correctness of the order under section 156(3) passed by the Metropolitan Magistrate on 11 May 2016 in the course of considering the complaint filed by the complainant. Secondly, the position in law as set out in the order of the Single Judge does not accord with the principles which have been consistently enunciated in the decisions of this Court specifically in the context of Chapter XV of the CrPC. Sections 200 and 202

From Para 20,

20 In Anju Chaudhary v. State of Uttar Pradesh6, Justice Swatanter Kumar for the Bench noted that Section 156 primarily deals with the powers of the police officer to investigate cognizable cases. While passing an order under Section 156(3), the Magistrate does not take cognizance. The order of the Magistrate is in the nature of ―a pre-emptory reminder or intimation to the police‖ to exercise their primary duty and power of investigation. The court held that the power of the Magistrate under Section 156(3) is not affected by the provisions of Section 202

MS Supreme Bhiwandi Wada Manor Infrastructure Pvt Ltd Vs State of Maharashtra on 26 Jul 2021

Citations : [AIR 2021 SC 3580], [2021 All.M.R. (Cri.) 3062], [2021 (5) BLJ 114], [2021 CriLJ 3747], [JT 2021 (7) SC 238], [2021 (3) MLJ (Cri) 438], [2021 (3) RCR (Criminal) 691], [2021 (8) SCALE 534], [(2021) 8 SCC 753]

Other Sources :

https://indiankanoon.org/doc/77704402/

https://www.casemine.com/judgement/in/6101a65137988476911e2ec4

https://www.indianemployees.com/judgments/details/m-s-supreme-bhiwandi-wada-manor-infrastructure-pvt-ltd-versus-the-state-of-maharashtra-anr

Ravneet Kaur Vs Prithpal Singh Dhingra on 24 Feb 2022

Posted on March 15, 2022 by ShadesOfKnife

Single judge bench of Delhi High Court held that the Court has to balance the rights of the aggrieved person and the parents-in-law when the question of residence arises for the aggrieved person while her marital relationship subsists.

From Paras 24 and 25,

24. Admittedly where the parties are residing is a flat, having only three bed rooms, a drawing room and the appellant is in possession of a room in the said flat, then considering there are various complaints filed by them against each other; their relations being not cordial, would it in such circumstances, be appropriate for them to stay together and fight every minute of their existence. In Satish Chander Ahuja (supra) in para No.90 the Court had observed we need to strike a balance between the rights of daughter-in-law and her in-laws.
25. Admittedly, the right of residence under Section 19 of the DV Act is not an indefeasible right of residence in shared household, especially, when the daughter-in-law is pitted against aged father-in-law and mother-in-law. In this case, both being senior citizens of aged about 74 and 69 years and being in the evening of their life, are entitled to live peacefully and not to be haunted by the marital discord between their son and daughter-in-law.

From Para 27,

27. Thus, where the residence is a shared household, it does not create any embargo upon the owner to claim eviction against his daughter-in-law. A strained frictional relationship between the parties would be relevant to decide whether the grounds of eviction exist. I am of the considered opinion, since there exist a frictional relationship between the parties, then at the fag end of their lives it would not be advisable for old parents to stay with appellant and hence it would be appropriate if an alternative accommodation is provided to the appellant as is directed in the impugned order per Section 19(1)(f) of the Protection of Women from Domestic Violence Act

And finally from Para 28,

28. Thus, there is no force in the appeal and accordingly it is dismissed. The undertaking made at Bar to provide an alternative accommodation to the appellant till her matrimony exists be filed in the form of an affidavit of the respondent within two weeks from today before the learned Trial Court. The execution of decree be postponed till such suitable alternative accommodation is found and the applicant is conveniently shifted therein. The learned Trial Court to impose conditions in case of non-payment of rental including electricity /water charges etc by respondent.

Ravneet Kaur Vs Prithpal Singh Dhingra on 24 Feb 2022

Citations : [2022 SCC ONLINE DEL 594]

Other Sources :

https://caselaw.in/delhi/shared-household-ravneet-kaur-prithpal-singh-dhingra/16/

https://www.casemine.com/judgement/in/6217abd79fca1954d2a81a9a

Sarbati Devi and Anr Vs Usha Devi on 06 Dec 1983

Posted on March 15, 2022 by ShadesOfKnife

A division bench of Apex Court held that in a case of insurance policy holder dying intestate with some nomination, then the nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them

From Para 4,

4. At the outset it should be mentioned that except the decision of the Allahabad High Court in Kesari Devi v. Dharma Devi AIR 1962 All 355 on which reliance was placed by the High Court in dismissing the appeal before it and the two decisions of the Delhi High Court in S. Fauza Singh v. Kuldip SinghAIR 1978 Del 276 and Uma Sehgal v. Dwarka Dass Sehgal AIR 1982 Del 36 in all other decisions cited before us the view taken is that the nominee under Section 39 of the Act is nothing more than an agent to receive the money due under a life insurance policy in the circumstances similar to those in the present case and that the money remains the property of the assured during his lifetime and on his death forms part of his estate subject to the law of succession applicable to him. The cases which have taken the above view are Ramballav Dhandhania v. Gangadhar NathmallAIR 1956 Cal 275; Life Insurance Corporation of India v. United Bank of India Ltd AIR 1970 Cal 513; D. Mohanavelu Mudaliar v. Indian Insurance and Banking Corporation Ltd., Salem6; Sarojini Amma v. Neelakanta Pillai AIR 1961 Ker 126; Atmaram Mohanlal Panchal v. Gunvantiben AIR 1977 Guj 134; Malli Dei v. Kanchan Prava Dei AIR 1973 Ori 83 and Lakshmi Amma v. Saguna BhagathILR 1973 Kant 827. Since there is a conflict of judicial opinion on the question involved in this case it is necessary to examine the above cases at some length.

The operative portion of the Judgment:

12. Moreover there is one other strong circumstance in this case which dissuades us from taking a view contrary to the decisions of all other High Courts and accepting the view expressed by the Delhi High Court in the two recent judgments delivered in the year 1978 and in the year 1982. The Act has been in force from the year 1938 and all along almost all the High Courts in India have taken the view that a mere nomination effected under Section 39 does not deprive the heirs of their rights in the amount payable under a life insurance policy. Yet Parliament has not chosen to make any amendment to the Act. In such a situation unless there are strong and compelling reasons to hold that all these decisions are wholly erroneous, the Court should be slow to take a different view. The reasons given by the Delhi High Court are unconvincing. We, therefore, hold that the judgments of the Delhi High Court in Fauza Singh case and in Uma Sehgal case do not lay down the law correctly. They are, therefore, overruled. We approve the views expressed by the other High Courts on the meaning of Section 39 of the Act and hold that a mere nomination made under Section 39 of the Act does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them.

Sarbati Devi and Anr Vs Usha Devi on 06 Dec 1983

Citations : [1983 SCALE 2 869], [1984 AIR SC 346], [1984 SCC 1 424], [1984 SCR 1 992], [1984 SCC TAX 59], [1984 ALR 10 268], [1984 ALJ 194], [1984 BLJR 21], [1984 ACC 2 377], [1984 ACJ 138], [1984 BLJR 32 210], [1984 COMPLJ SC 1 1], [1984 GLH 490], [1984 COMPCAS SC 55 214], [1984 UJ SC 866]

Other Sources :

https://indiankanoon.org/doc/1308094/

https://www.casemine.com/judgement/in/5609ac0ce4b014971140de2b

Luckose Zachariah Vs Joseph Joseph on 18 Feb 2022

Posted on March 3, 2022 by ShadesOfKnife

A Division bench of the Supreme Court held that the reports filed by police under 173(2) (Original Charge sheet) and 173(8) (Supplementary Charge sheet) are to be considered by the Magistrate to come to an opinion if the accused committed an offence.

From Para 16,

16 In view of the clear position of law which has been enunciated in the judgments of this Court, both in Vinay Tyagi (supra) and Vinubhai Haribhai Malaviya (supra), it is necessary for the Magistrate, to have due regard to both the reports, the initial report which was submitted under Section 173(2) as well as the supplementary report which was submitted after further investigation in terms of Section 173(8). It is thereafter that the Magistrate would have to take a considered view in accordance with law as to whether there is ground for presuming that the persons named as accused have committed an offence. While the High Court has relied upon the decision in Vinay Tyagi (supra), it becomes necessary for this Court to set the matter beyond any controversy having due regard to the fact that the Sessions Judge in the present case had while remitting the proceedings back to the Magistrate relied on the judgment of the Single Judge of the Kerala High Court in Joseph (supra) which is contrary to the position set out in Vinay Tyagi. Hence, the JFCM – I Alappuzha shall reexamine both the reports in terms of the decisions of this Court in Vinay Tyagi vs Irshad Ali alias Deepak and Vinubhai Haribhai Malaviya vs State of Gujarat as noted above and in terms of the observations contained in the present judgment. The Magistrate shall take a considered decision expeditiously within a period of one month from the date of the present order.

Luckose Zachariah Vs Joseph Joseph on 18 Feb 2022

Citations :

Other Sources :

M.S Jayaraj Vs Commissioner of Excise Kerala and Ors on 29 Sep 2000

Posted on March 3, 2022 by ShadesOfKnife

A simple but crucial observation by the Apex Court.

From Para 18,

18. We have difficulty to accept the said contention for more than one reason. If the rule-making authority had intended it to be so they would have effortlessly used the words “outside local limits specified in the licence” in the proviso because the same words have been used in sub- rule (1). As the proviso gives powers to the Excise Commissioner to order removal of a shop to a place “outside the limits specified in this sub- rule” it can only refer to the limits specified in that sub-rule and not elsewhere. It must be noted in this context that sub-rule (2) specifies certain limits such as “within 400 metres” (for toddy shops) and “within 200 metres” (for FL 1 shops) from certain institutions mentioned therein. It is with reference to those limits which are specified in sub-rule (2) that the proviso confers power on the Excise Commissioner to pass order for removal.

M.S Jayaraj Vs Commissioner of Excise Kerala and Ors on 29 Sep 2000

Casemine Version:

M.S Jayaraj Vs Commissioner of Excise Kerala and Ors on 29 Sep 2000 (CM)

Citations : [2000 AIR SC 3674], [2000 SCC 7 552], [2000 SUPREME 7 105], [2000 JT SUPP 1 487], [2000 AIRSC 3266], [2000 SCALE 6 674], [2000 ECC 72 7], [2000 KLT SC 3 820], [2000 SUPP SCR 3 616], [2000 AIR SCW 3674], [2000 SUPPSCR 3 616]

Other Sources :

https://indiankanoon.org/doc/1919476/

https://www.casemine.com/judgement/in/5609ad6fe4b014971141169c

Smitha Vs State of Kerala and Ors on 27 Jan 2022

Posted on February 21, 2022 by ShadesOfKnife

Law point held by Kerala High Court is: The principle of locus standi is alien to criminal jurisprudence

From Para 2,

2. Petitioner is the wife of the injured in a road traffic accident. It is alleged that on 16.10.2021, petitioner’s husband Thankachan, a carpenter by avocation, sustained injuries while proceeding to the place of work travelling on the pillion seat of the motor cycle bearing Registration No.KL-32/Q-0114 ridden by the accused, through Elamakkara-Puthukkalavattom Road; in front of Skyline Apartments, due to the rash and negligent riding as to endanger human life, since he had abruptly twisted, the vehicle capsized and her husband fell down and sustained grievous injuries. He was immediately rushed to the MAJ Hospital, Edappally. Ext.P1 indicates that Thankachan was taken there at 9.20 am on 16.10.2021 with the alleged history of road traffic accident. Ext.P2 discharge summary indicates that on the same day, he was taken to the Department of Orthopaedics and Rehabilitation, Lisie hospital where he was admitted with the history of pain and swelling on left ankle following alleged history of road traffic accident. Diagnosis was fracture trimalleolar left ankle for which he underwent surgery on 19.10.2021 and was discharged on 21.10.2021. The grievance of the petitioner is that despite Ext.P1 intimation given by the CMO, MAJ Hospital to the Sub Inspector, Elamakkara Police Station, crime was not registered. It is alleged that on 11.11.2021, petitioner lodged a complaint before the City Police Commissioner, Ernakulam which also was not acted upon and thus, on 19.1.2022, she approached the Judicial First Class Magistrate-II, Aluva. It is specifically averred that after sustaining grievous injuries, her husband is in immobile stage and is under complete rest and thus, she approached the court alleging offences under Sections 279, 337
and 338 IPC. But astonishingly enough, the complaint was returned stating that ‘the petition was filed by the wife of the complainant’. The most disturbing aspect is that a note seen put on the last page of the complaint, as follows:-
“19/01/22
Verified within the jurisdiction. Receipt of complaint at Commissioner Office is not seen produced. Hence for orders.
Id/-
Petition filed by wife of the complainant. Hence may be returned, for orders.
Id/-
Returned
sd/-”
It is clear that the signed order was passed by the Magistrate. It is pointed out that the Magistrate has returned the complaint on the premise that it was filed by the wife of the complainant which is illegal.

From Para 4,

4. I have no doubt that the order passed by the Magistrate is illegal and unsustainable. It is the settled proposition of law that criminal law can be set in motion by any person. Here, on the ground that after sustaining grievous hurt, her husband is unable to move out and hence, she has taken initiative to prefer the complaint. The principle of locus standi is alien to criminal jurisprudence.

From Para 5,

5. More disturbing is the Court acting upon office notes put up by the ministerial staff. This Court takes strong exception to such a conduct. In judicial matters, the staff members cannot make any note or suggestion. The learned Magistrate has not applied his mind before returning the complaint. The reason stated is illegal. The order is quashed and the Magistrate is directed to entertain the complaint and pass orders, in accordance with law, within a period of seven days from today.

Smitha Vs State of Kerala and Ors on 27 Jan 2022

Bhagwan Premchandani Vs State of A.P. and Anr on 4 Nov 1997

Posted on November 24, 2021 by ShadesOfKnife

Justice Sri B S A Swamy has passed this reasoned order with regards to mechanical issuing of non-bailable warrants to accused by the trial courts.

From para 3,

3. I have already taken a view that the trial Court can proceed with the case without insisting for the presence of the accused vide Crl.M.P.Nos.4424/97 and 4422/97 dated 29-10-1997. Further, the action of the Magistrate in issuing N.B.W. having dismissed the application filed for dispensing with his presence cannot be appreciated by this Court.
As per Section 73 of the Criminal Procedure Code an N.B.W. can be issued only to secure the presence of any escaped convict, proclaimed offender or the person who is evading the arrest. In the instant case, being summons case, the question of arrest also will not arise. Further, the petitioner filed an application seeking dispensation of his presence on that day for the reasons stated in the affidavit. Instead of allowing the application, the learned Magistrate not only dismissed the application, but also even without giving time for his appearance issued N.B.W. Such conduct on the part of the Magistrate is depricated. The discretion vested in them should be properly exercised to secure the ends of justice but not to penalise or harass an individual with the procedural wrangles of the Court more so without visualising the evil consequences that will flow from the order that is going to be passed. This Court is often coming across with such type of orders passed by the Magistrates. Hence this Court would like lo emphasize that the Magistrates should shed the wrong practice of issuing N.B.Ws. the moment the accused fail to appear in the Court without giving an opportunity to explain the circumstances under which the accused failed to appear in the Court and in the light of the language employed in Section 73 of Criminal Procedure Code an N.B.W. can be issued sparingly that to after coming to the conclusion that there is no other way to secure the presence of the accused. In fact in Ramojt Rao v.V.V. Rajam in Cr.M.P.No.4424/97 dated 29-10-1997 this Court explained the legal position with regard to the appearance of the accused before a Magistrate and held that the Magistrate is having ample power to proceed with the case by dispensing with the presence of the accused even in a warrant case.

Indiankanoon copy:

Bhagwan Premchandani Vs State of A.P. and Anr on 4 Nov 1997

Citations :

Other Sources :

https://indiankanoon.org/doc/1025663/

https://www.casemine.com/judgement/in/5608f767e4b014971113fe0e

http://document.manupatra.com/ap/1955-2000/ap1998/a980838.htm

https://www.lawyerservices.in/BHAGWAN-PREMCHANDANI-VERSUS-STATE-OF-A-P-1997-11-04

Index here.

Shades of Knife

True Colors of a Vile Wife

Tag: Legal Procedure Explained – Interpretation of Statutes

S Vs J on 17 Apr 2018

Jovita Olga Ignesia Mascarenhase Coutinho Vs Rajan Maria Coutinho and Anr on 24 Aug 2010

Suresh Chand Jain Vs State of Madhya Pradesh and Anr on 10 Jan 2001

MS Supreme Bhiwandi Wada Manor Infrastructure Pvt Ltd Vs State of Maharashtra on 26 Jul 2021

Ravneet Kaur Vs Prithpal Singh Dhingra on 24 Feb 2022

Sarbati Devi and Anr Vs Usha Devi on 06 Dec 1983

Luckose Zachariah Vs Joseph Joseph on 18 Feb 2022

M.S Jayaraj Vs Commissioner of Excise Kerala and Ors on 29 Sep 2000

Smitha Vs State of Kerala and Ors on 27 Jan 2022

Bhagwan Premchandani Vs State of A.P. and Anr on 4 Nov 1997