State of West Bengal and Ors Vs R.K.B.K. Ltd and Anr on 4 Sep 2015

Posted on May 31, 2022 by ShadesOfKnife

Supreme Court held that, any adverse Order passed by an authority can not be taken cognizance of in the eye of law if it is not communicated to the person aggrieved.

From Para 24,

24. The aforesaid decision, as is evident, lays down that passing of the order and communication thereof must be within 30 days and on that basis has opined that the order passed on the file and not communicated to the person aggrieved is not an order that can be taken cognizance of. There can be no scintilla of doubt that unless an adverse order is communicated that does not come into effect. Passing of an order on the file does not become an order in the eye of law. But the core question would be, if an order is passed within 30 days and communicated thereafter, what would be the effect. In the instant case, as the factual matrix would unveil, the order was passed before expiration of 30 days, but the same was served on the first respondent beyond 30 days. The thrust of the matter is whether the order has to be passed and communicated within 30 days. Paragraph 9 of the Control Order requires the competent authority to pass an order within 30 days from the date of serving the show cause notice or the suspension of licence. The word used is “shall”. Paragraph 10 of the Control Order enables the aggrieved person to prefer an appeal against an order passed under Paragraph 8 or 9 within 30 days to the State Government in Food and Supplies Department. In this context, reference to the authority in MCD v. Qimat Rai Gupta and others4 is of significance. In the said case, the Court was interpreting the word “made” occurring in Section 126(4) of the Delhi Municipal Corporation Act, 1957, which stipulated that no amendment under sub-section 1 shall be made in the assessment list in relation to certain aspects. It was contended before this Court on behalf of the Municipal Corporation of Delhi that the use of the expression “made” occurring in the said sub-section would necessitate communication of the order. It was contended before this Court by the Corporation that the distinction must be made between communication of order and making thereof inasmuch as whereas communication may be necessary so as to enable an assessee to prefer an appeal against the order of assessment but only signing of the order would subserve the purpose of saving the period of limitation. The submission was that the expression “no amendment under sub-section (1) shall be made” should be given a liberal interpretation. Reliance was placed on the pronouncement in CCE v. M.M. Rubber and Co.5 The said stand was controverted on the ground that the Act having been enacted for the purpose of controlling the abuse of power on the part of the Commissioner, the same should be given purposive meaning so as to fulfil the purport and object of the legislation.

State of West Bengal and Ors Vs R.K.B.K. Ltd and Anr on 4 Sep 2015

Citations : [2015 AIR SC 3411], [2015 AD SC 10 112], [2015 CALLT SC 4 1], [2015 CHN SC 5 144], [2015 MLJ 7 105], [2015 SCALE 9 550], [2015 SCC 10 369], [2015 SCJ 9 421], [2015 SCC ONLINE SC 783], [2015 CAL LJ 3 57]

Other Sources :

https://indiankanoon.org/doc/170103027/

https://www.casemine.com/judgement/in/5790b345e561097e45a4e3df

R.Rambilas Vs Anita and Anr on 16 Mar 2009

Posted on May 30, 2022 by ShadesOfKnife

Hon’ble Justice K.C. Bhanu had delivered this judgment.

From Paras 4-5,

(4) THE main contention of the learned counsel for the petitioner is that, the first respondent/wife had given up her right to seek maintenance as per agreement dated 16. 11. 1998 and therefore, continuation of the proceedings in the maintenance case is nothing but abuse of process of Court.
(5) ON the other hand, the learned counsel for the first respondent contended that, even a divorced wife is entitled for maintenance; that, the agreement and the divorce were obtained by playing fraud; that, even if any such agreement is there, that will not preclude the first respondent herein from claiming the maintenance. In support of his contention, the learned Counsel relied upon various decisions, which will be referred to, at appropriate time.

From Para 12,

(12) THE learned Counsel for the first respondent also placed strong reliance on a decision in Bai Tahira v. AH Hussain Fissalli Chothia and another, AIR 1979 sc 362, wherein it is held thus : (Para 10)
“the last defence, based on Mehar payment, merits more serious attention. The contractual limb of the contention must easily fail. The consent decree of 1962 resolved all disputes and settled all claims then available. But here is a new statutory right created as a projection of public policy by the Code of 1973, which could not have been in the contemplation of the parties when in 1962, they entered into a contract to adjust their then mutual rights. No settlement of claims which does not have the special statutory right to the divorcee under Section 125 can operate to negate that claim.”

Closure from Paras 14-15,

(14) THEREFORE, from the above decisions, it is clear that, even if there is an agreement which would defeat the provisions of any law, the same cannot be used as a defence in a proceedings under section 125 Cr. P. C.
(15) IN view of the above decisions, it is clear that even if there is such an agreement where under and whereby the parties relinquished her right to maintain, it would not be a bar to file a petition under section 125 Cr. P. C. and therefore, the maintenance case is maintainable and question of quashing the same does not arise.

R.Rambilas Vs Anita and Anr on 16 Mar 2009

Citations : [2009 ALD CRI 1 855]

Other Sources :

https://www.casemine.com/judgement/in/56ea70a6607dba369a6ee51e

https://www.lawyerservices.in/R-Rambilas-Versus-Anita-2009-03-16

Kamal Anant Khopkar Versus Union of India and Anr

Posted on May 28, 2022 by ShadesOfKnife

A full bench of Apex Court began looking into the Constitutional validity of Section 15 – General rules of succession in the case of female Hindus from Hindu Succession Act 1956.

Kamal Anant Khopkar Versus Union of India and Anr on 15 Mar 2019 OR

Learned Additional Solicitor General appears for the Union of India and asks and gets a period of six weeks to file counter affidavit by the Union of India

Kamal Anant Khopkar Versus Union of India and Anr on 25 Mar 2019

More time given… already 4 years passed but the Central government did not file the Counter.

Kamal Anant Khopkar Versus Union of India and Anr on 05 Apr 2022

Another petitioner also challenged the same provision of HSA and this one got tagged with above main case…

Manju Narayan Nathan Vs Union of India and Anr on 16 Mar 2022

MS Knit Pro International Vs State of NCT Delhi and Anr on 20 May 2022

Posted on May 23, 2022 by ShadesOfKnife

Supreme Court referred to the Part II of the First Schedule of the Cr.P.C. to decide if a penal provision in any law is a cognizable or non-cognizable offence.

5.1 The short question which is posed for consideration before this Court is, whether, the offence under Section 63 of the Copyright Act is a cognizable offence as considered by the Trial Court or a non-cognizable offence as observed and held by the High Court.
5.2 While answering the aforesaid question Section 63 of the Copyright Act and Part II of the First Schedule of the Cr.P.C. are required to be referred to.
5.3 Thus, for the offence under Section 63 of the Copyright Act, the punishment provided is imprisonment for a term which shall not be less than six months but which may extend to three years and with fine. Therefore, the maximum punishment which can be imposed would be three years. Therefore, the learned Magistrate may sentence the accused for a period of three years also. In that view of the matter considering Part II of the First Schedule of the Cr.P.C., if the offence is punishable with imprisonment for three years and onwards but not more than seven years the offence is acognizable offence. Only in a case where the offence is punishable for imprisonment for less than three years or with fine only the offence can be said to be non-cognizable. In view of the above clear position of law, the decision in the case of Rakesh Kumar Paul (supra) relied upon by learned counsel appearing on behalf of respondent no.2 shall not be applicable to the facts of the case on hand. The language of the provision in Part II of First Schedule is very clear and there is no ambiguity whatsoever.

MS Knit Pro International Vs State of NCT Delhi and Anr on 20 May 2022

Citations :

Other Sources :

Prabha Tyagi Vs Kamlesh Devi on 12 May 2022

Posted on May 20, 2022 by ShadesOfKnife

A division bench of Apex Court as follows,

From Para 52,

52. In view of the above discussion, the three questions raised in this appeal are answered as under:
“(i) Whether the consideration of Domestic Incidence Report is mandatory before initiating the proceedings under Domestic Violence Act, 2005 in order to invoke substantive provisions of Sections 18 to 20 and 22 of the said Act?” It is held that Section 12 does not make it mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order under the D.V. Act. It is clarified that even in the absence of a Domestic Incident Report, a Magistrate is empowered to pass both ex parte or interim as well as a final order under the provisions of the D.V. Act.
“(ii) Whether it is mandatory for the aggrieved person to reside with those persons against whom the allegations have been levied at the point of commission of violence?” It is held that it is not mandatory for the aggrieved person, when she is related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family, to actually reside with those persons against whom the allegations have been levelled at the time of commission of domestic violence. If a woman has the right to reside in the shared household under Section 17 of the D.V. Act and such a woman becomes an aggrieved person or victim of domestic violence, she can seek reliefs under the provisions of D.V. Act including enforcement of her right to live in a shared household.
“(iii) Whether there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed?” It is held that there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed vis-à-vis allegation of domestic violence. However, it is not necessary that at the time of filing of an application by an aggrieved person, the domestic relationship should be subsisting. In other words, even if an aggrieved person is not in a domestic relationship with the respondent in a shared household at the time of filing of an application under Section 12 of the D.V. Act but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application under Section 12 of the D.V. Act.

Prabha Tyagi Vs Kamlesh Devi on 12 May 2022

Citations : [2022 SCC ONLINE SC 607]

Other Sources :

https://indiankanoon.org/doc/85317640/

https://www.casemine.com/judgement/in/627eb23ab50db90fd1943198

https://www.indianemployees.com/judgments/details/prabha-tyagi-vs-kamlesh-devi

https://www.scconline.com/blog/post/2022/05/18/right-residence-shared-household-actual-residence-domestic-violence-subsisting-domestic-relationship-supreme-court-india-judgments-legal-law-research-updates-news/

This decision (with respect to shared householding requirement in DV cases) overrules decision by Andhra Pradesh High Court here.

Index of DV Cases here.

Sumer Singh Salkan Vs Asstt Director and Ors on 11 Aug 2010

Posted on May 15, 2022 by ShadesOfKnife

Hon’ble Delhi High Court had issued certain guidelines to be followed for issuing Look Out Circulars.

A. Recourse to LOC can be taken by investigating agency in cognizable offences under IPC or other penal laws, where the accused was deliberately evading arrest or not appearing in the trial court despite NBWs and other coercive measures and there was likelihood of the accused leaving the country to evade trial/arrest.
B. The Investigating Officer shall make a written request for LOC to the officer as notified by the circular of Ministry of Home Affairs, giving details & reasons for seeking LOC. The competent officer alone shall give directions for opening LOC by passing an order in this respect.
C. The person against whom LOC is issued must join investigation by appearing I.O or should surrender the court concerned or should satisfy the court that LOC was wrongly issued against him. He may also approach the officer who ordered issuance of LOC & explain that LOC was wrongly issued against him. LOC can be withdrawn by the authority that issued and can also be rescinded by the trial court where case is pending or having jurisdiction over concerned police station on an application by the person concerned.
D. LOC is a coercive measure to make a person surrender to the investigating agency or Court of law. The subordinate courts’ jurisdiction in affirming or cancelling LOC is commensurate with the jurisdiction of cancellation of NBWs or affirming NBWs.

Sumer Singh Salkan Vs Asstt Director and Ors on 11 Aug 2010

Citations : [2010 JCC 4 2401], [2010 ILR DEL 6 706], [2010 DMC 2 666], [2010 CCR 4 134], [2010 SCC ONLINE DEL 2699]

Other Sources :

https://indiankanoon.org/doc/26846768/

https://www.casemine.com/judgement/in/56ea8d9d607dba371ebca94a

Index of judgments about Look Out Circular Notices is here.

Kamla Sharma and Ors Vs Sukhdevlal and Ors on 18 Apr 2022

Posted on May 3, 2022 by ShadesOfKnife

A single judge bench of Madhya Pradesh High Court at Gwalior held that, a false Statement which doesn’t affect the outcome of case can’t invoke 340 CrPC proceedings.

Kamla Sharma and Ors Vs Sukhdevlal and Ors on 18 Apr 2022

Citations :

Other Sources :

Jagannath Verma and Ors Vs State of UP and Anr on 23 Sep 2014

Posted on May 1, 2022 by ShadesOfKnife

A Full bench of Allahabad High Court held that, an order of the magistrate rejecting an application under Section 156 (3) of the Code for the registration of a case by the police and for investigation is not an interlocutory order. Such an order is amenable to the remedy of a criminal revision under Section 397′

In view of the discussion above and for the reasons which we have furnished, we have come to the following conclusion:
(i) Before the Full Bench of this Court in Father Thomas, the controversy was whether a direction to the police to register a First Information Report in regard to a case involving a cognizable offence and for investigation is open to revision at the instance of a person suspected of having committed a crime against whom neither cognizance has been taken nor any process issued. Such an order was held to be interlocutory in nature and, therefore, to attract the bar under sub-section (2) of Section 397. The decision in Father Thomas does not decide the issue as to whether the rejection of an application under Section 156 (3) would be amenable to a revision under Section 397 by the complainant or the informant whose application has
been rejected;
(ii) An order of the magistrate rejecting an application under Section 156 (3) of the Code for the registration of a case by the police and for investigation is not an interlocutory order. Such an order is amenable to the remedy of a criminal revision under Section 397; and
(iii) In proceedings in revision under Section 397, the prospective accused or, as the case may be, the person who is suspected of having committed the crime is entitled to an opportunity of being heard before a decision is taken in the criminal revision.

Jagannath Verma and Ors Vs State of UP and Anr on 23 Sep 2014

Citations : [2015 ALLMR CRI 129], [2014 JIC 3 930], [2015 ALLCC 88 1], [2014 UPLBEC 4 2665], [2014 KLT SN 4 109], [2014 CTC 6 353], [2014 AIR ALL 214], [2014 ADJ 8 439], [2015 CCR ALL 2 59], [2015 RCR CRIMINAL 1 414], [2014 SCC ONLINE ALL 11859], [2014 MWN CRI 3 161], [2014 ALL LJ 6 405]

Other Sources :

https://indiankanoon.org/doc/128706736/

https://www.casemine.com/judgement/in/56b49301607dba348f003b58

Ramkripal Charmakar Vs State of Madhya Pradesh on 19 Mar 2007

Posted on May 1, 2022 by ShadesOfKnife

Apex Court explained about offence of rape and the necessary ingredients to make out a case u/s 376 IPC.

Coming to the question as to whether Section 354 of the Act has any application, it is to be noted that the provision makes penal the assault or use of criminal force to a woman to outrage her modesty. The essential ingredients of offence under Section 354 IPC are:
(a) That the assault must be on a woman.
(b) That the accused must have used criminal force on her.
(c) That the criminal force must have been used on the woman intending thereby to outrage her modesty.
What constitutes an outrage to female modesty is nowhere defined in IPC. The essence of a woman’s modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word ’modesty’ is not defined in IPC. The Shorter Oxford Dictionary (Third Edn.) defines the word ’modesty’ in relation to woman as follows:
“Decorous in manner and conduct; not forward or lower; Shame-fast; Scrupulously chast.”
Modesty is defined as the quality of being modest;and in relation to woman, “womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct.” It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. As observed by Justice Patterson in Rex v. James Llyod (1876) 7 C&P 817 in order to find the accused guilty of an assault with intent to commit a rape, court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part. The point of distinction between an offence of attempt to commit rape
and to commit indecent assault is that there should be some action on the part of the accused which would show that he was just going to have sexual connection with her.

And finally,

A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if he fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word ’attempt’ is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it; and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation.
An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission or consummation/completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt.
The sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. Definition of “rape” as contained in Section 375 IPC refers to “sexual intercourse” and the Explanation appended to the Section provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Intercourse means sexual connection. In the instant case that connection has been clearly established. Courts below were perfectly justified in their view.

Ramkripal Charmakar Vs State of Madhya Pradesh on 19 Mar 2007

Citations : [2007 SCC 11 265], [2007 AIR SC 0 2198], [2007 ALD CRI 2 940], [2007 ALT CRI 3 135], [2007 JT 4 393], [2007 SCALE 4 438], [2007 SUPREME 5 297], [2007 AIR JHAR R 2 905], [2007 OLR 1 803], [2007 CRLR 308], [2007 RCR CRI 2 390], [2007 DLT CRI 2 108], [2007 SLT 3 726], [2007 AIOL 306], [2007 AIR SC 49], [2007 BOMCR CRI SC 1 200], [2008 SCC CRI 1 674], [2007 SCR 4 125], [2007 AIC SC 54 131], [2007 CRIMES SC 3 115], [2007 AIR SCW 2198], [2008 MLJ CRL 1 172], [2007 CRLJ SC 2302]

Other Sources :

https://indiankanoon.org/doc/1308370/

https://www.casemine.com/judgement/in/5609ae60e4b0149711413a7a

https://www.indianconstitution.in/2021/12/ramkripal-so-shyamlal-charmakar-vs.html

Medicos Legal Action Group Vs Union of India on 29 Apr 2022

Posted on April 30, 2022 by ShadesOfKnife

Apex Court confirmed the decision of Bombay High Court which said, Doctor’s (Healthcare) services are within the ambit of Consumer Protection Act 2019.

Medicos Legal Action Group Vs Union of India on 29 Apr 2022

Citations :

Other Sources :

Bombay High Court decision:

Medicos Legal Action Group Vs Union of India on 25 Oct 2021

Shades of Knife

True Colors of a Vile Wife

Tag: Legal Procedure Explained – Interpretation of Statutes

State of West Bengal and Ors Vs R.K.B.K. Ltd and Anr on 4 Sep 2015

R.Rambilas Vs Anita and Anr on 16 Mar 2009

Kamal Anant Khopkar Versus Union of India and Anr

MS Knit Pro International Vs State of NCT Delhi and Anr on 20 May 2022

Prabha Tyagi Vs Kamlesh Devi on 12 May 2022

Sumer Singh Salkan Vs Asstt Director and Ors on 11 Aug 2010

Kamla Sharma and Ors Vs Sukhdevlal and Ors on 18 Apr 2022

Jagannath Verma and Ors Vs State of UP and Anr on 23 Sep 2014

Ramkripal Charmakar Vs State of Madhya Pradesh on 19 Mar 2007

Medicos Legal Action Group Vs Union of India on 29 Apr 2022