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Tag: Legal Procedure Explained – Interpretation of Statutes

Sivangala Thandi Deepak & Others Vs The State of A.P. on 11 July 2014

Posted on July 20, 2018 by ShadesOfKnife

This quash judgment from Andhra Pradesh High Court, albeit dismissed, has some legal points discussed apart from citing good earlier judgments which clarified the position of law in case of out of jurisdiction cases.

Observation

In the present case, the second respondent was driven out from the matrimonial home from Mumbai. The second respondent went to the house of her parents at Tenali. In view of Manish Ratan (2 supra), Tenali Courts do not get territorial jurisdiction merely because the second respondent returned to Tenali. However, in view of Geeta Mehrotra (5 supra), where the Supreme Court held that the question of territorial jurisdiction shall be determined by the trial Court and not in a petition u/s.482Cr.P.C., I consider that this petition is misconceived.

Next Step in Summary

File the discharge petition at trial court before charged/issues are filed against the accused.

Sivangala Thandi Deepak & Others Vs The State of A.P. on 11 July 2014

Judgments cited in this judgment

  1. Ramesh v. State of T.N
  2. Manish Ratan v. State of M.P.
  3. Y. Abraham Ajith v. Inspector of Police, Chennai
  4. Nadimpalli Lakshmana Varma v. State of A.P.
  5. Geeta Mehrotra v. State of Uttar Pradesh
Posted in High Court of Andhra Pradesh Judgment or Order or Notification | Tagged Legal Procedure Explained - Interpretation of Statutes No Territorial Jurisdiction Sivangala Thandi Deepak and Others Vs The State of A.P. | Leave a comment

Nandkishor Pralhad Vyawahare Vs Mangal on 3 May, 2018

Posted on July 19, 2018 by ShadesOfKnife

Two questions of interpretation of law in regards to the DV Act are explained in this landmark Judgment of Hon’ble High Court of Bombay.

 

Q1. Whether or not the proceedings under the Protection of Women from Domestic Violence Act, 2008 are in the nature of criminal proceedings ?

Proceedings under the Protection of Women from Domestic Violence Act, 2005 are predominantly of civil nature and it is only when there is a breach of the protection order as is contemplated under Section 31 and failure or refusal to discharge duty without any sufficient cause by the protection officer as contemplated under Section 33, the proceedings assume the character of criminality. The first question is answered accordingly.

 

Q2. Whether or not the High Court can exercise its power under Section 482 of the Code of Criminal Procedure, 1973 in respect of the proceedings under the Protection of Women from Domestic Violence Act, 2005 ?

the second question is answered in the affirmative.

 

Now, one incidental question would arise as to from what stage the provisions of the Cr.P.C. would become applicable and in our view, the answer could be found out from the provisions of Sections 12 and 13 of the D.V. Act.

A combined reading of these provisions shows that the commencement of the proceedings would take place the moment, the Magistrate applies his mind to the contents of the application and passes any judicial order including that of issuance of notice. Once, the proceeding commences, the procedure under Section 28 of the D.V. Act, subject to the exceptions provided in the Act and the rules framed thereunder, would apply. In other words, save as otherwise provided in the D.V. Act and the rules framed thereunder and subject to the provisions of sub-section (2) of Section 28, the provisions of the Cr.P.C. shall govern the proceedings under Sections 12 to 23 and also those relating to an offence under Section 31 of the D.V. Act on their commencement.

 

Nandkishor Pralhad Vyawahare Vs Mangal on 3 May, 2018
Posted in High Court of Bombay Judgment or Order or Notification | Tagged CrPC 482 - Saving of inherent powers of High Court Legal Procedure Explained - Interpretation of Statutes Nandkishor Pralhad Vyawahare Vs Mangal PWDV Act - DV Case Quashed | Leave a comment

Rabiya Bi Kassim M. Vs The Country Wide Consumer on 5 April, 2004

Posted on July 10, 2018 by ShadesOfKnife

In it held in this judgment from High Court of Karnataka that once arguments are completed and judgment is reserved for pronouncement for a future date, no new application of any nature can be allow by the Hon’ble Trial court.

The Sub-rule(4) of Order 18, Rule 2 reads as follows, that came into force in 1976 via Amendment Act, has been deleted via the CPC Amendment Act 1999, with effect from 1.7.2002

“(4) Notwithstanding anything contained in this Rule, the Court may, for reasons to be recorded, direct or permit any party to examine any witness at any stage”

 

Rabiya Bi Kassim M. vs The Country Wide Consumer on 5 April, 2004

The 1963 landmark judgment is here.

Posted in High Court of Karnataka Judgment or Order or Notification | Tagged Delay in Passing Orders or Judgments After Reserving the Same Legal Procedure Explained - Interpretation of Statutes Rabiya Bi Kassim M. Vs The Country Wide Consumer | Leave a comment

Arjun Singh Vs Mohindra Kumar & Ors on 13 December, 1963

Posted on July 10, 2018 by ShadesOfKnife

The Hon’ble Apex Court has explained the following in this landmark judgment

  • ‘principle of res judicata’
  • difference between words “good cause” for nonappearance in O. IX, r. 7 and “sufficient cause” for the same purpose in O. IX, r. 13
  • ‘res judicata’ could be as much applicable to different stages of the same suit as to findings on issues in different suits.
  • If the entirety of the “hearing” of a suit has been completed and the Court being competent to pronounce judgment then and there, adjourns the suit merely for the purpose of pronouncing judgment under O. XX, r. 1, there is clearly no adjournment of “the hearing” of the suit, for there is nothing more to be heard in the suit.
  • ln the present context when once the hearing starts, the Code contemplates only two stages in the trial of the suit:
    • (1) Where the hearing is adjourned or
    • (2) where the hearing is completed. Where the hearing is completed the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that O. XX, r. 1 permits judgment to be delivered after an interval after the hearing is completed.

 

Arjun Singh vs Mohindra Kumar & Ors on 13 December, 1963
Posted in Supreme Court of India Judgment or Order or Notification | Tagged Arjun Singh Vs Mohindra Kumar and Ors Delay in Passing Orders or Judgments After Reserving the Same Ex Parte Order Landmark Case Legal Procedure Explained - Interpretation of Statutes | Leave a comment

Pooja Vs. Vijay Chaitanya on 6 April, 2018

Posted on July 9, 2018 by ShadesOfKnife

Hon’ble Allahabad High Court has held that “the appeal even against a consent decree under such facts and circumstances of the case, where the consent itself is disputed and no inquiry has been conducted by the court below is maintainable, subject to objection on appearance by the other side.”

 

Pooja Vs. Vijay Chaitanya on 6 April, 2018
Posted in High Court of Allahabad Judgment or Order or Notification | Tagged Consent For MCD Disputed HM Act 28 - Appeal Available On MCD Legal Procedure Explained - Interpretation of Statutes Pooja Vs. Vijay Chaitanya | Leave a comment

Dasam Vijay Rama Rao Vs M.Sai Sri on 17 June, 2015

Posted on June 25, 2018 by ShadesOfKnife

Hon’ble of Andhra Pradesh High Court has allowed permission for a GPA of a petitioner, to represent the petitioner and depose on his behalf in the court of law.

In view of the above clear cut pronouncement, it is evident that a GPA holder can depose and also lead evidence on behalf of his principal.
Learned Family Court Judge also appears to have entertained an apprehension as to whether the Family Court can entertain an application presented by a legal practitioner in view of the provision contained in Section 13 of the Family Courts Act, 1984.
From the very preamble of the Family Courts Act, 1984, one would gather that every endeavour is required to be made by the Family Court to assist the parties in arriving at a speedy settlement of disputes relating to the marriage and/or family affairs. That explains the reason Section 9 of the said Act provided for an appropriate legal environment for settlement of the disputes in an amicable manner. The parties are not only required to be assisted, but also required to be persuaded by the Judge in arriving at a settlement while keeping in view the importance of protecting and preserving the institution of the marriage between the parties. To the extent possible, the Family Court is required to utilize its skills and wisdom gained over long period of time by careful study of the ills of the society and then finding suitable cure for them and hence, the Family court must try to bring about a reconciliation of the disagreements persisting between the parties. However, when two parties to a marriage come before a Family Court and ask for dissolution of their marriage by mutual consent under Section 13-B of Hindu Marriage Act, 1955, the Court is required to adjourn the motion moved by both parties by a period not earlier than six months, as per sub Section 2 of Section 13-B of the Hindu Marriage Act. Further, Sub Section 2 requires that the Court shall, on being satisfied, after hearing the parties and after making such enquiry as it thinks fit with regard to the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of such decree. Therefore, there may have been a genuine apprehension in the mind of the Family Court Judge as to whether there is any possibility of reconciliation between the parties or change of mind with regard to consent expressed earlier for such dissolution, when the petition is returned by it.
Keeping the very object behind the Family Courts Act, 1984, read with the spirit behind Section 13-B of the Hindu Marriage Act, the Family Court could have entertained the interlocutory application in as much as legal practitioners are not totally forbidden from rendering assistance to the Family Court. One of the reasons why Section 13 of the Family Courts Act, 1984, declared that no party to a suit or proceeding shall be entitled as of right to be represented by a legal practitioner sans technicalities or legal necessities, the parties must be helped by the Court to reconcile the disputes persisting between them. Unlike a traditional setup of the Court, where the Presiding Judge has to maintain not only an equiy distance between the parties to a lis, but also maintain a sense of impartiality towards the cause of both sides and essentially was required to maintain an arms length distance from the parties, in a Family Court, the Judge is donning the robes of a facilitator, a mentor and an expert counselor. A slight tilt in the approach to one of the parties in a Family Court, depending upon the facts and circumstances prevailing in the case and if the ends of justice would be better served by dosing so, is allowable. The emphasis being laid upon essentially preserving the institution and interest of the marriage and the welfare and well-being of the parties etc. Hence, the Family Court is entitled to receive, examine and act upon an affidavit filed by one of the parties before it, acting through a GPA. A petition moved in that regard is maintainable.

Finally,

I am, therefore, of the opinion that the Family Courts are entitled to ascertain the views of the parties and for that purpose adjourning a case by a reasonable period is not to be frowned upon. But, however, if one of the parties, like in the present case, appears before the Family court and expresses no objection for an affidavit of the other party to be taken on record and is not desirous of cross examining the deponent of the affidavit, the Family Court cam entertain, unhesitatingly any such move/application.
Increasingly Family Courts have been noticing that one of the parties is stationed abroad. It may not be always possible for such parties to undertake trip to India, for variety of good reasons. On the intended day of examination of a particular party, the proceedings may not go on, or even get completed possibly, sometimes due to preoccupation with any other more pressing work in the Court. But, however, technology, particularly, in the Information sector has improved by leaps and bounds. Courts in India are also making efforts to put to use the technologies available. ‘Skype’ is one such facility, which is easily available. Therefore, the Family Courts are justified in seeking the assistance of any practicing lawyer to provide the necessary skype facility in any particular case. For that purpose, the parties can be permitted to be represented by a legal practitioner, who can bring a mobile device. By using the skype technology, parties who are staying abroad can not only be identified by the Family Court, but also enquired
about the free will and consent of such party. This will enable the litigation costs to be reduced greatly and will also save precious time of the Court. Further, the other party available in the Court can also help the Court in not only identifying the other party, but would be able to ascertain the required information.

Dasam Vijay Rama Rao Vs M.Sai Sri on 17 June, 2015

Citations : [2015 ALD 4 757], [2015 ALT 5 150], [2015 AIR AP 191]

Other Sources :

https://indiankanoon.org/doc/123683887/

https://www.casemine.com/judgement/in/5608f8e1e4b01497111439d9

Posted in High Court of Andhra Pradesh Judgment or Order or Notification | Tagged 1-Judge Bench Decision Advocates Act Section 32 Dasam Vijay Rama Rao Vs M.Sai Sri Family Courts Act Sec 13 HM Act Sec 13B - Divorce by Mutual Consent Legal Procedure Explained - Interpretation of Statutes Private Person or GPA Holder To Act and Plead for Plaintiff Reportable Judgement or Order Skype facility | Leave a comment

Advocates Act 1961 Section 32 – Power of Court to permit appearances in particular cases

Posted on June 25, 2018 by ShadesOfKnife

32. Power of Court to permit appearances in particular cases.—

Notwithstanding anything contained in this Chapter, any court, authority, or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case.

Posted in Bare Acts or State Amendments or Statutes or GOs or Notifications issued by Central or State Governments | Tagged Advocates Act 1961 Section 32 - Power of Court to permit appearances in particular cases Legal Procedure Explained - Interpretation of Statutes | Leave a comment

CrPC 2(q) – Definition of Pleader per Criminal Procedure Code of India

Posted on June 25, 2018 by ShadesOfKnife

(q) ” pleader”, when used with reference to any proceeding in any Court, means a person authorised by or under any law for the time being in force, to practise in such Court, and includes any other person appointed with the permission of the Court to act in such proceeding;

Posted in Bare Acts or State Amendments or Statutes or GOs or Notifications issued by Central or State Governments | Tagged CrPC 2(q) - Pleader Legal Procedure Explained - Interpretation of Statutes | Leave a comment

Harishankar Rastogi Vs Girdhari Sharma And Anr on 13 March, 1978

Posted on June 25, 2018 by ShadesOfKnife

The Apex Court held as follows in regards to the right or lack thereof of a party to go as in-person in a case in a court. Legendary Judge Krishnaiyer, V.R. has allowed permission to a friend of a Plaintiff, who is not a advocate, to plead his case in court of law.

“1. A private person who is not an Advocate, has no right to barge into Court and claim to argue for a party. He must get the prior permission of the Court for which the motion must come from the party himself. It is open to the Court to grant or withhold permission in its discretion. In fact, the Court may even after grant of permission, withdraw it half-way through if the representative proves himself reprehensible. The antecedents, the relationship, and reasons for requisitioning the services of the private person and a variety of other circumstances must be gathered before grant or refusal of permission.

2. The Advocates are entitled as of right to practice in this Court under S. 30(1) of the Advocates Act, 1961 subject to the reasonable restriction provided under s. 29 of that Act viz. that the only class of persons entitled to practice the profession of law shall be advocates. Even so, it is open to a party, who is unable for some reason or the other to present his case adequately, to seek the help of another person in his behalf. To negative such a plea may be denying justice altogether in certain cases, especially in a land of illiteracy and indigence and judicial processes of sophisticated nature…………….

3. A comprehensive programme of free legal services, is in a sense,a serious obligation of the State if the rule of law were to receive vitality in its observance. Until then, parties should appear through advocates, and where they are not represented by one such, through some chosen friend. Such other person cannot practice the profession of habitually representing parties in Court. If a non-advocate pecialises in practicing in Court, professionally he will be violating the text of the interdict in the Advocates Act, which the Court cannot allow him to do so. Nevertheless it is open to a person who is a party to a proceeding to get himself represented by a non-advocate in a particular instance or case. Practicing a profession means something very different from representing some friend or relation on one occasion or in one case or on a few occasions ,or in a few cases. “

 

Harishankar Rastogi Vs Girdhari Sharma And Anr on 13 March, 1978

Citation: [1977 ACR SC 363], [1978 AIR SC 1019], [1978 SCC 2 165], [1978 SCC CRI 168], [1978 SCR 3 493], [1978 ALR 4 353], [1978 CAR 174], [1978 CRLR 161], [1978 MLJ CRI 1 640], [1978 UJ SC 301], [1978 CRLJ SC 778]

Other Sources:

https://indiankanoon.org/doc/1704613/

https://www.casemine.com/judgement/in/5609abd1e4b014971140d6a8

Posted in Supreme Court of India Judgment or Order or Notification | Tagged Harishankar Rastogi Vs Girdhari Sharma And Anr Landmark Case Legal Procedure Explained - Interpretation of Statutes Party In Person Series Private Person or GPA Holder To Act and Plead for Plaintiff | Leave a comment

Advocate, Lawyer, Pleader, Attorney – Various Terms and their definition

Posted on June 25, 2018 by ShadesOfKnife

Welcome back dear friend.

Gathered from the various sources here are the definitions of different terms for the person who is related to law in a way or more.

 

Lawyer is a person who has completed his bachelors degree in law (LLB) but has not registered his name with any bar council in India.

 

Advocate is a person who has not only completed his law degree but also got his registration done with the bar council and are governed by the Advocates Act, 1961. Thus, advocate is a person who can represent you in a legal dispute before the appropriate court.

 

Pleader includes any person other than one authorised by law to practice in a court if he is appointed with the permission of the court, to act in a particular proceeding (under section 32 of Advocates Act of India, 1961).

Also read this page here:

 

Attorney:

 

Solicitor

 

Barrister

Posted in General Study Material | Tagged Advocates Act Section 32 Legal Procedure Explained - Interpretation of Statutes | Leave a comment

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