Prabhu Chawla Vs State of Rajasthan and Anr on 05 Sep 2016

Posted on October 8, 2025 by ShadesOfKnife

Re-affirming Dhariwal Tobaco Products Ltd judgment here, Full bench of Supreme Court held that, A Petition under section 482 CrPC is maintainable even when a Revision is available under 397/401 CrPC.

From Para 4,

4. The facts of these appeals need not detain us because in our considered opinion the view taken by the Rajasthan High Court in the impugned order is contrary to law and therefore matters will have to be remanded back to the High Court for fresh consideration on merits within the scope of inherent powers available to the High Court under Section 482 Cr.P.C. It would suffice to note that in both these appeals, the miscellaneous petitions before the High Court arose out of an order dated 30.11.2006 passed by learned Judicial Magistrate No. 3, Jodhpur in the complaint no. 1669 of 2006, whereby it took cognizance against the appellants under Section 228A of the Indian Penal Code and summoned them through bailable warrants to face further proceedings in the case.

From Paras 6-8,

6. In our considered view any attempt to explain the law further as regards the issue relating to inherent power of High Court under Section 482 Cr.P.C. is unwarranted. We would simply reiterate that Section 482 begins with a non-obstante clause to state: “Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” A fortiori, there can be no total ban on the exercise of such wholesome jurisdiction where, in the words of Krishna Iyer, J. “abuse of the process of the Court or other extraordinary situation excites the court’s jurisdiction. The limitation is self-restraint, nothing more.” We venture to add a further reason in support. Since Section 397 Cr.P.C. is attracted against all orders other than interlocutory, a contrary view would limit the availability of inherent powers under Section 482 Cr.P.C. only to petty interlocutory orders! A situation wholly unwarranted and undesirable.
7. As a sequel, we are constrained to hold that the Division Bench, particularly in paragraph 28, in the case of Mohit alias Sonu and another (supra) in respect of inherent power of the High Court in Section 482 of the Cr.P.C. does not state the law correctly. We record our respectful disagreement.
8. In our considered opinion the learned Single Judge of the High Court should have followed the law laid down by this Court in the case of Dhariwal Tobacco Products Ltd. (supra) and other earlier cases which were cited but wrongly ignored them in preference to a judgment of that Court in the case of Sanjay Bhandari (supra) passed by another learned Single Judge on 05.02.2009 in S.B. Criminal Miscellaneous Petition No. 289 of 2006 which is impugned in the connected Criminal Appeal arising out of Special Leave Petition No. 4744 of 2009. As a result, both the appeals, one preferred by Prabhu Chawla and the other by Jagdish Upasane & Ors. are allowed. The impugned common order dated 02.04.2009 passed by the High Court of Rajasthan is set aside and the matters are remitted back to the High Court for fresh hearing of the petitions under Section 482 of the Cr.P.C. in the light of law explained above and for disposal in accordance with law. Since the matters have remained pending for long, the High Court is requested to hear and decide the matters expeditiously, preferably within six months.

Prabhu Chawla Vs State of Rajasthan and Anr on 05 Sep 2016

Index of Quash Judgments is here.

Shivangi Bansal Vs Sahib Bansal on 22 Jul 2025

Posted on July 27, 2025 by ShadesOfKnife

Supreme Court of India is funny…

First comes, Rajesh Sharma and Ors Vs State of UP and Anr on 27 July, 2017 [2-judge Supreme Court Division Bench sets up Family Welfare Committees]
Then comes, Social Action Forum for Manav Adhikar and another Vs Union of India on 14 September, 2018 [3-judge Supreme Court Full Bench disbands Family Welfare Committees]
And now comes, this judgment. [2-judge Supreme Court Division Bench (includes CJI) endorses Family Welfare Committees]

Shivangi Bansal Vs Sahib Bansal on 22 Jul 2025

I am sure, this Judgment will be rescinded as it violates the principle of precedence and goes against the 3-Judge decision and did not even mention the earlier higher bench decision.

Citations: [2025 LiveLaw (SC) 735], [2025 INSC 883]

Other Sources:

https://indiankanoon.org/doc/41565735/

https://www.casemine.com/judgement/in/687f86f82bf7c50b2db30079

https://lawtrend.in/no-arrest-in-498a-ipc-case-for-2-months-sc-approves-guidelines-of-allahabad-hc-on-misuse-of-498a-ipc/

Chand Dhawan Vs Jawaharlal Dhawan on 11 Jun 1993

Posted on March 23, 2025 by ShadesOfKnife

A division bench of the Apex Court passed this landmark judgment, holding that alimony u/s 25 of the Hindu Marriage Act can be sought only when any decree is passed under sections 9 to 14 of the Hindu Marriage Act.

On the other hand, under the Hindu Marriage Act, in contrast, her claim for maintenance pendente lite is durated on the pendency of a litigation of the kind envisaged under sections 9 to 14 of the Hindu Marriage Act, and her claim to permanent maintenance or alimony is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of conjugal rights or judicial separation in favour or against her, or her marriage stands dissolved by a decree of nullity or divorce, with or without her consent. Thus when her marital status is to be affected or disrupted the court does so by passing a decree for or against her. On or at the time of the happening of that event, the court being siezen of the matter, invokes its ancilliary or incidental power to grant permanent alimony. Not only that, the court retains the jurisdiction at subsequent stages to fulfil this incidental or ancilliary obligation when moved by an application on that behalf by a party entitled to relief. The court further retains the power to chance or alter the order in view of the changed circumstances. Thus the whole exercise is within the gammit of a diseased of a broken marriage. And in order to avoid conflict of perceptions the legislature while codifying the Hindu Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the court passing a decree of the kind as envisaged under sections 9 to 14 of the Act. In other words without the marital status being affected or disrupted by the matrimonial court under the Hindu Marriage Act the claim of permanent alimony was not to be valid as ancilliary or incidental to such affectation or disruption.
We have thus, in this light, no hesitation in coming to the view that when by court intervention under the Hindu Marriage Act, affection or disruption to the marital status has come by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power subsequently to be invoked on application by a party entitled to relief.

Finally,

On the afore analysis we have been led to the conclusion that the step of the wife to move the court of Additional District Judge, Amritsar for grant of maintenance under section 25 of the Hindu Marriage Act was ill-advised. The judgment of the High Court under appeal could be no other than the one that it was in the present state of law and the facts and circumstances. It is still open to the wife to stake her claim to maintenance in other fora. The judgments of the High Courts earlier quoted, and others which have been left out, which are not in line with our view are over-ruled. The earlier and predominant view was the correct one and the later an aberration; something unfortunate from the precedential point of view. The appeals thus inevitably have to and are hereby dismissed, but without any order as to costs.

Chand Dhawan Vs Jawaharlal Dhawan on 11 Jun 1993

Citations: [1993 LawSuit(SC) 494], [(1993) 3 S.C.R. 954], [1993 INSC 216], [1993 SCC (3) 406], [1993 AIR SCW 2548], [1993 CRI. L. J. 2930], [1993 SCC(CRI) 915], [(1993) IJR 335 (SC)], [1994 BOM CJ 147], [1993 (2) UJ (SC) 356], [1993 (4) JT 22], [1993 MAH LJ 1731], [(1993) 2 DMC 110], [(1993) 2 HINDULR 203], [(1993) 2 MAHLR 866], [(1993) MARRILJ 459], [(1994) MPLJ 1], [(1993) 3 RECCRIR 545], [(1994) 1 RRR 574], [(1993) 3 SCJ 50], [(1993) 22 ALL LR 240], [(1993) 2 CIVLJ 902], [1993 LawSuit(SC) 494]

Other Sources:

https://indiankanoon.org/doc/1162687/

https://www.casemine.com/judgement/in/5609ac8fe4b014971140f246

https://digiscr.sci.gov.in/view_judgment?id=MTk0MTQ=

Chand Dhawan Vs. Jawaharlal Dhawan

SMT. CHAND DHAWAN Vs JAWAHARLAL DHAWAN

https://www.the-laws.com/Encyclopedia/browse/Case?caseId=002991343000&title=chanddhawan-vs-jawaharlal

https://www.simplekanoon.com/family-law/smt-chand-dhawan-v-jawaharlal-dhawan-1509/

https://lawfyi.io/smt-chand-dhawan-vs-jawaharlal-dhawan-on-11-june-1993/

https://lawsuitcasefinder.com/casedetail?id=U2FsdGVkX1plo2GAY5xcebh78PQGFoZ2Mju1Jpebh78bGJ5ukMSE1YMgs5

Index to the Maintenance Judgments under Hindu Marriage Act here.

Kavitha M Vs Raghu on 16 Mar 2023

Posted on October 4, 2024 by ShadesOfKnife

A single judge of Karnataka HC held that there is no need to conduct Inquiry in the nature of summary trial before passing Interim reliefs, relying on the Magistrate’s inherent power u/s 28(2) of the PWDV Act, while overruling earlier 2009 judgment here. (Comment to myself: someone has to challenge the Sec 28(2) of the DV Act as unconstitutional and get rid of it!)

From Para 14,

14. In the aforesaid circumstances, reference being made to the judgment of the Apex Court in the case of KUNAPAREDDY v. KUNAPAREDDY SWARNA KUMARI1 is apposite.
The Apex Court, in the aforesaid judgment, while considering the purport of promulgation of the Act and its provisions clearly holds that sub-section (2) of Section 28 is significant. The concerned Court is well within its powers to lay down its procedure for disposal of the application under Section 12 or Section 23(2) of the Act. The Apex Court also recognizes that this provision is incorporated by the Legislature keeping a definite purpose for which it is enacted. This Court also recognizes the power of the Magistrate under Section 23 to grant an interim order ex-parte owing to the specific power under sub-section (2) of Section 23 of the Act which is carved out in that behalf. In the light of the judgment of the Apex Court, any other law that is laid down by the co-ordinate Benches of this Court will have to be placed into the oblivion on two counts, as the heart and soul of the Act is found in Section 12 and its beat in Section 23.The reliance placed by the respondent/State upon the judgment of the co-ordinate Bench in the case of KRISHNA MURTHYNOOKULA v. Y SAVITHA2 is in clear contradiction with what the Apex Court has held. The said judgment has also been distinguished in the case of one K.MANJUNATH REDDY v. SMT.A.C. LATHA3.
The co-ordinate Bench recognizes that the section itself provided that the Court can form its own procedure and it would override sub-section (1) of Section 28 and any Rules framed thereunder. The co-ordinate Bench then holds that there was no illegality committed by the Court in exercise of its inherent power for disposal of the application without an inquiry and by way of an affidavit filed by the parties before the concerned Court.

From Para 15-18, [Happy that Section 12(5) is emphasized and directions issued]

15. On a coalesce of the aforesaid analysis of the provisions of the Act and the law laid down by the Apex Court and that of the co-ordinate Bench of this Court, what would unmistakably emerge is that applications concerning protection orders under Section 18, residence orders under Section 19 and monetary relief under Section 20, all of which direct that if the learned Magistrate is prima facie finds justification he could grant those reliefs. Section 23 of the Act empowers the learned Magistrate to grant of interim and ex-parte orders in any application under Sections 18, 19, 20 and 21
or even 22 against the respondent, granting interim relief in terms of the application/s so filed cannot be after an eon, it has to be granted anon. Therefore, there is no warrant for any Magistrate to await for the procedure as stipulated under the CrPC to get concluded, and then grant the relief that is sought in the application. It defeats the very life blood of the Act. If Section 12 is the one under which applications are filed before the concerned Court, sub-section (5) of Section 12 mandates disposal within 60 days.
16. It is quite appalling that an application filed by the petitioner under Section 12 of the Act for the relief as available under Sections 19, 20 and 22 of the Act has been kept pending for close to 52 months after its filing, notwithstanding the fact that the mandate of the Act is disposal of those applications within 60 days. The applications being kept pending would display apathy towards the litigants. The reason for the applications being kept pending is free fall for adjournments being granted by the concerned Court. In the case at hand, close to two years have passed by and the Court has gone on granting time to the husband for filing assets and liabilities statement to determine the payment of maintenance to the wife under the provisions of the Act while the wife/aggrieved person suffers. An application that has to be disposed of within 60 days, has taken 52 months, and is yet to be disposed of.
17. The law Courts which exist to remedy the wrong when it is brought to its notice has to act swiftly, as it is trite that, actus curiae neminem gravabit that the act of Court should prejudice no person. If an act of the Court should not prejudice any person; the Court should not permit any procrastination of the proceedings before it. A woman, who is a victim of domestic violence, knocking at the doors of the Magistrate, under the Act seeking maintenance or shelter such grievance, will have to be addressed with immediacy. It is for this reason that the statute mandates that such applications have to be disposed of within 60 days in terms of sub-section (5) of Section 12 of the Act. The mandate is unequivocal as sub-section (5) mandates that the Magistrate shall endeavour to dispose every application; every application would mean each and every, not a few or more. If the delay takes away the very soul of the enactment, such delay would definitely deny justice. It is, therefore, often said that “justice delayed is justice denied”. If the facts of the case at hand are taken note of, it would display that the petitioner has been denied maintenance and other benefits available under the Act for close to five years now, after she has been out of the matrimonial house.
18. In the aforesaid circumstances, it becomes necessary for this Court to direct the Magistrates, to henceforth decide the applications filed by the aggrieved persons within the time frame. The applications could be for the benefit of Sections 19 and 20 of the Act which are filed along with the application under Section 12 of the Act. Any delay beyond 60 days to consider the application should be only for reasons to be recorded in writing. For a maintenance application, the concerned Court shall direct the husband, after receipt of notice, to file his assets and liabilities statement within four weeks from the date of appearance and in the event, he would dodge appearance before Court, the Court is empowered to grant interim maintenance, on what is filed by the aggrieved person as assets and liabilities statement and as sought in the application, failing which, such cases, like the one that is brought before this Court, would mushroom and defeat the very purport of the promulgation of the Act.

Kavitha M Vs Raghu on 16 Mar 2023

Citations: [2023 SCC OnLine Kar 11],

Other Sources:

https://indiankanoon.org/doc/158022851/

https://www.casemine.com/judgement/in/6423e02cd66f1c555c648b74

https://www.livelaw.in/news-updates/karnataka-high-court-disposal-of-application-dometic-violence-act-accommodation-monetary-relief-interim-maintenance-224447

Domestic Violence Victims Must Be Addressed With Immediacy: Karnataka High Court Issues Directions to Magistrate Courts

https://www.the-laws.com/Encyclopedia/browse/Case?caseId=013202793200&title=kavitha-m-vs-raghu

“S. 12 is heart and soul of Domestic Violence Act”; Karnataka High Court directs Magistrates to decide applications within the mandated period of 60 days

Index of Domestic Violence judgments is here.

Vibhor Garg Vs Neha on 14 Jul 2025

Posted on March 5, 2023 by ShadesOfKnife

The Punjab and Haryana High Court decision here is challenged at Apex Court (Diary No.- 31421 – 2021, SLP(C) No. 021195/2021 Registered on 24-12-2021). The Appeal was allowed by the Supreme Court in the following terms.

From Para 10.2 and 10.3,

10.2 Section 14 of the F.C. Act gives a wide discretion to the Family Courts in deciding matrimonial disputes since they can go beyond the strict rules of evidence in terms of relevance and admissibility while admitting any evidence which they think is relevant for the adjudication of the dispute at hand. However, we do not think that adverting to Section 14 of the F.C. Act is required in the present facts when the Evidence Act itself permits such a communication to be admitted in evidence by way of an exception. The powers under Section 14 of the F.C. Act would normally be resorted to in a scenario where the Evidence Act creates some prohibition with respect to relevance or admissibility of any evidence. But if the Family Court is of the opinion that it is expedient to go beyond the procedural technicalities of the Evidence Act for adjudicating the dispute, in such a case, the Family Court is allowed to take that evidence on record, notwithstanding what is stated in the Evidence Act. But the exercise of this extraordinary power under Section 14 of the F.C. Act is not warranted in this case.
10.3 Some arguments have been made by the learned amicus about the fact that permitting such an evidence would jeopardise domestic harmony and matrimonial relationship inasmuch as it would encourage snooping on the spouse, thereby fracturing the very objective of Section 122 of the Evidence Act. We do not think such an argument is tenable. If the marriage has reached a stage where spouses are actively snooping on each other, that is in itself a symptom of a broken relationship and denotes a lack of trust between them. The said snooping cannot be said to be a consequence of the Court admitting the evidence obtained by snooping. In fact, snooping between partners is an effect and not a cause of marital disharmony. The privacy of communication exists between spouses, as has been recognised by Section 122, but the said right of privacy cannot be absolute and has to be read also in light of the exception provided in Section 122 of the Evidence Act. When Section 122 itself recognises and protects spousal privacy in the first part of the Section then, the said right has to be construed in terms of Section 122 only and has to be subject to the exception contained therein. In other words, when the right to privacy of communication between spouses is the very basis of Section 122 then the exceptions to these should also flow only from Section 122 of the Evidence Act.

From Para 12,

12. In view of the aforesaid discussion, we firstly observe that Section 122 of the Evidence Act is not assailed in these proceedings. Secondly, under Section 122 of the said Act, privileged communication between the spouses is protected in the context of fostering intimate relationship. However, the exception under Section 122 of the Evidence Act has to be construed in light of right to a fair trial which is also an aspect of Article 21 of the Constitution of India. When we weigh the respective rights of the parties in a trial within the parameters of Section 122 of the Evidence Act, we do not think that there is any breach of right to privacy in the instant case. In fact, Section 122 of the aforesaid Act does not recognise such a right at all. On the other hand, the said Section carves out an exception to right to privacy between spouses and therefore cannot be applied horizontally at all. In this regard, we reiterate that as per procedure established by law, Section 122 of the Evidence Act does not touch upon the aspect of right to privacy as envisaged under Article 21 of the Constitution, let alone invade upon such right. The reason is because Section 122 of the Evidence Act recognises the right to a fair trial, right to produce relevant evidence and a right to prove one’s case against a spouse so as to avail the relief sought for by a party.

Vibhor Garg Vs Neha on 14 Jul 2025

Citations:

Other Sources:

https://indiankanoon.org/doc/5779829/

https://www.casemine.com/judgement/in/6875053de7e43c3ec3ce6a7c

https://www.livelaw.in/top-stories/secretly-recorded-telephonic-conversation-of-spouse-admissible-in-matrimonial-cases-supreme-court-297390

Supreme Court Landmark Judgment Allows Secret Spouse Recordings as Evidence in Divorce Cases

https://www.indianemployees.com/judgments/details/vibhor-garg-versus-neha

Supreme Court Major Ruling Explained: Can Secret Recordings In A Bedroom Be Used In Divorce Cases?

Secret recording of conversations of spouses can be used in matrimonial cases: Supreme Court

Privacy vs. Evidence: Supreme Court allows secretly recorded spousal conversations as admissible evidence in matrimonial disputes

https://www.theedulaw.in/content/judgements/261/Secret-call-recordings-now-valid-evidence-in-matrimonial-dispute-

Evidentiary Value of Secretly Recorded Phone Calls Between Spouses in Marital Disputes

Bar Council of India Vs Bonnie Foi Law College and Ors

Posted on September 24, 2022 by ShadesOfKnife

A constitution bench of Apex Court decided the fate of AIBE exam (SLP(C)No.22337/2008)…

Bar Council of India Vs Bonnie Foi Law College and Ors on 20 Sep 2022

2022-Sep-27

Here is the causelist for 27 Sep 2022 and 28 Sep 2022

2022-09-27 Court-3 Constitution Bench

And here is the Order passed on 27-Sep-2022, saying Part-Heard.

2022-09-27 Bar Council of India Vs Bonnie Foi Law College and Ors on 27 Sep 2022

2022-Sep-28

Arguments heard. Hearing Concluded. Judgment reserved.

2022-09-28 Bar Council of India Vs Bonnie Foi Law College and Ors on 28 Sep 2022

2023-Feb-10

After around 3 months, the pronouncement of the judgment happened today. The highlights from the judgment are:

From Para 14,

d. Currently, any person who is provisionally enrolled is allowed to practice for two years, but is allowed to take the All India Bar Examination not just for those two years but for any number of times till he passes the All India Bar Examination. The date of reckoning seniority of the candidate is from the date of the provisional enrolment. However, it was submitted that unlimited number of attempts would not be in line with the scheme proposed by this Court and must be limited to any number that this Court deems fit.

From Para 30,

30. We are unable to agree with the reasoning in V. Sudeer24 that because the State Bar Councils’ power for providing training or for holding examination was taken away by the 1973 Amendment, it ipso facto amounts to taking away such powers if they so vested with the Bar Council of India.The legislative object was clear i.e. not to confer such powers on the State Bar Councils. However, that could not affect the position of the power of the Bar Council of India, and naturally such a power existed. If the Bar Council of India never had such a power, then the same could not be read by implication. But, if the Bar Council of India had sufficient powers, then the 1973 Amendment would not take away those powers of the Bar Council of India as the said amendment did not deal with the aspect of the powers of the Bar Council of India.

From Para 31,

31. In addition, the learned Judges in V. Sudeer25 opined that if such a power has to be conferred, it should be conferred legislatively. While in principle, there can be no disagreement with the broad proposition, the issue is whether such a power is already existing with the Bar Council of India
under the statutory provisions. The functions of the Bar Council of India, as specified under Section 7, inter alia prescribe an exercise of general supervision and control over the State Bar Councils under Clause (g) of Sub-Section (1) of Section 7. Further, under Sub-Clause (l), the Bar Council of India has the power to perform all other functions conferred on it by or under the said Act and under Clause (m) to do all other things necessary for discharging the aforesaid functions. The powers are, thus, wide and extensive as conferred by the legislature. Thus, when under Section 24(1), the Bar Council of India has the statutory power of prescribing Rules subject to which a person may be treated as qualified to be admitted as an Advocate in the State roll, then we believe that the Bar Council of India is not devoid of its jurisdiction in undertaking a pre-enrolment training course or examination prescribed by the Bar Council of India.

From Para 32,

32. In case of any subsisting doubt, we must refer to Section 49(1)(ag) of the said Act, which while dealing with the general powers of the Bar Council of India to make rules, specifically stipulates that the class orcategory of person entitled to be enrolled as advocates, is an aspect for which all powers have been conferred on the Bar Council of India. Thus, the provision for an examination for enrolment of advocates by the Bar Council of India can hardly be doubted. We had specified at the inception itself that quality control of entry into the Bar is the need of the hour.

From Paras 33 and 35,

33. The objective of the legislature while giving wide powers to the Bar Council of India under Section 49, which gives it the powers to make Rules, read with Section 24(3)(d), which gives it the powers to prescribe the norms for entitlement to be enrolled as an Advocate under the Rules of the Bar Council of India, leads us to the conclusion that these are adequate powers with the Bar Council of India under the said Act to provide such norms and Rules.
34. We are, thus, of the view that while considering the questions referred to us, the only conclusion which can be laid is that the interdict placed by the judgment of this Court in V. Sudeer26 on the powers of the Bar Council of India cannot be sustained and we cannot hold that V. Sudeer27 lays down the correct position of law.

Bar Council of India Vs Bonnie Foi Law College and Ors on 10 Feb 2023 (FULL)

Citations:

Other Sources:

Kamatchi Vs Lakshmi Narayanan on 13 Apr 2022

Posted on April 14, 2022 by ShadesOfKnife

A Full Bench of Apex Court (Justice Ravindra Bhat’s name is missing in the judgment PDF), while overruling the decision in Dr.P.Pathmanathan case here, held that, limitation under section 468 CrPC does not apply to DV cases filed under Section 12 of the Act. They are not defined as crimes under the Act.

From Paras 20 and 21,

20. It is thus clear that the High Court wrongly equated filing of an application under Section 12 of the Act to lodging of a complaint or initiation of prosecution. In our considered view, the High Court was in error in observing that the application under Section 12 of the Act ought to have been filed within a period of one year of the alleged acts of domestic violence.
21. It is, however, true that as noted by the Protection Officer in his Domestic Inspection Report dated 2.08.2018, there appears to be a period of almost 10 years after 16.09.2008, when nothing was alleged by the appellant against the husband. But that is a matter which will certainly be considered by the Magistrate after response is received from the husband and the rival contentions are considered. That is an exercise which has to be undertaken by the Magistrate after considering all the factual aspects presented before him, including whether the allegations constitute a continuing wrong.
22. Lastly, we deal with the submission based on the decision in Adalat Prasad. The ratio in that case applies when a Magistrate takes cognizance of an offence and issues process, in which event instead of going back to the Magistrate, the remedy lies in filing petition under Section 482 of the Code. The scope of notice under Section 12 of the Act is to call for a response from the respondent in terms of the Statute so that after considering rival submissions, appropriate order can be issued. Thus, the matter stands on a different footing and the dictum in Adalat Prasad would not get attracted at a stage when a notice is issued under Section 12 of the Act.

Kamatchi Vs Lakshmi Narayanan on 13 Apr 2022

Citations :

Other Sources :

https://indiankanoon.org/doc/147915185/

https://www.lawyersclubindia.com/judiciary/court-entitled-to-take-cognizance-where-the-complaint-was-filed-within-the-limitation-period-sc-in-kamatchi-vs-lakshmi-narayanan-5857.asp

https://www.livelaw.in/top-stories/limitation-period-us-468-crpc-not-applicable-application-us-12-domestic-violence-supreme-court-kamatchi-vs-lakshmi-narayanan-2022-livelaw-sc-370-196595

https://www.barandbench.com/news/application-under-section-12-of-domestic-violence-act-need-not-be-filed-within-1-year-of-alleged-act-of-domestic-violence-supreme-court

Earlier decision of Madras High Court here.

Index of DV cases here.

Vinubhai Haribhai Malaviya and Ors Vs State of Gujarat and Anr on 16 Oct 2019

Posted on June 28, 2021 by ShadesOfKnife

A landmark judgment by a Full Bench of Supreme Court of India around the question,

From Para 9,

whether, after a charge-sheet is filed by the police, the Magistrate has the power to order further investigation, and if so, up to what stage of a criminal proceeding.

From Para 25,

25. Whereas it is true that Section 156(3) remains unchanged even after the 1973 Code has been brought into force, yet the 1973 Code has one very important addition, namely, Section 173(8), which did not exist under the 1898 Code. As we have noticed earlier in this judgment, Section 2(h) of the 1973 Criminal Procedure Code defines “investigation” in the same terms as the earlier definition contained in Section 2(l) of the 1898 Criminal Procedure Code with this difference – that “investigation” after the 1973 Code has come into force will now include all the proceedings under the CrPC for collection of evidence conducted by a police officer. “All” would clearly include proceedings under Section 173(8) as well. Thus, when Section 156(3) states that a Magistrate empowered under Section 190 may order “such an investigation”, such Magistrate may also order further investigation under Section 173(8), regard being had to the definition of “investigation” contained in Section 2(h).

From Para 36,

36. Despite the aforesaid judgments, some discordant notes were sounded in three recent judgments. In Amrutbhai Shambubhai Patel v. Sumanbhai Kantibai Patel (2017) 4 SCC 177, on the facts in that case, the Appellant/Informant therein sought a direction under Section 173(8) from the Trial Court for further investigation by the police long after charges were framed against the Respondents at the culminating stages of the trial. The Court in its ultimate conclusion was correct, in that, once the trial begins with the framing of charges, the stage of investigation or inquiry into the offence is over, as a result of which no further investigation into the offence should be ordered. But instead of resting its judgment on this simple fact, this Court from paragraphs 29 to 34 resuscitated some of the earlier judgments of this Court, in which a view was taken that no further investigation could be ordered by the Magistrate in cases where, after cognizance is taken, the accused had appeared in pursuance of process being issued. In particular, Devarapalli Lakshminarayana Reddy (supra) was strongly relied upon by the Court. We have already seen how this judgment was rendered without adverting to the definition of “investigation” in Section 2(h) of the CrPC, and cannot therefore be relied upon as laying down the law on this aspect correctly.

From Para 38,

38. There is no good reason given by the Court in these decisions as to why a Magistrate’s powers to order further investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri (supra), Samaj Parivartan Samudaya (supra), Vinay Tyagi (supra), and Hardeep Singh (supra); Hardeep Singh (supra) having clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate’s nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases mid-way through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h), and Section 173(8) of the CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi (supra). Therefore, to the extent that the judgments in Amrutbhai Shambubhai Patel (supra), Athul Rao (supra) and Bikash Ranjan Rout (supra) have held to the contrary, they stand overruled. Needless to add, Randhir Singh Rana v. State (Delhi Administration) (1997) 1 SCC 361 and Reeta Nag v. State of West Bengal and Ors. (2009) 9 SCC 129 also stand overruled.

From Para 43,

43. We, therefore, set aside the impugned High Court judgment insofar as it states that post-cognizance the Magistrate is denuded of power to order further investigation.

Vinubhai Haribhai Malaviya and Ors Vs State of Gujarat and Anr on 16 Oct 2019

Citations : [2019 SCC ONLINE SC 1346], [(2019) 17 SCC 1], [AIR 2019 SC 5233], [2020(1) R.C.R. (Criminal) 1], [(2019) 14 SCALE 1]

Other Sources :

https://indiankanoon.org/doc/131202146/

https://www.casemine.com/judgement/in/5da99d013321bc410549721e

https://www.indianemployees.com/judgments/details/vinubhai-haribhai-malaviya-and-ors-versus-the-state-of-gujarat-and-anr

Satish Chander Ahuja Vs Sneha Ahuja on 15 Oct 2020

Posted on October 15, 2020 by ShadesOfKnife

Supreme Court has overruled SR Batra landmark case law here on the aspect of ‘Shared Household‘ and held as following:

From Para 64,

64. In paragraph 29 of the judgment, this Court in S.R. Batra Vs. Taruna Batra (supra) held that wife is only entitled to claim a right to residence in a shared household and a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The definition of shared household as noticed in Section 2(s) does not indicate that a shared household shall be one which belongs to or taken on rent by the husband. We have noticed the definition of “respondent” under the Act. The respondent in a proceeding under Domestic Violence Act can be any relative of the husband. In event, the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived, the conditions mentioned in Section 2(s) are satisfied and the said house will become a shared household. We are of the view that this court in S.R. Batra Vs. Taruna Batra (supra) although noticed the definition of shared household as given in Section 2(s) but did not advert to different parts of the definition which makes it clear that for a shared household there is no such requirement that the house may be owned singly or jointly by the husband or taken on rent by the husband. The observation of this Court in S.R. Batra Vs. Taruna Batra (supra) that definition of shared household in Section 2(s) is not very happily worded and it has to be interpreted, which is sensible and does not lead to chaos in the society also does not commend us. The definition of shared household is clear and exhaustive definition as observed by us. The object and purpose of the Act was to grant a right to aggrieved person, a woman of residence in shared household. The interpretation which is put by this Court in S.R. Batra Vs. Taruna Batra (supra) if accepted shall clearly frustrate the object and purpose of the Act. We, thus, are of the opinion that the interpretation of definition of shared household as put by this Court in S.R. Batra Vs. Taruna Batra (supra) is not correct interpretation and the said judgment does not lay down the correct law.

And from para 106,

106. The right is to be implemented by an order under Section 19, on an application filed under sub-section (1) of Section 12. Sub-section (2) of Section 17, however, contains an exception in the right granted by sub-section (2), i.e., “save in accordance with the procedure established by law”. Sub-section (2) of Section 17, thus, contemplates that aggrieved person can be evicted or excluded from the shared household in accordance with the procedure established by law. What is the meaning and extent of expression “save in accordance with the procedure established by law” is a question which has come up for consideration in this appeal. Whether the suit filed by the plaintiff for mandatory and permanent injunction against the defendant in the Civil Court is covered by the expression “save in accordance with the procedure established by law”. We may further notice that the learned Magistrate while passing the interim order on 26.11.2016 in favour of the defendant on her application filed under Section 12 has directed that “the respondent shall not alienate the alleged shared household nor would they dispossess the complainant or their children from the same without orders of a Competent Court”. The Magistrate, thus, has provided that without the orders of Competent Court the applicant (respondent herein) should not be dispossessed. In the present case, interim order specifically contemplates that it is only by the order of the Competent Court respondent shall be dispossessed.

Note: Even though this may seem Topsy-turvy case law (Since it held SR Batra not correct law), not much is lost. Just arrange for alternate accommodation and make use of reliefs made available at reliefs from judiciary page and get the case closed in 2-3 months.

Satish Chander Ahuja Vs Sneha Ahuja on 15 Oct 2020

Citations : [2020 AIR SC 5397], [2020 SCALE 11 576], [2021 SCC CIV 1 325], [2020 KLT 6 208], [2020 SCC ONLINE SC 841], [2020 GUJ LH 4 416], [2021 SCC 1 414], [2021 SCC CRI 1 667], [2020 ALD 6 94]

Other Sources :

https://indiankanoon.org/doc/62368827/

https://www.casemine.com/judgement/in/5f89406b9868c3226a8e7b51

The index page is here.

A.Subash Babu Vs State of A.P. and Anr on 21 Jul 2011

Posted on December 14, 2019 by ShadesOfKnife

Landmark Judgment to screw the perpetrators of 494 and 495 IPC Bigamy offences. This is specifically helpful to those who have cases in the State of Andhra Pradesh where these two crimes are made Cognizable and Non-bailable, due to a State amendment in 1992 whereas these are Non-cognizable and Bailable in the rest of the States in India.

13. In this regard, it would be, relevant to notice the provisions of Article 246 of the Constitution. Article 246 deals with subject matter of laws made by the Parliament and by the legislatures of State. Clause (1) of Article 246 inter alia provides that notwithstanding anything contained in Clauses (2) and (3) of Article 246, the Parliament has exclusive power to make laws with respect to any of the maters enumerated in List 1 in the Seventh Schedule. Sub-Clause 2 of the said Article provides that notwithstanding anything in Clause (3), Parliament and subject to Clause (1), the legislature of any State also have power to make laws with respect to any of the matters enumerated in List 3 in the Seventh Schedule, whereas, Clause (3) of Article 246 amongst other things provides that subject to Clauses (1) and (2), the legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List 2 in the Seventh Schedule. Entry 2 in List 3 i.e. Concurrent List in the Seventh Schedule mentions “Criminal Procedure, including in matters included in the Code of “Criminal procedure, at the commencement of this Constitution”. Thus there is no manner of doubt that Parliament and subject to Clause (1), the legislature of any State also has power to make laws with respect to Code of Criminal Procedure. Section 2(c) of the Code of Criminal Procedure, 1973 defines the phrase “Cognizable Offence” to mean an offence for which and “Cognizable Case” means a case in which, a Police Officer may, in accordance with the First Schedule or under any other law for the time being in force arrest without warrant. Part I of the First Schedule to the Code of Criminal Procedure, 1973 relating to offences under the Indian Penal Code inter alia mentions that Section 494 and 495 are non-cognizable. Section 154 of the Criminal Procedure Code relates to information in cognizable cases and provides inter alia that every information relating to the commission of a cognizable offence, if given orally to an Officer in charge of a Police Station, shall be reduced to writing by him and be read over to the informant. Section 156 of the Code provides that any Officer in charge of a Police Station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over a local area within the limits of such station would have power to enquire into or try under provisions of Chapter XIII of Criminal Procedure Code. As Sections 494 and 495 are made non-cognizable, a Police Officer would not have power to investigate those cases without the order of a Magistrate, having a power to try such cases or commit such cases for trial as provided under Section 155(2) of the Code.
However, this Court finds that the Legislative Assembly of the State of Andhra Pradesh enacted the Code of Criminal Procedure (Andhra Pradesh Second Amendment) Act, 1992. By the said Amending Act, the First Schedule to Central Act 2 of 1974 i.e. the Code of Criminal Procedure, 1973 came to be amended and against the entries relating to Section 494 in column 4 for the word “Ditto”, the word “Cognizable” and in column 5 for the word “Bailable” the word “Non-bailable” were substituted. Similarly, against the entries relating to Section 495 in column 4, for the word “Ditto” the word “Cognizable” and in column 5 for the word “Ditto”, the word “Non-bailable” were substituted. What is relevant to be noticed is that the Code of Criminal Procedure (Andhra Pradesh Second Amendment) Act, 1992 was reserved by the Governor of Andhra Pradesh on the 21st October, 1991 for consideration and assent of the President. The Presidential assent was received on 10th February, 1992 after which the Code of Criminal Procedure (Andhra Pradesh Second Amendment) Act, 1992 was published on the 15th February, 1992 in the Andhra Pradesh Gazette Part IV-B (Ext.). Thus there is no manner of doubt that Sections 494 and 495 IPC are cognizable offences so far as State of Andhra Pradesh is concerned.

And… in Para 14

* * * * * *

In view of the above settled legal position, this Court has no doubt that the amendment made in the First Schedule to the Code of Criminal Procedure, 1973 by the Code of Criminal Procedure (Andhra Pradesh Second Amendment) Act, 1992, shall prevail in the State of Andhra Pradesh, notwithstanding the fact that in the Criminal Procedure Code, 1973 offences under Section 494 and 495 are treated as cognizable offences. The reasoning given by the Division Bench of High Court of Andhra Pradesh in Mavuri Rani Veera Bhadranna (supra) that though the State Legislation amended the Schedule making the offence under Section 494 IPC cognizable, the legislation made by the Parliament i.e. Section 198 of the Criminal Procedure Code remains and in the event of any repugnancy between the two legislations, the legislation made by the Parliament would prevail, because, Section 198 of the Criminal Procedure Code still holds the field despite the fact that the State Legislation made amendment to the Schedule of Criminal Procedure Code, with respect, is erroneous and contrary to all cannons of interpretation of statute. Once First Schedule to the Code of Criminal Procedure, 1973 stands amended and offences punishable under Sections 494 and 495 IPC are made cognizable offences, those offences will have to be regarded as cognizable offences for all purposes of the Code of Criminal Procedure, 1973 including for the purpose of Section 198 of the Criminal Procedure Code. Section 198(1)(c), after the Amendment made by the Code of Criminal Procedure(Andhra Pradesh Second Amendment) Act, 1992 cannot be interpreted in isolation without referring to the fact that offences under Sections 494 and 495 IPC have been made cognizable so far as the State of Andhra Pradesh is concerned. Therefore, the provision made in Section 198(1)(c) that no Court shall take cognizance of an offences punishable under Chapter XX of the IPC except upon a complaint made by some person aggrieved will have to be read subject to the amendment made by the Legislative Assembly of the State of Andhra Pradesh in 1992. Once, it is held that the offences under Section 494 and 495 IPC are cognizable offences, the bar imposed by operative part of sub-section 1 of Section 198 of the Criminal Procedure Code beginning with the words “No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence” gets lifted so far as offences punishable under Sections 494 and 495 IPC are concerned. As those offences have been made cognizable offences in the State of Andhra Pradesh since 1992, the same will have to be dealt with as provided in the Section 156 which inter alia provides that any officer in charge of a Police Station, may without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to enquire into or try under the provisions of Chapter XIII. Even without the authorization under Section 155(2) or Section 156(3) of Criminal Penal Code, offences under Sections 494, 495 and 496 having been rendered cognizable and non-bailable by virtue of the Criminal Procedure Code (Amendment Act, 1992) can be investigated by the Police and no illegality is attached to the investigation of these offences by the police. If the Police Officer in charge of a Police Station is entitled to investigate offences punishable under Section 494 and 495 IPC, there is no manner of doubt that the competent Court would have all jurisdiction to take cognizance of the offences after receipt of report as contemplated under Section 173(2) of the Code. Thus, this Court finds that correct proposition of law was not laid down in Mavuri Rani Veera Bhadranna (supra) when the Division Bench of the Andhra Pradesh High Court in the said case held that as Section 198 of Criminal Procedure Code still holds the field despite the amendment made by State Legislature, the Court would have no jurisdiction to take cognizance of an offence punishable under Section 494 IPC on the basis of report submitted by the Investigating Officer. Even if it is assumed for the sake of argument that in view of Section 198(1)(c) of the Code of Criminal Procedure, the Magistrate is disentitled to take cognizance of the offences punishable under Sections 494 and 495 IPC despite the State amendment making those offences cognizable, this Court notices that in Mavuri Rani Veera Bhadranna (supra), the Division Bench has considered effect of Section 155(4) of the Criminal Procedure Code and thereafter held that the bar under Section 198 would not be applicable as complaint lodged before police for offence under Section 494 IPC also related to other cognizable offences and if police files a charge sheet, the Court can take cognizance also of offence under Section 494 along with other cognizable offences by virtue of Section 155 (4) of the Criminal Procedure Code.

And then in Para 15,

15. Section 155(4) of the Code inter alia provides that:-
“Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable”
Here in this case in the charge sheet it is mentioned that the appellant has also committed offence punishable under Section 420 of the Indian Penal Code which is cognizable and therefore this is a case which relates to two or more offences of which at least one is cognizable and therefore the case must be deemed to be cognizable case notwithstanding that the other offences are non- cognizable. This is not a case in which the FIR is exclusively filed for commission of offences under Sections 494 and 495 IPC. The case of the respondent no. 2 is that the appellant has committed offences punishable under Sections 417, 420, 494, 495 and 498A of the IPC. A question may arise as to what should be the procedure to be followed by a complainant when a case involves not only non-cognizable offence but one or more cognizable offences as well. It is somewhat anomalous that the aggrieved person by the alleged commission of offences punishable under Sections 494 and 495 IPC should file complaint before a Court and that the same aggrieved person should approach the police officer for alleged commission of offences under Sections 417, 420 and 498A of the Indian Penal Code. Where the case involves one cognizable offence also along with non-cognizable offences it should not be treated as a non-cognizable case for the purpose of sub-section 2 of Section 155 and that is the intention of legislation which is manifested in Section 155(4) of the Code of Criminal Procedure. Therefore, the argument that the learned Magistrate could not have taken cognizance of the offences punishable under Sections 494 and 495 IPC on the basis of submission of charge sheet, cannot be accepted and is hereby rejected.

A.Subash Babu Vs State of A.P. and Anr on 21 July, 2011

Citations: [2011 SCALE 7 671], [2011 RCR CRIMINAL SC 3 674], [2011 RCR CIVIL SC 3 840], [2011 SCC 7 616], [2011 SLT 5 727], [2011 AIOL 509], [2011 ALLMR CRI SC 2931], [2011 ANJ SC 2 202], [2012 BOMCR CRI SC 1 379], [2011 JCC SC 3 2189], [2011 AIR SC 3031], [2011 SCC CRI 3 267], [2011 SCC CIV 3 851], [2011 AIR SC 4702], [2011 ULJ 3 139], [2011 AIC 107 51], [2011 SHIMLC 3 551], [2011 DMC SC 3 50], [2011 ALT CRI 3 242], [2012 BLJ 1 260], [2011 ACR SC 3 3182], [2011 DMC 2 827], [2011 KCCR SN 4 472], [2011 UC 2 1509], [2012 ALD CRI 1 210], [2011 SCR 9 453], [2011 JT SC 8 483], [2011 CRI LJ 4373], [2011 AIR SCW 4702]

Indiankanoon.org link:

https://indiankanoon.org/doc/1342950/

https://www.casemine.com/judgement/in/5609aeefe4b0149711415347

Here is the Andhra Pradesh HC judgement here from 2010 that got dislodged.

AP High Court had passed similar judgment here in 2014, which diligently follows the present Apex Court judgment as binding precedent under Article 141.

Another decision here in 2020 is partly perverse on the point that the Trial Court cannot take cognizance of a charge sheet because Even though offence under Section 494 IPC is made “cognizable” offence as per amendment Act 3 of 1992, there is no corresponding amendment made to Section 198 Cr.P.C. Therefore, the bar under Section 198 Cr.P.C. still subsists.

Therefore, DO NOT RELY on the above APHC Judgment with respect to taking/not taking of cognizance of a 494 IPC case by a Trial Court Magistrate.

For a similar adjudication from State of Odisha, go here.

Index of Bigamy offence u/s 494 and 495 IPC judgments is here.

Shades of Knife

True Colors of a Vile Wife

Tag: Overruling Judgment

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