Rajiv Thapar and Ors Vs Madan Lal Kapoor on 23 January, 2013

Posted on June 3, 2018 by ShadesOfKnife

Wonderful Judgment from our Supreme Court. See Hon’ble Apex Court has in detailed analyzed the contention of to quash or not to quash. This has become a landmark judgment which provides the below guidelines to quash/discharge.

Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-
(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/ complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/ complainant?
(iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.

Read the way in which Justice J.S. Khehar has answered the above steps and finally quashed the High Court order to not discharge the accused.

Definitely a interesting read !!

Rajiv Thapar & Ors Vs Madan Lal Kapoor on 23 January, 2013

Citations: [2

Shakson Belthissor Vs State Of Kerala & Anr on 6 July, 2009

Posted on June 3, 2018 by ShadesOfKnife

Simple case on allegations not meeting the criterion on IPC 498A is confirmed by Hon’ble Supreme Court in this 482 quash judgment.

When we examine the facts of the present case particularly the FIR and the charge sheet we find that there is no such allegation either in the FIR or in the charge sheet making out a prima facie case as narrated under explanation(a). There is no allegation that there is any such conduct on the part of the appellant which could be said to be amounting to cruelty of such a nature as is likely to cause the Respondent No. 2 to commit suicide or to cause any injury to her life. The ingredient to constitute an offence under explanation (a) of Section 498A IPC are not at all mentioned either in FIR or in charge sheet and in absence thereof, no case is made out. Therefore, explanation (a) as found in Section 498A IPC is clearly not attracted in the present case.
We, therefore, now proceed to examine as to whether the case would fall under explanation (b) of Section 498A of IPC constituting cruelty of the nature as mentioned in explanation (b). In order to constitute cruelty under the said provision there has to be harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or a case is to be made out to the effect that there is a failure by her or any person related to her to meet such demand. When the allegation made in the FIR and charge sheet is examined in the present case in the light of the aforesaid provision, we find that no prima facie case even under the aforesaid provision is made out to attract a case of cruelty.

Shakson Belthissor Vs State Of Kerala & Anr on 6 July, 2009

Citations : [2010 SCC CRI 1 1412], [2009 AIOL 863], [2009 SCC 14 466], [2009 SUPREME 5 281], [2009 ANJ SC SUPP 2 55], [2009 JT 8 617], [2009 SCR 9 1187], [2009 SCALE 9 70], [2009 AIC SC 80 192], [2009 ECRN SC 3 818]

Other Sources :

https://indiankanoon.org/doc/437533/

https://www.casemine.com/judgement/in/5609aec9e4b0149711414c59

Index of Quash judgments is here.

Dilawar Balu Kurane Vs State of Maharashtra on 8 January, 2002

Posted on June 2, 2018 by ShadesOfKnife

Nice judgment from Apex Court regarding discharge of an accused under S 227 of CrPC.

In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

Dilawar Balu Kurane Vs State Of Maharashtra on 8 January, 2002

Citations: [2002 SCR 1 75], [2002 AIR SC 146], [2002 CRLJ SC 980], [2002 SCJ 1 203], [2002 JCC SC 1 172], [2002 SCC CRI 310], [2002 AIR SC 564], [2002 SCC 2 135], [2002 CRJ SC 2 284], [2002 BOMCR CRI SC 612], [2002 CRIMES SC 1 243], [2002 SCALE 1 47], [2002 SRJ 2 475], [2002 CCR SC 1 61], [2002 SLT 1 99], [2002 JT 1 6], [2002 SUPREME 1 55], [2002 UJ SC 1 269], [2002 RCR CRIMINAL SC 1 451], [2002 CRILJ 980], [2002 LLN 1 671]

Other Source links: https://indiankanoon.org/doc/1868789/ and https://www.casemine.com/judgement/in/5609adb6e4b01497114120c8

Index of Discharge judgments u/s 227 are here.

Reproduced in accordance with Section 52(q) of the Copyright Act 1957 (India) from main.sci.gov.in/judgments, judis.nic.in, lobis.nic.in, indiacode.nic.in and other Indian High Court and District Court Websites such as ecourts.gov.in

Union of India Vs Prafulla Kumar Samal and Anr on 6 November, 1978

Posted on June 1, 2018 by ShadesOfKnife

Awesome judgment from Hon’ble Apex Court whereby a person is discharged under section 227 Cr.P.C. from the offence under Prevention of Corruption Act.

From Para 3

The short point which arises for determination in this case is the scope and ambit of an order of discharge to be passed by a Special Judge under section 227 of the Code. The appeal does not raise any new question of law and there have been several authorities of the High Courts as also of this Court on the various aspects and grounds on which an accused person can be discharged, but as section 227 of the Code is a new section and at the time when the application for special leave was filed, there was no direct decision of this Court on the interpretation of section 227 of the Code, the matter was thought fit to be given due consideration by this Court.

From Para 5,

Thus, it would appear that the legislature while dispensing with the procedure for commitment enquiry
under the Code of 1898 has conferred a dual responsibility on the Trial Judge who has first to examine the case on the basis of the statement of witnesses recorded by the police and the documents filed with a view to find out whether a prima facie case for trial has been made out and then if such a case is made out to proceed to try the same. In our view the legislature has adopted this course in order to avoid frivolous prosecutions and prevent the accused from being tried of an offence on materials which do not furnish
a reasonable probability of conviction.

From Para 7,

At the stage of section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.

Few terms used by Hon’ble Justices of Apex Court in earlier judgments are

… Magistrate … is not to act as a mere Post office or a mouthpiece of the prosecution
Magistrate holding an enquiry is not intended to act merely as a recording machine.

Following principles have emerged

(1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out:
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

Union Of India Vs Prafulla Kumar Samal & Anr on 6 November, 1978

Citations: [1979 SCR 2 229], [1979 AIR SC 366], [1979 MLJ CRI 361], [1979 SCC 3 4], [1979 CRILJ 154], [1979 SCC CRI 609]

Other Source links: https://indiankanoon.org/doc/1360078/ or https://www.casemine.com/judgement/in/5609abcce4b014971140d5de

Index of Discharge Judgments u/s 227 Cr.P.C. is here.

Lalita Kumari Vs Govt. of U.P. and Ors on 12 November, 2013

Posted on June 1, 2018 by ShadesOfKnife

In this landmark case, Supreme Court clarified the position on whether a police officer is bound to register a First Information Report (FIR) upon receiving any information relating to commission of a cognizable offence under Section 154 of the Code of Criminal Procedure, 1973 (in short ‘the Code’) or the police officer has the power to conduct a “preliminary inquiry” in order to test the veracity of such information before registering the same?”

Trivia: The victim Lalita Kumari is recovered here.

Conclusion/Directions:

111) In view of the aforesaid discussion, we hold:

(i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
(ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
(iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
(vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/ family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.

Lalita Kumari Vs Govt.Of U.P.& Ors on 12 November, 2013

Citation: [(2014) 2 SCC 1], [2014 JCC SC 1 1], [2013 SCALE 13 559], [2013 RCR CRIMINAL SC 4 979], [2014 AIR SC 187], [2013 JT 14 399], [2013 CRIMES SC 4 243], [2013 AIOL 744], [2013 SLT 9 1], [2013 BOMCR CRI SC 4 680], [2013 SUPREME 8 1], [2014 CRIMES SC 4 488], [2013 ALLMR CRI SC 4444], [2013 AIR SC 6386], [2014 SCC CRI 1 524], [2014 SCC 2 1], [2013 SCC ONLINE SC 999], [2013 CTC 6 353], [2013 KERLT 4 632], [2014 CRILJ 470], [2014 AIC 134 155], [2013 KLJ 4 686], [2014 ECRN 1 180], [2014 KCCR 2 1305], [2014 CHN 2 7], [2013 PLJR 4 504], [2014 GLT SC 2 1], [2013 KHC 4 552], [2014 NCC 1 161], [2014 ALT CRL AP 1 100], [2014 ALLCC 84 719], [2014 SCJ 1 68], [2014 GLD SC 2 355], [2013 JLJR 4 505], [2013 UC 3 2017], [2013 MPHT SC 5 336], [2013 AD SC 12 209], [2014 OLR 1 5], [2014 ALD CRL SC 1 159], [2013 MLJ CRI 4 579], [2014 LW CRL 1 1], [2014 CHN SC 2 7], [2014 OLR SC 1 5], [2013 KLT SC 4 632], [2013 ALLMR CRI 4444], [2013 KLT 4 632], [2013 MLJ CRL 4 579], [2013 BOMCR CRI 4 680], [2014 CRI LJ 470], [2013 RCR CRIMINAL 4 979], [2013 JT SC 14 399], [2013 AIR SCW 6386]

Madhu Bala Vs Suresh Kumar on 23 July, 1997

Posted on June 1, 2018 by ShadesOfKnife

In this judgment, Apex Court clarified that once a Magistrate orders police investigation under section 156(3), police are bound to

Register a case
Investigate the case
Present a report or charge sheet

Madhu Bala vs Suresh Kumar on 23 July, 1997

Kenneth Desa and another Vs Gopal on 11 July 2007

Posted on June 1, 2018 by ShadesOfKnife

Wonderful judgment from Bombay High Court setting aside judgments of 2 lower courts in regards to the maintainability of application under Section 340 of CrPC.

From Para 7,

Whenever an application under Section 340 of Code of Criminal Procedure is filed, the Civil Manual Chapter XIX para 337 requires that it should be registered as Miscellaneous Judicial Case i.e. a case where a Judicial Enquiry is contemplated. The learned Civil Judge should have, therefore, directed the application to be registered as Miscellaneous Judicial Case.

Kenneth Desa and another Vs Gopal on 11 July 2007

S.Hanumantha Rao Vs S.Ramani on 31 March, 1999

Posted on May 29, 2018 by ShadesOfKnife

This judgment from Apex court defines what is mental cruelty as envisaged under section 13(1)(ia) of Hindu Marriage Act.

Mental cruelty broadly means, when either party causes mental pain, agony or suffering of such a magnitude that it severs the bond between the wife and husband and as a result of which it becomes impossible for the party who has suffered to live with the other party. In other words, the party who has committed wrong is not expected to live with the other party.

S.Hanumantha Rao vs S.Ramani on 31 March, 1999

Indra Sarma vs V.K.V.Sarma on 26 November, 2013

Posted on May 26, 2018 by ShadesOfKnife

This is awesome judgment from Hon’ble Supreme Court that reaffirmed that When there is no relationship in the nature of marriage, no DV can apply.

iStory!

Ms. Indra Sarma, an unmarried woman, left her job and began a “live-in” relationship with Mr. V.K.V. Sarma for a period as long as 18 years, despite knowing that he was married. Mr. Sarma abandoned Ms. Sarma in a state where she could not maintain herself. Under the Protection of Women from Domestic Violence Act, 2005, failure to maintain a woman involved in a “domestic relationship” amounts to “domestic violence.” Two lower courts held that Mr. V.K.V. committed domestic violence by not maintaining Ms. Sarma, and directed Mr. Sarma to pay a maintenance amount of Rs.18,000 per month. Thereafter, on appeal, the High Court of Karnataka set aside the orders of the lower courts on the ground that Ms. Sarma was aware that Mr. Sarma was married and thus her relationship with him would fall outside the protected ambit of “relationship in the nature of marriage” under the Protection of Women from Domestic Violence Act, 2005. On further appeal, the Supreme Court, while affirming the High Court’s order, created an exception to the general rule. The Supreme Court clarified that a woman who begins to live with a man who is already married to someone else, without knowing that he is married, will still be considered to be in a “domestic relationship” under the Protection of Women from Domestic Violence Act, 2005; thus, the man’s failure to maintain her will amount to “domestic violence” within the meaning of the Act and she will be eligible to claim reliefs such as maintenance and compensation. This case is important because it established for the first time such an exception and calls for legislative action to protect women like Ms. Sarma whose contributions in a joint household are often overlooked.

Guidelines issues in the Judgment

55. We may, on the basis of above discussion cull out some guidelines for testing under what circumstances, a live-in relationship will fall within the expression “relationship in the nature of marriage” under Section 2(f) of the DV Act. The guidelines, of course, are not exhaustive, but will definitely give some insight to such relationships.
1) Duration of period of relationship Section 2(f) of the DV Act has used the expression “at any point of time”, which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation.
(2) Shared household The expression has been defined under Section 2(s) of the DV Act and, hence, need no further elaboration.
(3) Pooling of Resources and Financial Arrangements Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long term investments in business, shares in separate and joint names, so as to have a long standing relationship, may be a guiding factor.
(4) Domestic Arrangements Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or upkeeping the house, etc. is an indication of a relationship in the nature of marriage.
(5) Sexual Relationship Marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring etc.
(6) Children Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long standing relationship. Sharing the responsibility for bringing up and supporting them is also a strong indication.
(7) Socialization in Public Holding out to the public and socializing with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.
(8) Intention and conduct of the parties Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship.

Indra Sarma vs V.K.V.Sarma on 26 November, 2013

Citations: [AIR 2014 SC 309], [Manu/SC/1230/2013], [2014-1 LW.(Crl.) 129], [2013 SCC 15 755], [2014 SCC CIV 5 440], [2014 SCC CRI 6 593], [2013 SCC ONLINE SC 1042], [2013 KERLT 4 763], [2013 GUJ LH 3 720], [2014 AIC 133 225], [2014 ALR 102 711], [2014 LW 1 561], [2013 AIOL 781], [2014 AIR BOMR 1 615], [2014 ALLMR CRI SC 319], [2014 BOMCR CRI SC 1 496], [2014 JLJR SC 1 549], [2014 RCR CRIMINAL SC 1 179]

Other Sources:

https://indiankanoon.org/doc/192421140/

https://www.casemine.com/judgement/in/5609af32e4b0149711415ca2

The index page is here.

Shiv Kumar Vs Hukam Chand And Anr on 30 August, 1999

Posted on May 26, 2018 by ShadesOfKnife

Hon’ble Supreme Court has clarified the legal position on whether an appellant can engage a private pleader to assist the Public prosecutor or Assistant Public prosecutor in court of sessions.

Shiv Kumar vs Hukam Chand And Anr on 30 August, 1999

Citations:

Other Sources:

Shades of Knife

True Colors of a Vile Wife

Tag: Legal Procedure Explained – Interpretation of Statutes

Rajiv Thapar and Ors Vs Madan Lal Kapoor on 23 January, 2013

Shakson Belthissor Vs State Of Kerala & Anr on 6 July, 2009

Dilawar Balu Kurane Vs State of Maharashtra on 8 January, 2002

Union of India Vs Prafulla Kumar Samal and Anr on 6 November, 1978

Lalita Kumari Vs Govt. of U.P. and Ors on 12 November, 2013

Madhu Bala Vs Suresh Kumar on 23 July, 1997

Kenneth Desa and another Vs Gopal on 11 July 2007

S.Hanumantha Rao Vs S.Ramani on 31 March, 1999

Indra Sarma vs V.K.V.Sarma on 26 November, 2013

Shiv Kumar Vs Hukam Chand And Anr on 30 August, 1999