Mukesh Bansal Vs State of UP and Anr on 13 Jun 2022

Posted on June 16, 2022 by ShadesOfKnife

A judge from Allahabad High Court used choicest words in this judgment.

From Para 8,

[8] The story narrated in the FIR is not only abhorring, full of dirt, filth and venomous accusations where the informant fiercely abused her own husband and in-laws by using all the ways and means in the tone, tenor and texture in the extreme manner. The graphic and vivid descriptions of the incident without any shame or hitch of any sort which, speaks out volume of mental condition and amount of venom and poison in the mind of the informant. She without mincing any word, rather exaggerating the incident to manifolds, had vomitted the snide before the Court. Interestingly, general and sweeping allegations have been fastened against all the family members for committing sodomy, attempt to rape and illegal abortion etc. upon all the family members with special focus upon her husband, Sahib Bansal.

From Para 12,

[12] The police, after probing the matter in depth, has submitted the charge sheet dropping all the offences, wherein the informant had made wild
accusations in the FIR against her husband and his family members. The aforesaid charge sheet has been filed only under sections 498A, 323, 504, 506, 307 IPC and 3 and 4 of D.P. Act. Thus, it is explicitly clear that the FIR is nothing but a virtual canard and full of venom where the informant unmindful of the fact to its far-reaching repercussions, pasted all the filth upon revisionist in wild manner but was unable to produce any documentary evidence/proof to substantiate the levelled allegations and thus, all the sections of unnatural/oral sex, forcible abortion have gone to haywire resultantly dropped from charge sheet. Not only this, names of Chirag Bansal and Ms. Shipra Jain finds no place in the charge sheet, so filed by the police.

From Para 30,

[30] Yet coming to another aspect of the issue which is disturbing and mind-boggling to the Court. After reading the FIR allegedly lodged by Ms.
Shivangi Bansal after 18 days of the incident, which is ever-abhorring, full of dirt and filth. The graphical description portrayed by her in her FIR is deplorable to be condemned in its strongest terms. The FIR is the place where the informant gives the story mobilizing the State Machinery engaging in the commission of cognizable offence. It is not soft porn literature where the graphical description should be made. Hon’ble the Apex Court in its judgment in the case of Priti Gupta Vs State of Jharkhand, 2010(71) SCC 667 has fastened the liability upon the counsels;

From Para 31,

[31] Therefore, the Court is of the opinion that while deciding the present issue, the Court should not take into these graphical description of the accusation made by the complainant and simply over-look these graphic and distressful allegations made by a lady who after receiving legal advice, pasted those dirt and filth upon her husband and other family members. The interesting feature is that she has been unable to substantiate those allegations even at the time of investigation and these allegations were found false and the sections related to it were dropped.
The Court records its strongest exception to such type of language used by the informant. The language of the FIR should be decent one and no amount of atrocitiesfaced by the informant, would justify her to use such type of castic expressions. FIR/complaint is the gateway of any criminal case even soft and decent expressionwould well communicate the alleged atrocities faced by her.

Guidelines issued from para 35,

[35] Thus, It is directed that :-
(i) No arrest or police action to nab the named accused persons shall be made after lodging of the FIR or complaints without concluding the “Cooling-Period” which is two months from the lodging of the FIR or the complaint. During this “Cooling-Period”, the matter would be immediately referred to Family Welfare Committe (hereinafter referred to as FWC) in the each district.
(ii) Only those cases which would be transmitted to FWC in which Section 498-A IPC along with, no injury 307 and other sections of the IPC in which the imprisonment is less than 10 years.
(iii) After lodging of the complaint or the FIR, no action should take place without concluding the “Cooling-Period” of two months. During this “Cooling-Period”, the matter may be referred to Family Welfare Committee in each districts.
(iv) Every district shall have at least one or more FWC (depending upon the geographical size and population of that district constituted under the District Legal Aid Services Authority) comprising of at least THREE MEMBERS. Its constitution and function shall be reviewed periodically by the District & Sessions Judge/Principal Judge, Family Court of that District, who shall be the Chairperson or Co-chairperson of that district at Legal Service Authority.
(v) The said FWC shall comprise of the following members :-
(a) a young mediator from the Mediation Centre of the district or young advocate having the practices up to five years or senior most student of Vth year, Government Law College or the State University or N.L.Us. having good academic track record and who is public spirited young man, OR;
(b) well acclaimed and recognized social worker of that district having clean antecedant, OR;
(c) retired judicial officers residing in or nearby district, who can devote time for the object of the proceeding OR;
(d) educated wives of senior judicial or administrative officers of the district.
(vi) The member of the FWC shall never be called as a witness.
(vii) Every complaint or application under Section 498A IPC and other allied sections mentioned above, be immediately referred to Family Welfare Committee by the concerned Magistrate. After receiving the said complaint or FIR, the Committee shall summon the contesting parties along with their four senior elderly persons to have personal interaction and would try to settle down the issue/misgivings between them within a period of two months from its lodging.
The contesting parties are obliged to appear before the Committee with their four elderly persons (maximum) to have a serious deliberation between them with the aid of members of the Committee.
(viii) The Committee after having proper deliberations, would prepare a vivid report and would refer to the concerned Magistrate/police authorties to whom such complaints are being lodged after expiry of two months by inserting all factual aspects and their opinion in the matter.
(ix) Continue deliberation before the Committee, the police officers shall themselves to avoid any arrest or any coercive action pursuant to the applications or complaint against the named accused persons. However, the Investigating Officer shall continue to have a peripheral investigation into
the matter namely preparing a medical report, injury report, the statements of witnesses.
(x) The said report given by the Committee shall be under the consideration of I.O. or the Magistrate on its own merit and thereafter suitable action should be taken by them as per the provision of Code of Criminal Procedure after expiry of the “Cooling-Period” of two months.
(xi) Legal Services Aid Committee shall impart such basic training as may be considered necessary to the members of Family Welfare Committee from time to time(not more than one week).
(xii) Since, this is noble work to cure abrasions in the society where tempos of the contesting parties are very high that they would melow down the heat between them and try to resolve the misgivings and misunderstanding between them. Since, this is a job for public at large, social work, they are acting on a pro bono basis or basic minimum honrarium as fixed by the District & Sessions Judge of every district.
(xiii) The investigation of such FIRs or complaint containing Section 498A IPC and other allied sections as mentioned above, shall be investigated by dynamic Investigating Officers whose integrity is certified after specialized training not less than one week to handle and investigate such matrimonal cases with utmost sincerity and transparancy.
(xiv) When settlement is reached between the parties, it would be open for the District & Sessions Judge and other senior judicial officers nominated by him in the district to dispose of the proceedings including closing of the criminal case.
At the cost of repetition, it is made clear that after lodging of the F.I.R. or the complaint case without exhausting the “Cooling-Period” of two months, no arrest or any coercive action shall be taken against the husband or his family members in order to derail the proceedings before the Family Welfare Committee.

Mukesh Bansal Vs State of UP and Anr on 13 Jun 2022

Latha.P.C and Ors Vs State of Kerala and Ors on 15 Sep 2020

Posted on April 3, 2021 by ShadesOfKnife

A single-judge bench of Kerala High Court, while denying to invoke 482 CrPC to quash a DV case based on the landmark judgment here, held as follows. But Supreme Court had taken a different view in the landmark judgment here just a month later.

From Para 8,

8. The Act is a welfare legislation enacted to provide a remedy in civil law for protection of women from domestic violence. The proceedings under the Act are, therefore, essentially civil in nature except in so far as it relate to Section 31 dealing with the breach of protection order issued under the Act
and Section 33 dealing with failure or refusal by Protection Offices in discharging their duties in terms of the orders issued by the Court. As such, in Vijayalekshmi Amma v. Bindu, 2010 (1) KLT 79, this Court held that a party against whom a proceedings is initiated under Section 12 of the Act cannot approach this court for quashing the proceedings, invoking the power of this Court under Section 482 of the Code, and that the power of this Court under Section 482 can be exercised only in appropriate cases either to give effect to any order passed under the Act or to prevent abuse of the process of the court or to secure the ends of justice, when cognizance is taken by the Magistrate for an offence under subsection (1) of Section 31 or Section 33 of the Act.

…

As evident from the extracted paragraphs of the judgement, this Court has held in the said case that a person to whom notice is issued by the Magistrate in an application under Section 12 of the Act can appear before the Magistrate and contend that the proceedings is not maintainable against him, on the ground either that the person who filed the application is not an ‘aggrieved person’ as defined in Section 2(a) of the Act, or that he would not fall within the definition of the ‘respondent’ in Section 2(q) of the Act, or that the allegations do not make out a case of ‘domestic violence’ as defined in Section 2(g) of the Act or that the reliefs sought are not reliefs provided for in the Act. It was also held by this Court in the said case that such contentions as regards the maintainability of the application, if raised, shall be decided by the Magistrate. It was further held by this Court in the said case that so long as the respondent is not an accused in a proceedings initiated under the Act, he is not even obliged to apply for bail in respect of such proceedings and his personal presence is not mandatory for hearing and disposing of an application under Section 12. In the light of the decision of this Court in Vijayalekshmi, according to me, the Criminal M.C. is not maintainable.

Misuse of Social Welfare (Gender-biased) Laws in India:

From Para 9,

9. Despite the findings aforesaid, it is necessary to mention that in so far as the proceedings under the Act are to be dealt with by criminal courts in accordance with the procedure prescribed under the Code, it has become a common practice now to rope in the relatives, at times even distant relatives of the person from whom relief is essentially intended, as respondents in the applications instituted under the Act without any bonafides and with oblique motives, on omnibus and vague allegations, despite various judgements of the Apex Court deprecating that practice. In Preeti Gupta v. State of Jharkhand (2010) 7 SCC 667, the Apex Court has taken note of the said fact and observed that majority of such complaints are filed either on the advice of the lawyers or with their concurrence. Be that as it may. It is also observed that notice is invariably issued to all the respondents in such applications without application of mind as to whether the aggrieved person has made out a case of domestic violence against all of them, as a result of which, it is noticed that some of the proceedings under the Act, where parties are arrayed as respondents without making out a case of domestic violence against them, have become a tool of harassment at the hands of the aggrieved persons to obtain reliefs which they are not entitled to. The statute being a remedial one to protect the women from domestic violence, it has to be enforced having regard to the realities of life. As such, even while taking all endeavours possible to protect the aggrieved persons from domestic violence, the courts have to be extremely cautious and careful to ensure that its powers are not being abused. One of the important steps to be taken towards that direction is to scrutinize the applications meticulously and satisfy that a case of domestic violence as defined in the Act is made out against all the respondents and no one is arrayed as a party to the proceedings on omnibus and vague allegations, so that the court can refrain from issuing notice to them. The provisions in the statute especially Section 28, conferring power on the Magistrate to lay down its own procedure for disposal of an application under Section 12 or under subsection (2) of Section 23 would indicate that the scheme of the statute is that the approach of the courts shall be to enforce the provisions of the Act, keeping in mind the fact that the parties who are close relatives in most of the cases, would at some point of time reconcile their differences and lead a life in harmony and the opportunity for the parties to bring about a settlement of their differences is not lost on account of the steps taken in the proceedings. If proceedings under the Act are permitted to be used as tools of harassment, I have no doubt that the possibility of the parties settling their disputes amicably and leading a life in harmony would be bleak.

Latha.P.C and Ors Vs State of Kerala and Ors on 15 Sep 2020

Citations: [2020 SCC ONLINE KER 4238]

Other Sources :

https://indiankanoon.org/doc/126633191/

https://www.casemine.com/judgement/in/5f80abd89fca190ae54bcb50

Tahmeena Kaleem and Ors Vs State of AP on 17 January 2014

Posted on July 18, 2020 by ShadesOfKnife

High Court of AP has held in this Anticipatory Bail application, to be a falsely implicated case against petitioners. Certain guidelines were passed.

It is most unfortunate that the de facto complainant has implicated her in laws, brother-in-law, sister-in-law, parents of the mother-in-law and their relatives, two more sisters of her husband and their husbands who are residing in foreign countries. A reading of the complaint gives an impression that the de facto complainant has implicated almost all the relatives of her husband and their other close relatives who are visiting her husbands house. This is most unfortunate situation. This type of complaint gives an impression that Section 498-A is being misused to harass not only the husband of the de facto complainant but all his relatives. It is alleged that in order to force the husband to come to their terms or in order to meet their huge demands, this kind of complaints are being given. How difficult it would be for those persons staying in Australia, Jeddah or USA to come over to India and face the criminal case and prove their innocence.

Truth or otherwise of the allegations cannot be decided unless fair and dispassionate investigation is completed. Sometimes, after full-fledged trial only, truth may come out. There cannot be any doubt to say that there is dowry menace in the society. But, at the same time, it is also a fact that certain marriages are performed without any dowry. Due to ill-advice or under a wrong impression that if a complaint is lodged under section 498-A IPC, the husband may come to terms, complaints are being lodged with the police. When differences arise, there should be proper counselling before and after marriage. It is quite natural that husband and wife would have faced different circumstances and environment from their childhood resulting in gaining different impressions and opinions and therefore they may have difference of opinion on life style and on several other issues. Therefore, issues have to be resolved by trying to understand one another, particularly, when the parties have children, special care has to be taken to protect the interest of the children. The welfare of the children should be given utmost importance. Therefore, proper counselling at initial stage would help the parties. It is most unfortunate that Section 498-A IPC has become a weapon in breaking the families rather than in uniting them.

Here are the guidelines.

It appears that there is every need to give similar directions in Andhra Pradesh. Under Domestic Violence Act, protection officer is required to assist the police and the Court. Section 14 of the Protection of Women from Domestic Violence Act, 2005 envisages that the Magistrate may, at any stage of the proceedings under this Act, direct the respondents or the aggrieved person either singly or jointly to undergo counselling with any member of a service provider who posses such qualification and experience in counselling as may be prescribed. Section 498-A IPC is a cognizable and non-compoundable offence.
In the light of the above discussion, the following guidelines have been issued.
a) A fair and dispassionate investigation should be conducted. After completing investigation, the same should be verified by an officer not below the rank of Deputy Superintendent of Police.
b) During the course of investigation, if the investigating officer is satisfied that there is false implication of any person in the complaint then he may delete the names of such persons from the charge sheet after obtaining necessary permission from the Superintendent of Police or any other officer equivalent to that rank.
c) As soon as a complaint is received either from the wife alleging dowry harassment or from the husband that there is every likelihood of him being implicated in a case of dowry harassment, then, both the parties should be asked to undergo counselling with any experienced counsellor or counsellors. The report of such counsellors should be made as a part of the report to be submitted by the investigating officer to the Court.
d) The Superintendent of Police, in consultation with the Chairman, District Legal Services Authority, may prepare a panel of counsellors and such panel of counsellors along with their address and phone numbers should be made available at all the police stations.
e) Normally, no accused should be arrested, where the allegation is simple dowry harassment. If the arrest is necessary during the course of investigation, the investigating officer should obtain permission of the Superintendent of Police or any other officer of the equal rank in metropolitan cities. If arrest is not necessary, the police may complete the investigation and lay charge sheet before the Court without arresting the accused and seek necessary orders from the Court. However, in the case of dowry death, suspicious death, suicide or where the allegations are serious in nature such as inflicting of bodily injury etc., the police officer may arrest the accused. However, the intimation of such arrest should be immediately sent to the concerned Superintendent of Police who may give necessary guidance to the arresting officer.
f) No accused or witness should be unnecessarily called to the police station and as soon as the purpose of summoning them to the police station is over they should be sent back. There should not be any unnecessary harassment to any person i.e. either to the relatives of the de facto complainant or to the relatives of the husband.
g) The higher police officers should see that the parties do not make any allegations that they are forced to come to any settlement in police stations against their wish. However, this does not mean that the police officers should not make any effort for amicable settlement.
h) The advocates have to play their role in trying to unite the families. They must act as social reformers while dealing with these kind of cases, particularly, where the couple have children. Even when an accused is produced before the Magistrate, they should examine the matter judiciously and consider whether there are valid grounds for remanding the accused to the judicial custody. No accused should be remanded to judicial custody mechanically in routine manner. If the Magistrate feels that the accused cannot be released after taking bonds, necessary orders may be passed accordingly.

The Director General of Police, Andhra Pradesh, is requested to issue necessary instructions to all the concerned in this regard.

Tahmeena Kaleem and Ors Vs State of AP on 17 January 2014

Citations: [

Kamlesh Ghanshyam Lohia Vs State of Maharashtra on 23 August, 2019

Posted on September 3, 2019 by ShadesOfKnife

Good judgment from Hon’ble Bombay High Court which held that mere demand of money not coupled with cruelty/harassment, does not attract provisions of 498A IPC.

Kamlesh Ghanshyam Lohia Vs State of Maharashtra on 23 August, 2019

Citations :

Other Sources :

https://indiankanoon.org/doc/194898319/

Preeti Gupta & Anr Vs State Of Jharkhand & Anr on 13 August, 2010

Posted on May 21, 2018 by ShadesOfKnife

Another wonderful Supreme Court judgment delivered by Justice Shri Dalveer Bhandari ji, quashing the false IPC 498A case due to no specific allegations on the accused.

32. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.

33. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband’s relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.

34. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.

35. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately, a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. We direct the Registry to send a copy of this judgment to the Law Commission and to the Union Law Secretary, Government of India who may place it before the Hon’ble Minister for Law & Justice to take appropriate steps in the larger interest of the society.”

Preeti Gupta & Anr vs State Of Jharkhand & Anr on 13 August, 2010

Citation: [(2010) 7 SCC 667], [AIR 2010 SC 3363], [2010 SCC CR 3 473], [2010 SCALE 8 131], [2010 ALLMR CRI 0 2947], [2010 RCR CRI 4 45], [2010 CRLJ 0 4303], [2010 SCJ 6 609], [2010 AD SC 9 28], [2010 AIR SC 4975], [2011 MLJ CRI 2 89], [2010 JT 8 410], [2010 SLT 6 7], [2010 DMC 2 387], [2010 SUPREME 6 312], [2010 OCR 47 367], [2010 AIOL 501], [2010 ANJ SC 2 202], [2010 CRIMES SC 4 19], [2010 SCC 7 66], [2010 SCC CRI 3 473], [2011 AIC 99 149], [2010 GUJ LH 3 258], [2010 CRI LJ 4303]

Other Source links: https://indiankanoon.org/doc/46704/ or https://www.casemine.com/judgement/in/5609aee0e4b0149711414fdd

Shades of Knife

True Colors of a Vile Wife

Tag: Preeti Gupta and Anr Vs State Of Jharkhand and Anr

Mukesh Bansal Vs State of UP and Anr on 13 Jun 2022

Latha.P.C and Ors Vs State of Kerala and Ors on 15 Sep 2020

Tahmeena Kaleem and Ors Vs State of AP on 17 January 2014

Kamlesh Ghanshyam Lohia Vs State of Maharashtra on 23 August, 2019

Preeti Gupta & Anr Vs State Of Jharkhand & Anr on 13 August, 2010