Bhima Razu Prasad Vs State of Tamil Nadu on 12 Mar 2021

Posted on April 6, 2021 by ShadesOfKnife

Referring to a catena of case laws, Division bench of SC said the following:

From Para 5,

It is well settled that Section 195(1)(b) creates a bar against taking cognizance of offences against the administration of justice for the purpose of guarding against baseless or vindictive prosecutions by private parties. The provisions of this Section imply that the Court is the only appropriate authority which is entitled to raise grievance in relation to perjury, forgery of documents produced before the Court, and other offences which interfere with the effective dispensation of justice by the Court. Hence, it for the Court to exercise its discretion and consider the suitability of making a complaint for such offences. However, there is a pertinent difference in the wording of Section 195(1)(b) (i) and Section 195(1)(b)(ii) inasmuch as Section 195(1)(b)(ii) is restricted to offences which are committed in respect of a document which is “produced or given in evidence in a proceeding in any court”. Whereas Section 195(1)(b)(i) applies to offences against public justice which are committed not only in any proceeding in any court, but also “in relation to” such proceeding. Whether such semantical difference bars the analogous application of precedents relating to Section 195(1)(b)(ii) for interpreting Section 195(1)(b)(i) will be discussed by us later.

From Para 8,

Curiously, though the facts of Iqbal Singh Marwah also required a determination as to the applicability of Section 195(1)(b)(i), the Constitution Bench did not express any specific finding on this point. This was perhaps because the limited point for consideration before the Bench was the apparent conflict between Sachida Nand Singh and Surjit Singh (supra). However, it can nevertheless be seen that the Constitution Bench did not interpret Section 195(1)(b)(ii) in isolation, but linked its construction with the overall scheme under Sections 195(1)(b) and 340, CrPC. The Court reiterated the test laid down in Sachida Nand Singh, i.e., that the offence in respect of which only the Court can make a complaint must be one which has a direct correlation to, or a direct impact on, proceedings before a court of justice. It is for this reason that only the relevant Court is vested with the right to consider the desirability of complaining against the guilty party.

From Para 17 (Very important)

17. It is possible that Courts may be more proactive in making complaints under Section 195(1)(b)(i), CrPC upon application made by the concerned investigative agencies, than in those preferred by private parties. The former being public authorities would enjoy more credence in seeking inquiry into their claims.Therefore, the aforementioned reasons assigned by the Constitution Bench in Iqbal Singh Marwah for adopting a narrow construction of Section 195(1)(b)(ii), CrPC may not be strictly applicable in the present case. However, the general principles of statutory interpretation laid down by the Constitution Bench should not be disregarded. This is especially given that the Court did not consider Section 195(1)(b)(ii) separately but provided a holistic view of the scheme under Section 195(1)(b).
17.1 Just like a private party who has been a victim of forgery committed outside the precincts of the Court, the investigative agency should not be left remediless against persons who have producing false evidence for the purpose of interfering with the investigation process. Moreover, the present case concerns offences alleged to have been committed under the PC Act. Public interest and the reputation of the State will suffer significant harm if corrupt public servants are facilitated by third parties in hiding their assets from scrutiny. Hence any interpretation which negates against the speedy and effective trial of such persons must be avoided.
17.2 The application of the bar under Section 195(1)(b)(i), CrPC to situations such as the present case can lead to two scenarios. The first is one in which the investigative agency, on the basis of false/fabricated material drops the case. Subsequently, it is brought to their notice that the evidence was falsified. Second, the investigative agency at that very stage suspects that the material produced before them is bogus or forged in nature. In both scenarios, the Court has not had an opportunity to consider the allegedly fabricated evidence, as trial has not yet commenced in respect of the offence. Hence it would not be possible for the Court to independently ascertain the need for lodging a complaint under Section 195(1)(b)(i) read with Section 340, CrPC when the evidence alleged to have been falsified is not even present on its records. Rather, it is the investigating agency which is best placed to verify and prove whether such falsification has taken place, through what means and for what purpose.
17.3 In case the bar under Section 195(1)(b)(i) is applied to offences committed during the course of investigation, the Court may think it fit to wait till the completion of trial to evaluate whether a complaint should be made or not. Subsequently, the Court may be of the opinion that in the larger scheme of things the alleged fabrication of evidence during investigation has not had any material impact on the trial, and decline to initiate prosecution for the same. The investigation agency cannot be compelled to take a chance and wait for the trial court to form its opinion in each and every case. This may give the offender under Section 193, IPC sufficient time to fabricate more falsehoods to hide the original crime. Further, irrespective of the potential impact that such false evidence may have on the opinion formed by the trial court, the investigating agency has a separate right to proceed against the accused for attempting to obstruct fair and transparent probe into a criminal offence. Thus, we are of the view that it would be impracticable to insist upon lodging of written complaint by the Court under Section 195(1)(b)(i), CrPC in such a situation.

Bhima Razu Prasad Vs State of Tamil Nadu on 12 Mar 2021

Chegireddy Venkata Reddy Vs Government of Andhra Pradesh on 30 Jul 2020

Posted on April 5, 2021 by ShadesOfKnife

Long story short, AP HC says, if the Police do not register an FIR if information about a cognizable offence is reported, the remedies are as follows:

The remedies are under Section 154(3), 156(3) and Section 190 r/w.Sec.200 of Cr.P.C.

Chegireddy Venkata Reddy Vs Government of Andhra Pradesh on 30 Jul 2020

Citations :

Other Sources :

A 2-page judgment here which cites this judgment can also be used for same purpose. Saves 24 pages !!!

Lingam Seetharammayya and Ors Vs State of AP and Ors on 16 Mar 2021

Posted on April 5, 2021 by ShadesOfKnife

Single-judge bench of AP HC held that, one cannot directly approach the High Court u/Article 226 of Constitution of India, if the Police do not register an FIR if information about a cognizable offence is reported relying on the case law from AP HC here.

The remedies are under Section 154(3), 156(3) and Section 190 r/w.Sec.200 of Cr.P.C.

Lingam Seetharammayya and Ors Vs State of AP and Ors on 16 Mar 2021

Masood Khan Vs. Millie Hazarika on 04 Mar 2021

Posted on April 3, 2021 by ShadesOfKnife

Disagreeing with a catena of judgements here, here, here, here, Single-bench of High Court of Meghalaya relied upon this landmark decision from Supreme Court here and held that a false DV case can be quashed u/s 482 CrPC.

From Paras 33, 34 and 33,

33. The argument of the learned counsel for the Respondent No. 2 in the opinion of this Court are valid as regard the nature and relief contemplated under the DV Act 2005, particularly those seen in Sections 18 to 22 which are civil in nature and can be sought for before any civil court, family court or a criminal court as provided under Section 26 of the said DV Act. However, the learned counsel has failed to notice that in Section 26 of the DV Act, the aggrieved person apart from a civil court or a family court, can seek the reliefs stated above even from a criminal court and in doing so, the aggrieved person would subject herself to the jurisdiction of a criminal court following the procedure of the Criminal Procedure Code.
34. In fact, Section 28 of the DV Act 2005 specifically provides that all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 as well as Section 31 shall be governed by the provisions of the Code of Criminal Procedure, though liberty was also given to the court to lay down its own procedure.
35. The applicability of the said provision of Section 28 of the said DV Act in criminal proceedings was emphasized by the Hon’ble Supreme Court in the case of Satish Chander Ahuja (supra) at paragraphs 138 and 139 where it has restated that the procedure to be followed shall be under the Code of Criminal Procedure.

From Paras 38, 39

38. It is also a fact that Section 482 Cr.P.C provides for inherent power on the High Court to make such order as may be necessary to give effect to any order under the Code and as stated above, proceedings under the DV Act being governed by the procedure under the Cr.P.C, therefore the logical conclusion would be that an application under Section 482 is maintainable qua order passed under Sections 12, 18, 19, 20, 21, 22 and 23 of the DV Act.
39. With due respect, the decisions of the Hon’ble Kerala High Court and the Madras High Court cited above and relied upon by the learned Counsel for the Respondent No 2, as far as the procedural aspects under the DV Act is concerned, would not stand the test in the light of the decision of the Hon’ble Supreme Court in the case of Satish Chander Ahuja (supra).

Masood Khan Vs. Millie Hazarika on 04 Mar 2021

Latha.P.C and Ors Vs State of Kerala and Ors on 15 Sep 2020

Posted on April 3, 2021 by ShadesOfKnife

A single-judge bench of Kerala High Court, while denying to invoke 482 CrPC to quash a DV case based on the landmark judgment here, held as follows. But Supreme Court had taken a different view in the landmark judgment here just a month later.

From Para 8,

8. The Act is a welfare legislation enacted to provide a remedy in civil law for protection of women from domestic violence. The proceedings under the Act are, therefore, essentially civil in nature except in so far as it relate to Section 31 dealing with the breach of protection order issued under the Act
and Section 33 dealing with failure or refusal by Protection Offices in discharging their duties in terms of the orders issued by the Court. As such, in Vijayalekshmi Amma v. Bindu, 2010 (1) KLT 79, this Court held that a party against whom a proceedings is initiated under Section 12 of the Act cannot approach this court for quashing the proceedings, invoking the power of this Court under Section 482 of the Code, and that the power of this Court under Section 482 can be exercised only in appropriate cases either to give effect to any order passed under the Act or to prevent abuse of the process of the court or to secure the ends of justice, when cognizance is taken by the Magistrate for an offence under subsection (1) of Section 31 or Section 33 of the Act.
…
As evident from the extracted paragraphs of the judgement, this Court has held in the said case that a person to whom notice is issued by the Magistrate in an application under Section 12 of the Act can appear before the Magistrate and contend that the proceedings is not maintainable against him, on the ground either that the person who filed the application is not an ‘aggrieved person’ as defined in Section 2(a) of the Act, or that he would not fall within the definition of the ‘respondent’ in Section 2(q) of the Act, or that the allegations do not make out a case of ‘domestic violence’ as defined in Section 2(g) of the Act or that the reliefs sought are not reliefs provided for in the Act. It was also held by this Court in the said case that such contentions as regards the maintainability of the application, if raised, shall be decided by the Magistrate. It was further held by this Court in the said case that so long as the respondent is not an accused in a proceedings initiated under the Act, he is not even obliged to apply for bail in respect of such proceedings and his personal presence is not mandatory for hearing and disposing of an application under Section 12. In the light of the decision of this Court in Vijayalekshmi, according to me, the Criminal M.C. is not maintainable.

Misuse of Social Welfare (Gender-biased) Laws in India:

From Para 9,

9. Despite the findings aforesaid, it is necessary to mention that in so far as the proceedings under the Act are to be dealt with by criminal courts in accordance with the procedure prescribed under the Code, it has become a common practice now to rope in the relatives, at times even distant relatives of the person from whom relief is essentially intended, as respondents in the applications instituted under the Act without any bonafides and with oblique motives, on omnibus and vague allegations, despite various judgements of the Apex Court deprecating that practice. In Preeti Gupta v. State of Jharkhand (2010) 7 SCC 667, the Apex Court has taken note of the said fact and observed that majority of such complaints are filed either on the advice of the lawyers or with their concurrence. Be that as it may. It is also observed that notice is invariably issued to all the respondents in such applications without application of mind as to whether the aggrieved person has made out a case of domestic violence against all of them, as a result of which, it is noticed that some of the proceedings under the Act, where parties are arrayed as respondents without making out a case of domestic violence against them, have become a tool of harassment at the hands of the aggrieved persons to obtain reliefs which they are not entitled to. The statute being a remedial one to protect the women from domestic violence, it has to be enforced having regard to the realities of life. As such, even while taking all endeavours possible to protect the aggrieved persons from domestic violence, the courts have to be extremely cautious and careful to ensure that its powers are not being abused. One of the important steps to be taken towards that direction is to scrutinize the applications meticulously and satisfy that a case of domestic violence as defined in the Act is made out against all the respondents and no one is arrayed as a party to the proceedings on omnibus and vague allegations, so that the court can refrain from issuing notice to them. The provisions in the statute especially Section 28, conferring power on the Magistrate to lay down its own procedure for disposal of an application under Section 12 or under subsection (2) of Section 23 would indicate that the scheme of the statute is that the approach of the courts shall be to enforce the provisions of the Act, keeping in mind the fact that the parties who are close relatives in most of the cases, would at some point of time reconcile their differences and lead a life in harmony and the opportunity for the parties to bring about a settlement of their differences is not lost on account of the steps taken in the proceedings. If proceedings under the Act are permitted to be used as tools of harassment, I have no doubt that the possibility of the parties settling their disputes amicably and leading a life in harmony would be bleak.

Latha.P.C and Ors Vs State of Kerala and Ors on 15 Sep 2020

Citations: [2020 SCC ONLINE KER 4238]

Other Sources :

https://indiankanoon.org/doc/126633191/

https://www.casemine.com/judgement/in/5f80abd89fca190ae54bcb50

Index to DV Judgements is here.

Bhagya and Ors Vs Jayalakshmi and Ors on 13 Feb 2019

Posted on April 3, 2021 by ShadesOfKnife

The Division Bench clarified the legal position on obtaining NOC from an advocate before engaging the services of another advocate while perusing an earlier case law here.

Memo for withdrawal of the appeal is filed on 31-1-2019 signed by the three appellants. The memo filed by the new counsel does not have a ‘No Objection Certificate’ from the earlier counsel. On questioning, he places reliance on the Judgment of this Court passed in MFA No.6526 of 2013 on 2-12-2016 (KARNATAKA POWER TRANSMISSION CORPORATION LIMITED., vs. M.RAJASHEKAR AND OTHERS) and submits that it is not necessary to obtain a No Objection Certificate to file a vakalath. We are unable to accept the submission. Reliance placed by the counsel on para-8 of the Judgment is misconceived. The Division Bench held therein that ‘No Objection Certificate’ is not required only in a situation where the Advocate is discharged by his client in a manner known to law, only then a new counsel can enter vakalath without a ‘No Objection Certificate’. When the earlier counsel still holds a valid vakalath, the question of a new Advocate entering the case cannot be accepted. Therefore, the counsel has misread the aforesaid Judgment.

Bhagya and Ors Vs Jayalakshmi and Ors on 13 Feb 2019

Citations : [2019 SCC ONLINE KAR 1974], [2019 KCCR 2 1453], [2019 AIR KAR 133], [2019 AIR KANT R 3 50], [2019 ICC 4 31]

Other Sources :

https://indiankanoon.org/doc/26814810/

https://www.casemine.com/judgement/in/5c8d0f119eff430a1ad75a63

https://www.lawyerservices.in/Bhagya-andamp-Others-Versus-Jayalakshmi-andamp-Others-2019-02-13

Other Judgements on this subject here.

Sarita Gosawi Vs Bharat Gosawi on 05 Mar 2021

Posted on April 2, 2021 by ShadesOfKnife

There was mental cruelty done to husband and the High Court nailed the point straight.

From Paras 18 and 19,

18. Keeping in mind the aforesaid guiding parameters, now we proceed to examine the evidence on record. Apart from the allegations and counter allegations by the parties against each other with regard to their mutual misbehavior, the crucial point on which the respondent/ husband sought decree of divorce, and which according to him is the reason for his mental sufferings and anguishes, is the suspicious and skeptical nature of the appellant/ wife, as she used to have a doubt on his character. She was doubting his relations with one lady employee from his office. It is his case that the appellant/ wife used to visit his office and used to create scenes. She used to abuse him in filthy language on his character and used to humiliate him in front of their adolescent daughters.
19. The respondent/ husband, in his pleadings and evidence, further stated that he had purchased one plot of land and constructed a house thereon on loan and at present, the same is in possession of the appellant/ wife. He is paying installments for the repayment of the loan for house from his
salary account. To pacify her, he even transferred his house in her name. He has stated that fed-up with her acrimonious behaviour, he had to lodge reports at police station, and there were counselling before the Women Cell, and in consequence thereof, she resumed cohabitation. Lastly, he said, he had no option but to leave the house and to reside in a rented house.

20. A perusal of the written statements of the appellant/ wife would reflect that she has not denied, even by way of simple denial, about the contents in para 3 of the divorce petition of the respondent/ husband which are with regard to the suspicious nature of the appellant/ wife, doubting his character, abusing in a filthy language and visiting his office and creating scenes etc.

Crucial Paras 22 and 25,

22. In the instant case, admittedly, there are no positive allegations with regard to the character of the respondent/ husband in the written statement of the appellant/ wife. However, maintaining silence in her written statement and not countering the case of cruelty of the respondent/ husband on this ground, coupled with the fact that there were specific suggestions in the cross-examination of the respondent/ husband by taking the name of the alleged lady, in the opinion of this Court, is nothing but the unfounded allegation on the character of the husband as held in the above cited case.
25. A collective reading of his cross-examination, it appears, it is more focused on the maintenance part and less on the allegations of mental cruelty as alleged by the respondent/ husband. So the material allegations, with regard to mental cruelty as pleaded by the respondent/ husband, have neither be denied in the written statement of the appellant/ wife nor have they been sufficiently countered during his cross examination. As per law, the facts, which are not denied, are deemed to have been admitted. As per Order 8 Rule 5 of the Code of Civil Procedure, 1908, the facts which are not denied specifically are deemed to have been admitted, and simple denial is no denial. In the instant case, there is no denial at all.

Law involved,

26. The effect of non cross-examination of a witness was discussed by the Hon’ble Apex Court in the case of Muddasani Venkata Narsaiah (Dead) Through Legal Representatives Vs. Muddasani Sarojana, reported in (2016) 12 SCC 288, wherein Their Lordships have held that the cross-examination is a matter of substance not of procedure one isrequired to put one’s own version in cross-examination of opponent. It is further observed that the effect of non-cross examination is that the statement of witness has not been disputed. In the said judgment, the Hon’ble Apex Court relied on the judgment in the case of Maroti Bansi Teli Vs. Radhabai, reported in AIR 1945 Nag 60, wherein it has been laid down that the matters sworn to by one party in the pleadings notchallenged either in pleadings or cross-examination by other party must be accepted as fully established.

Closure:

31. As rightly pointed out by the learned counsel for the respondent/ husband the case of Vijaykumar Bhate (supra) wherein, the Hon’ble Apex Court took the view that the false and malicious allegations against the character of a spouse is a ground for dissolving the marriage on account of causing mental cruelty.
32. Furthermore, the appellant/ wife could not prove her allegations with regard to demand of dowry and ill-treatment. On the contrary, it is borne out from the record that the respondent/ husband himself had to leave from his own house fed-up with her mis-behaviour.

Sarita Gosawi Vs Bharat Gosawi on 05 Mar 2021

Aparna Bhat and Ors Vs State of Madhya Pradesh and Anr on 18 Mar 2021

Posted on March 23, 2021 by ShadesOfKnife

A 2-judge bench of Supreme Court passed the following directions in regards to bail proceedings in sexual offences (only applicable to women survivors).

From Para 45 and 46,

44. Having regard to the foregoing discussion, it is hereby directed that henceforth:
(a) Bail conditions should not mandate, require or permit contact between the accused and the victim. Such conditions should seek to protect the complainant from any further harassment by the accused;
(b) Where circumstances exist for the court to believe that there might be a potential threat of harassment of the victim, or upon apprehension expressed, after calling for reports from the police, the nature of protection shall be separately considered and appropriate order made, in addition to a direction to the accused not to make any contact with the victim;
(c) In all cases where bail is granted, the complainant should immediately be informed that the accused has been granted bail and copy of the bail order made over to him/her within two days;
(d) Bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society, and must strictly be in accordance with the requirements of the Cr. PC. In other words, discussion about the dress, behavior, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail;
(e) The courts while adjudicating cases involving gender related crimes, should not suggest or entertain any notions (or encourage any steps) towards compromises between the prosecutrix and the accused to get married, suggest or mandate mediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction;
(f) Sensitivity should be displayed at all times by judges, who should ensure that there is no traumatization of the prosecutrix, during the proceedings, or anything said during the arguments, and
(g) Judges especially should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court.
45. Further, courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that (i) women are physically weak and need protection; (ii) women are incapable of or cannot take decisions on their own; (iii) men are the “head” of the household and should take all the decisions relating to family; (iv) women should be submissive and obedient according to our culture; (v) “good” women are sexually chaste; (vi) motherhood is the duty and role of every woman, and assumptions to the effect that she wants to be a mother; (vii) women should be the ones in charge of their children, their upbringing and care; (viii) being alone at night or wearing certain clothes make women responsible for being attacked; (ix) a woman consuming alcohol, smoking, etc. may justify unwelcome advances by men or “has asked for it”; (x) women are emotional and often overreact or dramatize events, hence it is necessary to corroborate their testimony; (xi) testimonial evidence provided by women who are sexually active may be suspected when assessing “consent” in sexual offence cases; and (xii) lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman.

Aparna Bhat and Ors Vs State of Madhya Pradesh and Anr on 18 Mar 2021

Tarlochan Dev Sharma Vs State of Punjab and Ors on 25 July 2001

Posted on March 22, 2021 by ShadesOfKnife

(The popular meaning also must not be resorted to)

Tarlochan Dev Sharma Vs State of Punjab and Ors on 25 July, 2001

Citations : [2001 AIR SC 2524], [2001 JT SC 5 645], [2002 LW 1 19], [2001 SCALE 4 472], [2001 SCC 6 260], [2001 SCR 3 1146], [2001 AIR SC 2689], [2001 AIR SCW 2689], [2001 JT 5 645]

Other Sources :

https://indiankanoon.org/doc/1389589/

https://www.casemine.com/judgement/in/5609ada0e4b0149711411e78

Paramjit Kumar Saroya Vs Union of India and Anr on 28 May 2014

Posted on March 21, 2021 by ShadesOfKnife

Sitting on a Division bench of Punjab and Haryana High Court, Justice Sanjay Kishan Kaul held that, Appeals under the Maintenance and Welfare of Parents and Senior Citizens Act 2007 can be filed by any of the affected parties.

We may add at this stage that in order to have assistance to this Court in view of the complexity in the matter involved, we considered it appropriate not only for the counsels to assist us, but to appoint Amicus Curiae to have dispassionate view of the matter. We, thus, appointed Mr. Puneet Bali, Senior Advocate as the Amicus Curiae to be assisted by Ms. Divya Sharma, Advocate. They have done a comprehensive research on various aspects of the matter and this includes the Parliamentary debates when the Bill for enactment of the said Act was introduced. A perusal of these debates reflect that therehas been no debate qua Section 16(1) of the said Act, nor has any intent been reflected to exclude the right of appeal to persons other than thesenior citizens or parents, unlike the debate on Section 17 of the said Act where the right of legal representation has been excluded.

And here is the conclusion.

We are thus of the view that Section 16(1) of the said Act is valid, but must be read to provide for the right of appeal to any of the affected parties.

Paramjit Kumar Saroya Vs Union of India and Anr on 28 May 2014

Citations : [2014 AIR P&H 121], [2014 SCC ONLINE P&H 10864]

Other Sources :

https://indiankanoon.org/doc/156882703/

https://www.casemine.com/judgement/in/5609a051e4b01497113e6023

Shades of Knife

True Colors of a Vile Wife

Tag: Legal Procedure Explained – Interpretation of Statutes

Bhima Razu Prasad Vs State of Tamil Nadu on 12 Mar 2021

Chegireddy Venkata Reddy Vs Government of Andhra Pradesh on 30 Jul 2020

Lingam Seetharammayya and Ors Vs State of AP and Ors on 16 Mar 2021

Masood Khan Vs. Millie Hazarika on 04 Mar 2021

Latha.P.C and Ors Vs State of Kerala and Ors on 15 Sep 2020

Bhagya and Ors Vs Jayalakshmi and Ors on 13 Feb 2019

Sarita Gosawi Vs Bharat Gosawi on 05 Mar 2021

Aparna Bhat and Ors Vs State of Madhya Pradesh and Anr on 18 Mar 2021

Tarlochan Dev Sharma Vs State of Punjab and Ors on 25 July 2001

Paramjit Kumar Saroya Vs Union of India and Anr on 28 May 2014