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.
Citations :
Other Sources :
A 2-page judgment here which cites this judgment can also be used for same purpose. Saves 24 pages !!!
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.
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).
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.
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.
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.
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.
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.
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.
(The popular meaning also must not be resorted to)
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
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.
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
A 3-judge bench of Apex Court held as follows regards to default bail u/s 167 CrPC,
From Para 4,
Therefore, the question before us is whether, pending investigation, the petitioner could be kept in custody for a maximum period of 60 days in terms of clause (ii) of proviso (a) to Section 167(2) of the Cr.P.C. or for 90 days in terms of clause (i) of proviso (a) to Section 167(2) of the Cr.P.C. without a charge sheet being filed.
From Para 25,
25. While it is true that merely because a minimum sentence is provided for in the statute it does not mean that only the minimum sentence is imposable. Equally, there is also nothing to suggest that only the maximum sentence is imposable. Either punishment can be imposed and even something in between. Where does one strike a balance? It was held that it is eventually for the court to decide what sentence should be imposed given the range available. Undoubtedly, the Legislature can bind the sentencing court by laying down the minimum sentence (not less than) and it can also lay down the maximum sentence. If the minimum is laid down, the sentencing judge has no option but to give a sentence “not less than” that sentence provided for. Therefore, thewords “not less than” occurring in Clause (i) to proviso (a) of Section 167(2) of the Cr.P.C. (and in other provisions) must be given their natural and obvious meaning which is to say, not below a minimum threshold and in the case of Section 167 of the Cr.P.C. these words must relate to an offence punishable witha minimum of 10 years imprisonment.
From Para 31,
31. In the 154th Report, the Law Commission noted that the unanimous opinion of members of the Bench and the Bar, prosecuting agencies and senior police officers during legal workshops held at various places was that the investigation of serious offences punishable with a sentence of 7 years or more should invariably be undertaken by senior officers. The Law Commission concluded, as a result of these extensive discussions, that it was desirable toseparate the investigating police from the law and order police and as many as seven reasons were given for arriving at this conclusion in Chapter II of the Report.
From Paras 40 and 41,
40. In the present case, it was also argued by learned counsel for the State that the petitioner did not apply for ‘default bail’ on or after 4th January, 2017 till 24th January, 2017 on which date his indefeasible right got extinguished on the filing of the charge sheet. Strictly speaking this is correct since the petitioner applied for regular bail on 11th January, 2017 in the Gauhati High Court – he made no specific application for grant of ‘default bail’. However, the application for regular bail filed by the accused on 11th January, 2017 did advert to the statutory period for filing a charge sheet having expired and that perhaps no charge sheet had in fact being filed. In any event, this issue was argued by learned counsel for the petitioner in the High Court and it was considered but not accepted by the High Court. The High Court did not reject the submission on the ground of maintainability but on merits. Therefore it is not as if the petitioner did not make any application for default bail – such an application was definitely made (if not in writing) then at least orally before the High Court. In our opinion, in matters of personal liberty, we cannot and should not be too technical and must lean in favour of personal liberty. Consequently, whether the accused makes a written application for ‘default bail’ or an oral application for ‘default bail’ is of no consequence. The concerned court must deal with such an application by considering the statutory requirements namely, whether the statutory period for filing a charge sheet or challan has expired, whether the charge sheet or challan has been filed and whether the accused is prepared to and does furnish bail.
41. We take this view keeping in mind that in matters of personal liberty and Article 21 of the Constitution, it is not always advisable to be formalistic or technical. The history of the personal liberty jurisprudence of this Court and other constitutional courts includes petitions for a writ of habeas corpus and for other writs being entertained even on the basis of a letter addressed to the Chief Justice or the Court.
Then finally in Paras 46 and 47,
46. It was submitted that as of today, a charge sheet having been filed against the petitioner, he is not entitled to ‘default bail’ but must apply for regular bail – the ‘default bail’ chapter being now closed. We cannot agree for the simple reason that we are concerned with the interregnum between 4th January, 2017 and 24th January, 2017 when no charge sheet had been filed, during which period he had availed of his indefeasible right of ‘default bail’. It would have been another matter altogether if the petitioner had not applied for ‘default bail’ for whatever reason during this interregnum. There could be a situation (however rare) where an accused is not prepared to be bailed out perhaps for his personal security since he or she might be facing some threat outside the correction home or for any other reason. But then in such an event, the accused voluntarily gives up the indefeasible right for default bail and having forfeited that right the accused cannot, after the charge sheet or challan has been filed, claim a resuscitation of the indefeasible right. But that is not the case insofar as the petitioner is concerned, since he did not give up his indefeasible right for ‘default bail’ during the interregnum between 4th January, 2017 and 24th January, 2017 as is evident from the decision of the High Court rendered on 11th January, 2017. On the contrary, he had availed of his right to ‘default bail’ which could not have been defeated on 11th January, 2017 and which we are today compelled to acknowledge and enforce.
47. Consequently, we are of opinion that the petitioner had satisfied all the requirements of obtaining ‘default bail’ which is that on 11th January, 2017 he had put in more than 60 days in custody pending investigations into an alleged offence not punishable with imprisonment for a minimum period of 10 years, no charge sheet had been filed against him and he was prepared to furnish bail for his release, as such, he ought to have been released by the High Court on reasonable terms and conditions of bail.
Citations : [2017 SCC ONLINE SC 924], [2017 ALLCC 101 287], [2017 ACR 3 2474], [2017 ALT CRL AP 3 141], [2017 CCR SC 3 371], [2017 DLT 242 79], [2017 ILR KER 3 673], [2017 JLJR 4 37], [2017 KHC 4 470], [2017 KLT 4 284], [2017 MLJ CRL 4 62], [2017 PLJR 4 53], [2017 RCR CRIMINAL 3 996], [2017 SCALE 9 24], [2017 UC 3 1756], [2017 SCC 15 67], [2018 SCC CRI 1 401], [2017 AIR SC 3948], [2017 AIC 178 75], [2018 CRI LJ 155]
Other Sources :
https://indiankanoon.org/doc/194334432/
https://www.casemine.com/judgement/in/599a9dfd4a93262f6c14fba6
https://www.indianemployees.com/judgments/details/rakesh-kumar-paul-versus-state-of-assam
Bad Behavior has blocked 1035 access attempts in the last 7 days.
