Sharad Birdhi Chand Sarda Vs State of Maharashtra on 17 Jul 1984

Posted on March 10, 2021 by ShadesOfKnife

Landmark judgment by a 3-judge bench of Supreme Court around circumstantial evidence (Sec 106 of Evidence Act 1872) basis which the accused were acquitted. The 5 golden principles postulated in this decision are as below.

153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade and another Vs. State of Maharashtra 1973 2 SCC 793 where the observations were made :
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and tendency,
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the
accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.

Sharad Birdhi Chand Sarda Vs State of Maharashtra on 17 Jul 1984 (SCR)

Citations : [1984 SCC 4 116], [1984 AIR SC 1622], [1984 CRI LJ 1738], [1984 CRIMES 2 235], [1984 CAR 263], [1984 CRLJ 90 1738], [1984 SCALE 2 445], [1985 SCR 1 88], [1984 CRLR 296], [1985 BOMCR SC 1 208], [1984 CRIMES SC 2 853], [1984 SCC CRI 1 487], [1984 SCC CRI 487], [1984 CRLJ SC 1738], [1984 AIR 1622], [1984 CRIMES SC 2 235]

Other Sources :

https://indiankanoon.org/doc/1505859/

https://www.casemine.com/judgement/in/56b48ca6607dba348ffede2b

Santokh Singh Vs Izhar Hussain and Anr on 25 Apr 1973

Posted on February 28, 2021 by ShadesOfKnife

A 2-judge bench of Apex Court held that, in this particular case, the Police officer can not be saddled with IPC 211 and prosecuted u/s 340 CrPC read with 195 CrPC. But the necessary ingredients are clearly articulated and hence this case law has to be relied upon as landmark judgment to file perjury against the person who made the false complaint (FIR need not be registered).

From Para 8,

8. In this Court, Shri Gupta has very forcefully contended that on the material on the record this direction is wholly unjustified, if not positively illegal, being based on misreading of evidence and on erroneous view of law. According to the submission, the appellant had neither lodged the FIR nor otherwise instituted any criminal proceeding or falsely charged Izhar Hussain within the contemplation of Section 211 IPC. Besides, there is absolutely no material on the record on which the High Court could have formed an opinion that it is expedient in the interest of justice that a complaint under Section 211 IPC should be filed against the appellant.

From Para 10,

… The short question posed, therefore, is, if by giving false evidence as a witness against Izhar Hussain the appellant can be said to have charged him within the contemplation of Section 211 IPC. If this question is answered in the affirmative, then it will have to be determined whether there is in fact a false accusation and finally whether it is expedient in the interest of justice on the facts and circumstances of the present case to direct a complaint to be filed under Section 211 IPC. This section as its marginal note indicates renders punishable false charge of offence with intent to injure. The essential ingredient of an offence under Section 211 IPC is to institute or cause to be instituted any criminal proceeding against a person with intent to cause him injury or with similar intent to falsely charge any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge. Instituting or causing to institute false criminal proceedings assume false charge but false charge may be preferred even when no criminal proceedings result. It is frankly conceded by Shri Kohli that the appellant cannot be said to have instituted any criminal proceeding against any person. So that part of Section 211 IPC is eliminated. Now, the expression “falsely charges” in this section, in our opinion, cannot mean giving false evidence as a prosecution witness against an accused person during the course of a criminal trial. To “falsely charge” must refer to the original or initial accusation putting or seeking to put in motion the machinery of criminal investigation and not when speaking to prove the false charge by making deposition in support of the charge framed in that trial. The words “falsely charges” have to be read along with the expression “institution of criminal proceeding”. Both these expressions, being susceptible of analogous meaning should be understood to have been used in their cognate sense. They get as it were their colour and content from each other. They seem to have been used in a technical sense as commonly understood in our criminal law. The false charge must, therefore, be made initially to a person in authority or to someone who is in a position to get the offender punished by appropriate proceedings. In other words, it must be embodied either in a complaint or in a report of a cognizable offence to the police officer or an officer having authority over the person against whom the allegations are made. The statement in order to constitute the “charge” should be made with the intention and object of setting criminal law in motion. Statement on oath falsely supporting the prosecution case against an accused person more appropriately amounts to an offence under Sections 193 and 195 IPC and not under Section 211 IPC. We do not think that the offences contemplated by Sections 193/195 IPC on the one hand and Section 211 IPC on the other were intended by the legislature in this context, to overlap so as to make it optional whether to proceed under one or the other. ..…

From Para 11,

Every incorrect or false statement does not make it incumbent on the court to order prosecution. The Court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. The court orders prosecution in the larger interest of the administration of justice and not to gratify feelings of personal revenge or vindictiveness or to serve the ends of a private party. Too frequent prosecutions for such offences tend to defeat its very object. It is only in glaring cases of deliberate falsehood where conviction is highly likely that the court should direct prosecution.

Original:

Santokh Singh Vs Izhar Hussain and Anr on 25 Apr 1973 (SCI)

Casemine Version.

Santokh Singh Vs Izhar Hussain and Anr on 25 Apr 1973

Citations : [1973 AIR SC 2190], [1974 BLJR 22 877], [1973 SCC 2 406], [1974 SCR 1 78], [1973 CAR 316], [1973 CRLR SC 473], [1973 SCC CR 828], [1973 SCC CRI 828], [1973 CRLJ SC 1176]

Other Sources :

https://indiankanoon.org/doc/56524/

https://www.casemine.com/judgement/in/5609ab94e4b014971140cd11

Index of Perjury judgments here.

Pankaj Kumar Vs State of Maharashtra and Ors on 11 Jul 2008

Posted on February 17, 2021 by ShadesOfKnife

In this landmark judgment, Apex Court held that Right to speedy trial is implicit to Article 21 of Constitution of India and also passed guidelines to ensure that this right is not violated, and it violated, Constitutional Courts have a duty to fix such violation appropriately.

From Para 14,

14. Time and again this Court has emphasized the need for speedy investigations and trial as both are mandated by the letter and spirit of the provisions of the CrPC. (In particular, Sections 197, 173, 309, 437 (6) and 468 etc.) and the constitutional protection enshrined in Article 21 of the Constitution. Inspired by the broad sweep and content of Article 21 as interpreted by a seven-Judge Bench of this Court in Maneka Gandhi Vs. Union of India & Anr., in Hussainara Khatoon & Ors. Vs. Home Secretary, State of Bihar, this Court had said that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except according to procedure established by law; that such procedure is not some semblance of a procedure but the procedure should be ‘reasonable, fair and just’; and therefrom flows, without doubt, the right to speedy trial. It was also observed that no procedure which does not ensure a reasonably quick trial can be regarded as ‘reasonable, fair or just’ and it would fall foul of Article 21. The Court clarified that speedy trial means reasonably expeditious trial which is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.

From Para 15,

15. The exposition of Article 21 in Hussainara Khatoon’s case (supra) was exhaustively considered afresh by the Constitution Bench in Abdul Rehman Antulay & Ors. Vs. R.S. Nayak & Anr.11. Referring to a number of decisions of this Court and the American precedents on the Sixth Amendment of their Constitution, making the right to a speedy and public trial a constitutional guarantee, the Court formulated as many as eleven propositions with a note of caution that these were not exhaustive and were meant only to serve as guidelines. For the sake of brevity, we do not propose to reproduce all the said propositions and it would suffice to note the gist thereof. These are:
(i) fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily;
(ii) right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial;
(iii) in every case where the speedy trial is alleged to have been infringed, the first question to be put and answered is —
who is responsible for the delay?;
(iv) while determining whether undue delay has occurred (resulting in violation of right to speedy trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions and so on— what is called, the systemic delays;
(v) each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case;
(vi) ultimately, the court has to balance and weigh several relevant factors—’balancing test’ or ‘balancing process’—and determine in each case whether the right to speedy trial has been denied;
(vii) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open and having regard to the nature of offence and other circumstances when the court feels that quashing of proceedings cannot be in the interest of justice, it is open to the court to make appropriate orders, including fixing the period for completion of trial;
(viii) it is neither advisable nor feasible to prescribe any outer time-limit for conclusion of all criminal proceedings. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint;
(ix) an objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis.

From Para 17,

17. It is, therefore, well settled that the right to speedy trial in all criminal persecutions is an inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep the preceding police investigations as well. The right to speedy trial extends equally to all criminal persecutions and is not confined to any particular category of cases. In every case, where the right to speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into consideration all the attendant circumstances, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case. Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, may be quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time for conclusion of trial.

Pankaj Kumar Vs State of Maharashtra and Ors on 11 Jul 2008

Citations : [2008 RCR CRI 4 890], [2008 AIR SC 0 5165], [2008 JT 8 109], [2008 AIR SC 3077], [2008 RAJ 6 293], [2008 SCC 16 117], [2008 WLC 2 677], [2008 MLJ CRI 2 1649], [2009 SCJ 1 998], [2008 SCALE 9 760], [2008 CCR 3 176], [2008 DLT CRI 3 533], [2008 SLT 6 233], [2008 AIOL 2116], [2008 ANJ SC 2 173], [2008 BOMCR CRI SC 2 590], [2010 SCC CRI 4 217], [2008 AIC SC 68 93], [2009 LLN 2 798], [2009 FLR 122 790], [2008 CRLJ SC 3944], [2008 AIR SCW 5165]

Other Sources:

https://indiankanoon.org/doc/1223002/

https://www.casemine.com/judgement/in/5609ae6ae4b0149711413c8f

Dr.P.Pathmanathan and Ors Vs V.Monica and Anr on 18 Jan 2021

Posted on January 19, 2021 by ShadesOfKnife

A very good judgment regarding PWDV Act 2005 (Act) and the procedure to be following, in detail. Snippets from the same follow along with the 14 directions issued for the Judicial Magistrate to be followed by them in disposing DV cases in Tamil Nadu.

UPDATE: This judgment is overruled by Supreme Court here.

From Paras 3 and 4,

3. Upon a close reading of the D.V Act, this Court found that the nature of rights that were protected and enforced under the Act were purely civil in nature. However, considering the forum which was dealing with such applications, and the procedure adopted, a criminal color has been unwittingly given to these proceedings. Like a chameleon changing its colour depending on the situation, the proceedings under the D.V Act were also camouflaged due to the nature of the forum provided under the Act.
4. On the flip side, this faulty understanding of the nature of the proceedings has also given rise to a tendency to misuse these proceedings as a weapon of harassment against parties who are unrelated to the proceedings by making them stand before a Magistrate like accused persons. It is mainly on account of this abuse of process that a deluge of petitions came to be filed for quashing the proceedings under Section 12 of the D.V. Act. This sorry state of affairs was a clear clarion call that impelled this Court to undertake this exercise to bring the situation under control by laying down certain guidelines for the disposal of the applications under Section 12 of the D.V Act.

Proceedings and Offences under the Act

18. Before examining this issue, it is necessary to notice the nature of the jurisdiction exercised by the Magistrate under the D.V Act. The procedure to be followed by a Magistrate in dealing with an application for reliefs under Chapter IV is set out in Section 28 of the Act. A close reading of Section 28 would show that it draws a distinction between “proceedings” (Section 12, 18 to 23) and “offences” (Sections 31 & 33) and states that they will be governed by Cr.P.C. This general rule is subject to two exceptions. The first exception is contained in the opening words of Section 28(1) of the Act which begins with the expression “save as otherwise provided by this Act”, the effect of which is to exclude the application of the Code in areas where the procedure has been expressly set out in the D.V Act or the Protection of Women from Domestic Violence Rules, 2006 (hereinafter referred to as “D.V Rules” or “the Rules”). The second exception is found in Section 28(2) of the Act which is in the nature of a non-obstante clause expressly authorizing the Court to deviate from the procedure set out in Section 28(1) and lay down its own procedure for disposal of an application under Section 12 or a proceeding under Section 23(2) of the Act.
19. In the first instance, it is, therefore, necessary to examine the areas where the D.V. Act or the D.V. Rules have specifically set out the procedure thereby excluding the operation of Cr.P.C as contemplated under Section 28(1) of the Act. This takes us to the D.V Rules. At the outset, it may be noticed that a “complaint” as contemplated under the D.V. Act and the D.V Rules is not the same as a “complaint” under Cr.P.C. A complaint under Rule 2(b) of the D.V Rules is defined as an allegation made orally or in writing by any person to a Protection Officer. On the other hand, a complaint, under Section 2(d) of the Cr.P.C. is any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown has committed an offence. However, the Magistrate dealing with an application under Section 12 of the Act is not called upon to take action for the commission of an offence. Hence, what is contemplated is not a Officer as contemplated under Rule 4(1) of the D.V Rules.
20. Rule 6(1) sets out that an application under Section 12 of the Act shall be as per Form II appended to the Act. Thus, an application under Section 12 not being a complaint as defined under Section 2(d) of the Cr.P.C, the procedure for cognizance set out under Section 190(1)(a) of the Code followed by the procedure set out in Chapter XV of the Code for taking cognizance will have no application to a proceeding under the D.V. Act. To reiterate, Section 190(1)(a) of the Code and the procedure set out in the subsequent Chapter XV of the Code will apply only in cases of complaints, under Section 2(d) of Cr.P.C, given to a Magistrate and not to an application under Section 12 of the Act.
21. Consequently, the stage for issuance of process contemplated under Section 204, Cr.P.C has no application to a proceeding under the D.V Act as the Magistrate, in an application under Section 12 of the D.V Act, is not taking cognizance of any offence, but is only dealing with an application for civil reliefs. Furthermore, as has already been pointed out, the respondent before the Court in an application under Section 12 of the Act is not an accused. Hence, the requirement of framing a charge does not arise either. (See V. Palaniammal v. Thenmozhi (2010) 1 MWN Cri 217).
24. A close reading of the aforesaid provisions would show that the procedure set out in the D.V Act and the Rules makes a conscious deviation from the traditional modes of a criminal court taking cognizance, issuing process and then trying the accused under the provisions of the Cr.P.C. save in the case of offences under Section 31 & 33 of the Act. Thus, the application of the Cr.P.C. to an application under Section 12 is residuary in nature by virtue of the mandate of Section 28(1) of the D.V Act.

So, 482 CrPC does not apply to a DV proceeding, which is civil in nature…

40. As the proceedings before a Magistrate exercising jurisdiction under Chapter IV is not a criminal proceeding before a Criminal Court, the next question is whether a petition under Section 482 of the Code would lie to quash an application under Section 12 of the D.V. Act. It is settled law that a petition under Section 482, Cr.P.C would lie only against an order of a criminal court.
41. As pointed out by a Division Bench of this Court in Rajamanickam v State of Tamil Nadu, 2015 (3) MWN Cri 379, Section 482 Cr.P.C preserves only the inherent criminal jurisdiction of the High Court. Thus, a petition under Section 482, Cr.P.C would be maintainable only if the order complained of is passed by a criminal Court or by a Court in exercise of powers under the Cr.P.C. Quashing an application under Section 12 of the D.V Act does not fall in either category, as what the Court is called upon to do at that stage is to interdict the exercise of civil jurisdiction by the Magistrate at the threshold. As indicated supra, since the Magistrate is exercising only a civil jurisdiction in granting reliefs under Chapter IV of the Act, it follows that a Magistrate is not a criminal court for the purposes of proceedings under Chapter IV of the Act. It follows that an application under Section 482, Cr.P.C does not lie to quash an application under Section 12 of the D.V Act.

So, no remedy then…? (IMHO, apart from Article 227, a petition under sec 151 C.P.C. should also be available to quash the DV proceeding, if it is necessary for the ends of justice or to prevent abuse of the process of the Court.)

42. This does not, however, mean that an aggrieved respondent is remediless. The Magistrate exercising jurisdiction under Chapter IV of the D.V Act, is certainly a subordinate Court for the purposes of Article 227, and a petition under Article 227 of the Constitution would still be available challenging the proceedings under Chapter IV of the D.V Act, in an appropriate case.

Class for the lower trial Courts…

51. It has been brought to the notice of this Court that in several cases, Magistrates continue to mechanically follow the drill of the procedure set out in Sections 190(1)(a), 200 to 204, Cr.P.C and issue summons as if the respondents before it are accused of offences. To compound the confusion, in most of these cases all and sundry are roped in as respondents before the Magistrate. These respondents, upon being summoned, file petitions under Section 205, Cr.P.C to dispense with their personal attendance and thereafter file petitions under Section 482, Cr.P.C to obtain a stay of all further proceedings in the case, and in most cases their personal appearance before the Magistrate is also dispensed with, and the case is then thrown into the backburner. All of this, it appears, is on account a perceptible lack of clarity in the procedure followed by the Magistrates while deciding applications under the Act.

Directions follow:

52.While it is no doubt true that the Court of Magistrate is invested with a great deal of flexibility under Section 28(2) of the Act to devise its own procedure for disposal of an application under Section 12 of the Act, the twin principles of consistency and clarity dictate that this Court must now lay down some broad guidelines, in exercise of its power of superintendence under Article 227 of the Constitution & in respect of Judicial Magistrates under Section 483 of the Cr.P.C, for the proper disposal of applications under Section 12 of the D.V Act. A corrective mechanism is available in the D.V Act itself for aggrieved parties to agitate their grievances and obtain redress.

The following directions are, therefore, issued:

i. An application under Section 12 of the D.V. Act, is not a complaint under Section 2(d) of the Cr.P.C. Consequently, the procedure set out in Section 190(1)(a) & 200 to 204, Cr.P.C as regards cases instituted on a complaint has no application to a proceeding under the D.V Act. The Magistrate cannot, therefore, treat an application under the D.V Act as though it is a complaint case under the Cr.P.C.
ii.An application under Section 12 of the Act shall be as set out in Form II of the D.V Rules, 2006, or as nearly as possible thereto. In case interim ex-parte orders are sought for by the aggrieved person under Section 23(2) of the Act, an affidavit, as contemplated under Form III, shall be sworn to.
iii. The Magistrate shall not issue a summon under Section 61, Cr.P.C to a respondent(s) in a proceeding under Chapter IV of the D.V Act. Instead, the Magistrate shall issue a notice for appearance which shall be as set out in Form VII appended to the D.V Rules, 2006. Service of such notice shallbe in the manner prescribed under Section 13 of the Act and Rule 12 (2) of the D.V Rules, and shall be accompanied by a copy of the petition and affidavit, if any.
iv. Personal appearance of the respondent(s) shall not be ordinarily insisted upon, if the parties are effectively represented through a counsel. Form VII of the D.V Rules, 2006, makes it clear that the parties can Magistrate either in person or through a duly authorized counsel. In all cases, the personal appearance of relatives and other third parties to the domestic relationship shall be insisted only upon compelling reasons being shown. (See Siladitya Basak v State of West Bengal (2009 SCC Online Cal 1903).
v. If the respondent(s) does not appear either in person or through a counsel in answer to a notice under Section 13, the Magistrate may proceed to determine the application ex-parte.
vi. It is not mandatory for the Magistrate to issue notices to all parties arrayed as respondents in an application under Section 12 of the Act. As pointed out by this Court in Vijaya Baskar (cited supra), there should be some application of mind on the part of the Magistrate in deciding the respondents upon whom notices should be issued. In all cases involving relatives and other third parties to the matrimonial relationship, the Magistrate must set out reasons that have impelled them to issue notice to such parties. To a large extent, this would curtail the pernicious practice of roping in all and sundry into the proceedings before the Magistrate.
vii. As there is no issuance of process as contemplated under Section 204, Cr.P.C in a proceeding under the D.V Act, the principle laid down in Adalat Prasad v Rooplal Jindal (2004 7 SCC 338) that a process, under Section 204, Cr.P.C, once issued cannot be reviewed or recalled, will not apply to a proceeding under the D.V Act. Consequently, it would be open to an aggrieved respondent(s) to approach the Magistrate and raise the issue of maintainability and other preliminary issues. Issues like the existence of a shared household/domestic relationship etc., which form the jurisdictional basis for entertaining an application under Section 12, can be determined as a preliminary issue, in appropriate cases. Any person aggrieved by such an order may also take recourse to an appeal under Section 29 of the D.V Act for effective redress (See V.K Vijayalekshmi Amma v Bindu. V, (2010) 87 AIC 367). This would stem the deluge of petitions challenging the maintainability of an application under Section 12 of the D.V Act, at the threshold before this Court under Article 227 of the Constitution.
viii. Similarly, any party aggrieved may also take recourse to Section 25 which expressly authorises the Magistrate to alter, modify or revoke any order under the Act upon showing change of circumstances.
ix. In Kunapareddy (cited supra), the Hon’ble Supreme Court upheld the order of a Magistrate purportedly exercising powers under Order VI, Rule 17 of The Code of Civil Procedure, 1908 (hereinafter referred to as “C.P.C.”), to permit the amendment of an application under Section 12 of the D.V Act. Taking a cue therefrom, it would be open to any of the respondent(s), at any stage of the proceeding, to apply to the Magistrate to have their names deleted from the array of respondents if they have been improperly joined as parties. For this purpose, the Magistrate can draw sustenance from the power under Order I Rule 10(2) of the C.P.C. A judicious use of this power would ensure that the proceedings under the D.V Act do not generate into a weapon of harassment and would prevent the process of Court from being abused by joining all and sundry as parties to the lis.
x. The Magistrates must take note that the practice of mechanically issuing notices to the respondents named in the application has been deprecated by this Court nearly a decade ago in Vijaya Baskar (cited supra). Precedents are meant to be followed and not forgotten, and the Magistrates would,
therefore, do well to examine the applications at the threshold and confine the inquiry only to those persons whose presence before it is proper and necessary for the grant of reliefs under Chapter IV of the D.V Act.
xi. In Satish Chandra Ahuja (cited supra), the Hon’ble Supreme Court has pointed out the importance of the enabling provisions under Section 26 of the D.V Act to avoid multiplicity of proceedings. Hence, the reliefs under Chapter IV of the D.V can also be claimed in a pending proceeding before a civil, criminal or family court as a counter claim.
xii. While recording evidence, the Magistrate may resort to chief examination of the witnesses to be furnished by affidavit (See Lakshman v Sangeetha, 2009 3 MWN (Cri) 257. The Magistrate shall generally follow the procedure set out in Section 254, Cr.P.C while recording evidence.
xiii. Section 28(2) of the Act is an enabling provision permitting the Magistrate to deviate from the procedure prescribed under Section 28(1), if the facts and circumstances of the case warrants such a course, keeping in mind that in the realm of procedure, everything is taken to be permitted unless
prohibited (See Muhammad Sulaiman Khan v Muhammad Yar Khan, 1888 11 ILR All 267).
xiv. A petition under Article 227 of the Constitution may still be maintainable if it is shown that the proceedings before the Magistrate suffer from a patent lack of jurisdiction. The jurisdiction under Article 227 is one of superintendence and is visitorial in nature and will not be exercised unless there exists a clear jurisdictional error and that manifest or substantial injustice would be caused if the power is not exercised in favour of the petitioner. (See Abdul Razak v. Mangesh Rajaram Wagle (2010) 2 SCC 432, Virudhunagar Hindu Nadargal Dharma Paribalana Sabai v. Tuticorin Educational Society, (2019) 9 SCC 538.) In normal circumstances, the power under Article 227 will not be exercised, as a measure of self-imposed restriction, in view of the corrective mechanism available to the aggrieved parties before the Magistrate, and then by way of an appeal under Section 29 of the Act.

Dr.P.Pathmanathan and Ors Vs V.Monica and Anr on 18 Jan 2021

Citations :

Other Sources :

Nandini Satpathy Vs PL Dani and Anr on 07 Apr 1978

Posted on January 16, 2021 by ShadesOfKnife

Nandini Satpathy Vs PL Dani and Anr on 07 Apr 1978

Citations :

Other Sources:

https://indiankanoon.org/doc/1938988/

https://www.casemine.com/judgement/in/5609abcce4b014971140d5d5

State of Punjab Vs Jagdev Singh Talwandi on 16 Dec 1983

Posted on January 14, 2021 by ShadesOfKnife

A 5-judge Constitutional bench of Supreme Court deprecated the “practice increasingly adopted by the High Courts, of pronouncing the final order without a reasoned judgment“.

We would like to take this opportunity to point out that serious difficulties arise on account of the practice increasingly adopted by the High Courts, of pronouncing the final order without a reasoned judgment. It is desirable that the final order which the High Court intends to pass should not be announced until a reasoned judgment is ready for pronouncement. Suppose, for example, that a final order without a reasoned judgment is announced by the High Court that a house shall be demolished, or that the custody of a child shall be handed over to one parent as against the order, or that a person accused of a serious charge is acquitted, or that a statute is unconstitutional or, as in the instant case, that a detenu be released from detention. If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special leave petition in this Court against the order passed by the High Court. That places this Court in a predicament because, without the benefit of the reasoning of the High Court, it is difficult for this Court to allow the bare order to be implemented. The result inevitably is that the operation of the order passed by the High Court has to be stayed pending delivery of the reasoned judgment.
It may be thought that such orders are passed by this Court and therefore there is no reason why the High Courts should not do the same. We would like to point out respectfully that the orders passed by this Court are final and no appeal lies against them. The Supreme Court is the final Court in thehierarchy of our courts. Besides, orders without a reasoned judgment are passed by this Court very rarely, under exceptional circumstances. Orders passed by the High Court are subject to the appellate jurisdiction of this Court under Article 136 of the Constitution and other provisions of theconcerned statutes. We thought it necessary to make these observations in order that a practice which is not very desirable and which achieves no useful purpose may not grow out of its present infancy.

State of Punjab Vs Jagdev Singh Talwandi on 16 Dec 1983

Indiankanoon version:

State of Punjab Vs Jagdev Singh Talwandi on 16 Dec 1983 (Indiankanoon)

Casemine version:

State of Punjab Vs Jagdev Singh Talwandi on 16 Dec 1983 (Casemine)

Citations : [1984 CRLJ SC 177], [1984 SCC 1 596], [1984 CRIMES SC 1 224], [1983 SCALE 2 942], [1984 SCC CRI 135], [1984 SCR 2 50], [1984 AIR SC 444]

Other Sources :

https://indiankanoon.org/doc/1158281/

https://www.casemine.com/judgement/in/5609ac0be4b014971140dde1#

Jaisingh Agarwal and Anr Vs State of Chhattisgarh and Anr on 27 Oct 2020

Posted on January 13, 2021 by ShadesOfKnife

From Para 14,

14. On a careful reading of the aforesaid provision, it is quite vivid that the Court of Session can take cognizance of any offence as a Court of original
jurisdiction except as otherwise expressly provided by the Code or by any other law for the time being in force only if the case has been committed to it by a Magistrate.

From Para 28,

28.From the aforesaid pronouncement of law rendered by the Constitution Bench of the Supreme Court, it is quite vivid that under the provisions of the Prevention of Corruption Act, the Special Judge is not prohibited from exercising power and jurisdiction under Section 156(3) of the Code when there is no exclusion of power in respect of the point raised.

hence, from Paras 32 and 33,

32.Thus, from the aforesaid proposition of law rendered by the Supreme Court in A.R. Antulay (supra) and the M.P. High Court in Anand Swaroop Tiwari (supra), it is quite vivid that the Special Court constituted under Section 14 of the Act of 1989 is the criminal court of original jurisdiction and is not governed by Section 193 of the Code, and the Special Court can take cognizance in any of the circumstances referred to in Section 190 of the Code and is governed by Chapters XV & XVI of the Code and such other provisions of the Code which are not inconsistent with the status and functions as Courts of original jurisdiction. Therefore, the Special Courts constituted under the Act of 1989 will also have power and jurisdiction to invoke Section 156(3) of the Code to direct investigation in exercise of power conferred, to the Station House Officer subject to fulfillment of making two prior applications under Section 154(1) and thereafter under Section 154(3) of the Code by the complainant. As such, I do not find any merit in the submission of learned Senior Counsel for the petitioners that the Special Judge under SC & ST Act has no power and jurisdiction to invoke Section 156(3) of the Code and to direct registration of FIR and investigation. Such a submission being meritless and substance-less deserves to be and is accordingly rejected.
33. Having answered question No.1 against the petitioners and in favour of respondent No.2, reverting to the second question whether the learned Special Judge is justified in invoking power and jurisdiction under Section 156(3) of the Code after finding compliance with the provisions contained in subsections (1) & (3) of Section 154 of the Code, it would be necessary to point out here that in order to make a duly constituted application for invoking the jurisdiction of the learned Special Judge under Section 156(3) of the Code, compliance of subsections (1) & (3) of Section 154 of the Code would be absolutely necessary rather it would be sine-qua-non for making the application under Section 156(1) of the Code maintainable.

From Paras 35 and 36,

35.From the focused perusal of Section 154(1) of the Code, it is quite vivid that every information relating to commission of cognizable offence, if given orally to in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant and every such information given in writing or reduced in writing as above-said shall be signed by person giving it and substance thereof shall be entered into book kept by such officer. Subsection (3) of Section 154 of the Code provides the procedure to be followed by informant, if officer in charge of a police station refuses to record the information referred to Section 154(1) of the Code and mandates that substance of such information in writing may be sent by post, to the Superintendent of Police concerned, who if satisfied that such information discloses commission of cognizable offence either investigate himself or direct an officer subordinate to him to investigate in the manner provided by the Code.
36.Their Lordships of the Supreme Court in the matter of Priyanka Srivastava (supra) laid down duty and approach of Magistrate while exercising power under Section 156(3) of the Code and highlighted preconditions to be satisfied to maintain the application under Section 156(3). It has also been held that power under Section 156(3) warrants application of judicial mind and there has to be prior application under Section 154(1) and 154(3) of the Code.

Jaisingh Agarwal and Anr Vs State of Chhattisgarh and Anr on 27 Oct 2020

Zaid Pathan and Ors Vs State of M.P. on 22 Dec 2020

Posted on January 9, 2021 by ShadesOfKnife

Even though the MP High Court held the law point correctly, IMHO, the said FIR which was saved by this Court, has no future, unless it was treated as a FIR registered u/s 154 CrPC, which is what the case is here.

From Para 15 16

15/ The submission of counsel for the petitioners is that as per the procedure prescribed in Section 195 of the Cr.P.C., for the purpose of the offence under Section 188 of the IPC a public servant is required to file a complaint before the competent court and, therefore, the FIR cannot be registered.
16/ Such an argument advanced by counsel for the petitioners is devoid of any merit. A bare reading of Section 195(1) Cr.P.C. reveals that the provisions contained in the sub-section are attracted at the stage of taking cognizance. There is no bar under Section 195 of the Cr.P.C. in respect of registration of FIR, therefore, FIR for an offence under Section 188 of the IPC can be registered by the police and after investigation on the basis of the FIR and the material collected during the course of investigation, a competent public servant can file the complaint before the concerned court. What is barred under Section 195 of the Cr.P.C. is that after investigating the offence under Section 188 of the IPC, the police officer cannot file a final report in the Court and the Court cannot take cognizance on that final report, as at that stage the bar contained in Section 195 of the Cr.P.C. comes
into operation.

Zaid Pathan and Ors Vs State of M.P. on 22 Dec 2020

Citations :

Other Sources :

https://www.indianemployees.com/judgments/details/zaid-pathan-and-others-vs-state-of-m-p

Umedbhai Jadavbhai Vs State of Gujarat on 16 Dec 1977

Posted on January 6, 2021 by ShadesOfKnife

Definition of Circumstantial evidence established by Supreme Court in this case. This corresponds to Sec 106 of Evidence Act.

From Paras 7 and 8,

7. It is well-established that in a case resting on circumstantial evidence all the circumstances brought out by the prosecution, must inevitably and exclusively point to the guilt of the accused and there should be no circumstance which may reasonably be considered consistent with the innocence of the accused. Even in the case of circumstantial evidence, the Court will have to bear in mind the cumulative effect of all the circumstances in a given case and weigh them as an integrated whole. Any missing link may be fatal to the prosecution case.
8. We will first consider whether the High Court was justified in entertaining the appeal and secondly in interfering with the order of acquittal. Entertainment of the appeal by the High Court against an acquittal will be justified only under special circumstances. They exist in this case. We find that the Sessions Judge has committed a manifest error of record when he held that “there was a pool of blood in the outer room and trail of blood-stains leading from the outer room to the inner room”. We do not find a tittle of evidence, oral or documentary to substantiate the above statement in the judgment of the Sessions Judge relying on which he came to the conclusion “that the victim was stabbed in the outer room while she was running from the outer room into the inner room”. The Sessions Judge fell into a grave error by coming to this grossly erroneous conclusion absolutely unsupported by any evidence.

Umedbhai Jadavbhai Vs State of Gujarat on 16 Dec 1977 (Indiankanoon)

Casemine version

Umedbhai Jadavbhai Vs State of Gujarat on 16 Dec 1977 (Casemine)

Citations : [1978 AIR SC 424], [1978 GLR 19 268], [1978 SCC 1 228], [1978 SCR 2 471], [1978 CAR 57], [1978 SCC CRI 108], [1978 CRLJ SC 489], [1978 CRLR SC 72]

Other Sources :

https://indiankanoon.org/doc/1083864/

https://www.casemine.com/judgement/in/5609abcae4b014971140d562

https://india.lawi.asia/umedbhai-jadavbhai-v-the-state-of-gujarat/

Bhadresh Bipinbhai Sheth Vs State of Gujarat and Anr on 1 Sep 2015

Posted on January 2, 2021 by ShadesOfKnife

Another wonderful judgment around anticipatory bail.

From Para 23,

23. The principles which can be culled out, for the purposes of the instant case, can be stated as under:
(i) The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law.
(ii) The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.
(iii) It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.
(iv) There is no justification for reading into Section 438 CrPC the limitations mentioned in Section 437 CrPC. The plentitude of Section 438 must be given its full play. There is no requirement that the accused must make out a “special case” for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 CrPC to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.
(v) The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and accusations available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor the court may either reject the anticipatory bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the court is misused. The anticipatory bail granted by the court should ordinarily be continued till the trial of the case.
(vi) It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant, on finding new material or circumstances at any point of time.
(vii) In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail.
(viii) Discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations.
(ix) No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case.
(x) We shall also reproduce para 112 of the judgment wherein the Court delineated the following factors and parameters that need to be taken into consideration while dealing with anticipatory bail:
(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(c) The possibility of the applicant to flee from justice;
(d) The possibility of the accused’s likelihood to repeat similar or other offences;
(e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because over-implication in the cases is a matter of common knowledge and concern;
(h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused in entitled to an order of bail.

Bhadresh Bipinbhai Sheth Vs State of Gujarat and Anr on 1 Sep 2015

Citations : [2016 ALT CRL AP 1 122], [2016 GLR 1 798], [2016 SCC 1 152], [2015 AIR SC 3090], [2015 ACR SC 3 3013], [2015 AD SC 9 511], [2015 ALLCC 91 215], [2015 ALLMR CRI 4116], [2015 BOMCR CRI 4 412], [2015 CCR SC 3 453], [2015 CRIMES SC 4 298], [2015 JCC 4 2603], [2015 JLJR 4 57], [2015 NCC 3 104], [2015 PLJR 4 218], [2015 RCR CRIMINAL 4 199], [2015 RLW SC 4 3551], [2015 SCALE 9 403], [2015 SCJ 9 734], [2015 UC 3 1761], [2016 SCC CRI 1 240], [2015 SCC ONLINE SC 771], [2015 GUJ LH 3 165], [2015 AIC 154 1]

Other Sources :

https://indiankanoon.org/doc/180463386/

https://www.casemine.com/judgement/in/5790b344e561097e45a4e3ca

Bhadresh Bipinbhai Sheth v. State of Gujarat & Another

Shades of Knife

True Colors of a Vile Wife

Tag: Legal Procedure Explained – Interpretation of Statutes

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