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.

Amish Devgan Vs Union of India and Ors on 07 Dec 2020

Posted on October 27, 2021 by ShadesOfKnife

A division bench of Apex Court held as follows,

From Para 84,

84. Lastly, we would also like to clarify that Section 179 of the Criminal Code permits prosecution of cases in the court within whose local jurisdiction the offence has been committed or consequences have ensued. Section 186 of the Criminal Code relates to cases where two separate charge-sheets have been filed on the basis of separate FIRs and postulates that the prosecution would proceed where the first charge-sheet has been filed on the basis of the FIR that is first in point of time. Principle underlying section 186 can be applied at the pre-charge-sheet stage, that is, post registration of
FIR but before charge-sheet is submitted to the Magistrate. In such cases ordinarily the first FIR, that is, the FIR registered first in point of time, should be treated as the main FIR and others as statements under Section 162 of the Criminal Code. However, in exceptional cases and for good reasons, it will be open to the High Court or this Court, as the case may be, to treat the subsequently registered FIR as the principal FIR. However, this should not cause any prejudice, inconvenience or harassment to either the victims, witnesses or the person who is accused. We have clarified the aforesaid position to avoid any doubt or debate on the said aspect.

Amish Devgan Vs Union of India and Ors on 07 Dec 2020

Citations :

Other Sources :

https://indiankanoon.org/doc/179868451/

https://www.indianemployees.com/judgments/details/amish-devgan-versus-union-of-india-and-others

Japani Sahoo Vs Chandra Sekhar Mohanty on 27 Jul 2007

Posted on October 16, 2021 by ShadesOfKnife

Supreme Court declared that, Limitation u/s 468 starts from the date of making the complaint and not on the date the cognizance was taken.

Reasoning

52. The matter can be looked at from different angle also. Once it is accepted (and there is no dispute about it) that it is not within the domain of the complainant or prosecuting agency to take cognizance of an offence or to issue process and the only thing the former can do is to file a complaint or initiate proceedings in accordance with law. If that action of initiation of proceedings has been taken within the period of limitation, the complainant is not responsible for any delay on the part of the Court or Magistrate in issuing process or taking cognizance of an offence. Now, if he is sought to be penalized because of the omission, default or inaction on the part of the Court or Magistrate, the provision of law may have to be tested on the touchstone of Article 14 of the Constitution. It can possibly be urged that such a provision is totally arbitrary, irrational and unreasonable. It is settled law that a Court of Law would interpret a provision which would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconstitutional by adopting rule of ‘litera legis’. Connecting the provision of limitation in Section 468 of the Code with issuing of process or taking of cognizance by the Court may make it unsustainable and ultra vires Article 14 of the Constitution.

Conclusion

53. In view of the above, we hold that for the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by a Court. We, therefore, overrule all decisions in which it has been held that the crucial date for computing the period of limitation is taking of cognizance by the Magistrate/Court and not of filing of complaint or initiation of criminal proceedings.

Japani Sahoo Vs Chandra Sekhar Mohanty on 27 Jul 2007

Citations :

Other Sources :

https://indiankanoon.org/doc/1432851/

https://www.casemine.com/judgement/in/5609ae4ae4b0149711413706

Rakesh and Anr Vs State of UP and Anr on 13 Aug 2014

Posted on August 30, 2021 by ShadesOfKnife

A division bench of Apex Court held as follows

From Para 2, Issue was fixed.

2. Whether a Magistrate after accepting a negative final report submitted by the Police can take action on the basis of the protest petition filed by the complainant/first informant? The above question having been answered in the affirmative by the Allahabad High Court, this appeal has been filed by the accused.

From Para 7, issue was answered.

7. If we are to go back to trace the genesis of the views expressed by this Court in Gopal Vijay Verma (supra), notice must be had of the decision of this Court in H.S. Bains vs. State (Union Territory of Chandigarh) 3 wherein it was held that after receipt of the police report under Section 173, the Magistrate has three options –
“(1) he may decide that there is no sufficient ground for proceeding further and drop action;
(2) he may take cognizance of the offence under Section 190 (1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report;
(3) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.”
8. The second and third options available to the Magistrate as laid down in H.S. Bains (supra) has been referred to and relied upon in subsequent decisions of this Court to approve the action of the Magistrate in accepting the final report and at the same time in proceeding to treat either the police report or the initial complaint as the basis for further action/enquiry in the matter of the allegations levelled therein.

Rakesh and Anr Vs State of UP and Anr on 13 Aug 2014

Citations : [2014 RCR CRIMINAL SC 4 52], [2014 MPWN SC 3 73], [2014 AIR SC 3509], [2014 SCALE 9 347], [2014 AIOL 490], [2014 CRIMES SC 4 183], [2014 CRLJ SC 4195], [2014 JLJR SC 4 16], [2014 BOMCR CRI SC 4 643], [2014 SUPREME 7 286], [2014 SLT 7 183], [2014 SCC 13 133], [2014 SCC CRI 5 611], [2014 SCC ONLINE SC 619], [2014 AIC 142 75], [2014 ACR SC 3 3091], [2014 UC 3 1651], [2014 ALLCC 87 299], [2014 SCJ 9 159], [2014 ALT CRL AP 3 531], [2014 ALLMR CRI SC 3782], [2014 AJR 4 387], [2015 LW CRL 1 229], [2014 CCR SC 3 577], [2014 PLJR 4 176], [2014 MLJ CRL SC 4 113], [2014 ALL LJ 6 82]

Other Sources :

https://indiankanoon.org/doc/118305084/

https://www.casemine.com/judgement/in/5609af4be4b0149711416134

Shades of Knife

True Colors of a Vile Wife

Tag: Legal Procedure Explained – Interpretation of Statutes

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

Amish Devgan Vs Union of India and Ors on 07 Dec 2020

Japani Sahoo Vs Chandra Sekhar Mohanty on 27 Jul 2007

Rakesh and Anr Vs State of UP and Anr on 13 Aug 2014