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

Posted on April 6, 2022 by ShadesOfKnife

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

From Para 5,

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

From Para 11,

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

From Para 12,

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

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

Citations :

Other Sources :

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

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

Asha Devi and Anr Vs State of UP and 2 Ors on 1 Dec 2020

Posted on April 4, 2022 by ShadesOfKnife

A division bench at Allahabad High Court held as follows:

From Para 16,

16. According to own case of the petitioners, the petitioner no.1 is still a legally wedded wife of one Mahesh Chandra. As per own alleged application dated 17.09.2020 (as reproduced in para 6 above), the petitioners are living as husband and wife and they have sought protection from interference in their living together as husband and wife. Once the petitioner No.1 is a married woman being wife of one Mahesh Chandra, the act of petitioners particularly the petitioner No.2, may constitute an offence under Sections 494/495 I.P.C. Such a relationship does not fall within the phrase “live-in-relationship” or “relationship in the nature of marriage”. The writ petition has been filed by the petitioners for protection from interference by others in their living as husband and wife. If the protection as prayed is granted, it may amount to grant protection against commission of offences under Sections 494/495 I.P.C.

From Para 18,

18. It is settled law that writ of mandamus can be issued if the petitioner has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition. Similar view has also been taken by Hon’ble Supreme Court in Kalyan Singh vs. State of U.P. 13. Applying the principles of issuance of writ of mandamus on the facts of the present case, we find that the petitioners have no legal right for protection on the facts of the present case inasmuch as such the protection as being asked, may amount to protection against commission of offence under Section 494/495 I.P.C. It is well settled law that writ of mandamus can not be issued contrary to law or to defeat a statutory provision including penal provision. The petitioners do not have legally protected and judicially enforceable subsisting right to ask for mandamus.

Asha Devi and Anr Vs State of UP and 2 Ors on 1 Dec 2020

Suresh Chand Jain Vs State of Madhya Pradesh and Anr on 10 Jan 2001

Posted on March 21, 2022 by ShadesOfKnife

A division bench of the Apex Court held that, there is no authority for the magistrate to examine the complainant in a 156(3) CrPC proceeding since this is a pre-cognizance stage.

From Para 7,

7. In our opinion, the aforesaid direction given by the learned Single Judge of the Punjab and Haryana High Court in Suresh Kumar v. State of Haryana is contrary to law and cannot be approved. Chapter XII of the Code contains provisions relating to “information to the police and their powers to investigate”, whereas Chapter XV, which contains Section 202, deals with provisions relating to the steps which a Magistrate has to adopt while and after taking cognizance of any offence on a complaint. Provisions of the above two chapters deal with two different facets altogether, though there could be a common factor i.e complaint filed by a person. Section 156, falling within Chapter XII, deals with powers of the police officers to investigate cognizable offences. True, Section 202 which falls under Chapter XV, also refers to the power of a Magistrate to “direct an investigation by a police officer”. But the investigation envisaged in Section 202 is different from the investigation contemplated in section 156 of the code.

From Paras 8 and 9,

8. The investigation referred to therein is the same investigation, the various steps to be adopted for it have been elaborated in Chapter XII of the Code. Such investigation would start with making the entry in a book to be kept by the officer in charge of a police station, of the substance of the information relating to the commission of a cognizable offence. The investigation started thereafter can end up only with the report filed by the police as indicated in Section 173 of the Code. The investigation contemplated in that chapter can be commenced by the police even without the order of a Magistrate. But that does not mean that when a Magistrate orders an investigation under Section 156(3) it would be a different kind of investigation. Such investigation must also end up only with the report contemplated in Section 173 of the Code. But the significant point to be noticed is, when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence.3
9. But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202(1) of the Code would convince that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in Section 202(1). This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him.

And finally from Para 10,

10. The position is thus clear. Any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in section 154 of the code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.

Suresh Chand Jain Vs State of Madhya Pradesh and Anr on 10 Jan 2001

Citations : [2001 ACR SC 1 586], [2001 AIR SC 571], [2001 ALD CRI 1 367], [2001 ALT CRI 1 284], [2001 CGLJ 1 451], [2001 GLH 1 594], [2001 JLJ SC 1 395], [2001 JT SC 2 81], [2001 KLT SC 1 623], [2001 OLR 1 470], [2001 RCR CRIMINAL 1 335], [2001 RLW SC 2 317], [2001 SCALE 1 93], [2001 SCC 2 628], [2001 SCR 1 257], [2001 UC 1 202], [2001 SCC CRI 377], [2001 CCR 1 54], , [2001 AIR SC 189], [2001 CRIMES SC 1 171], [2001 SUPREME 1 129], [2001 CLJ 3 78], [2001 SLT 1 364], [2001 SCJ 1 605], [2001 SRJ 2 100], [2001 JCC 1 78], [2001 CTC 1 500], [2001 AD SC 1 109], [2001 CRLJ SC 954], [2001 AIR SCW 189], [2001 ALLMR CRI SC 775], [2001 UJ SC 1 420]

Other Sources :

https://indiankanoon.org/doc/1373794/

https://www.casemine.com/judgement/in/5609ada0e4b0149711411e8a

MS Supreme Bhiwandi Wada Manor Infrastructure Pvt Ltd Vs State of Maharashtra on 26 Jul 2021

Posted on March 21, 2022 by ShadesOfKnife

A Division bench of the Apex Court held that, there is no scope for examining the complainant (or any witnesses) u/s 200 CrPC, in a 156(3) CrPC proceeding, since that stage is pre-cognizance of any cognizable offence.

From Paras 16 and 17,

16 The primary basis on which the High Court has allowed the applications under Section 438 is that the complaint filed by the first informant was supported by an affidavit dated 6 February 2016. However, the High Court held that the mandate of Section 200 of the CrPC of examining the complainant on oath has not been fulfilled by the Magistrate. On this basis, the High Court held that this raises a serious doubt about the validity of the order which has been passed under Section 156(3).
17 There is a serious error in the view of the Single Judge. First and foremost, the Magistrate’s order under Section 156(3) was not under challenge before the High Court and has attained finality. The High Court was in error in raising a doubt about the correctness of the order under section 156(3) passed by the Metropolitan Magistrate on 11 May 2016 in the course of considering the complaint filed by the complainant. Secondly, the position in law as set out in the order of the Single Judge does not accord with the principles which have been consistently enunciated in the decisions of this Court specifically in the context of Chapter XV of the CrPC. Sections 200 and 202

From Para 20,

20 In Anju Chaudhary v. State of Uttar Pradesh6, Justice Swatanter Kumar for the Bench noted that Section 156 primarily deals with the powers of the police officer to investigate cognizable cases. While passing an order under Section 156(3), the Magistrate does not take cognizance. The order of the Magistrate is in the nature of ―a pre-emptory reminder or intimation to the police‖ to exercise their primary duty and power of investigation. The court held that the power of the Magistrate under Section 156(3) is not affected by the provisions of Section 202

MS Supreme Bhiwandi Wada Manor Infrastructure Pvt Ltd Vs State of Maharashtra on 26 Jul 2021

Citations : [AIR 2021 SC 3580], [2021 All.M.R. (Cri.) 3062], [2021 (5) BLJ 114], [2021 CriLJ 3747], [JT 2021 (7) SC 238], [2021 (3) MLJ (Cri) 438], [2021 (3) RCR (Criminal) 691], [2021 (8) SCALE 534], [(2021) 8 SCC 753]

Other Sources :

https://indiankanoon.org/doc/77704402/

https://www.casemine.com/judgement/in/6101a65137988476911e2ec4

https://www.indianemployees.com/judgments/details/m-s-supreme-bhiwandi-wada-manor-infrastructure-pvt-ltd-versus-the-state-of-maharashtra-anr

S.Vanitha Vs Deputy Commissioner on 15 Dec 2020

Posted on March 15, 2022 by ShadesOfKnife

A Full bench of the Apex Court, in an attempt to balance the rights of parties, purportedly in exercise of the power under Article 142 of the Constitution, allowed a party to stay in a residence owner by the Parents-in-law.

S.Vanitha Vs Deputy Commissioner on 15 Dec 2020

Citations : [2020 SCC ONLINE SC 1023]

Other Sources :

https://indiankanoon.org/doc/71453821/

https://www.casemine.com/judgement/in/5fe97792814df3882b7c2a16

Ravneet Kaur Vs Prithpal Singh Dhingra on 24 Feb 2022

Posted on March 15, 2022 by ShadesOfKnife

Single judge bench of Delhi High Court held that the Court has to balance the rights of the aggrieved person and the parents-in-law when the question of residence arises for the aggrieved person while her marital relationship subsists.

From Paras 24 and 25,

24. Admittedly where the parties are residing is a flat, having only three bed rooms, a drawing room and the appellant is in possession of a room in the said flat, then considering there are various complaints filed by them against each other; their relations being not cordial, would it in such circumstances, be appropriate for them to stay together and fight every minute of their existence. In Satish Chander Ahuja (supra) in para No.90 the Court had observed we need to strike a balance between the rights of daughter-in-law and her in-laws.
25. Admittedly, the right of residence under Section 19 of the DV Act is not an indefeasible right of residence in shared household, especially, when the daughter-in-law is pitted against aged father-in-law and mother-in-law. In this case, both being senior citizens of aged about 74 and 69 years and being in the evening of their life, are entitled to live peacefully and not to be haunted by the marital discord between their son and daughter-in-law.

From Para 27,

27. Thus, where the residence is a shared household, it does not create any embargo upon the owner to claim eviction against his daughter-in-law. A strained frictional relationship between the parties would be relevant to decide whether the grounds of eviction exist. I am of the considered opinion, since there exist a frictional relationship between the parties, then at the fag end of their lives it would not be advisable for old parents to stay with appellant and hence it would be appropriate if an alternative accommodation is provided to the appellant as is directed in the impugned order per Section 19(1)(f) of the Protection of Women from Domestic Violence Act

And finally from Para 28,

28. Thus, there is no force in the appeal and accordingly it is dismissed. The undertaking made at Bar to provide an alternative accommodation to the appellant till her matrimony exists be filed in the form of an affidavit of the respondent within two weeks from today before the learned Trial Court. The execution of decree be postponed till such suitable alternative accommodation is found and the applicant is conveniently shifted therein. The learned Trial Court to impose conditions in case of non-payment of rental including electricity /water charges etc by respondent.

Ravneet Kaur Vs Prithpal Singh Dhingra on 24 Feb 2022

Citations : [2022 SCC ONLINE DEL 594]

Other Sources :

https://caselaw.in/delhi/shared-household-ravneet-kaur-prithpal-singh-dhingra/16/

https://www.casemine.com/judgement/in/6217abd79fca1954d2a81a9a

Sarbati Devi and Anr Vs Usha Devi on 06 Dec 1983

Posted on March 15, 2022 by ShadesOfKnife

A division bench of Apex Court held that in a case of insurance policy holder dying intestate with some nomination, then the nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them

From Para 4,

4. At the outset it should be mentioned that except the decision of the Allahabad High Court in Kesari Devi v. Dharma Devi AIR 1962 All 355 on which reliance was placed by the High Court in dismissing the appeal before it and the two decisions of the Delhi High Court in S. Fauza Singh v. Kuldip SinghAIR 1978 Del 276 and Uma Sehgal v. Dwarka Dass Sehgal AIR 1982 Del 36 in all other decisions cited before us the view taken is that the nominee under Section 39 of the Act is nothing more than an agent to receive the money due under a life insurance policy in the circumstances similar to those in the present case and that the money remains the property of the assured during his lifetime and on his death forms part of his estate subject to the law of succession applicable to him. The cases which have taken the above view are Ramballav Dhandhania v. Gangadhar NathmallAIR 1956 Cal 275; Life Insurance Corporation of India v. United Bank of India Ltd AIR 1970 Cal 513; D. Mohanavelu Mudaliar v. Indian Insurance and Banking Corporation Ltd., Salem6; Sarojini Amma v. Neelakanta Pillai AIR 1961 Ker 126; Atmaram Mohanlal Panchal v. Gunvantiben AIR 1977 Guj 134; Malli Dei v. Kanchan Prava Dei AIR 1973 Ori 83 and Lakshmi Amma v. Saguna BhagathILR 1973 Kant 827. Since there is a conflict of judicial opinion on the question involved in this case it is necessary to examine the above cases at some length.

The operative portion of the Judgment:

12. Moreover there is one other strong circumstance in this case which dissuades us from taking a view contrary to the decisions of all other High Courts and accepting the view expressed by the Delhi High Court in the two recent judgments delivered in the year 1978 and in the year 1982. The Act has been in force from the year 1938 and all along almost all the High Courts in India have taken the view that a mere nomination effected under Section 39 does not deprive the heirs of their rights in the amount payable under a life insurance policy. Yet Parliament has not chosen to make any amendment to the Act. In such a situation unless there are strong and compelling reasons to hold that all these decisions are wholly erroneous, the Court should be slow to take a different view. The reasons given by the Delhi High Court are unconvincing. We, therefore, hold that the judgments of the Delhi High Court in Fauza Singh case and in Uma Sehgal case do not lay down the law correctly. They are, therefore, overruled. We approve the views expressed by the other High Courts on the meaning of Section 39 of the Act and hold that a mere nomination made under Section 39 of the Act does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them.

Sarbati Devi and Anr Vs Usha Devi on 06 Dec 1983

Citations : [1983 SCALE 2 869], [1984 AIR SC 346], [1984 SCC 1 424], [1984 SCR 1 992], [1984 SCC TAX 59], [1984 ALR 10 268], [1984 ALJ 194], [1984 BLJR 21], [1984 ACC 2 377], [1984 ACJ 138], [1984 BLJR 32 210], [1984 COMPLJ SC 1 1], [1984 GLH 490], [1984 COMPCAS SC 55 214], [1984 UJ SC 866]

Other Sources :

https://indiankanoon.org/doc/1308094/

https://www.casemine.com/judgement/in/5609ac0ce4b014971140de2b

Ms.Romy Khanna Vs State (Govt of NCT of Delhi) on 4 Jul 2011

Posted on March 10, 2022 by ShadesOfKnife

Relying on Apex Court’s Surinder Mohan Vikal decision, Delhi High Court held that if any offence is made out in a complaint under Section 500 IPC for defamation, Section 468(2) Cr.P.C. is attracted and cognizance of offence should be taken within a period of three years from the date of occurrence.

Ms.Romy Khanna Vs State (Govt of NCT of Delhi) on 4 Jul 2011

Citations : [2011 DLT 182 221], [2012 CRICC 1 85], [2011 RCR CRIMINAL 4 735], [2011 SCC ONLINE DEL 2664], [2011 RCR CRI 4 735]

Other Sources :

https://indiankanoon.org/doc/10503637/

https://www.casemine.com/judgement/in/56090e0ae4b014971117b1c7

Ram Charitra Tiwari and Ors Vs State of UP and Anr on 13 Jul 2021

Posted on March 7, 2022 by ShadesOfKnife

Another misinterpretation of Section 3 of DP… this time from Allahabad High Court.

Ram Charitra Tiwari and Ors Vs State of UP and Anr on 13 Jul 2021

Citations :

Other Sources :

https://indiankanoon.org/doc/44284755/

https://www.casemine.com/judgement/in/60f50c979fca193a50689444

News:

https://lawtrend.in/dowry-prohibition-act-protects-dowry-giver-allahabad-hc/

https://lawsisto.com/legalnewsread/MTA2NzU=/Dowry-Prohibition-Act-Protects-Dowry-Giver-Allahabad-HC

Luckose Zachariah Vs Joseph Joseph on 18 Feb 2022

Posted on March 3, 2022 by ShadesOfKnife

A Division bench of the Supreme Court held that the reports filed by police under 173(2) (Original Charge sheet) and 173(8) (Supplementary Charge sheet) are to be considered by the Magistrate to come to an opinion if the accused committed an offence.

From Para 16,

16 In view of the clear position of law which has been enunciated in the judgments of this Court, both in Vinay Tyagi (supra) and Vinubhai Haribhai Malaviya (supra), it is necessary for the Magistrate, to have due regard to both the reports, the initial report which was submitted under Section 173(2) as well as the supplementary report which was submitted after further investigation in terms of Section 173(8). It is thereafter that the Magistrate would have to take a considered view in accordance with law as to whether there is ground for presuming that the persons named as accused have committed an offence. While the High Court has relied upon the decision in Vinay Tyagi (supra), it becomes necessary for this Court to set the matter beyond any controversy having due regard to the fact that the Sessions Judge in the present case had while remitting the proceedings back to the Magistrate relied on the judgment of the Single Judge of the Kerala High Court in Joseph (supra) which is contrary to the position set out in Vinay Tyagi. Hence, the JFCM – I Alappuzha shall reexamine both the reports in terms of the decisions of this Court in Vinay Tyagi vs Irshad Ali alias Deepak and Vinubhai Haribhai Malaviya vs State of Gujarat as noted above and in terms of the observations contained in the present judgment. The Magistrate shall take a considered decision expeditiously within a period of one month from the date of the present order.

Luckose Zachariah Vs Joseph Joseph on 18 Feb 2022

Citations :

Other Sources :

Shades of Knife

True Colors of a Vile Wife

Tag: Reportable Judgement or Order

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

Asha Devi and Anr Vs State of UP and 2 Ors on 1 Dec 2020

Suresh Chand Jain Vs State of Madhya Pradesh and Anr on 10 Jan 2001

MS Supreme Bhiwandi Wada Manor Infrastructure Pvt Ltd Vs State of Maharashtra on 26 Jul 2021

S.Vanitha Vs Deputy Commissioner on 15 Dec 2020

Ravneet Kaur Vs Prithpal Singh Dhingra on 24 Feb 2022

Sarbati Devi and Anr Vs Usha Devi on 06 Dec 1983

Ms.Romy Khanna Vs State (Govt of NCT of Delhi) on 4 Jul 2011

Ram Charitra Tiwari and Ors Vs State of UP and Anr on 13 Jul 2021

Luckose Zachariah Vs Joseph Joseph on 18 Feb 2022