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

D.K. Basu Vs State of West Bengal on 18 Dec 1996

Posted on April 26, 2022 by ShadesOfKnife

A division bench of Apex Court laid down certain guidelines to be followed in cases of arrest and detention till legal provisions are made in that behalf as preventive measures. The said guidelines read as follows:-

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a
relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

D.K. Basu Vs State of West Bengal on 18 Dec 1996

Citations : [1997 ACR SC 21 277], [1997 AIR SC 610], [1997 ALD CRI 1 248], [1998 BLJR 1 161], [1997 CRILJ 743], [1996 CRIMES SC 4 233], [1997 GLR 2 1631], [1997 JT SC 1 1], [1997 RCR CRIMINAL 1 372], [1997 RLW SC 1 94], [1996 SCALE 9 298], [1997 SCC 1 416], [1996 SUPP SCR 10 284], [1997 SCC CRI 92], [1996 SUPPSCR 10 284]

Other Sources :

https://indiankanoon.org/doc/501198/

https://www.casemine.com/judgement/in/5609ace1e4b014971140fee9#

Vipin Rajput Vs State of MP on 13 Apr 2022

Posted on April 23, 2022 by ShadesOfKnife

High Court of MP said that, the Advocates would be answerable for the consequences suffered by the clients if the non-appearance was solely on the ground of a strike call..

From Para 6,

6. From the impugned order, it is clear that on 28.12.2021 Ranjana Chauhan (PW-18) had appeared and her examination-in-chief was recorded and in spite of various judgments passed by the Supreme Court as well as High Court, by which strike by the lawyers has been declared to be illegal, the lawyers were abstaining from work. Thereafter, at the request of the applicant, cross-examination of Ranjana Chauhan (PW-18) was deferred for the next date and on the next date, i.e., 29.12.2021 counsel for the applicant did not cross-examine her. The case was then adjourned to 11.01.2022 and on the said date also, counsel for the applicant did not cross-examine Ranjana Chauhan (PW-18). Thus, it is clear that not only, the lawyers were abstaining from work contrary to the judgment passed by the Supreme Court in the case of Ex-Capt. Harish Uppal Vs. Union of India and another reported in (2003) 2 SCC 45, but the counsel for the applicant was out and out to harass the prosecution witness Ranjana Chauhan (PW-18) as he did not cross-examine her in spite of an opportunity given by the Trial Court on 29.12.2021 and 11.01.2022.

From Para 10,

10. Thus, it is clear that the Advocates would be answerable for the consequences suffered by the clients if the non-appearance was solely on the ground of a strike call. On 28.12.2021 the prosecution witness was not cross-examined because the lawyers were abstaining from work. The Bar cannot justify its strike merely by saying that they are not on strike, but they are abstaining from work. Strike and abstaining from work is one and the same thing. In spite of the fact that the lawyers were on illegal strike by calling it as abstaining from work, the Trial Court fixed the case for the next date, i.e., 29.12.2021 for cross-examination of prosecution witness Ranjana Chauhan (PW-18). However, in spite of that, the counsel for the applicant did not cross-examine her. Thereafter, the case was again fixed for 11.01.2022 and on the said date also, counsel for the applicant did not cross-examine her.

From Para 11 and 12,

11. It is submitted by the counsel for the applicant that since the trial involves serious disputed questions of facts and law, therefore, counsel for the applicant was required to make preparation for cross-examining the prosecution witness and, therefore, he could not cross-examine her on 11.01.2022 and further it was already 5:15 PM.
12. The submission made by the counsel for the applicant is not acceptable. The Trial is pending since 08.02.2017, i.e., the date on which the charges were framed. Even after a long five years of pendency of trial, if the counsel for the applicant has not prepared the case, then only he is to be blamed.
13. So far as the contention of the counsel for the applicant that since it was already 5:15 PM, therefore, he did not cross-examine her is concerned, it is clear from the order sheet of the Trial Court that the witness had appeared at 3:00 PM but pass over was sought by the counsel for the applicant. If the Court had accommodated the counsel by passing over the matter, then the counsel cannot make a complaint that since working hours were over, therefore, he had a right to refuse to cross-examine the witness.

From Para 14,

14. Under these circumstances, this Court is unable to accept the contention of the counsel for the applicant that the counsel is ready to pay the compensation as well as expenses to the witness out of his own pocket. If the applicant has engaged a lawyer who is not serious towards his profession, then the applicant has a remedy to approach the Bar Council and if the counsel for the applicant was working as per the instructions of the applicant, then the applicant cannot run away from his liability of not cross-examining the prosecution witness Ranjana Chauhan on 28.12.2021, 29.12.2021 and 11.01.2022.

From Para 16,

16. However, liberty is granted to the applicant that in case, if his counsel had acted contrary to his instructions and did not cross-examine the witness in spite of his clear instructions, then he shall have a remedy of filing a civil suit for claiming compensation. He shall also have a remedy to approach the Bar Council against his local counsel for abstaining from work in spite of the law laid down by the Supreme Court in the case of Ex-Capt. Harish Uppal (supra).

Vipin Rajput Vs State of MP on 13 Apr 2022

Citations :

Other Sources :

K Neelaveni Vs State Rep By Inspector of Police and Ors on 22 Mar 2010

Posted on April 13, 2022 by ShadesOfKnife

A division bench of Apex Court held that there are, prima facie, specific allegations in the FIR to attract IPC 406 and 494.

From Paras 8 and 9,

8. We have given our thoughtful consideration to the submissions advanced and we are inclined to accept the submission of Mr. Guru Krishna Kumar, learned counsel for the appellant. From a perusal of the allegations made in the First Information Report, it is evident that the appellant has clearly alleged that her husband had married another lady namely Bharathi and the said marriage had taken place in the presence and with the support of other accused persons. She had also stated that from the second marriage with Bharathi a girl child was born. In the First Information Report, it had clearly been alleged that besides gold ornaments other household articles were given in marriage and further she was subjected to cruelty and driven out from the matrimonial home by the accused persons. In our opinion, the allegations made in the First Information Report, at this stage, have to be accepted as true, and allegations so made prima facie, constitute offences under Sections 406 and 494 of the Indian Penal Code. It has to be borne in mind that while considering the application for quashing of the charge sheet, the allegations made in the First Information Report and the materials collected during the course of the investigation are required to be considered. Truthfulness or otherwise of the allegation is not fit to be gone into at this stage as it is always a matter of trial. Essential ceremonies of the Marriage were gone into or not is a matter of trial.
9. From what we have said above, we are of the opinion that the High Court erred in holding that the charge sheet does not reveal the ingredients constituting the offences under Sections 494 and 406 of the Indian Penal Code.

K Neelaveni Vs State Rep By Inspector of Police and Ors on 22 Mar 2010

Citations : [2010 SCJ 3 654], [2010 AIR SC 3191], [2010 SCC 11 607], [2011 KLJ NOC 2 10], [2010 SCALE 3 261], [2010 DMC 1 560], [2010 SLT 2 604], [2010 CUTLT SUPPL 947], [2010 AIOL 153], [2010 CRIMES SC 2 90], [2010 RCR CRIMINAL SC 2 547], [2011 SCC CRI 1 219], [2010 SUPREME 2 543], [2010 ECRN 2 541], [2010 AIR SC 2760], [2010 AIC 88 58], [2010 MLJ CRL 3 352], [2010 CRLJ SC 2819], [2010 JT SC 3 156], [2010 AIR SCW 2760]

Other Sources :

https://indiankanoon.org/doc/1440610/

https://www.casemine.com/judgement/in/5609aeece4b01497114152ae

https://www.legalauthority.in/judgement/k-neelaveni-vs-state-rep-by-insp-of-police-9855

https://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=000102622000

https://advocatespedia.com/Case_Study:_K_Neelaveni_Vs_State_Rep_By_Inspector_of_Police_%26_Ors_Case

Priya Bala Ghosh Vs Suresh Chandra Ghosh on 4 Mar 1971

Posted on April 12, 2022 by ShadesOfKnife

A Division Bench of Apex Court held that, the second marriage has to be proved by establishing the ceremonies constituting the same have been gone through for an offence of Bigamy to be made out.

As pointed out earlier, this Court in Kanwal Ram’s case has laid down that an admission is not evidence of the fact that the second marriage has taken place after the ceremonies constituting the same have been gone through.

Towards the end of Judgment:

Further as pointed out by this Court in Kawal Ram’s case, the admission in Ex. 2 cannot in law be treated as evidence of the second marriage having taken place in an adultery or bigamy case: and that in such cases it must be proved by the prosecution that the second marriage as a fact has taken place after the performance of the essential ceremonies. Mr. Majumdar relied on the decision of this Court in Bharat Singh and another vs. Bhagirathi(1) to the effect that the admissions made by a party are substantive evidence by themselves in view of ss. 17 and 21 of the Indian Evidence Act, and that if those admissions have been duly proved they can be relied on irrespective of the fact whether the party making them appear in the witness box or not or irrespective of the fact whether such a party had or had not been confronted with those admissions. We do not think that the said decision in any way supports the appellant with regard to prosecution for bigamy under s. 494 I.P.C. To conclude, we have already referred to the fact that both the learned Sessions Judge and the High Court have categorically found that the Homo and Saptapadi are the essential rites-for a marriage according to the law governing the parties and that there is no evidence that these two essential ceremonies have been performed when the respondent is stated to have married Sandhya Rani. No reliance can be placed on the admissions stated to be contained in Ex. 2.

Priya Bala Ghosh Vs Suresh Chandra Ghosh on 4 Mar 1971

Citations : [1972 CRI LJ 275], [1971 SCC 1 864], [1971 SCC CRI 362], [1971 SCR 3 961], [1971 AIR SC 1153], [1971 CRLJ SC 939]

Other Sources :

https://indiankanoon.org/doc/80924/

https://www.casemine.com/judgement/in/5609ab75e4b014971140c8aa

https://www.the-laws.com/Encyclopedia/browse/Case?CaseId=001791071000&Title=PRIYA-BALA-GHOSH-Vs.-SURESH-CHANDRA-GHOSH

Saraswathi Vs Thirupathi and Anr on 24 Sep 2014

Posted on April 10, 2022 by ShadesOfKnife

Madras High Court bench at Madurai spelt out this judgment, only applicable to marriage performed in Tamil Nadu and Pondicherry, regards to Bigamy in Hindus.

From Para 22,

22.A reading of the said Section will make it clear that for the validity of a marriage between two Hindus, no specific form is necessary. Either by acknowledging in the language known to eachparties that each of them takes the other as husband or wife, as the case may be, in the presence of elders and relatives or friends orother persons, or by symbolic representation of such declaration by exchanging rings, exchanging garlands or tying thali will be sufficientobservance of the formality to make a Hindu Marriage among the two Hindus in Tamil Nadu to be valid. The very fact that the sectionemployees the conjunction ‘or’ and not ‘and’ while describing formalities to be observed is very significant. It is brought to the notice of the Court by the Bar that at the time of drafting of the Bill, the conjunction ‘and’ was used and when it was placed before the reformer in Dravidar Movement namely, E.Vera.Ramasamy Periyar, for his opinion, he alone suggested the correction of the conjunction ‘and’ into ‘or’ to make it clear that the symbolic representation ‘in any one of the forms’ shall be sufficient. The section also provides for validation of marriages performed prior to the introduction of Section 7-A of the Hindu Marriage Act, 1955 and several such marriages were saved from being held void for non observance of any of the customary rituals provided the conditions found in Section 7-A were present. After the amendment in Tamil Nadu, for convicting a person professing Hindu religion for bigamy, it shall be enough to show that the underwent a form of marriage which complies with the above condition namely, acknowledgment by words or symbolic representation of acknowledgement by exchanging garlands or exchanging of rings or tying of thali provided the marriage is with a woman professing Hindu religion. What the appellant/complainant has to prove is that but for the subsistence of the first marriage, the second marriage would have been valid.

From Para 26, Crucial Piece of Law:

26. A perusal of the said provision will make it clear that thesaid Section can be pressed into service against the first respondent alone, who contracted the second marriage during the subsistence of his marriage with the appellant/complainant. It is not the case of the appellant/complainant that the second respondent was having a husband and she married the first respondent as her second husband during the subsistence of her marriage with her first husband, in which event alone she can be roped in as an accused under Section 494 IPC. But, if it is established that she married the first respondent with the knowledge that the first respondent was already married and his first wife namely, the appellant/complainant was living and that their marriage was subsisting, she shall not be liable for the substantive offence punishable under Section 494 IPC, but shall be liable to be punished under Section 494 IPC read with Section 109 IPC for having abetted the commission of the said offence. Of course, as per Section 109 IPC when no express provision is made in the Code for the punishment of abetment of a particular offence, if the act abetted is committed in consequence of the abetment, then such abettor shall be punishable with the punishment provided for the offence. Here is a case in which the marriage has taken place and hence, if the second respondent is proved to have got the knowledge of the first marriage of the first respondent with the appellant/ complainant, then she shall be liable to be punished with the punishment prescribed under Section 494 IPC. However, when a person is to be punished for abetment of an offence, separate charge stating that she is prosecuted for abetting such an offence and that the act abetted has been committed should have been framed. The charge against the second respondent ought to have been framed as one for an offence punishable under Section 494 IPC read with Section 109 IPC. The learned trial Judge committed an error in not framing such a specific charge against the second respondent and convicting the second respondent under the substantive provision alone namely under Section 494 IPC. Even forargument sake if it is assumed that the absence of framing of such a specific charge is only an irregularity not vitiating the proceedings,unless she is proved to have agreed for the marriage with the knowledge of the subsistence of the marriage between the appellant/complainant and the first respondent, she cannot beconvicted for the offence punishable under Section 494 IPC read with Section 109 IPC. In this regard, there is absence of clear evidence,imputing direct knowledge to the second respondent regarding the subsistence of first marriage of the first respondent with theappellant/complainant.

From Para 28, Sentencing:

28. Regarding the sentence, the submissions made on both sides are also taken into consideration. The maximum punishment prescribed under the said penal provision, namely 494 IPC is imprisonment of either description for 7 years and also fine. The trial Judge seems to have imposed a sentence of rigorous imprisonment for three years and a fine of Rs.100/- with a default sentence of rigorous imprisonment for one week. So far as the fine amount is concerned, the trial Court seems to have shown leniency. Substantive sentence awarded by the trial Court, as contended by the learned counsel for the first respondent, is some what harsh and the same needs reduction. This Court is of the view that reducing the substantive sentence to two years rigorous imprisonment and increasing fine to Rs.1000/- from Rs.100/- with a default sentence of one month simple imprisonment shall meet the ends of justice.

Saraswathi Vs Thirupathi and Anr on 24 Sep 2014

Citations :

Other Sources :

https://indiankanoon.org/doc/83802447/

https://www.lawyerservices.in/Saraswathi-Versus-Thirupathi-and-Another-2014-09-24

Commercial Toyota Vs State of Uttarakhand and Anr on 31 Jul 2019

Posted on April 9, 2022 by ShadesOfKnife

A Single judge bench at Uttarakhand High Court held that non-filing of supporting affidavit in a 156(3) CrPC application, seeking registration of a FIR, is a curable defect and Magistrate may ask the petitioner to file the affidavit before initiating proceedings in the said application.

From Para 10,

10. The main controversy, which is being raised by the learned counsel for the revisionist, was the necessity to file an application under Section 156(3), which has had to be supported by an affidavit as it has been provided by the judgment of the Hon’ble Apex Court in Priyanka Srivastava’s matter (supra). The said judgment had a very laudable purpose and object to be achieved that the invocation of Section 156(3), should not be made by the applicant to adopt it as a matter of drawing a farce proceeding against the accused person or for vengeance of personal grievances. The intention and purpose which the judgment wanted to postulate to be adhere to by the Magistrates before whom the applications are filed for taking cognizance of the offence complained of invoking Section 156(3) has had to have an assurance that the factual narration of fact given in the application attaches a sanctity to it and is not based on a frivolous set of allegations. That is why the Hon’ble Apex Court has held that when the application under Section 156(3) is considered by the Court that its the Magistrate concerned, it also castes a duty on the Magistrate himself to ensure that the application preferred under Section 156(3) is authentic and genuine and in order to attach that authenticity, it has been laid down that the application has to be supported with an affidavit.

From Para 12,

12. The very observation made in paragraph 30 (as quoted above) of the judgment of the Priyanka Srivastava’s case (supra) where a responsibility has been shouldered on the Magistrate with regards to the propriety of the application to be supported by an affidavit, i.e. the stage when the proceedings are initiated that in itself makes the defect of the application being supported by an affidavit as to be curable in nature because if an application is not supported by an affidavit and is rejected, it may in a particular circumstance result into depriving of a right of a citizen to invoke the proceedings of Section 156(3) and in these circumstances the Court or the Magistrate can always direct the applicant to file an affidavit in support of his application under Section 156(3) so as to make it maintainable before the Court. If that defect of application under Section 156(3) not being supported with affidavit, is made as an uncurable, it may at times in some cases be giving superior hard to the Magistrate to deprive the applicant of filing application under Section 156(3) by rejecting the same on this procedural ground itself.

From Para 13,

13. In the present case a very peculiar circumstance has emerged the peculiarity is that the revisional court has remitted the matter back to the Trial Court to decide the application afresh. Deciding afresh would mean its at an stage of inception and consideration of the proceedings right from its initial stage, as if it is being entertained for the first time. On revival of the proceedings the Court can always in the light and the spirit enunciated in paragraph 30 of the judgment can direct the applicant (revisionist herein) to support his application along with an affidavit to make it entertainable before the Magistrate concerned. Hence, this Court is of the view that filing of an affidavit in support of Section 156(3) application is curable, in the light and spirit of the observation made in paragraph 30 of the Judgment of Priyanka Srivastava’s case (supra).

Commercial Toyota Vs State of Uttarakhand and Anr on 31 Jul 2019

Citations: [2019 SCC ONLINE UTT 749]

Other Sources :

https://www.casemine.com/judgement/in/5d919982714d587fe94d9e28

Utt HC | Non-filing of affidavit along with the application under S. 156(3) of CrPC held to be a curable defect

Dr.S.Ariharan and Anr Vs Inspector of Police and Anr on 26 Nov 2019

Posted on April 6, 2022 by ShadesOfKnife

Justice G.R. Swaminathan held that Section 438 of Cr.PC is not the sole repository of the power to grant anticipatory bail. The High Courts are endowed with inherent powers (u/s 482 CrPC) to make such orders as to secure the ends of justice.

From Para 5,

5.The Union of India not wanting to take chances also filed Review Petition (Crl) No.228 of 2018. The same was disposed of vide judgment dated 01.10.2019 by a three Judges Bench. On a careful reading of the judgement dated 01.10.2019, one can note that the essence and soul of Dr.Subhash Kashinath Mahajan judgment has not only survived but remains intact.

From Para 11,

11.The outcome of the challenge can be one way or the other. Section 18 A of the Act can be upheld. Or it can be struck down. Even if its validity is upheld, the High Courts would still be entitled to grant anticipatory bail. The statute only excludes the applicability of Section 438 of Cr.PC. In the State of Uttar Pradesh, Section 438 of the Code has been deleted by the State amendment and the said deletion has been upheld in (1994) 3 SCC 569 (Kartar Singh vs. State of Punjab). But, that has not curtailed the extraordinary power of the High Court to entertain a plea of anticipatory bail and this power was held to be available in Hema Mishra vs. State of U.P. and Ors, (2014) 4 SCC 453).

From Para 12,

12. Section 438 of Cr.PC is not the sole repository of the power to grant anticipatory bail. The High Courts are endowed with inherent powers to make such orders as to secure the ends of justice. I hope I am not indulging in quibbling or hair-splitting when I say that neither Section 18 nor Section 18 A engraft a bar against grant of anticipatory bail. They are to the effect that the provision of Section 438 of the Code shall not apply to a case under the Atrocities Act. Even if Section 438 of Cr.PC is not available, Section 482 of Cr.PC can very much be invoked. Hence, I hold that this Court is very much possessed of the power to grant anticipatory bail even in cases arising under the Schedules Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The petitions can be filed under Article 226 of the Constitution of India or under Section 482 of Cr.PC.

Dr.S.Ariharan and Anr Vs Inspector of Police and Anr on 26 Nov 2019

Citations :

Other Sources :

https://indiankanoon.org/doc/186580740/

https://www.lawyerservices.in/Dr-S-Ariharan-and-Another-Versus-The-Inspector-of-Police-Thirumangalam-Madurai-District-Crime-No-of-2019-and-Another-2019-11-26

Bhagyashri Jagdish Jaiswal Vs Jagdish Sajjanlala Jaiswal and Anr on 26 Feb 2022

Posted on April 1, 2022 by ShadesOfKnife

A single judge bench held that Section 25 of HMA 1955 can be filed after passing of divorce decree.

From Para 14,

14. A conjoint reading of both the provisions, would reveal that both the sections in the Act of 1955 are enabling provisions and confer a right on the indigent spouse to claim maintenance either pendente lite or in the nature of permanent alimony and maintenance.

From Para 15,

15. The words applied in Section 25 of the Act of 1955 permit any court exercising jurisdiction under this Act, i.e. under Sections 9 to 13, at the time of passing any decree or at any time subsequent thereto, on an application made to it, by either of the spouse pay to the applicant for her/his maintenance, either gross sum or monthly or periodical sums for not exceeding the life of the applicant, having regard to the income and the other property, etc. The term used “at any time subsequent thereto” cannot be made redundant, by giving constricted meaning to the words “wife or husband”, applied in Section 25 of the Act of 1955 and this can be said so, in the wake of sub-sections (2) and (3) of Section 25, which empower the court to vary, modify or rescind the amount of permanent alimony and maintenance as awarded under sub-section (1) and, on existence of the circumstances set out in sub-section (3), order granting permanent alimony and maintenance can be varied and modified or rescinded as the court may deem just and proper.
Sub-sections (2) and (3) of Section 25 are thus indicative of the fact that if at the time of decree, an application is made or at any subsequent time of the passing of the decree, an application is made, claiming maintenance by either of the spouse, the court is empowered to grant the claim, which is just and proper and the payment can be secured if necessary, by creating charge on the immoveable property of the respondent. If sub-section (1) is given a restrictive meaning as attempted to be canvassed by Mr. Thombre, then the words used “at any time subsequent thereto” would become redundant, which cannot be the intention of the legislature. The legislature does not use the words in vacuum and when it specifically permits the exercise of power of granting permanent alimony and maintenance on the court exercising jurisdiction under the Act, at the time of passing of the order or at any time subsequent thereto, it is open for the court to grant such maintenance at the time of passing the decree or even subsequent to the decree being passed. The provision cannot be read to constrict it, if the relationship between the husband and the wife is severed and as per Mr. Thombre, on divorce, they no longer remain husband and wife. Section 25 is not only restricted to a decree of divorce, but the decree can also be for restitution of conjugal rights under Section 9, the decree can also be for judicial separation under Section 10 or the decree can also be for divorce under Section 13 or the decree can also be for a divorce by mutual consent under Section 13B. In the contingency other than the one covered by a decree of divorce, the parties are still husband and wife, when a decree for restitution of conjugal rights or judicial separation is passed. The scope of Section 25, therefore, cannot be restricted by holding that on divorce / dissolution of marriage, the wife or the husband cannot bring such proceedings.

Bhagyashri Jagdish Jaiswal Vs Jagdish Sajjanlala Jaiswal and Anr on 26 Feb 2022

Citations :

Other Sources :

Shades of Knife

True Colors of a Vile Wife

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