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. “

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

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).

R.D. Saxena Vs Balram Prasad Sharma on 22 August, 2000

Posted on June 25, 2018 by ShadesOfKnife

This is a wonderful judgment from Hon’ble Supreme Court of India on two aspects

(a) Has the advocate a lien for his fees on the litigation papers entrusted to him by his client?

(b) Does the client has freedom to choose and engage a advocate and change the advocate?

Thus, even after providing a right for an advocate to deduct the fees out of any money of the client remaining in his hand at the termination of the proceeding for which the advocate was engaged, it is important to notice that no lien is provided on the litigation files kept with him. In the conditions prevailing in India with lots of illiterate people among the litigant public it may not be advisable also to permit the counsel to retain the case bundle for the fees claimed by him. Any such lien if permitted would become susceptible to great abuses and exploitation.

… and more…

A litigant must have the freedom to change his advocate when he feels that the advocate engaged by him is not capable of espousing his cause efficiently or that his conduct is prejudicial to the interest involved in the lis, or for any other reason. For whatever reason, if a client does not want to continue the engagement of a particular advocate it would be a professional requirement consistent with the dignity of the profession that he should return the brief to the client. It is time to hold that such obligation is not only a legal duty but a moral imperative.
In criminal cases, every person accused of an offence has the right to consult and be defended by a legal practitioner of his choice which is now made a fundamental right under Article 22(1) of the Constitution. The said right is absolute in itself and it does not depend on other laws. In this context reference can be made to the decision of this Court in State of Madhya Pradesh vs. Shobharam and ors. (AIR 1966 SC 1910). The words of his choice in Article 22(1) indicate that the right of the accused to change an advocate whom he once engaged in the same case, cannot be whittled down by that advocate by withholding the case bundle on the premise that he has to get the fees for the services already rendered to the client.
If a party terminates the engagement of an advocate before the culmination of the proceedings that party must have the entire file with him to engage another advocate.

R.D. Saxena Vs Balram Prasad Sharma on 22 August, 2000

Citations : [2000 AIR SC 3049], [2001 ALLMR CRI SC 375], [2000 ALT SC 5 1], [2001 BLJR 1 174], [2000 CTC 3 757], [2001 GLH 3 624], [2000 JT SC 9 432], [2000 KLT SC 3 438], [2001 LW 1 284], [2001 MHLJ SC 1 23], [2000 MPLJ SC 613], [2000 PLJR 4 161], [2000 RD 91 692], [2000 SCALE 6 42], [2000 SCC 7 264], [2000 SUPP SCR 2 598], [2001 UJ 1 27], [2000 UPLBEC 3 2404], [2000 AIR SC 2912], [2000 CTR 163 32]

Other Sources :

https://indiankanoon.org/doc/151656/

https://www.casemine.com/judgement/in/5609ad8de4b0149711411a9d

https://www.indianemployees.com/judgments/details/r-d-saxena-vs-balram-prasad-sharma

http://www.briefcased.in/r-d-saxena-vs-balram-prasad-sharma/

https://www.legalauthority.in/judgement/r-d-saxena-vs-balram-prasad-sharma-22160

Karnataka High Court Judgments:

NOC not required

Karnataka Power Distribution Vs M RajaShekar on 2 Dec 2016

NOC required:

Bhagya Vs Jayalakshmi on 13 Feb 2019

Other Judgements on this subject here.

Morgan Stanley Mutual Fund Vs Kartick Das on 20 May, 1994

Posted on June 23, 2018 by ShadesOfKnife

Awesome judgment from Hon’ble Apex Court on when can a party be set ex parte.

As principle, ex parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the court in the grant of ex parte injunction are –
(a) Whether irreparable or serious mischief will ensue to the plaintiff;
(b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve;
(c) the court will also consider the time at which the plaintiff first had notice of the act complained so that the making of the improper order against a party in his absence is prevented;
(d) the court will consider whether the plaintiff has acquiesced for sometime. In such circumstances it will not grant ex parte injunction;
(e) the court would expect a party applying for ex parte injunction to show utmost good faith in making the application;
(f) even if granted, the ex parte injunction would be for a limited period of time;
(g) general principles like, prima facie case, balance of convenience and irreparable loss would also be considered by the court.

Morgan Stanley Mutual Fund Vs Kartick Das on 20 May, 1994

Iqbal Singh Marwah & Anr Vs Meenakshi Marwah & Anr on 11 March, 2005

Posted on June 12, 2018 by ShadesOfKnife

This is an important judgment from Hon’ble Supreme Court on a contention point as documented in Para 5,

5. The principal controversy revolves round the interpretation of the expression “when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court” occurring in clause (b)(ii) of sub-section (1) of Section 195 Cr.P.C.

Simply put, if a document is forged before being submitted in a court, there is no bar to file a complaint on the accused of the forgery under clause (b)(ii) of sub-section (1) of Section 195 Cr.P.C.

A Magistrate may take cognizance of any offence
(a) upon receiving a complaint of facts which constitute such offence,
(b) upon a police report of such facts, and
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

From a victim standpoint who is facing an offender of forgery, thereafter in this case, the respondents moved an application under Section 340 Cr.P.C. requesting the Court to file a criminal complaint against appellant no.1 as the will set up by him was forged.

From Paras 23-26, very valuable aspect is explained ‘expedient in the interests of justice‘:

23. In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words “court is of opinion that it is expedient in the interests of justice”. This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court may not consider it expedient in the interest of justice to make a complaint. The broad view of clause (b)(ii), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remediless. Any interpretation which leads to a situation where a victim of a crime is rendered remediless, has to be discarded.
24. There is another consideration which has to be kept in mind. Sub-section (1) of Section 340 CrPC contemplates holding of a preliminary enquiry. Normally, a direction for filing of a complaint is not made during the pendency of the proceeding before the court and this is done at the stage when the proceeding is concluded and the final judgment is rendered. Section 341 provides for an appeal against an order directing filing of the complaint. The hearing and ultimate decision of the appeal is bound to take time. Section 343(2) confers a discretion upon a court trying the complaint to adjourn the hearing of the case if it is brought to its notice that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen. In view of these provisions, the complaint case may not proceed at all for decades specially in matters arising out of civil suits where decisions are challenged in successive appellate fora which are time-consuming. It is also to be noticed that there is no provision of appeal against an order passed under Section 343(2), whereby hearing of the case is adjourned until the decision of the appeal. These provisions show that, in reality, the procedure prescribed for filing a complaint by the court is such that it may not fructify in the actual trial of the offender for an unusually long period. Delay in prosecution of a guilty person comes to his advantage as witnesses become reluctant to give evidence and the evidence gets lost. This important consideration dissuades us from accepting the broad interpretation sought to be placed upon clause (b)(ii).
25. An enlarged interpretation to Section 195(1)(b)(ii), whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in court, is capable of great misuse. As pointed out in Sachida Nand Singh after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police until the court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest of the society at large.
26. Judicial notice can be taken of the fact that the courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. It will not be fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of the type enumerated in clause (b)(ii) is either not placed for trial on account of non-filing of a complaint or if a complaint is filed, the same does not come to its logical end. Judging from such an angle will be in consonance with the principle that an unworkable or impracticable result should be avoided.

Iqbal Singh Marwah & Anr Vs Meenakshi Marwah & Anr on 11 March, 2005

Citations : [2005 AIR SC 2119], [2005 SCR 2 708], [2005 JT 3 195], [2005 SCALE 3 93], [2005 AIOL 135], [2005 MHLJ SC 3 530], [2005 BOMCR CRI SC 2 470], [2005 SCC 4 370], [2005 SUPREME 2 549], [2005 CRLJ SC 2161], [2005 SCC CRI 1101]

Other Sources :

https://indiankanoon.org/doc/618763/

https://www.casemine.com/judgement/in/5609ae13e4b0149711412e0a

https://mynation.net/docs/402-2005/

https://www.insaafindia.in/judgements/misc/iqbal-singh-marwah-vs-meenakshi-marwah-forgery/

A Vs T on 28 May, 2018

Posted on June 6, 2018 by ShadesOfKnife

Wonderful settled principle of law clarified in this judgment of Hon’ble Delhi High Court.

Summary: Condone delay in filing of written statement due to such settlement talks.

Key Quotes

… parties are negotiating settlement during the pendency of a matter, then the Court will condone the delay in filing of written statement due to such settlement talks

And emphasized that …

… it is the duty of the Courts to search the truth and then do justice; this is the very object for which Courts are created. The Courts have to remove chaff from the grain to separate falsehood from truth.

And declared…

Therefore, in matrimonial litigations, the Family Courts should take due care and caution in closing the valuable right to file the written statement or to lead the evidence or the right of cross-examination of any witness.

Condone delay in filing of written statement due to such settlement talks (28-05-2018)

State Of Orissa Vs Debendra Nath Padhi on 29 November, 2004

Posted on June 4, 2018 by ShadesOfKnife

A key question is clarified by the 3-judge bench of Supreme Court in this landmark judgment.

Can the trial court at the time of framing of charge consider material filed by the accused?

The scope of Sections 227 and 228 and scope of Sections 239 and 240 are explained along with scope of Sections 482

At the end the following is the summary arrived at.

Under Sections 227 and 228, a Magistrate of the trial court, is supposed to consider only the material sent by prosecution along with the record of the case and the documents sent along with it, at the time of framing of the charge. The accused at that stage has no right to place before the court any material.
Under Sections 239 and 240, requires the Magistrate to consider ‘the police report and the documents sent with it under Section 173’ and, if necessary, examine the accused and after giving accused an opportunity of being heard, if the Magistrate considers the charge against the accused to be groundless, the accused is liable to be discharged by recording reasons thereof.
Regarding the argument of accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of Constitution of India is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal’s case. Under Section 482 of the Code, along with the petition the accused may file unimpeachable evidence of sterling quality and on that basis seek quashing.

Legal point around application under/of CrPC 91

In so far as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document beingnecessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning andproduction is made and the party who makes it whether police or accused. If under Section 227 what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. Under Section 91 summons for production of document can beissued by Court and under a written order an officer in charge of policestation can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof.

Final conclusion: (from Para 29)

We are of the view that jurisdiction under Section 91 of the Code when invoked by accused the necessity and desirability would have to be seen by the Court in the context of the purpose investigation, inquiry, trial or other proceedings under the Code. It would also have to be borne in mind that law does not permit a roving or fishing inquiry. Regarding the argument of accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of Constitution of India is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal’s case.

State Of Orissa Vs Debendra Nath Padhi on 29 November, 2004

Citations : [2005 AIR SC 359], [2005 ALT CRI 1 1198], [2005 CLT SC 99 348], [2005 GLH 1 312], [2004 JT SC 10 303], [2005 KLT SC 1 80], [2005 OLR SC 1 357], [2005 RLW SC 3 414], [2004 SCALE 10 50], [2005 SCC 1 568], [2005 SCC CRI 415], [2004 SLT 7 339], [2004 SUPREME 8 568], [2005 OCR 30 177], [2005 RCR CRI 1 297], [2005 CALCRILR 1 487], [2005 CRIMES SC 1 1], [2004 AIR SCW 6813], [2005 CTC SC 1 134]

Other Sources :

https://indiankanoon.org/doc/7496/

https://www.casemine.com/judgement/in/5609ae0be4b0149711412c9f

Index of Quash judgments u/s 482 are here.

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

Shades of Knife

True Colors of a Vile Wife

Tag: Legal Procedure Explained – Interpretation of Statutes

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

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

R.D. Saxena Vs Balram Prasad Sharma on 22 August, 2000

Morgan Stanley Mutual Fund Vs Kartick Das on 20 May, 1994

Iqbal Singh Marwah & Anr Vs Meenakshi Marwah & Anr on 11 March, 2005

A Vs T on 28 May, 2018

State Of Orissa Vs Debendra Nath Padhi on 29 November, 2004

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