Public Prosecutor, High Court of A.P, Hyd Vs Nese Jilakara Sreeramulu on 29 Aug 2003

Posted on August 1, 2021 by ShadesOfKnife

A Full Bench gave this decision upon a reference from a Division bench of AP High Court on the question as to whether the law laid down by a Division Bench of this Court in Ayyala Rambabu v. State of Andhra Pradesh, 1993 (1) Andh LT (Cri) 73 and by a learned single Judge of this Court in Nunna Venkateswarlu v. State of A. P., 1996 Cri LJ 108 is good law.

The answer was a NO.

From Paras 17-19,

17. The definition of “dowry”, the object of the Act and the above decisions of the Apex Court clearly show that any property or valuable security given or agreed to be given comes within the purview of “dowry” on three occasions in which any property or valuable security comes within its purview. They are — (i) before the marriage, (ii) at the time of marriage, and (iii) “at any time” after the marriage. The third occasion may appear to be an unending period, but the crucial words are “in connection with the marriage of the parties”. This means, giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties.

18. The Legislature in its wisdom while providing for the definition of “dowry” has emphasized that any money, property or valuable security given as consideration for marriage “before, at or any time after” the marriage would be covered by the expression “dowry”, and this definition as contained in Section 2 of the Act has to be read whenever the expression “dowry” occurs in the Act, The meaning of expression “dowry” as commonly used and understood is different from the peculiar definition thereof under the Act.

19. Under Section 3 of the Act, if a person gives or takes are abets the giving or taking dowry shall be punished. Under Section 4 of the Act mere demand of dowry is sufficient to bring home the offence to an accused. Thus, any demand of money, property or valuable security, made from the bride or her parents or other relatives, or the bridegroom or his parents or other relatives, or vice versa, would fall within the mischief of “dowry” under the Act, where such demand is not properly referable to legally recognized claim and relatable only to the consideration of the marriage.

Indiankanoon version:

Public Prosecutor, High Court of A.P, Hyd Vs Nese Jilakara Sreeramulu on 29 Aug 2003 (IK Ver)

Casemine version:

Public Prosecutor, High Court of A.P, Hyd Vs Nese Jilakara Sreeramulu on 29 Aug 2003 (CM Ver)

Citations : [2004 EASTCRIC 3 48], [2004 ALT 2 504], [2004 ALD CRI 1 519], [2003 SCC ONLINE AP 830], [2003 SUPP ACC 875], [2004 CRI LJ 1629], [2004 HLR 2 144]

Other Sources :

https://indiankanoon.org/doc/1945624/

https://www.casemine.com/judgement/in/5608f835e4b0149711141c0f

Braj Mohan Mahajan Vs Bar Council of State of Madhya Pradesh and Ors on 11 Sep 2018

Posted on March 17, 2021 by ShadesOfKnife

MP High Court held that, a person who is not convicted but merely accused cannot be denied entry into the State Bar Council rolls.

Braj Mohan Mahajan Vs Bar Council of State of Madhya Pradesh and Ors on 11 Sep 2018

Citation :

Other Sources :

Later on, this advocate had trouble with AIBE exam also here.

Dr.P.Pathmanathan and Ors Vs V.Monica and Anr on 18 Jan 2021

Posted on January 19, 2021 by ShadesOfKnife

A very good judgment regarding PWDV Act 2005 (Act) and the procedure to be following, in detail. Snippets from the same follow along with the 14 directions issued for the Judicial Magistrate to be followed by them in disposing DV cases in Tamil Nadu.

From Paras 3 and 4,

3. Upon a close reading of the D.V Act, this Court found that the nature of rights that were protected and enforced under the Act were purely civil in nature. However, considering the forum which was dealing with such applications, and the procedure adopted, a criminal color has been unwittingly given to these proceedings. Like a chameleon changing its colour depending on the situation, the proceedings under the D.V Act were also camouflaged due to the nature of the forum provided under the Act.

4. On the flip side, this faulty understanding of the nature of the proceedings has also given rise to a tendency to misuse these proceedings as a weapon of harassment against parties who are unrelated to the proceedings by making them stand before a Magistrate like accused persons. It is mainly on account of this abuse of process that a deluge of petitions came to be filed for quashing the proceedings under Section 12 of the D.V. Act. This sorry state of affairs was a clear clarion call that impelled this Court to undertake this exercise to bring the situation under control by laying down certain guidelines for the disposal of the applications under Section 12 of the D.V Act.

Proceedings and Offences under the Act

18. Before examining this issue, it is necessary to notice the nature of the jurisdiction exercised by the Magistrate under the D.V Act. The procedure to be followed by a Magistrate in dealing with an application for reliefs under Chapter IV is set out in Section 28 of the Act. A close reading of Section 28 would show that it draws a distinction between “proceedings” (Section 12, 18 to 23) and “offences” (Sections 31 & 33) and states that they will be governed by Cr.P.C. This general rule is subject to two exceptions. The first exception is contained in the opening words of Section 28(1) of the Act which begins with the expression “save as otherwise provided by this Act”, the effect of which is to exclude the application of the Code in areas where the procedure has been expressly set out in the D.V Act or the Protection of Women from Domestic Violence Rules, 2006 (hereinafter referred to as “D.V Rules” or “the Rules”). The second exception is found in Section 28(2) of the Act which is in the nature of a non-obstante clause expressly authorizing the Court to deviate from the procedure set out in Section 28(1) and lay down its own procedure for disposal of an application under Section 12 or a proceeding under Section 23(2) of the Act.
19. In the first instance, it is, therefore, necessary to examine the areas where the D.V. Act or the D.V. Rules have specifically set out the procedure thereby excluding the operation of Cr.P.C as contemplated under Section 28(1) of the Act. This takes us to the D.V Rules. At the outset, it may be noticed that a “complaint” as contemplated under the D.V. Act and the D.V Rules is not the same as a “complaint” under Cr.P.C. A complaint under Rule 2(b) of the D.V Rules is defined as an allegation made orally or in writing by any person to a Protection Officer. On the other hand, a complaint, under Section 2(d) of the Cr.P.C. is any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown has committed an offence. However, the Magistrate dealing with an application under Section 12 of the Act is not called upon to take action for the commission of an offence. Hence, what is contemplated is not a Officer as contemplated under Rule 4(1) of the D.V Rules.
20. Rule 6(1) sets out that an application under Section 12 of the Act shall be as per Form II appended to the Act. Thus, an application under Section 12 not being a complaint as defined under Section 2(d) of the Cr.P.C, the procedure for cognizance set out under Section 190(1)(a) of the Code followed by the procedure set out in Chapter XV of the Code for taking cognizance will have no application to a proceeding under the D.V. Act. To reiterate, Section 190(1)(a) of the Code and the procedure set out in the subsequent Chapter XV of the Code will apply only in cases of complaints, under Section 2(d) of Cr.P.C, given to a Magistrate and not to an application under Section 12 of the Act.
21. Consequently, the stage for issuance of process contemplated under Section 204, Cr.P.C has no application to a proceeding under the D.V Act as the Magistrate, in an application under Section 12 of the D.V Act, is not taking cognizance of any offence, but is only dealing with an application for civil reliefs. Furthermore, as has already been pointed out, the respondent before the Court in an application under Section 12 of the Act is not an accused. Hence, the requirement of framing a charge does not arise either. (See V. Palaniammal v. Thenmozhi (2010) 1 MWN Cri 217).

24. A close reading of the aforesaid provisions would show that the procedure set out in the D.V Act and the Rules makes a conscious deviation from the traditional modes of a criminal court taking cognizance, issuing process and then trying the accused under the provisions of the Cr.P.C. save in the case of offences under Section 31 & 33 of the Act. Thus, the application of the Cr.P.C. to an application under Section 12 is residuary in nature by virtue of the mandate of Section 28(1) of the D.V Act.

So, 482 CrPC does not apply to a DV proceeding, which is civil in nature…

40. As the proceedings before a Magistrate exercising jurisdiction under Chapter IV is not a criminal proceeding before a Criminal Court, the next question is whether a petition under Section 482 of the Code would lie to quash an application under Section 12 of the D.V. Act. It is settled law that a petition under Section 482, Cr.P.C would lie only against an order of a criminal court.

41. As pointed out by a Division Bench of this Court in Rajamanickam v State of Tamil Nadu, 2015 (3) MWN Cri 379, Section 482 Cr.P.C preserves only the inherent criminal jurisdiction of the High Court. Thus, a petition under Section 482, Cr.P.C would be maintainable only if the order complained of is passed by a criminal Court or by a Court in exercise of powers under the Cr.P.C. Quashing an application under Section 12 of the D.V Act does not fall in either category, as what the Court is called upon to do at that stage is to interdict the exercise of civil jurisdiction by the Magistrate at the threshold. As indicated supra, since the Magistrate is exercising only a civil jurisdiction in granting reliefs under Chapter IV of the Act, it follows that a Magistrate is not a criminal court for the purposes of proceedings under Chapter IV of the Act. It follows that an application under Section 482, Cr.P.C does not lie to quash an application under Section 12 of the D.V Act.

So, no remedy then…? (IMHO, apart from Article 227, a petition under sec 151 C.P.C. should also be available to quash the DV proceeding, if it is necessary for the ends of justice or to prevent abuse of the process of the Court.)

42. This does not, however, mean that an aggrieved respondent is remediless. The Magistrate exercising jurisdiction under Chapter IV of the D.V Act, is certainly a subordinate Court for the purposes of Article 227, and a petition under Article 227 of the Constitution would still be available challenging the proceedings under Chapter IV of the D.V Act, in an appropriate case.

Class for the lower trial Courts…

51. It has been brought to the notice of this Court that in several cases, Magistrates continue to mechanically follow the drill of the procedure set out in Sections 190(1)(a), 200 to 204, Cr.P.C and issue summons as if the respondents before it are accused of offences. To compound the confusion, in most of these cases all and sundry are roped in as respondents before the Magistrate. These respondents, upon being summoned, file petitions under Section 205, Cr.P.C to dispense with their personal attendance and thereafter file petitions under Section 482, Cr.P.C to obtain a stay of all further proceedings in the case, and in most cases their personal appearance before the Magistrate is also dispensed with, and the case is then thrown into the backburner. All of this, it appears, is on account a perceptible lack of clarity in the procedure followed by the Magistrates while deciding applications under the Act.

Directions follow:

52.While it is no doubt true that the Court of Magistrate is invested with a great deal of flexibility under Section 28(2) of the Act to devise its own procedure for disposal of an application under Section 12 of the Act, the twin principles of consistency and clarity dictate that this Court must now lay down some broad guidelines, in exercise of its power of superintendence under Article 227 of the Constitution & in respect of Judicial Magistrates under Section 483 of the Cr.P.C, for the proper disposal of applications under Section 12 of the D.V Act. A corrective mechanism is available in the D.V Act itself for aggrieved parties to agitate their grievances and obtain redress.

The following directions are, therefore, issued:

i. An application under Section 12 of the D.V. Act, is not a complaint under Section 2(d) of the Cr.P.C. Consequently, the procedure set out in Section 190(1)(a) & 200 to 204, Cr.P.C as regards cases instituted on a complaint has no application to a proceeding under the D.V Act. The Magistrate cannot, therefore, treat an application under the D.V Act as though it is a complaint case under the Cr.P.C.
ii.An application under Section 12 of the Act shall be as set out in Form II of the D.V Rules, 2006, or as nearly as possible thereto. In case interim ex-parte orders are sought for by the aggrieved person under Section 23(2) of the Act, an affidavit, as contemplated under Form III, shall be sworn to.
iii. The Magistrate shall not issue a summon under Section 61, Cr.P.C to a respondent(s) in a proceeding under Chapter IV of the D.V Act. Instead, the Magistrate shall issue a notice for appearance which shall be as set out in Form VII appended to the D.V Rules, 2006. Service of such notice shallbe in the manner prescribed under Section 13 of the Act and Rule 12 (2) of the D.V Rules, and shall be accompanied by a copy of the petition and affidavit, if any.
iv. Personal appearance of the respondent(s) shall not be ordinarily insisted upon, if the parties are effectively represented through a counsel. Form VII of the D.V Rules, 2006, makes it clear that the parties can Magistrate either in person or through a duly authorized counsel. In all cases, the personal appearance of relatives and other third parties to the domestic relationship shall be insisted only upon compelling reasons being shown. (See Siladitya Basak v State of West Bengal (2009 SCC Online Cal 1903).
v. If the respondent(s) does not appear either in person or through a counsel in answer to a notice under Section 13, the Magistrate may proceed to determine the application ex-parte.
vi. It is not mandatory for the Magistrate to issue notices to all parties arrayed as respondents in an application under Section 12 of the Act. As pointed out by this Court in Vijaya Baskar (cited supra), there should be some application of mind on the part of the Magistrate in deciding the respondents upon whom notices should be issued. In all cases involving relatives and other third parties to the matrimonial relationship, the Magistrate must set out reasons that have impelled them to issue notice to such parties. To a large extent, this would curtail the pernicious practice of roping in all and sundry into the proceedings before the Magistrate.
vii. As there is no issuance of process as contemplated under Section 204, Cr.P.C in a proceeding under the D.V Act, the principle laid down in Adalat Prasad v Rooplal Jindal (2004 7 SCC 338) that a process, under Section 204, Cr.P.C, once issued cannot be reviewed or recalled, will not apply to a proceeding under the D.V Act. Consequently, it would be open to an aggrieved respondent(s) to approach the Magistrate and raise the issue of maintainability and other preliminary issues. Issues like the existence of a shared household/domestic relationship etc., which form the jurisdictional basis for entertaining an application under Section 12, can be determined as a preliminary issue, in appropriate cases. Any person aggrieved by such an order may also take recourse to an appeal under Section 29 of the D.V Act for effective redress (See V.K Vijayalekshmi Amma v Bindu. V, (2010) 87 AIC 367). This would stem the deluge of petitions challenging the maintainability of an application under Section 12 of the D.V Act, at the threshold before this Court under Article 227 of the Constitution.
viii. Similarly, any party aggrieved may also take recourse to Section 25 which expressly authorises the Magistrate to alter, modify or revoke any order under the Act upon showing change of circumstances.
ix. In Kunapareddy (cited supra), the Hon’ble Supreme Court upheld the order of a Magistrate purportedly exercising powers under Order VI, Rule 17 of The Code of Civil Procedure, 1908 (hereinafter referred to as “C.P.C.”), to permit the amendment of an application under Section 12 of the D.V Act. Taking a cue therefrom, it would be open to any of the respondent(s), at any stage of the proceeding, to apply to the Magistrate to have their names deleted from the array of respondents if they have been improperly joined as parties. For this purpose, the Magistrate can draw sustenance from the power under Order I Rule 10(2) of the C.P.C. A judicious use of this power would ensure that the proceedings under the D.V Act do not generate into a weapon of harassment and would prevent the process of Court from being abused by joining all and sundry as parties to the lis.
x. The Magistrates must take note that the practice of mechanically issuing notices to the respondents named in the application has been deprecated by this Court nearly a decade ago in Vijaya Baskar (cited supra). Precedents are meant to be followed and not forgotten, and the Magistrates would,
therefore, do well to examine the applications at the threshold and confine the inquiry only to those persons whose presence before it is proper and necessary for the grant of reliefs under Chapter IV of the D.V Act.
xi. In Satish Chandra Ahuja (cited supra), the Hon’ble Supreme Court has pointed out the importance of the enabling provisions under Section 26 of the D.V Act to avoid multiplicity of proceedings. Hence, the reliefs under Chapter IV of the D.V can also be claimed in a pending proceeding before a civil, criminal or family court as a counter claim.
xii. While recording evidence, the Magistrate may resort to chief examination of the witnesses to be furnished by affidavit (See Lakshman v Sangeetha, 2009 3 MWN (Cri) 257. The Magistrate shall generally follow the procedure set out in Section 254, Cr.P.C while recording evidence.
xiii. Section 28(2) of the Act is an enabling provision permitting the Magistrate to deviate from the procedure prescribed under Section 28(1), if the facts and circumstances of the case warrants such a course, keeping in mind that in the realm of procedure, everything is taken to be permitted unless
prohibited (See Muhammad Sulaiman Khan v Muhammad Yar Khan, 1888 11 ILR All 267).
xiv. A petition under Article 227 of the Constitution may still be maintainable if it is shown that the proceedings before the Magistrate suffer from a patent lack of jurisdiction. The jurisdiction under Article 227 is one of superintendence and is visitorial in nature and will not be exercised unless there exists a clear jurisdictional error and that manifest or substantial injustice would be caused if the power is not exercised in favour of the petitioner. (See Abdul Razak v. Mangesh Rajaram Wagle (2010) 2 SCC 432, Virudhunagar Hindu Nadargal Dharma Paribalana Sabai v. Tuticorin Educational Society, (2019) 9 SCC 538.) In normal circumstances, the power under Article 227 will not be exercised, as a measure of self-imposed restriction, in view of the corrective mechanism available to the aggrieved parties before the Magistrate, and then by way of an appeal under Section 29 of the Act.

Dr.P.Pathmanathan and Ors Vs V.Monica and Anr on 18 Jan 2021

Citations :

Other Sources :

Vijay Kumar Ramachandra Bhate Vs Neela Vijay Kumar Bhate on 16 April, 2003

Posted on January 17, 2021 by ShadesOfKnife

Supreme Court talks as follows regarding Mental Cruelty:

The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1) (i-a) of the Act. The position of law in this regard has come to be well settled and declared that leveling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.

Precisely,

As to what constitute the required mental cruelty for purposes of the said provision, in our view, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct, but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only, the Courts perhaps need consider the further question as to whether their continuance or persistence over a period time render, what normally would, otherwise, not be a so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonable conclude that the maintenance of matrimonial home is not possible any longer. A conscious and deliberate statement leveled with pungency and that too placed on record, through the written statement, cannot so lightly be ignored or brushed aside, to be of no consequence merely because it came to be removed from the record only.

Vijay Kumar Ramachandra Bhate Vs Neela Vijay Kumar Bhate on 16 April, 2003

Citations : [2003 SCC 6 334], [2003 ALLMR SC 3 777], [2003 AIR SC 2530], [2003 SUPREME 3 416], [2003 AIR SC 2462], [2003 SCALE 4 134], [2004 BOMCR SC 2 384], [2003 ALD SC 3 124], [2003 AWC SC 3 2101], [2003 BLJR 3 1658], [2003 DMC SC 1 685], [2003 JCR SC 3 1], [2003 JT SC 4 85], [2003 LW 4 609], [2003 MLJ SC 3 115], [2003 PLJR 2 200], [2003 SCR 3 607], [2003 UC 2 1211], [2003 UJ 2 947], [2003 AIR SCW 2530]

Other Sources :

https://indiankanoon.org/doc/1228342/

https://www.casemine.com/judgement/in/5609ade1e4b01497114126d8

https://www.indianemployees.com/judgments/details/vijay-kumar-ramachandra-bhate-vs-neela-vijay-kumar-bhate

Sri Kathi Narsinga Rao Vs Kodi Supriya and Anr on 29 Sep 2016

Posted on November 23, 2020 by ShadesOfKnife

Relying on Bipin Shantilal Panchal here, and properly identifying that certain judgments from Supreme Court have not considered Bipin Panchal, correctly held that, except for Stamp duty and Registration fee, all other objections to any document sought to be introduced during evidence stage have to be parked towards the end of trial and considered then while judgment stage.

From Para 15,

…

Coming to the expression in Shalimar Chemical Works Limited v. Surendra Oil and Dal Mills (Refineries), where it was no doubt observed that admissibility of document held to be decided at the stage of admission by marking, instead of leaving to be decided subsequently. The facts therein were Xerox copy of the trade mark registration certificate (which is in fact the suit document) without production of original even objected by opposite party from the trial Court permitted to mark subject to objection on proof and admissibility held wrong procedure. In fact it was observed that from same is the suit document and no foundation as to what happened to the original to receive as Xerox copy of the suit claim which is the trademark registration certificate, it was observed that lower appellate Court having received the document under Order 41 Rule 27 CPC without exhibit and without opportunity to the other side to rebut the evidence simply relied on it by discussing the same as if admitted in evidence that was found fault. Thereby the expression in Shalimar Chemicals supra confine to the facts for no law laid down of in any case secondary evidence cannot be permitted subject to objection. In fact the earlier expression of the Apex Court in Bipin Shantilal Panchal v. State Of Gujarat particularly Para 12 and Navjot Sandhu @ Afzalguru supra holding any objection (other than on stamp duty and registration) is while marking be kept open for decision finally including on secondary evidence admissibility. Above two expressions of the Apex Court not came for consideration in Shalimar Chemical Supra.

From Para 16,

16. In fact from the expression in Bipin Shantilal there was a direction as guidance to be followed by all Courts while marking documents including on secondary evidence as subject to objections by let open to decide ultimately on the objection while recording the evidence, unless it touches stamp duty and registration to decide instantly. In fact Shalimar Chemicals supra particularly at Para 10 internal Para 20, the expression of the Apex Court in RVE Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P Temple, referred and relied which speaks about objections as to admissibility of documents in evidence may be classified into 2 classes, one is objection that the document which is sought to be proved is inadmissible and the other towards the mode of proof. In the case of objection as to admissibility, it is only a procedural aspect, if not raised while marking, it is not open to raise later including on secondary evidence for as good as primary evidence. Whereas objection as to mode of proof even not raised while marking unless it is proved it cannot be considered in evidence for which there is no waiver, thereby even no objections raised on mode or method of proof there is no waiver to consider document proved or not from objection can be raised on proof at any time but for on the objection as to nature of document for its admissibility if not raised while marking that amounts to waiver.

Finally, from Para 18,

18. From these expressions, even once the certified copy to a certified copy is within the meaning of secondary evidence and any objection to exhibit secondary evidence though in Shalimar Chemicals Supra says to decide instantly for admissibility, from the earlier expressions categorically held directing all courts to follow particularly from Bipin Shanti Lal supra and in Afzal Guru supra that but for objections on stamp duty and registration to decide instantaneously any other objection raised while marking is to record as subject to objection to decide ultimately at the end of trial and not to decide instantaneously and thus against said conclusion arrived by the lower Court, there is nothing to sit in revision against the impugned orders of the lower Court.

Sri Kathi Narsinga Rao Vs Kodi Supriya and Anr on 29 Sep 2016

Citations : [2016 SCC ONLINE HYD 346]

Other Sources :

https://indiankanoon.org/doc/115678797/

https://www.casemine.com/judgement/in/58ae76214a9326593c4a168c

Binita Dass Vs Uttam Kumar on 9 Aug 2019

Posted on November 14, 2020 by ShadesOfKnife

Single-judge Bench said one thing in this Order which is as follows:

7. Qualification of the wife and the capacity to earn cannot be a ground to deny interim maintenance to a wife who is dependant and does not have any source of income.

The converse is read like this:

Wife who is not-dependant and have source of income, can be a ground to deny interim maintenance to a wife.

Binita Dass Vs Uttam Kumar on 9 Aug 2019

Citations :

Other Sources :

https://indiankanoon.org/doc/92763076/

https://www.casemine.com/judgement/in/5d8b2ff8714d58374079df99

B.G. Prakash Kumar Vs The Commissioner on 23 Feb 2015

Posted on October 31, 2020 by ShadesOfKnife

In regards to the explanation given to section 197 CrPC, Karnataka High Court categorically held as follows,

20. The submission that the sanction is necessary, as the appellants are not facing the charges under the Sections enumerated in the newly inserted Explanation to Section 197 does not commend itself to us. The Memorandum explaining the modifications contained in the Criminal Law Amendment 2013 itself states that the Explanation to Section 197 is proposed to be inserted so as to clarify that no sanction is required for prosecuting a public servant, if the offence relates to crimes against woman. Such a clarification cannot be stretched to mean that the sanction for prosecuting a public servant is a must, if the offence alleged does not relate to a crime against woman.

B.G. Prakash Kumar Vs The Commissioner on 23 Feb 2015

Citations :

Other Sources:

https://indiankanoon.org/doc/90130688/

Vinod Kumar Vs State of Punjab on 21 Jan 2015

Posted on October 9, 2020 by ShadesOfKnife

Justice Dipak Misra decried the practice of Trial/Session Court judges in giving adjournments on mere asking by the parties, in spite of the presence of the witnesses willing to be examined fully.

From Para 41,

41. Before parting with the case we are constrained to reiterate what we have said in the beginning. We have expressed our agony and anguish the manner in which trials in respect of serious offences relating to corruption are being conducted by the trial courts. Adjournments are sought on the drop of a hat by the counsel, even though the witness is present in court, contrary to all principles of holding a trial. That apart, after the examination-in-chief of a witness is over, adjournment is sought for cross-examination and the disquieting feature is that the trial courts grant time. The law requires special reasons to be recorded for grant of time but the same is not taken note of. As has been noticed earlier, in the instant case the cross-examination has taken place after a year and 8 months allowing ample time to pressurize the witness and to gain over him by adopting all kinds of tactics. There is no cavil over the proposition that there has to be a fair and proper trial but the duty of the court while conducting the trial to be guided by the mandate of the law, the conceptual fairness and above all bearing in mind its sacrosanct duty to arrive at the truth on the basis of the material brought on record. If an accused for his benefit takes the trial on the path of total mockery, it cannot be countenanced. The Court has a sacred duty to see that the trial is conducted as per law. If adjournments are granted in this manner it would tantamount to violation of rule of law and eventually turn such trials to a farce. It is legally impermissible and jurisprudentially abominable. The trial courts are expected in law to follow the command of the procedure relating to trial and not yield to the request of the counsel to grant adjournment for non-acceptable reasons. In fact, it is not all appreciable to call a witness for cross-examination after such a long span of time. It is imperative if the examination-in-chief is over, the cross-examination should be completed on the same day. If the examination of a witness continues till late hours the trial can be adjourned to the next day for cross-examination. It is inconceivable in law that the cross-examination should be deferred for such a long time. It is anathema to the concept of proper and fair trial. The duty of the court is to see that not only the interest of the accused as per law is protected but also the societal and collective interest is safe-guarded. It is distressing to note that despite series of judgments of this Court, the habit of granting adjournment, really an ailment, continues. How long shall we say, “Awake! Arise!”. There is a constant discomfort. Therefore, we think it appropriate that the copies of the judgment be sent to the learned Chief Justices of all the High Courts for circulating the same among the learned trial Judges with a command to follow the principles relating to trial in a requisite manner and not to defer the cross-examination of a witness at their pleasure or at the leisure of the defence counsel, for it eventually makes the trial an apology for trial and compels the whole society to suffer chicanery. Let it be remembered that law cannot allowed to be lonely; a destitute.

Vinod Kumar Vs State of Punjab on 21 Jan 2015

Citations: [2015 SCC 3 220], [2015 SCC ONLINE SC 53]

Other Sources:

https://indiankanoon.org/doc/188951670/

https://www.casemine.com/judgement/in/581180e72713e179479dda10

Arjun Dhondiba Kamble and Ors Vs The State of Maharashtra on 14 February 1992

Posted on July 20, 2020 by ShadesOfKnife

Bombay High Court held that, “Any demand for presents after the marriage, but not having a connection with the marriage of the parties will not constitute a demand for dowry”

From Para 6,

Dowry in the sense of that expression contemplated by Act 28 of 1961 is a demand for property or valuable security having an inextricable nexus with the marriage. In other words it is a consideration from the side of the bride’s parents or relatives to the groom or his parents and/or guardian for the agreement to wed the bride-to-be. Where the demand for property or valuable security has no connection with the consideration for the marriage, it will not amount to a demand for dowry. In the instant case, the evidence has to be properly understood and thus viewed it is clear that what the appellants wanted was valuable presents to be made to appellant Mahadeo on the occasion of festivals like Deepavali. Judicial notice can be taken of the fact that the presents are customarily given to sons-in-law on festive occasions and giving of such presents is in no way connected with the wedding or marriage. It is a post-marriage expectation and the expectation and performance thereof once restricted to the affluents and the middle class, has now spread its tentacles to the poor also. The expectation is because of the relationship, but without any nexus to the agreement to marry. Therefore, it does not amount to dowry. Any demand for presents after the marriage, but not having a connection with the marriage of the parties will not constitute a demand for dowry. This is clear from the qualifying clause of section 2 in Act 28 of 1961 reproduced above.

Arjun Dhondiba Kamble and Ors Vs The State of Maharashtra on 14 February 1992

Citations: [1993 (3) BomCR 473]

PIL – Dowry Givers should be prosecuted (Veerabhadra Rao Pamarathi and Anr Vs UOI and Ors)

Posted on June 15, 2020 by ShadesOfKnife

After losing out (didn’t lose the case but didn’t get opportunity to argue in-person) in an earlier attempt here, I decided to take Writ Petition route as I am one of the affected person of this biased implementation of a convoluted interpretation of section 7(3) of Dowry Prohibition Act 1961 (amended in 1986). Also, decided to decentralize my PIL prayers.

So picked up this prayer from earlier attempt and worked on writing the WP.

Issue a Writ, Order or Direction, more particularly one in the nature of Writ of Mandamus to Respondents, such that there is no ambiguity to them whether to prosecute the Dowry givers under section 3 of DP Act read with section 7 of DP Act and no discrimination is made between Dowry Giver and Dowry Taker, under Section 3(1) of DP Act, in similar fashion as that of made by Bangladesh.

Key Point

Shouldn’t all Dowry givers be booked and prosecuted as per section 3 of Dowry Prohibition Act 1961 (as amended from time to time) or not?

Arguments – Counter Arguments

Another simple point from the Bare Act itself.

Prayer

Prosecute Dowry Givers u/s 3(1) without protecting them u/s 7(3) = Article 14 and 21 compliance

Alternatively, strike down words ‘Gives’ and ‘abets to give’ from section 3(1) = ultra-vires to Article 14 and 21 compliance and contrary to legislative intent

Either-way, I win!

All the cited case laws are listed here.

Malreddy Ramachandra Reddy Vs C. Vanaja Reddy and Ors on 16 April 2003 (AP HC)
Ram Gopal Sah Vs State Of Jharkhand on 03 December 2008 (Jharkhand HC)
Pooja Saxena vs State and Anr on 20 October 2010 (Delhi HC)
Yashpal Kumar Vs Bhola Nath Khanna and Anr on 1 March 2012 (Delhi HC)
Kudarathullah Khan Vs The State of Andhra Pradesh on 21 March 2012 (AP HC)
Viral Dhulia Vs Virag Dhulia on 25 July 2013 (Kar HC)
Chitranjan Dev Goel and Ors Vs State (Nct of Delhi) and Ors on 21 March 2016 (Del HC)

ACTION STARTS:

WP (in the name of my parents, and not in my name) is filed on 14-09-2021. WP No. 20594 of 2021. Initial hearing before admission on 20-09-2021. Here is the affidavit.

Writ Petition seeking direction against misinterpretation of Sec 7(3) of DP Act 1961 3.5 ONLY AFFIDAVIT

Filed a memo with additional information on 17-09-2021:

MEMO for Extra Info

Order Passed on 18-09-02021

Notices issued to the Respondents. Government Advocates take notice and seek 4 weeks time to file Counters.

Veerabhadra Rao Pamarati and Anr Vs UOI and Ors on 20 Sep 2021

Next Date of Hearing : 16-12-2021

The case was transferred from Court-14 to Court-1, since there is a question of law involved.
It is almost 90 days from the date of issue of notices to Government advocates but I am still waiting for the Counters to be filed by them. I suspect, they will continue to seek additional time. Let’s see how this gamble goes on…
My Advocate took two weeks time.

Next Date of Hearing : 30-12-2021

Shades of Knife

True Colors of a Vile Wife

Tag: Sandeep Pamarati

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Arjun Dhondiba Kamble and Ors Vs The State of Maharashtra on 14 February 1992

PIL – Dowry Givers should be prosecuted (Veerabhadra Rao Pamarathi and Anr Vs UOI and Ors)