UOI and Ors Vs Tantia Construction Pvt Ltd on 18 Apr 2011

Posted on July 23, 2022 by ShadesOfKnife

A division bench held that an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High Court or the Supreme Court and that without exhausting such alternative remedy, a writ petition would not be maintainable.

From Paras 27 and 28,

27. Apart from the above, even on the question of maintainability of the writ petition on account of the Arbitration Clause included in the agreement between the parties, it is now well-established that an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High Court or the Supreme Court and that without exhausting such alternative remedy, a writ petition would not be maintainable. The various decisions cited by Mr. Chakraborty would clearly indicate that the constitutional powers vested in the High Court or the Supreme Court cannot be fettered by any alternative remedy available to the authorities. Injustice, whenever and wherever it takes place, has to be struck down as an anathema to the rule of law and the provisions of the Constitution. We endorse the view of the High Court that notwithstanding the provisions relating to the Arbitration Clause contained in the agreement, the High Court was fully within its competence to entertain and dispose of the Writ Petition filed on behalf of the Respondent Company.
28. We, therefore, see no reason to interfere with the views expressed by the High Court on the maintainability of the Writ Petition and also on its merits. The Special Leave Petition is, accordingly, dismissed, but without any order as to costs.

UOI and Ors Vs Tantia Construction Pvt Ltd on 18 Apr 2011

Citations : [2011 SCC 5 697], [2011 AIOL 293], [2011 SUPREME 3 294], [2011 SCALE 4 745], [2011 RCR CIVIL SC 3 821], [2011 SCC CIV 3 117], [2011 LW 3 691], [2011 ARBLR SC 2 115], [2012 PLJR 1 455], [2011 JCR SC 3 8], [2011 UJ 4 2210], [2011 KLJ 2 15], [2011 AWC SC 5 4568], [2011 SCR 5 397], [2011 JT SC 5 59]

Other Sources :

https://indiankanoon.org/doc/609434/

https://www.casemine.com/judgement/in/5609aeffe4b01497114154a4

MS Radha Krishan Industries Vs State of Himachal Pradesh on 20 Apr 2021

Posted on July 22, 2022 by ShadesOfKnife

A division bench of Apex Court held the following principles in regards to approaching a High Court under Article 226 of the Constitution.

From Para 27,

27 The principles of law which emerge are that :
(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;
(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;
(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;
(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;
(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and
(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.

MS Radha Krishan Industries Vs State of Himachal Pradesh on 20 Apr 2021

Citations : [2021 SCC ONLINE SC 334]

Other Sources :

https://indiankanoon.org/doc/62362537/

https://www.casemine.com/judgement/in/60806fd6125abdf1726ab6fb

Manish Kanaiyalal Gupta Vs State of Gujarat on 08 Jul 2015

Posted on July 17, 2022 by ShadesOfKnife

A division bench of Gujarat High Court held as follows regarding the language of a High Court.

From Paras 13, 14 and 15,

13. Before we further proceed to examine the aspects of competency to assist the Court, we need to first consider on the aspect of language of the High Court. Article 343 of the Constitution of India provides for official language of the Union. Whereas, Article 348 of the Constitution of India provides for languages of Supreme Court and High Court, etc. It is hardly required to be stated that before the constitution was framed, there were constitutional debates and deliberation on various points including about language to be used in Supreme Court and High Courts. After deliberations constitutional framers have finalised Article 348 of the Constitution. The aforesaid shows that until the Parliament by law otherwise provides, all proceedings in the Supreme Court and every High Court shall be in English. Sub-Article (2) provides that the Governor of the State may with the previous consent of the President Authorise the use of Hindi language or any other language in the proceedings of the High Court having its principal seat in that State. But such would not be applicable to any judgment decree or order passed or made by such High Court.
14. The Parliament has enacted the Official Language Act, 1963 for providing languages to be used for official purpose of Union for transaction of business in Parliament under Central and State Act and also for certain purposes in the High Courts. The aforesaid shows that the President may authorise the use of Hindi or official language of the State in addition to English language for the purpose of any judgement decree or order passed or made by the High Court, but such shall be accompanied by a translation of the same in English language.
15. The aforesaid are the enabling powers, but so far as High Court of Gujarat is concerned, the learned Advocate General after verification, made a clear statement that no such order has been passed by the Governor under Article 348 (2) of the Constitution nor any order for authorisation has been passed by the President for use of Gujarati language or any other language and he further submitted that English language is already prescribed in the proceedings of the High Court and Supreme Court by Article 348 (1) of the Constitution. To say in other words, in absence of any order of the Governor under Article 348(2) of the Constitution or in absence of any authorisation under Section 7 of the Official Language Act, the language of the High Court of Gujarat as per the Constitution of India has to be English since the word used by the Constitution is “Shall be in English language”. Hence, it can be said that the language of the High Court of Gujarat shall be English unless any authorisation has been issued under Article 348(2) of the Constitution of India or under section 7 of the Official Language Act by the Governor or the President, as the case may be.

From Para 18,

18. It is hardly required to be stated that the Constitution or any provision of the Constitution will prevail over any Act or the law made by the Parliament or the Rules made by any Rule making authority. If Rule 37 is to be given effect read with the above referred constitutional provision, it would mean the memorandum of proceedings by a party may be submitted in Gujarati or in English, but if it is in Gujarati, the party may be asked to supply English translation also and if there has no financial capacity to provide English translation, Court may direct the English translation to be made by the High Court and thereafter, the matter may be considered further. If Rule 37 of the Rules is not interpreted in that manner, it would run counter to Article 348 of the Constitution.

Manish Kanaiyalal Gupta Vs State of Gujarat on 08 Jul 2015

Citations :

Other Sources :

https://indiankanoon.org/doc/178909148/

https://www.casemine.com/judgement/in/5ac5e38c4a93261a1a76788f/

Satender Kumar Antil Vs CBI and Anr on 11 Jul 2022

Posted on July 12, 2022 by ShadesOfKnife

A division bench of Apex Court passed the following guidelines with respect to Arrest and Bails

From Para 24,

24.Section 41A deals with the procedure for appearance before the police officer who is required to issue a notice to the person against whom a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists that he has committed a cognizable offence, and arrest is not required under Section 41(1). Section 41B deals with the procedure of arrest along with mandatory duty on the part of the officer.
25.On the scope and objective of Section 41 and 41A, it is obvious that they are facets of Article 21 of the Constitution. We need not elaborate any further, in light of the judgment of this Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273:
26.We only reiterate that the directions aforesaid ought to be complied with in letter and spirit by the investigating and prosecuting agencies, while the view expressed by us on the non-compliance of Section 41 and the consequences that flow from it has to be kept in mind by the Court, which is expected to be reflected in the orders.
27.Despite the dictum of this Court in Arnesh Kumar (supra), no concrete step has been taken to comply with the mandate of Section 41A of the Code. This Court has clearly interpreted Section 41(1)(b)(i) and (ii) inter alia holding that notwithstanding the existence of a reason to believe qua a police officer, the satisfaction for the need to arrest shall also be present. Thus, sub-clause (1)(b)(i) of Section 41 has to be read along with sub-clause (ii) and therefore both the elements of ‘reason to believe’ and ‘satisfaction qua an arrest’ are mandated and accordingly are to be recorded by the police officer.
28.It is also brought to our notice that there are no specific guidelines with respect to the mandatory compliance of Section 41A of the Code. An endeavour was made by the Delhi High Court while deciding Writ Petition (C) No. 7608 of 2017 vide order dated 07.02.2018, followed by order dated 28.10.2021 in Contempt Case (C) No. 480 of 2020 & CM Application No.25054 of 2020, wherein not only the need for guidelines but also the effect of non-compliance towards taking action against the officers concerned was discussed. We also take note of the fact that a standing order has been passed by the Delhi Police viz., Standing Order No. 109 of 2020, which provides for a set of guidelines in the form of procedure for issuance of notices or orders by the police officers. Considering the aforesaid action taken, in due compliance with the order passed by the Delhi High Court in Writ Petition (C) No.7608 of 2017 dated 07.02.2018, this Court has also passed an order in Writ Petition (Crl.) 420 of 2021 dated 10.05.2021 directing the State of Bihar to look into the said aspect of an appropriate modification to give effect to the mandate of Section 41A. A recent judgment has also been rendered on the same lines by the High Court of Jharkhand in Cr.M.P. No. 1291 of 2021 dated 16.06.2022.
29.Thus, we deem it appropriate to direct all the State Governments and the Union Territories to facilitate standing orders while taking note of the standing order issued by the Delhi Police i.e., Standing Order No. 109 of 2020, to comply with the mandate of Section 41A. We do feel that this would certainly take care of not only the unwarranted arrests, but also the clogging of bail applications before various Courts as they may not even be required for the offences up to seven years.
30.We also expect the courts to come down heavily on the officers effecting arrest without due compliance of Section 41 and Section 41A. We express our hope that the Investigating Agencies would keep in mind the law laid down in Arnesh Kumar (Supra), the discretion to be exercised on the touchstone of presumption of innocence, and the safeguards provided under Section 41, since an arrest is not mandatory. If discretion is exercised to effect such an arrest, there shall be procedural compliance. Our view is also reflected by the interpretation of the specific provision under Section 60A of the Code which warrants the officer concerned to make the arrest strictly in accordance with the Code.

Satender Kumar Antil Vs CBI and Anr on 11 Jul 2022

Citations :

Other Sources :

There is another Order passed earlier in this very same case with respect to NBW recall here.

Index of Bail Judgments is here.

Shivanand Gurannavar Vs Basavva on 17 Feb 2022

Posted on June 28, 2022 by ShadesOfKnife

Shivanand Gurannavar Vs Basavva on 17 Feb 2022

Citations :

Other Sources :

https://www.latestlaws.com/case-analysis/hc-maintenance-granted-u-s-12-of-dv-act-cannot-be-enhanced-u-s-127-cr-p-c-read-order

https://indianlawwatch.com/maintenance-granted-under-dv-act-cannot-be-subjected-to-enhancement-under-s-125-crpc-karnataka-high-court/

Vishnu Kumar Tiwari Vs State of Uttar Pradesh on 09 Jul 2019

Posted on June 27, 2022 by ShadesOfKnife

A division bench of the Apex Court held as follows:

From Paras 41 and 42,

41. In the facts of this case, having regard to the nature of the allegations contained in the protest petition and the annexures which essentially consisted of affidavits, if the Magistrate was convinced on the basis of the consideration of the final report, the statements under Section 161 of the Code that no prima facie case is made out, certainly the Magistrate could not be compelled to take cognizance by treating the protest petition as a complaint. The fact that he may have jurisdiction in a case to treat the protest petition as a complaint, is a different matter. Undoubtedly, if he treats the protest petition as a complaint, he would have to follow the procedure prescribed under Section 200 and 202 of the Code if the latter Section also commends itself to the Magistrate. In other words, necessarily, the complainant and his witnesses would have to be examined. No doubt, depending upon the material which is made available to a Magistrate by the complainant in the protest petition, it may be capable of being relied on in a particular case having regard to its inherent nature and impact on the conclusions in the final report. That is, if the material is such that it persuades the court to disagree with the conclusions arrived at by the Investigating Officer, cognizance could be taken under Section 190(1)(b) of the Code for which there is no necessity to examine the witnesses under Section 200 of the Code. But as the Magistrate could not be compelled to treat the protest petition as a complaint, the remedy of the complainant would be to file a fresh complaint and invite the Magistrate to follow the procedure under Section 200 of the Code or Section 200 read with Section 202 of the Code. Therefore, we are of the view that in the facts of this case, we cannot support the decision of the High Court.
42. It is true that law mandates notice to the informant/complainant where the Magistrate contemplates accepting the final report. On receipt of notice, the informant may address the court ventilating his objections to the final report. This he usually does in the form of the protest petition.

From Para 45,

45. If a protest petition fulfills the requirements of a complaint, the Magistrate may treat the protest petition as a complaint and deal with the same as required under Section 200 read with Section 202 of the Code. In this case, in fact, there is no list of witnesses as such in the protest petition. The prayer in the protest petition is to set aside the final report and to allow the application against the final report. While we are not suggesting that the form must entirely be decisive of the question whether it amounts to a complaint or liable to be treated as a complaint, we would think that essentially, the protest petition in this case, is summing up of the objections the second respondent against the final report.

Vishnu Kumar Tiwari Vs State of Uttar Pradesh on 09 Jul 2019

Citations :

Other Sources :

https://indiankanoon.org/doc/80081494/

https://www.lawyerservices.in/Vishnu-Kumar-Tiwari-Versus-State-of-Uttar-Pradesh-and-Others-2019-07-09

Madras High Court Advocates Association Vs Dr.A.S.Anand, Honble The C.J.I. on 12 May 2001

Posted on June 26, 2022 by ShadesOfKnife

A full bench of Apex Court passed scathing remarks regards litigants who lie with impunity in their affidavits filed into the Court.

This case is also called as Re: Suo Moto Proceedings Against MR. R, KARUPPAN, ADVOCATE Vs Unknown.

From Para 15,

15. Court are entrusted with the powers of dispensation and adjudication of justice of the rival claims of the parties besides determining the criminal liability of the offenders for offences committed against the society. The courts are further expected to do justice quickly and impartially not being biased by any extraneous considerations. Justice dispensation system would be wrecked if statutory restrictions are not imposed upon the litigants, who attempt to mislead the court by filing and relying upon the false evidence particularly in cases, the adjudication of which is depended upon the statement of facts. if the result of the proceedings are to be respected, these issues before the courts must be resolved to the extent possible in accordance with the truth. The purity of proceedings of the court cannot be permitted to be sullied by a party on frivolous, vexatious or insufficient grounds or relying upon false evidence inspired by extraneous considerations or revengeful desire to harass or spite his opponent. Sanctity of the affidavits has to be preserved and protected discouraging the filing of irresponsible statements, without any regard to accuracy.
17. In India, law relating to the offence of perjury is given a statutory definition under Section 191 and Chapter XI of the Indian Penal Code, incorporated to deal with the offences relating to giving false evidence against public justice. The offences incorporated under this Chapter are based upon recognition of the decline of moral values and erosion of sanctity of oath. Unscrupulous litigants are found daily resorting to utter blatant falsehood in the courts which has, to some extent, resulted in polluting the judicial system. It is a fact, though unfortunate, that a general impression is created that most of the witnesses coming in the courts despite taking oath make false statements to suit the interests of the parties calling them. Effective and stern action is required to be taken for preventing the evil of perjury, concededly let lose by vested interest and professional litigants. The mere existence of the penal provisions to deal with perjury would be a cruel joke with the society unless the courts stop to take an evasive recourse despite proof of the commission of the offence under Chapter XI of the Indian Penal Code. If the system is to service, effective action is the need of the time. The present case is no exception to the general practice being followed by many of the litigants in the country.
18. Keeping in view the facts and circumstances of this case, the record of proceedings in Suo Motu Contempt Petition (Criminal) No.5 of 2000 and Writ Petition No.77 of 2001, we are prima facie satisfied that the respondent herein, in his affidavit filed in support of the writ petition (for the purposes of being used in the judicial proceedings, i.e. writ petition), has wrongly made a statement that the age of Dr. Justice A.S. Anand has not been determined by the President of India in terms of-Article 217 of the constitution. We are satisfied that such a statement supported by an affricative of the respondent was known to him to be false which he believed to be false and/or atleast did not believe to be true. It is not disputed that an affidavit is evidence within the meaning of Section 191 of the Indian Penal Code and a person swearing to a false affidavit is guilty of perjury punishable under Section 193 IPC. The respondent herein, being legally bound by an oath to state the truth in his affidavit accompanying the petition is prima facie held to have made a false statement which constitutes an offence of giving false evidence as defined under Section 191 IPC, punishable under Section 193 IPC.
19. With the object of eradicating the evil of perjury, we empower the Registrar General of this Court to depute an officer of the rank of Deputy Registrar or above of the Court to file a complaint under Section 193 of the Indian Penal Code against the respondent herein, before a Magistrate of competent jurisdiction at Delhi. Such officer is directed to file such complaint and take all steps necessary for prosecuting the complaint.

Madras High Court Advocates Association Vs Dr.A.S.Anand, Honble The C.J.I. on 12 May 2001

Citations : [2001 OLR 2 188], [2001 SCC 5 289], [2001 SCALE 4 199], [2001 SUPREME 4 108], [2001 JT SUPP 1 332], [2001 CGLJ 2 499], [2001 CRLJ SC 2611], [2001 SCR 3 750], [2001 AIR SC 2204], [2001 LW 3 61], [2001 SCC CRI 876], [2001 AIR SCW 2104]

Other Sources :

https://indiankanoon.org/doc/1356442/

https://www.casemine.com/judgement/in/5609ad9be4b0149711411d8a

Swaran Singh Vs State of Punjab on 26 Apr 2000

Posted on June 26, 2022 by ShadesOfKnife

From the decision of the division bench of Supreme Court, this is the concurring opinion of Justice D.P. Wadhwa. Wonderful, indeed!

D.P Wadhwa, J. (concurring)— I agree with the judgment pronounced by my noble and learned sister Ruma Pal, J. I, however, wish to add a few lines.
35. The first information report was lodged within 2-1/2 hours of the occurrence and the case registered against four persons, namely, Shamsher Singh, Jagjit Singh, Amrik Singh and Mittar Pal Singh alias Lovely. These four accused were named in the FIR. While Shamsher Singh surrendered a day following the lodging of the FIR, no steps were taken to apprehend the other named accused. The case was not only investigated by Sub-Inspector Karnail Singh, SHO of the police station concerned but also by Mohinder Singh, DSP, Baldev Sharma, DSP, Sanjeev Gupta, SP (Detective) and B.P Tiwari, DIG (Crime). When challan was put up, it was only against Shamsher Singh. A criminal complaint was filed by the complainant and all the accused were committed to stand their trial in the Court of Session for various offences. In the course of the trial, more than 50 prosecution witnesses were given up having been won over and the case hinged on the statements of seven witnesses which led to the conviction of Shamsher Singh and Jagjit Singh by the trial court, upheld by the High Court and now affirmed by this Court. The questions that arise for consideration are as to why the police did not challan the accused Jagjit Singh and why over 50 witnesses should have been given up. It only shows that the criminal justice system is in doldrums. There has to be honest investigation uninfluenced by any political or other pressure.
36. A criminal case is built on the edifice of evidence, evidence that is admissible in law. For that, witnesses are required whether it is direct evidence or circumstantial evidence. Here are the witnesses who are a harassed lot. A witness in a criminal trial may come from a far-off place to find the case adjourned. He has to come to the court many times and at what cost to his own self and his family is not difficult to fathom. It has become more or less a fashion to have a criminal case adjourned again and again till the witness tires and gives up. It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tired. Not only is a witness threatened, he is abducted, he is maimed, he is done away with, or even bribed. There is no protection for him. In adjourning the matter without any valid cause a court unwittingly becomes party to miscarriage of justice. A witness is then not treated with respect in the court. He is pushed out from the crowded courtroom by the peon. He waits for the whole day and then he finds that the matter is adjourned. He has no place to sit and no place even to have a glass of water. And when he does appear in court, he is subjected to unchecked and prolonged examination and cross-examination and finds himself in a hapless situation. For all these reasons and others a person abhors becoming a witness. It is the administration of justice that suffers. Then appropriate diet money for a witness is a far cry. Here again the process of harassment starts and he decides not to get the diet money at all. High Courts have to be vigilant in these matters. Proper diet money must be paid immediately to the witness (not only when he is examined but for every adjourned hearing) and even sent to him and he should not be left to be harassed by the subordinate staff. If the criminal justice system is to be put on a proper pedestal, the system cannot be left in the hands of unscrupulous lawyers and the sluggish State machinery. Each trial should be properly monitored. Time has come that all the courts, district courts, subordinate courts are linked to the High Court with a computer and a proper check is made on the adjournments and recording of evidence. The Bar Council of India and the State Bar Councils must play their part and lend their support to put the criminal system back on its trail. Perjury has also become a way of life in the law courts. A trial Judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him. He is required to sign the complaint himself which deters him from filing the complaint. Perhaps law needs amendment to clause (b) of Section 340(3) of the Code of Criminal Procedure in this respect as the High Court can direct any officer to file a complaint. To get rid of the evil of perjury, the court should resort to the use of the provisions of law as contained in Chapter XXVI of the Code of Criminal Procedure.

Swaran Singh Vs State of Punjab on 26 Apr 2000

Citations : [2000 ACR SC 2 1648], [2000 AIR SC 2017], [2000 CRI LJ 2780], [2000 JT SC 6 623], [2000 RCR CRIMINAL 2 762], [2000 SCALE 4 153], [2000 SCC 5 668], [2001 SCC CRI 190], [2000 CRLJ 0 2780], [2001 SCC CR 0 190], [2000 AIR SC 1895], [2000 CRIMES SC 3 12], [2000 SUPREME 4 364], [2000 CRLJ 106 2780], [2000 CCR 2 149], [2000 SLT 4 138], [2000 SRJ 5 487], [2000 JCC SC 2 694], [2000 JT 6 623], [2000 CRIMES 3 12], [2000 RECENTCR 2 762], [2000 AIR SCW 1895], [2000 CRILJ 2780]

Other Sources :

https://indiankanoon.org/doc/489802/

https://www.casemine.com/judgement/in/5609ad6ae4b0149711411587

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

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Posted on June 13, 2022 by ShadesOfKnife

Apex Court talks about Interpretation of Statutes:

Addition and Subtraction of words:
22. The Court has to keep in mind the fact that, while interpreting the provisions of a Statute, it can neither add, nor subtract even a single word. The legal maxim “A Verbis Legis Non Est Recedendum” means, “From the words of law, there must be no departure”. A section is to be interpreted by reading all of its parts together, and it is not permissible, to omit any part thereof. The Court cannot proceed with the assumption that the legislature, while enacting the Statute has committed a mistake; it must proceed on the footing that the legislature intended what it has said; even if there is some defect in the phraseology used by it in framing the statute, and it is not open to the court to add and amend, or by construction, make up for the deficiencies, which have been left in the Act. The Court can only iron out the creases but while doing so, it must not alter the fabric, of which an Act is woven. The Court, while interpreting statutory provisions, cannot add words to a Statute, or read words into it which are not part of it, especially when a literal reading of the same, produces an intelligible result. (Vide: Nalinakhya Bysack v. Shyam Sunder Haldar & Ors., AIR 1953 SC 148; Sri Ram Ram Narain Medhi v. State of Bombay, AIR 1959 SC 459; M. Pentiah & Ors. v. Muddala Veeramallappa & Ors., AIR 1961 SC 1107; The Balasinor Nagrik Co-operative Bank Ltd. v. Babubhai Shankerlal Pandya & Ors., AIR 1987 SC 849; and Dadi Jagannadham v. Jammulu Ramulu & Ors., (2001) 7 SCC 71).
23. The Statute is not to be construed in light of certain notions that the legislature might have had in mind, or what the legislature is expected to have said, or what the legislature might have done, or what the duty of the legislature to have said or done was. The Courts have to administer the law as they find it, and it is not permissible for the Court to twist the clear language of the enactment, in order to avoid any real, or imaginary hardship which such literal interpretation may cause.
24. In view of the above, it becomes crystal clear that, under the garb of interpreting the provision, the Court does not have the power to add or subtract even a single word, as it would not amount to interpretation, but legislation.

Citations : [2013 AIR SC 30], [2013 ALD SC 1 135], [2013 ALR 96 825], [2013 AWC SC 2 1245], [2013 FLR 136 92], [2012 JT SC 11 219], [2012 SCALE 11 30], [2013 SCC 11 451], [2012 SCR 13 47], [2013 SCT SC 1 537], [2013 SLJ SC 1 27], [2013 SLJ SC 2 16], [2013 SCC L&S 3 368], [2012 SCC ONLINE SC 922], [2013 AIC 121 163], [2012 AIOL 508], [2012 SLT 8 316], [2012 SUPREME 7 696], [2012 LLN 5 83], [2012 SCJ 8 534], [2012 AIR SC 6157], [2012 CLT 4 325], [2013 KCCR SN 1 19], [2012 AIR SCW 6157]

Other Sources :

https://indiankanoon.org/doc/58524857/

https://www.casemine.com/judgement/in/5609af20e4b0149711415afe

Shades of Knife

True Colors of a Vile Wife

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