Legal Terrorism in India (498-A, Domestic Violence Act 2005)

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http://www.498a.org.in/rsrcs_ctnts.html

NBW cannot be issued for non payment of maintenance

2011-02-20T12:53:00.000-08:00

N THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 4843 of 2010()

1. SHANAVAS, S/O.ABDULSALAM,

… Petitioner

Vs

1. RASEENA, D/O.SHIHABUDEEN,

… Respondent

2. STATE OF KERALA,

For Petitioner :SRI.AYYAPPAN SANKAR For Respondent : No Appearance

The Hon’ble MR. Justice M.SASIDHARAN NAMBIAR Dated :10/12/2010

O R D E R

M.Sasidharan Nambiar, J.

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Crl.M.C.No.4843 of 2010

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ORDER

First respondent, through her mother, filed petition under Section 12 of Protection of Women from Domestic Violence Act before Judicial First Class Magistrate’s Court-II, Thiruvananthapuram, which was numbered as M.C.No.246/2010. First respondent also filed a petition for interim order under Section 23 of Protection of Women from Domestic Violence Act. By Annexure-II ex parte order dated 24.9.2010, respondents therein were restrained from committing any sort of domestic violence against the first respondent herein. Petitioner, the first respondent therein, was directed to appear before the court on 7.10.2010 and surrender his passport. He was also directed to pay Rs.1,500/- per month towards maintenance to the aggrieved person. Notice was ordered to the respondents therein, including the petitioner. Petitioner, along with the third respondent, challenged that order before Sessions Court, Thiruvananthapuram in Crl.A.No.758/2010. It is pending. They also sought an order staying Annexure-II order. By Annexure-IV order, learned Sessions Judge stayed only the direction to surrender the passport. Annexure-VI, copy of the proceedings paper in M.C.No. 246/2010, shows that case was posted to 19.10.2010 and on that day, learned Magistrate directed the petitioner to appear in person and pay maintenance. On that day, case was posted to 2.11.2010. On 2.11.2010, petitioner was absent. The case was then posted to 18.11.2010. On 18.11.2010 recording that petitioner was absent and there was no payment of interim maintenance ordered, non bailable warrant returnable on 9.12.2010 was issued. This petition is filed under Section 482 of Code of Criminal Procedure for a direction to the learned Magistrate to dispose the petition filed under Section 12 of Protection of Women from Domestic Violence Act expeditiously and to stay the order issuing non bailable warrant.

2. In the light of the order to be passed in this petition, it is not necessary to issue notice to the first respondent.

3. Section 23(1) of Protection of Women from Domestic Violence Act provides that in any proceeding before the Magistrate, he may pass such interim order as he deems just and proper. Sub-section (2) provides that if the Magistrate is satisfied that an application prima facie discloses that respondent is committing or has committed an act of domestic violence or that there is likelihood that respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under Sections 18, 19, 20, 21 or 22 against the respondent.

4. Section 31 of Protection of Women from Domestic Violence Act provides for penalty for breach of protection order. Under sub-section (1), a breach of protection order or of an interim protection order by the respondent shall be an offence and shall be punishable with imprisonment for a term which may extend to one year or fine or both. Section 32 provides that notwithstanding anything contained in the Code of Criminal Procedure, the offence under sub-section (1) of Section 31 shall be cognizable and non bailable.

5. As is clear from Section 31 of Protection of Women from Domestic Violence Act, when an order under Section 23, whether under sub-section (1) on hearing the respondent or under sub-section (2), an ex parte interim protection order, was passed and respondent commits breach of that order, respondent is punishable as provided under sub-section (1) of Section 31. That offence, as provided under Section 32 of Protection of Women from Domestic Violence Act is non bailable and cognizable. But the cognizable offence provided under Section 31(1) would only be the result of a breach of the protection order as provided under Section 18 of Protection of Women from Domestic Violence Act.

6. A Magistrate, on passing an order under Section 23(1) or an ex parte order under Section 23(2) of Protection of Women from Domestic Violence Act, cannot direct arrest of the respondent by issuing non bailable warrant before taking cognizance of the offence, if an offence is committed under sub-section (1) of Section

31. Annexure-VI proceeding paper shows that after passing Annexure-II ex parte order as provided under sub-section (2) of Section 23 of Protection of Women from Domestic Violence Act, the petition filed by the first respondent under Section 12 of Protection of Women from Domestic Violence Act was posted for the appearance of the respondents. When first respondent appeared through a counsel, he was directed to appear in person and pay the maintenance. It is on the failure to appear and pay maintenance as ordered, the non bailable warrant was issued. Learned Magistrate cannot order non bailable warrant for the failure to pay maintenance as has been done in this case. It is made clear that Magistrate can proceed against the petitioner or other respondents for non payment of the interim maintenance only as provided under Protection of Women from Domestic Violence Act and such an order cannot be enforced as has been done by the learned Magistrate. In such circumstances, the order issuing non bailable warrant can only be quashed. Petition is allowed. The order issuing non bailable warrant against the petitioner in M.C.No. 246/2010 is quashed. Judicial First Class Magistrate- II, Thiruvananthapuram is directed to dispose the petition filed under Section 12 of Protection of Women from Domestic Violence Act, on merits, expeditiously. It is also made clear that learned Magistrate is competent to execute Annexure-II order passed under Section 23(2) of Protection of Women from Domestic Violence Act, in accordance with the provisions of the Act.

10th December, 2010 (M.Sasidharan Nambiar, Judge) tkv

Legal terrorism in practice

2011-01-06T08:16:00.000-08:00

6.1 In Sushil Kumar Sharma Vs. Union of India (UOI) (Case No: Writ Petition (C) No. 141 of 2005), the Honorable Supreme Court has observed:

“The object of the provision is prevention of the dowry meance. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bonafide and have filed with obligue motive. In such cases acquittal of the accused does not in all cases wipe out the ignomy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work. As noted the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not assassins’ weapon. If cry of “wolf” is made too often as a prank assistance and protection may not be available when the actual “wolf” appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any strait jacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumption that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumption are drawn which again are reputable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that in innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally indisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view. “

6.2 In Som Mittal Vs Govt. of Karnataka (Appeal (crl.) 206 of 2008, DATE OF JUDGMENT: 29/01/2008), the Honorable Supreme Court has observed:

33. Experience has shown that the absence of the provision for anticipatory bail has been causing great injustice and hardship to the citizens of U.P. For instance, often false FIRs are filed e.g. under Section 498A IPC, Section 3/4 Dowry Prohibition Act etc. Often aged grandmothers, uncles, aunts, unmarried sisters etc. are implicated in such cases, even though they may have nothing to do with the offence. Sometimes unmarried girls have to go to jail, and this may affect their chances of marriage. As already observed by me above, this is in violation of the decision of this Court in Joginder Kumar s case (supra), and the difficulty can be overcome by restoring the provision for anticipatory bail.

6.3       Onkar Nath Mishra & Ors vs State (Nct Of Delhi) & Anr on 14 December, 2007, Honorable Supreme Court observed as:

The Honorable Judge has observed that:

“Section 498A I.P.C. was introduced with the avowed object to combat the menace of dowry deaths and harassment to a woman at the hands of her husband or his relatives. Nevertheless, the provision should not be used as a device to achieve oblique motives. Having carefully glanced through the complaint, the F.I.R. and the charge-sheet, we find that charge under Section 498A I.P.C. is not brought home insofar as appellant Nos. 1 and 2 are concerned.”

6.4      In Kans Raj vs. State of Punjab and others AIR 2000 SC 2324 the Hon’ble Supreme Court, inter alia, observed as under:-:

The Honorable Judge has observed that:

“Crl.A.No.339-41/2005 Page 21 of 27 “In cases where such accusations are made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in thematters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the    real accused as appears to have happened in the instant case.””

6.5      IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.A.No.339-41/2005 % Reserved on: 23rd February, 2010 Date of Decision: 02nd March, 2010

The Honorable Judge has observed that:

“23. There is growing tendency these days to take revenge from the husband, by implicating all his family members, by making allegations of general nature against all of them, though the husband alone may be responsible for the cruelty inflicted to the woman. The Courts, therefore, need to carefullyanalyze the evidence and need to separate the chaff from the grain, so as to arrive at a just and fair conclusion.”

6.6 IN THE HIGH COURT OF DELHI AT New Delhi, Reserved on: 12.02.2007      Date of Decision: February 23, 2007, CRL.M.C.7262/2006 by JUSTICE SHIV             NARAYAN DHINGRA

“Now-a-days, exorbitant claims are made about the amount spent on marriage and other ceremonies and on dowry and gifts. In some cases claim is made of spending crores of rupees on dowry without disclosing the source of income and how funds flowed. I consider time has come that courts should insist upon disclosing source of such funds and verification of income from tax returns and police should insist upon the compliance of the Rules under Dowry Prohibition Act and should not entertain any complaint, if the rules have not been complied with.

The Metropolitan Magistrates should take cognizance of the offence under the Act in respect of the offence of giving dowry whenever allegations are made that dowry was given as a consideration of marriage, after demand. Courts should also insist upon compliance with the rules framed under the Act and if rules are not complied with, an adverse inference should be drawn. If huge cash amounts are alleged to be given at the time of marriage which are not accounted anywhere, such cash transactions should be brought to the notice of the Income Tax Department by the Court so that source of income is verified and the person is brought to law. It is only because the Courts are not insisting upon compliance with the relevant provisions of law while entertaining such complaints and action is taken merely on the statement of the complainant, without any verification that a large number of false complaints are pouring in.

I consider that the kinds of vague allegations as made in the complaint by the petitioner against every member of the family of husband cannot be accepted by any court at their face value and the allegations have to be scrutinized carefully by the Court before framing charge.”

6.7 IN THE HIGH COURT OF DELHI AT NEW DELHI, CRL. R 462/2002 DATE OF DECISION: May 19, 2003, Savitri Devi ………….Petitioner. Through Mr. H C Mittal,Adv.
Versus Ramesh Chand and Ors. …………Respondents Through Mr. R P Bhardwaj, Adv.
HON’BLE MR. JUSTICE J.D. KAPOOR

21.Before parting, I feel constrained to comment upon the misuse of the provisions of Section 498A/406 IPC to such an extent that it is hitting at the foundation of marriage itself and has proved to be not so good for the health of the society at large.

To leave such a ticklish and complex aspect of proposition as to what constitutes `marital cruelty’ and `harassment’ to invoke the offences punishable under sections 498A/406 IPC to a lower functionaries of police like Sub Inspectors or Inspectors whereas some times even courts find it difficult to come to the safer conclusion is to give the tools in the hands of bad and unskilled masters.

22. This Court has dealt with thousands of cases and matters relating to dowry deaths and cases registered under Section 498A./406/306 IPC arising out of domestic violence, harassment of women on account of inadequate dowry or coercion of the woman for not fulfilling the demand of dowry and hundred of divorce cases arising therefrom. Experience is not so happy nor is implementation or enforcement of these laws is anything but satisfactory or punctilious.

23.These provisions were though made with good intentions but the implementation has left a very bad taste and the move has been counter productive. There is a growing tendency amongst the women which is further perpetuated by their parents and relatives to rope in each and every relative- including minors and even school going kids nearer or distant relatives and in some cases against every person of the family of the husband whether living away or in other town or abroad and married, unmarried sistes, sister-in-laws, unmarried brothers, married uncles and in some cases grand-parents or as many as 10 to 15 or even more relatives of the husband. Once a complaint is lodged under Sections 498A/406 IPC whether there are vague, unspecific or exaggerated allegations or there is no evidence of any physical or mental harm or injury inflicted upon woman that is likely to cause grave injury or danger to life, limb or health, it comes as an easy tool in the hands of Police and agencies like Crime Against Women Cell to hound them with the threat of arrest making them run here and there and force them to hide at their friends or relatives houses till they get anticipatory bail as the offence has been made cognizable and non-bailable. Thousands of such complaints and cases are pending and are being lodged day in and day out.

24.These provisions have resulted into large number of divorce cases as when one member of the family is arrested and sent to jail without any immediate reprieve of bail, the chances of salvaging or surviving the marriage recede into background and marriage for all practical purposes becomes dead. The aftermath of this is burdensome, insupportable and miserable more for the woman. Remarriage is not so easy. Once bitten is twice scared. Woman lacking in economic independence starts feeling as burden over their parents and brothers. Result is that major bulk of the marriages die in their infancy, several others in few years. The marriage ends as soon as a complaint is lodged and the cognizance is taken by the police.

25.It was primarily a social problem and social evil but has been allowed to be dealt with iron and heavy hands of the police. These provisions have tendency to destroy whole social fabric as power to arrest anybody by extending or determining the definition of harassment or cruelty vests with the lower police functionaries and not with officers of higher rank who have intellectual capacity to deal with the subject.

29.To start with, marital offences under Sections 498A/406 IPC be made bailable , if no grave physical injury is inflicted and necessarily compoundable. If the parties decide to either settle their disputes amicably to salvage the marriage or decide to put an end to their marriage by mutual divorce, they should be allowed to compound the offences so that criminal proceedings don’t chase them if they want to start their marital life afresh or otherwise. The past should not haunt them nor the hatchet they have buried should be allowed to be dug up and mar their present life or future married life.

30.Lastly in view of sensitivity of such offences and in order to avoid clumsiness in human relations and viewing this problem from human and social point of view, and the law as it stands today it is required that the investigation into these offences be vested in civil authorities like Executive Magistrates and after his finding as to the commission of the offence, cognizance should be taken. Till such a mechanism is evolved, no police officer below the rank of ACP for the offences under sect on 498A/406 IPC and D.C.P for the offence under Section 304-B IPC i.e dowry death should be vested with investigation and where minor school going children are named, they shall not be arrested and be sent to the court for taking cognizance and futher proceedings. Their arrest ruin their future life and lower them in their self esteem. This court has even dealt with the bail applications and prosecution of children merely for the fact that their names also figured in the complaint lodged by the wife. In certain cases even grand-parents of the husband who are in their eighties and nineties suffer this traumatic situation.

31.There is growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband and if one of them happens to be of higher status or of vulnerable standing, he or she becomes an easy prey for better bargaining and blackmailing.

32. These ground realities have pursuaded this court to recommend to the authorities and law makers to have a review of the situation and legal provision.

Copy of the order be sent to Law Secretary, Union of India.

6.8 2002 (4) ALT 592 (D.B), In the High Court of judicature, Andhra Pradesh at hyderabad

B. S. A Swamy and Dr. G. Yethirajulu, JJ, A. A. O. No. 1039 of 2001-Decided on 9-7-2002

Saritha Vs R.Ramachandra reported in (I) (2003) DMC 37 ( DB )

“The court would like to go on record that for nothing the educated women are approaching the courts for divorce and resorting to proceedings against in-laws under section 498a , IPC implicating not only the husbands but also their family members whether in India or Abroad. This is nothing but misuse e of the beneficial provision intended to save the women from unscrupulous husbands. It has taken a reverse trend now. In some cases this kind of actions is coming as a formidable hurdle in the reconciliation efforts made by either well meaning people or the courts. and the sanctity attached to the marriage in Hindu Religion and the statutory mandate that the courts try to save the marriage through conciliatory efforts till last , are being buried neck-deep . It is for the law commission and the parliament either to continue that provision ( section 498a IPC ) in the same form or to make that offense non cognizable and bailable so that ill-educated women of this country do not misuse the provision to harass innocent people for the sin of contracting marriage with egoistic women “

6.9 In 1990 Punjab and Haryana High court observed in Jasbir Kaur vs. State of Haryana, (1990)2 Rec Cri R 243 case as:

“It is known that an estranged wife will go to any extent to rope in as many relatives of the husband as possible in a desperate effort to salvage whatever remains of an estranged marriage.”

6.10 In Kanaraj vs. State of Punjab, 2000 CriLJ 2993 the apex court observed as:

“for the fault of the husband the in-laws or other relatives cannot in all cases be held to be involved. The acts attributed to such persons have to be proved beyond reasonable doubt and they cannot be held responsible by mere conjectures and implications. The tendency to rope in relatives of the husband as accused has to be curbed”

6.11 Karnataka High Court, in the case of State Vs. Srikanth, 2002 CriLJ 3605 observed as:

“Roping in of the whole of the family including brothers and sisters-in-law has to be depreciated unless there is a specific material against these persons, it is down right on the part of the police to include the whole of the family as accused”

6.12 Supreme Court, In Mohd. Hoshan vs. State of A.P. 2002 CriLJ 4124 case, observed as:

“Whether one spouse has been guilt of cruelty to the other is essentially a question of fact. The impact of complaints, accusation or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of the sensitivity, degree of courage and endurance to withstand such cruelty. Each case has to be decided on its own facts whether mental cruelty is made out”

6.13       Delhi high Court, in Savitri Devi vs. Ramesh Chand, 2003 CriLJ 2759 case observed as:

“These provisions were though made with good intentions but the implementation has left a very bad taste and the move has been counter productive. There is a growing tendency amongst the women which is further perpetuated by their parents and relatives to rope in each and every relative including minors and even school going kids nearer or distant relatives and in some cases against every person of the family of the husband whether living away or in other town or abroad and married, unmarried sisters, sisters-in-law, unmarried brothers, married uncles and in some cases grand parents or as many as 10 o 15 or even more relatives of the husband.”

6.14       Punjab and Haryana High Court, in Bhupinder Kaur and others vs. State of Punjab and others, 2003 CriLJ 3394 case observed as:

“From the reading of the FIR, it is evident that there is no specific allegation of any act against petitioners Nos.2 and 3, which constitute offence under s.498-A I.P.C. I am satisfied that these two persons have been falsely implicated in the present case, who were minors at the time of marriage and even at the time of lodging the present FIR. Neither of these two persons was alleged to have been entrusted with any dowry article nor they alleged to have ever demanded any dowry article. No specific allegation of demand of dowry, harassment and beating given to the complainant by the two accused has been made. The allegations made are vague and general. Moreover, it cannot be ignored that every member of the family of the husband has been implicated in the case. The initiation of criminal proceedings against them in the present case is clearly an abuse of the process of law”

6.15       Jharkhand High Court in Arjun Ram Vs. State of Jharkhand and another, 2004 CriLJ 2989 case observed as:

“In the instant case, it appears that that the criminal case has been filed, which is manifestly intended with mala fide and ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

6.16       Punjab and Haryana High Court in Mukesh Rani Vs. State of Haryana 2002 (1) RCR (Criminal) 163 observed as:

The learned Single Judge of Punjab and Haryana High Court has observed that:

“Whenever there is a matrimonial dispute between the husband and wife for the fault of husband other relations of the husband that is the brothers, sisters, parents are also roped in the litigation on the allegation of demand of dowry, whether they are living jointly or separate and sometimes even the parents who are aged 80 to 90 years and are unable to walk or talk and the sisters living at far off places in the matrimonial house are involved.”

6.17       Delhi High Court in Anu Gill Vs. State & Anr. 2001 (2) JCC (Delhi) 86 observed as:

The Honorable Judge of Punjab and Haryana High Court has observed that:

“ 8. It has almost become a practice that whenever a police report is lodged consequent upon a matrimonial discord, there is always a tendency on the part of the complainant to involve practically all the relations of her in-laws’ family either out of vengeance or to curl out appropriate settlement. Such a tendency ought to be deprecated.”

6.18       Ramesh & Ors. Vs. State of Tamil Nadu AIR 2005 SC 1989 observed as:

The Honorable Judge has observed that:

“The bald allegations made against her sister-in-law seem to suggest the anxiety of the informant to rope in as many of the husband’s relations as possible.”

6.19       Delhi High Court CHANDER KANTA LAMBA & ORS. observed as:

The Honorable Judge has observed that:

“18. In the light of the aforesaid proposition if one examines the authorities cited by the learned Senior Counsel one cannot but agree that the proposition of law which is enunciated in all these cases is that invariably whenever matrimonial relations have turned sour there is a tendency on the part of the complainant whether it is done by her of her own free will or at the instigation of her parents, brothers, sisters or even legal advice to make all kinds of wild and reckless allegations against the entire family of the husband.”

6.20       THE ADDITIONAL SESSIONS JUDGE-01/SOUTH,PATIALA HOUSE COURT in Criminal Revision No. 88/2008/2002, observed as:

The Honorable Judge has observed that:

“ It is settled legal position that vague and bald statement7 cannot be the foundation for framing of charge. Since a tendency has emerged to rope in other family members of the husband in cases of 498-A, concrete allegations with regard to the date, the place, the manner, the act of cruelty should be present in the evidence in order to frame a charge for offence under Section 498-A. Because of the present propensity to rope in innocent persons, the Trial Court has to be vigilant while framing charge for offence under Section 498-A.“

6.21       THE Panjab and harayana High Court in Krishan Jeet Singh vs State Of Haryana on 3/10/2002, observed as:

The Honorable Judge has observed that:

“18. It is germane to mention here that the petitioner had stayed at her matrimonial home only on four occasions during her marital life. These are from the date of marriage that is February 18, 1991 till February 21, 1991, from February 22, 1991 to February 25, 1991, from March 12, 1991 to March 14, 1991 and thereafter from June 15, 1991 to June 20, 1991. The total period of the stay of the petitioner at her matrimonial home as per her own version was 13 days in all. It is the case of the petitioner that during her short stay at her matrimonial home, she was given beating, abuses, and harassment on the point of inadequate dowry given to her by her parents and further demand of dowry was made. It is an admitted fact that the parties belong to Hissar. As can be gleaed from the evidence led by the parties, the parties arc affluent and belong to families of high strata of society. The father of the petitioner is Deputy Director in Ch. Charan Singh Haryana Agriculture University, Hissar. The real uncle of the petitioner, Sh. Jawant Singh, was a Minister in the State Government. The petitioner herself is educated. The respondent is also running a restaurant in Hissar besides having agricultural land. With this background, this Court is of opinion that in such a short span of 13 days, demand of dowry, as has been alleged by the petitioner, could not have been made by the respondent or his family members. At the risk of repetition, it is being mentioned that had it been so, the figure that is Rs. one lac or two lacs or Rs. 11,000/- must have been referred to in the petition by the petitioner which she did not for the reasons best known to her. This Court is conscious of a fact that in these days when the number of divorce petitions are increasing in our society, this is one of the easiest allegations to level against the husband by the wife. It is easy to level it but it is very difficult to prove the same. It also appears obnoxious that a bride, as the petitioner was, when left her parental home for her permanent home that is her husband’s home after the marriage on February 18, 1991 and stayed there upto February 21, 1991 and during 2-3 days, she was given beating and abuses by the respondent and his family members because it is in the rarest of rate cases that such bad treatment would be given to the bride by the bridegroom or his family members, particularly having considered the background of the families, as has been indicated above.”

6.22       THE Orrissa High Court in Benumadhab Padhi Mohapatra vs State on 28/8/2003, observed as:

The Honorable Judge has observed that:

“But then, while dealing with the prosecution relating to such offences the Court cannot close their eyes to the fact that the provisions are also misused by unscrupulous litigants to satisfy their personal vendetta. Often being enraged, innocent relatives are roped in just for the sake of harassment and taking revenge. In view of the aforesaid scenario the Court has to be careful while dealing with cases involving dowry torture.”

6.23      THE HON’BLE SRI JUSTICE P. SWAROOP REDDY Criminal Petition No. 6642 of 2007, 22-11-2007, Kamireddy Mangamma and others, State of AP represented by the Public Prosecutor, Counsel for the Petitioner: Sri D. Bhaskar Reddy, Advocate
Counsel for Respondent No.1: The Public Prosecutor, observed as:

The Honorable Judge has observed that:

4. Thus most of the allegations in the complaint are vague and petitioner Nos. 2 to 5 are married sisters and their husbands, who are admittedly living elsewhere and out of them, A-5 is living in
USA. It is very difficult to believe that from USA A-5 every day used to telephone and instigate the other accused to harass the complainant. As per the complaint, A-5 has grudge against the
complaint, but it is not stated as to why A-5 should have grudge against the complainant.

6. The nature of allegations referred to in the complaint, particularly against the present petitioners, particularly against petitioner Nos. 2 to 5, the married daughters and their husbands, would show that in all probability, the allegations are false and exaggerated. It is very difficult to believe that the third
petitioner used to harass the complainant, all the way from USA by instigating the other accused, particularly when no reasons are shown for him to have any grievance against the complainant. The
reference to A-5 in the complaint, might be A-3 and, in fact, even that also would not make any difference.

8. Before parting with the petition, I feel it desirable to observe that there is rampant misuse of S.498-A IPC. False complaints are given against kith-and-kin of the husband, including the married sisters and their husbands; unmarried sisters and brothers and married brothers and their wives. There are instances where even young children, aged below ten years, were also implicated in the offences of this nature. My experience, while sitting in matrimonial Bench revealed that several families are ruined; marriages have been irretrievably broken down and chances of reconciliation of spouses have been spoiled on account of unnecessary complaints and the consequent arrest and remand of the husbands and their kith-and-kin. To discourage this unhealthy practice, it is desirable that anticipatory bail is granted very liberally in all cases of S.498-A IPC, particularly when the petitioner/accused is not the husband of the complainant and when the allegations are not very specific and prima facie do not inspire confidence.

9. Section 498-A IPC is incorporated by the Legislature basically in the interest of women and to safe guard them from harassment. But, it has become somewhat counter productive. In several cases, women are harassed, arrested and humiliated on the complaints given under section 498-A IPC. The truth or otherwise of the allegations is subject to proof. For giving complaint absolutely no authentic and prima facie material like medical evidence is required, but on such complaints, in several cases, number of women are being arrested. In cases of arrest of married young women, they might face problems from their husbands and in-laws; in case unmarried women are arrested their marriage prospects would be badly affected and if government servants are arrested their service prospects are affected. In the present case, only one woman is the alleged victim; but at least four women might have to go to jail even before trial, effecting their reputation, subjecting them to rude treatment at Police Station etc.
10. Only in cases where, strong and authentic evidence like letters written by the accused-husband to the spouses or their parents etc., are available and where there is sufferance of serious injuries or death of the victim only, perhaps, it is desirable to refuse anticipatory bail, that, too, for the accused-husband. Another important aspect is in this type of cases; there is no chance of witnesses turning hostile or being influenced by the accused, as the witnesses would invariably be the kith-and-kin of
the alleged victim like herself and her parents etc. These aspects have to be kept in view, while dealing with the cases of anticipatory bail/bail in cases of offences involving section 498-A IPC.

6.24       THE Allahabad High Court in Case :- CRIMINAL MISC. WRIT PETITION No. – 3322 of 2010, Petitioner :- Sanjeev Kumar & Others, Respondent :- State Of U.P. & Others, Petitioner Counsel :- P.N. Gangwar, Respondent Counsel :- Govt. Advocate, observed as:

The Honorable Judge has observed that:

Hon’ble Amar Saran,J.
Hon’ble Shyam Shankar Tiwari,J.

The other reason why this Court often interferes in such cases, is that when the atmosphere, between the wife and her natal family and the husband and his family has become sour, there is a tendency to rope in as many of the relations of the husband as possible, even though they may not be directly involved in the crime. This negative tendency was adversely commented upon by the Supreme Court in Kansraj v. State of Punjab, AIR 2000 SC 2324. Such en masse involvement of a large number of family members takes place because in the aftermath of the incident, tempers are extremely high, the parties do not have a cool mind, and the aggrieved party at that stage only wants to seek recompense, by sending the other party to jail. It is only with the passage of some time usually with the help of mediators, that wisdom may dawn and the complaining party may consider the advisability of exploring other options such as either to resolve their differences and to come together, or to mutually agree to part on acceptable terms.

Manish Gai vs State Of Bihar on 23/11/2006

2010-01-17T11:56:00.001-08:00

Equivalent citations: 2007 CriLJ 1358
Bench: N P Singh
Manish Gai vs State Of Bihar on 23/11/2006

ORDER

Navaniti Pd. Singh, J.

1. Heard learned Counsel for the petitioner and learned A.P.P.

2. By these applications orders dated 29-5-2006 passed by Sub-Divisional
Judicial Magistrate, Patna, in Case No. 11(M) of 2006 and Case No. 46(M) of
2006, refusing the privilege under Section 205, Cr. P.C., has been challenged.

3. The petitioner is the Managing Director of M/s. Ajay Feed Products, Katni,
Private Limited Company incorporated under the provisions of Companies Act,
1986, He resides at Katnl in the State of Madhya Pradesh from where he conducts
the business on behalf of the company. Certain food items were found allegedly
adulterated for which a prosecution was instituted for violation of the
provisions of Prevention of Food Adulteration Act. The petitioner on coming to
know of the proceedings filed an application before the trial Court for
exemption from appearing in person in terms of Section 205, Cr. P.C. The ground
for filing such an application was that the petitioner is a busy businessman
residing at Katnl in the State of Madhya Pradesh and it will cause him undue
harassment to physically appear on each and every date in the trial Court, He
undertook to appear as and when Court would order for his personal appearance,
which was necessary for the trial Court, still the same was rejected by the
impugned order on four grounds, i) warrant of arrest had already been issued
against the petitioner; (ii) petitioner was not a Pardanashin lady; (iii)
petitioner was not a busy person engaged in law and order and (iv) petitioner
could as and when avail of Section 317, Cr, P.C.

4. I am afraid none of the grounds, as given above, is lawfully justifiable
ground to refuse the prayer as contemplated under Section 205, Cr. P.C.

5. To say the least it appears that the learned SDJM has failed to exercise
its jurisdiction which was vested in him under Section 205, Cr. P.C. This Court
in the case of Ram Harsh Das v. State of Bihar since reported in 1998 (1) PLJR
502 has held that application of Section 205, Cr. P.C. does not end by issuance
of warrant of arrest if at the first instance summons were issued. To my mind
law has not changed since then. If summons are issued at the first instance and
subsequently warrant of arrest is issued even in such a situation the benefit of
Section 205, Cr. P.C. is available. The Magistrate was clearly wrong in his
notion of law.

6. The second and third grounds are equally misconceived as no such
alternative is found in Section 205, Cr. P.C. Law nowhere states that benefit of
Section 205, Cr. P.C. can only be given to Pardanashin lady or people engaged in
law and order. I failed to understand from where the Magistrate has borrowed
these grounds which the legislature did not provide. Coming to the last ground
that Section 317, Cr. P.C. would be available as and when necessary is equally
misconceived. The provisions of Section 205, Cr. P.C and Section 317, Cr. P.C.
are two different provisions. They have been engrafted by the legislature
knowing full well the existence of each other provision. If what the Magistrate
say is correct then Section 205, Cr. P.C. would be rendered otiose.

7. Section 205, Cr. P.C. gave a discretion to the Court to exempt a person
from personal appearance till such time his personal appearance was necessary
for the trial whereas Section 317, Cr. P.C. is a provision, where, on any
particular day where accused is required to be present in person. He is unable
to come or appear, he may seek leave and be absent and for this he is to move to
the Court under Section 317, Cr. P.C. In operation both the sections are
different and distinct.

8. The legislature contemplated speedy trial and as such in past rarely
occasion had arisen for people to seek exemption from personal appearance.
Now-a-days criminal trial are notoriously slow. It takes five (years) or decade
for a trial to conclude, if Courts were to insist that on each and every date
i.e. virtually every fifteen days an accused must appear from Katni in the State
of Madhya Pradesh to Patna and attend his Court and that too for no purpose,
except filing attendance it would only be travesty of Justice. To my mind, to
undertake journey from Katni to Patna so frequently would be greater punishment
than what he could have punished in the case. Power to refuse permission Under
Section 205, Cr. P.C. should not be used as a substitute for ultimate punishment
which could be awarded. Personal appearance in course of trial is for a purpose
and not only for "fun of it". If no purpose is to be served by personal
appearance day after day then it should be dispensed with. The Magistrate still
retains power to order for personal appearance whenever necessary.

9. It has now been settled by series of decisions of this Court and the Apex
Court that where specially a person residing out of the place where the trial is
being conducted, by virtue of his business or otherwise is busy cannot
continuously appear every fifteen days or every month he should be exempted from
appearance before the trial Court till such time his personal appearance is
necessary. I may clarify that there is no impediment for the trial Court to
continue in absence of an accused person because if he has been exempted on his
own application under Section 205, Cr. P.C. then evidence recorded in presence
of his lawyer but in his absence cannot be challenged as wrongly recorded. That
evidence would bind the accused notwithstanding it having been recorded in his
absence (see Shantanu Das v. State 2000 (3) PLJR 134).

10. In my view what the Courts have to see is whether absence of the
petitioner would delay the trial in any manner or prejudice the trial in any
manner and not otherwise.

11. I may also refer to recent judgment of this Court in the case of Jayant
Dang v. State 2004 (4) PLJR 25 (HC), and Ajay Kumar Sharma v. State 2005 (2)
PLJR 505 and also the recent judgment of the Supreme Court in the case of S. V.
Muzumdar v. Gujarat State Fertilizer Co. since , wherein para 13 the Apex Court
in

the said decision has held thus:

It has to be borne in mind that while dealing with an application in terms
of Section 205 of the Code, the Court has to consider whether any useful purpose
would be served by requiring the personal attendance of the accused or whether
the progress of the trial Court Is likely to be hampered on account of his
absence. We make it clear that if at any stage the trial Court comes to the
conclusion that the accused persons are trying to delay completion of trial it
shall be free to refuse the prayer for dispensing with personal attendance.

12. In that view of the matter the impugned order is set aside and the trial
court is directed to pass order in terms of Section 205, Cr. P.C. and the
observations made above in this order.

13. In the result, this application is allowed.

14. Let Registrar General of this Court circulate a copy of this order to the
Registrar of the Civil Courts in the State for guidelines of judicial officers
in future so that this question is accordingly dealt by Courts without this
Court wasting its time again and again.

Jayant Dang And Anr. vs The State Of Bihar And Anr. on 26/7/2004

2010-01-17T11:54:00.001-08:00

Equivalent citations: 2005 (1) BLJR 147

Bench: N Sinha

Jayant Dang And Anr. vs The State Of Bihar And Anr. on 26/7/2004

JUDGMENT

Navin Sinha, J.

1. This order shall dispose of Cr. Misc. No. 29832/2000 preferred by one
Jayant Dang and Cr. Misc. No. 34712/2000 preferred by one Prabhat Ranjan.
Cognizance having been taken against both the petitioners in Complaint Case No.
1558(C) of 1998, both the petitioners preferred application under Section 205,
Cr PC for dispensing with their personal appearance. By an order dated 22.8.2000
passed by the Judicial Magistrate, Patna the prayer for grant of relief under
Section 205, Cr PC has been declined. Thus the petitioners who are impleaded as
accused No. 2 and accused No. 6 respectively in the complaint petition have
approached this Court.

2. The allegations as made out in Complaint Case No. 1558(C) of 1998 for the
purposes of the present application may be stated succinctly. Suffice it to say
that the opposite party as complainant instituted the present complaint based
upon what was originally a commercial interaction by him with regard to taking
of a loan from M/s Escorts Finance Limited, a company registered under the
Indian Companies Act, situated at New Delhi. Both the present petitioners here
are the officers of the said company. The petitioner in the first case is said
to be the Managing Director and the petitioner in the second case is said to be
one of the officers of the company. The complainant alleged that he had applied
for a loan/finance to the company, M/s Escorts Finance Ltd. through its
franchisee A.P. Fin. Leasing (India) Limited situate at Maurya Complex, Patria
for purchase of a car. The latter was the authorised franchisee of the aforesaid
company impleaded as accused No. 1 in the complaint. The opposite party No. 2 in
pursuance of having applied for such loan gave certain post-dated cheques. The
opposite party No. 2 never received the loan amount and requested return of the
postdated cheques alongwith other papers signed by him for grant of loan. The
opposite party No. 2 then obtained a loan from other sources and purchased a
car. The car was allegedly seized by the musclemen at the behest of the
petitioners and others and released only after the opposite party No. 2 was
forced to sign certain cheques. The payments of these cheques was then stopped
by the opposite party. The complainant thus alleged that he was wrongly being
harassed for the loan that he had never taken and money had been realized from
him illegally by fabrication of documents of loan etc. On the basis of
allegations cognizance was taken under Sections 348, 384, 409, 420, 467 and
120-B, IPC.

3. The lower Court records had been summoned earlier by an order dated
3.7.2003 of this Court. The parties thus made their submissions on the basis of
the lower Court record in which the narration of dates and events hereinafter
was not disputed by the Counsel appearing for the parties. Summons were issued
on 2.9.99 to both the petitioners. No service report with regard to the summons
was available on record till 14.12.1999. On 6.1.2000 accused No. 6, the
petitioner in Cr. Misc. No. 34712/2000 entered appearance and filed an
application under Section 205, Cr PC. No service report with regard to summons
sent to the petitioners were still available. At this stage the Court below
proceeded to issue bailable warrant of arrest against the accused No. 2, the
petitioner in Cr. Misc. No. 29832/2000. Having been made aware of the bailable
warrant issued against him the said petitioner entered appearance on 7.3.2000
and filed an application for dispensing with his personal appearance under
Section 205, Cr PC.

4. Learned Senior Counsel Shri B.P. Pandey, appearing on behalf of both the
petitioners submitted that the petitioners were employees of a Finance Company
situate at New Delhi. The allegations against them in the complaint were omnibus
in nature and there were no individualistic allegations against them in respect
of which cognizance had been taken. It was submitted that the complaint merely
recited that the petitioners were directly responsible and have participated in
the commission of the offence. Notwithstanding the allegations, it was submitted
that the parameters for grant of relief under Section 205, Cr PC more or less
stand defined both by this Court and the Apex Court. Notwithstanding the
enunciation of law and considering the averments in the complaint, there was no
justification to decline grant of relief to the petitioners. The impugned order
rejecting the same also does not reflect any application of mind to the
principles under which the application was required to be considered. Summing up
it was pleaded that in so far as accused No. 6, was concerned he had entered
appearance at the stage of summons. In so far as accused No. 2 was concerned
there being no service report with regard to the summons issued to him, issuance
of bailable warrant was contrary to law and therefore the said accused was
entitled to the benefits of his application under Section 205, Cr PC preferred
by him on 7.3.2000.

5. Learned Counsel appearing on behalf of the opposite party contended that
since accused No. 6 had entered appearance on 6.1.2000, both the accused were at
New Delhi, therefore accused No. 2 cannot contend that he was not aware of the
proceedings. Referring to Section 63 of the Criminal Procedure Code, learned
Counsel submitted that the moment summons were served upon the local office of
the Company both the petitioners would be deemed to have knowledge of the case,
and cannot be allowed to contend to the contrary. There was thus proper service
of summons. It was thus submitted that bailable warrant having been issued
against the accused No. 2 the privilege of Section 205, Cr PC was not available
to him any more, learned Counsel concluded his submissions by stating that the
allegations were serious in nature and that the petitioners did not deserve
privilege of Section 205, Cr PC.

6. Having considered the rival submissions of the Counsel for the parties
this Court holds that it is not in dispute from the records that accused No. 6
in fact entered appearance at the stage of summons. In so far as accused No. 2
is concerned, there was no service report with regard to summons when warrants
came to be issued against him on 11.1.2000. Chapter VI of the Code of Criminal
Procedure details the procedure of issuance of and service of summons. The stage
of warrant as contained in Part B of Chapter VI arises only thereafter. In the
absence of any order recording the satisfaction of the Court below with regard
to the service of summons according to law, the bailable warrants issued against
the petitioner (accused No. 2) cannot be sustained. In the circumstances, this
Court holds that the issuance of warrant against accused No. 2 was not justified
at this stage. Reliance may be had upon the judgment of this Court reported in
2000(3) PLJR

251. Warrants thus having been issued contrary to law the proceedings would
be deemed to be at the stage of summons and the accused No. 2 having entered
appearance at this stage cannot thus be denied the benefit of consideration for
grant of relief under Section 205, Cr PC. This Court therefore holds that the
proceedings in so far as accused No. 2 be concerned, rests at the stage of
summons.

7. The primary consideration for grant of relief under Section 205, Cr PC,
keeping in mind interest of opposite party No. 2, would be whether his interest
would be prejudiced in any manner if the relief prayed for was granted. Learned
Counsel for the opposite party No. 2 in reply to the query of the Court
submitted that he had been subjected to unnecessary harassment by the
petitioners and others and therefore they did not deserve benefits of Section
205, Cr PC.

8. This Court in the facts and circumstances of the case considers it apt to
agree with the judgment relied upon by the Counsel for the petitioners reported
in 1998(1) PLJR 503. A Division Bench of this Court while dealing with the issue
of grant of relief under Section 205, Cr PC held that even in cases where
warrants have been issued in the first instance the Court may dispense with the
personal appearance in exercise of powers under Section 482 of the Code, if a
proper case is made out for the ends of justice. The Division Bench further went
on to hold that the exercise of power under Section 205, is discretionary and to
be considered in a reasonable manner. No hard and last rule could be laid down.
The Court should be liberal in granting exemption in personal appearance except
where serious issues or allegations of moral turpitude are involved. The nature
of the allegation, conduct of the accused, inconvenience likely to be caused to
the accused due to his appearance on every day in the Court the comparative
advantage to the prosecution, are all relevant considerations for deciding the
question of dispensing with the personal appearance. Though no categorization of
cases for grant of relief under Section 205, Cr PC could be made but generally
"....busy business people... should be given the benefit of the said provision
unless they are facing prosecution under serious offences like murder, rape,
misappropriation of money, harassment to women etc." The fact that the
petitioners are business people and reside at Delhi, while the trial is to be
conducted at Patna are issues which have not been considered in the impugned
order. More recently the Supreme Court in (2001) 7 SCC 401 while considering the
issue of dispensing with personal attendance in a prosecution arising under the
Negotiable Instruments Act, held that in appropriate cases the Magistrate can
allow an accused to make even first appearance through the counsel. The law
would enjoin that personal appearance of an accused could be dispensed with at
any stage in a proceeding at the summon stage and that if insistence of his
personal appearance would itself inflict enormous suffering or tribulation on
him and the comparative advantage would be less. The discretion would need to be
exercised where due to far distance at which the accused reside or carries on
business, or for other good reason were dispensing from personal appearance
would be in the interest of justice. These are all aspects which have to be
considered for grant of relief under Section 205, Cr PC. This position in the
law has been reiterated by a Bench of this Court in a judgment reported in
2002(3) PLJR 583, placing reliance upon the law as enunciated by the Apex Court
in the judgment aforesaid. This is the position reiterated in 2002 (3) PLJR 628
by another Bench of this Court.

9. In the background of the law as aforesaid with regard to the consideration
of an application under Section 205, Cr PC this Court is inclined to hold that
the impugned order dated 22.8.2000 is cryptic in nature. It does not reflect any
consideration of the issues germane for grant of relief under Section 205, Cr
PC. It is apparent that in the background that the impugned order does not take
into consideration the issue relevant in law for consideration of an application
under Section 205, Cr PC prejudice has been occasioned to the petitioners. In
the circumstances of the case, this application therefore has to be allowed.

10. Cr. Misc. No. 19832/2000 and Cr. Misc No. 34712/2000, are therefore
allowed. In so far as Cr. Misc. No. 29832/2000 is concerned, this Court, has
held hereinabove, that the case stands at the summon stage in so far as the said
petitioner is concerned.

11. The impugned order dated 22.8.2000 is therefore set aside. The matter is
remanded to the Court below to consider the application under Section 205, Cr PC
preferred on behalf of the petitioners afresh in accordance with law. The Court
below shall hear the parties afresh after fixing the date for hearing and then
proceed to pass appropriate orders in accordance with law.

Suhas Palekar vs Badshah Hotel And Resorts

2010-01-17T11:37:00.001-08:00

Equivalent citations: 2004 CriLJ 536

Bench: T Vaiphei
Suhas Palekar vs Badshah Hotel And Resorts on 1/9/2003

ORDER

T. Vaiphei, J.

1. This revision application under Section 401 read with 482 of the Cr.P.C.
directed against the order dated 29-4-2002 passed by the learned Additional
Sessions Judge, West Tripura, Agartala in Crl. Rev No. 45(4) of 2001 affirming
the order dated 6-10-2001 passed by the learned Additional Chief Judicial
Magistrate, West Tripura, Agaratala in CR No. 1199/2000.

2. The facts of the case in brief are that the petitioner is the Vice
President, Corporate Human Resources Management and Communication of Kirloskar
Brother Ltd. Having its office at Awas 11/46, Nirmal Boug Udyog Bhavan, Tilak
Road, P.S. Pune, Pune/411 002. It is stated in the revision petition that
Kirloskar Brothers Ltd. Employs more than four thousands workers and staffs in
its establishment at its three factories located in Maharashtra and Madhya
Pradesh and is having regional office and branch office all over the country.
For the purpose of management and meeting the daily needs of the workers and
staff, it is necessary for the petitioner to be available at its office at all
times. It is further stated in the revision petition that the petition that the
learned Addl. Chief Judicial Magistrate, West Tripura, Agartala was pleased to
take cognizance of offence punishable under Section 500/501 of the IPC and
issued summon against the petitioner. On receipt of the summon, the petitioner
contacted his Advocate to ascertain the facts and circum stances leading to the
filing of the complaint case against him. The petitioner states that similar
notice was also received by one Sri Sanjoy Kirloskar whereupon the said Sanjoy
Kirloskar filed an application under Section 482, Cr.P.C. before this Court
being Crl. Rev. No. 13 of 2001 for quashing the proceeding before the learned
trial Court. After hearing the both sides, this Court was pleased to quash the
said proceeding in so far as the said Sanjoy Kirloskar is concerned vide
judgment dated 27-4-2001. The petitioner decided to contest the proceeding
before the Addl. Chief Judicial Magistrate, West Tripura, Agartala and
accordingly, engaged his advocate to enter into appearance on his behalf of and
take all necessary steps for contesting the said proceeding. Accordingly, Sri
Hare Krishna Bhowmik, Counsel for the petitioner entered his appearance on
behalf of the petitioner and on 26-6-2001 filed an application under Section
205, Cr.P.C. praying for exempting the petitioner from appearing before the
learned Trial Court with the following undertakings.

(a) That the petitioner will never dispute or challenge his identity during
the trial before the learned Trial Court.

(b) That he will attend the trial Court as and when desire by the learned
Trial Court.

3. He also stated in his petition the circumstances under which he could not
personally attend the Trial Court. Against this petition, the opposite party
filed an objection contending that the petition is not maintainable on the
ground that the provisions of Section 205, Cr.P.C. apply at the time when summon
was issued and it cannot be invoked by the accused petitioner at this stage.

4. Learned Trial Court after hearing rejected the application filed by the
petitioner by his order dated 6-10-2002 on the ground that the petitioner had
not appeared even once from the very inception of the case. By relying upon the
judgment of the Apex Court reported in (2001) 1 SCC 710, the trial Court held
that the first appearance of the accused person is a must in the Court when the
case is pending. After which the Court may exempt the accused from personal
appearance. Therefore, the petitioner filed a revision petition before the Ld.
Additional Sessions Judge, West Tripura challenging the said order of the Ld.
Additional Chief Judicial Magistrate, West Tripura. The learned Additional
Sessions Judge by the order dated 29-4-2002 dismissed the revision petition.

5. Aggrieved by the said orders of the learned Trial Court and the Addl.
Sessions Judge, the petitioner has approached this Court under Section 401 read
with 482, Cr.P.C.

6. Heard Mr. P.K. Biswas, learned Counsel for the petitioner. I have also
heard Mr. D. Guha and Mr. P. Chakraborty, learned Counsel appearing for the
respondent.

7. It is vehemently submitted by the learned Counsel for the petitioner that
both the learned Addl. Sessions Judge and the learned Additional Chief Judicial
Magistrate grossly erred in rejecting the application of the petitioner for
exempting his appearance in Court. In this connection, learned Counsel cited the
decision of the Apex Court in Bhaskar Industries Ltd. v. Bhiwani Denim &
Apparels Ltd. Reported in (2001) 7 SCC 401 : (2001 Cri LJ 4250). On the other
hand, Mr. P. Chakraborty; learned Counsel for the respondent submits that in
view of the decision rendered by the Apex Court in a case reported in (2001) 1
SCC 710 where the Apex Court has clearly held that first appearance of the
accused person is most essential in the Court where the case is pending and
after which the Court may exempt the accused from personal appearance. The Court
below did not commit any illegality in rejecting the prayer of the petitioner .

8. I have gone through the impugned order and I have also examined the rival
contention of the Counsel appearing on behalf of both the parties. It may be
noted that the petitioner in his application before the learned Additional Chief
Judicial Magistrate, West Tripura, Agartala has clearly mentioned the reason for
his inability to attend the Court personally. This is not a case in which the
petitioner is merely seeking exemption from appearance without any reason as
stated earlier. As a responsible official in the Kirloskar Brothers Ltd. it is
imperative that he be available at his office at all times to look after the
management of the Company. The impugned order of the learned Addl. Chief
Judicial Magistrate shows that the ground of exemption stated by the petitioner
were not dealt with in a manner expected of a judicial officer. The learned
Addl. Chief Judicial Magistrate is expected to and should apply his mind
carefully on the reasons given by the petitioner in his application. The order
dated 6-10-2001 clearly shows that the learned Chief Judicial Magistrate has
been completely swayed by the facts that the accused petitioner did not appear
before him even once from the date of inception of the case and that he has
failed to consider the grounds of exemption urged by the petitioner. On going
through the impugned order of the learned Addl. Sessions Judge it is quite
evident that the contention of the petitioner on this aspect has also escaped
the attention of the learned Addl. Sessions Judge.

9. Learned Counsel for the petitioner strenuously urged that the Apex Court
in Bhaskar Industries Ltd. case (2001 Cri LJ 4250) (supra) has held that in a
summon case, the personal appearance of the accused is not to be insisted upon.
I have carefully gone through the judgment of the Apex Court. To my mind, what
the Apex Court has held is that in an appropriate case, the Magistrate can
dispense with the personal appearance of the accused in Court. But the Apex
Court does not said that is a matter of right for the accused not to appear in
Court personally in summon case. In other words, the law laid down by the Apex
Court, as I understand, is that in a summon case such as one involving minor
offence, where personal attendance may result to him enormous hardship and heavy
expenses, the Court may dispense with his personal attendance at any particular
stage of the proceeding after taking an undertaking from him that he would not
dispute his identity as the particular accused in the case and that a counsel on
his behalf would be present in the Court and he would have no objection in
taking evidence in his absence. It is thus clear that the accused cannot claim
exemption from personal appearance in the Trial Court as a matter of right, but
he can apply to the Court for such exemption on some sufficient ground. At this
stage, it may be profitable to extract the observation of the Apex Court as
under (Paras 18 and 19) :

"Section 205(2) says that the Magistrate can in his discretion direct the
personal attendance of the accused at any stage of the proceedings. He can even
resort to other steps for enforcing such attendance. Thus it is within the
powers of a Magistrate and in his judicial discretion to dispense with the
personal appearance of an accused either throughout or at any particular stage
of such proceedings in a summons case, if the Magistrate finds that insistence
of his personal presence would itself inflict enormous suffering or tribulations
on him, and the comparative advantage would be less. Such discretion need be
exercised only in rare instances where due to the far distance at which the
accused resides or carries on business, or on account of any physical or other
good reasons the Magistrate feels that dispensing with the personal attendance
of the accused would only be in the interests of justice. However, the
Magistrate who grants such benefit to the accused must take the precautions
enumerated above as a matter of course. When an accused makes an application to
a Magistrate through his duly authorised counsel praying for affording the
benefit of his personal presence being dispensed with the Magistrate can
consider all aspects and pass appropriate orders thereon before proceeding
further."

10. So far as the submission of the learned Counsel of the respondent is that
the first appearance of the accused is a must in the Court where the case is
pending and after which the Court may except the accused from personal
appearance is concerned, the Apex Court in Bhaskar Industries Ltd. case (2001
Cri LJ 4250) (supra) has dealt with the same situation which may be extracted
hereunder :--

"17. Thus, in appropriate cases the Magistrate can allow an accused to make
even the first appearance through a counsel. The Magistrate is empowered to
record the plea of the accused even when his counsel makes such plea on behalf
of the accused in a case where the personal appearance of the accused is
dispensed with. Section 317 of the Code has to be viewed in the above
perspective as it empowers the Court to dispense with the personal attendance of
the accused (provided he is represented by a counsel in that case) even for
proceeding with the further steps in the case. However, one precaution which the
Court should take in such a situation is that the said benefit need be granted
only to an accused who gives an undertaking to the satisfaction of the Court
that he would not dispute his identity as the particular accused in the case and
that a counsel on his behalf would be present in Court and that he has no
objection in taking evidence in his absence. This precaution is necessary for
the further progress of the proceedings including examination of the witnesses."

11. The above paragraph is a complete answer to the submission of the learned
Counsel for the respondent. I need say no more in this behalf. In the light of
the foregoing decision, it is crystal clear that the petitioner can be exempted
from making personal appearance before the learned trial Court even on the first
date fixed for his personal appearance if he is duly represented by his Counsel.
Needless to say, the learned Addl. Chief Judicial Magistrate may take necessary
precaution when he decides to exempt the petitioner from personal appearance by
ensuring that necessary undertaking is given by him to his satisfaction that he
would not dispute his identity as a particular accused in the case and the
Counsel on his behalf would be present in the Court and that he has no objection
in taking evidence in his absence.

12. In view of the above, the impugned order dated 29-4-2002 passed by the
learned Addl. Sessions Judge, West Tripura, Agartala as well as the order dated
,6-10-2001 passed by the Chief Judicial Magistrate, West Tripura, Agartala
suffered from non application of mind and as such the some cannot be sustained.
In the result, the impugned order dated 29-4-2002 passed in C.R. 45(4)/01 as
well as the order dated 6-10-2001 passed in CR 1199 of 2000 are hereby quashed.
The petitioner is directed either by himself or through his counsel to move a
fresh application seeking relief under Section 317, Cr.P.C. before the learned
Addl. Chief Judicial Magistrate, West, Tripura, Agartala and if such application
is filed, learned Magistrate shall duly consider such application in the light
of the observation made above and pass orders thereof.

No order as to costs.

Revision application stands allowed.

Bhaskar Sen vs State Of Maharashtra And Ors. on 1/9/2004

2010-01-17T11:28:00.000-08:00

Equivalent citations: 2005 (1) ALD Cri 11, III (2007) BC 104, 2004 (4) MhLj 1115

Bench: D Bhosale

Bhaskar Sen vs State Of Maharashtra And Ors. on 1/9/2004

JUDGMENT

D.B. Bhosale, J.

1. This group of five petitions involves a common question of law and,
therefore, were heard together and are being disposed of by this common
judgment. The prayer in the first four petitions is for quashing of the non-
bailable warrants (for short, "NBW"), while in the last petition the prayer is
for quashing of the order passed under Section 82 of Criminal Procedure Code,
1973 (for short, "Code"), by which the proclamation has been published requiring
him to appear before the learned Magistrate. All these petitions arise from the
proceedings under Section 138 of Negotiable Instruments Act, (for short, "the
Act").

2. The question raised in these petitions is as to whether in summons case it
is imperative for an accused to appear in the trial Court on each and every date
of hearing and/or whether the Courts should be generous and liberal in
exercising the powers conferred under Sections 205 and 317 of the Code and
dispensing with a physical presence of an accused unless his presence is
imperatively needed. For appreciating the submissions of the learned counsel for
the parties better and for deciding the said question, the factual matrix in all
the petitions, that would be relevant and material, in brief, is as under.

(a) In Criminal Writ Petition No. 1424 of 2003, the complaint under Section
138 read with Section 141 of the Act came to be filed on 22-8-2002. The summons
were issued on 28-3-2003 calling upon the petitioner-accused to appear on
19-4-2003. In due compliance of the summons, the Advocate filed an appearance on
behalf of the petitioner on 19-4-2003. On the very same day, a warrant was
issued to secure presence of the petitioner. On 12-9-2003, the revision
application was filed in the Sessions Court, Thane, against the order of
issuance of the warrant. The revision was dismissed on 12-9-2003. Hence, this
petition was filed on 23-9-2003.

(b) The complaints, in Criminal Application Nos. 3191 and 3192 of 2004 were
filed in December, 2003 against the petitioner. He was summoned to appear in
both the complaints before the trial Court on 15-3-2004. The petitioner engaged
an Advocate who could not appear when the matter was called out and as a result
of which NBW was issued by the learned Magistrate on 15-3-2004. The Advocate on
the very day made an application and prayed for a stay to the NBW until the next
date, i.e. 10-5-2004. The stay was granted as prayed for. The application was
filed on 8-5-2004 for cancellation of NBW, since it was not possible for the
petitioner to appear before Court on 10-5-2004. On 8-5-2004, the concerned
Magistrate was on leave and hence the application was moved before the in-charge
Court, which directed the petitioner to move before the concerned Court on
10-5-2004 itself. On 10-5-2004, the petitioner was granted exemption by
extending the order of stay to NBW granted earlier. On 14-5-2004, the learned
Magistrate cancelled the NBW and directed the petitioner to execute a bond. On
17-5-2004, the matter was adjourned to 12-7-2004 and on that date the learned
Magistrate issued NBW after rejecting the application filed by the petitioner's
advocate seeking personal exemption. Hence, these petitions.

(c) In Criminal Application No, 3392 of 2004, the complaint was filed on
1-4-2003. The process was issued on 29-8-2003. The petitioners were summoned to
appear on 18-12- 2003. The petitioners did appear on 18-12-2003. However, the
Board was discharged to 6-3-2004. On 6-3-2004, though the petitioners were
required to wait in the Court for 2 1/2 hours, the matter did not reach and the
Board was once again discharged and the matter stood adjourned to 7-8-2004. On
7-8-2004 the petitioner, who is 62 years old, filed an application for exemption
through his Advocate. However, it was rejected and on the request of the
Advocate for the complainant, NBW was issued. In this case, out of the four
accused, only two accused were served. The petitioners reached the Court on very
day and through their Advocate applied for cancellation of the warrant. The
learned Magistrate insisted to serve a copy of the application seeking
cancellation of the warrant on the complainant. The Advocate for the petitioners
made an attempt to serve a copy of the application on the Advocate for the
complainant who refused to accept on the ground that the complainant had already
left the Court. The learned Magistrate did not take the application on record
and in this backdrop the petitioners have approached this Court by way of the
instant application.

(d) In Criminal Application No. 2129 of 2004, the complaint was filed in
August, 1998. The petitioner claims that he appeared almost on all dates either
personally or through his Advocate. Initially, a bailable and thereafter non
bailable warrant was issued to secure his presence though his Advocate used to
attend every date of hearing before the learned Magistrate. Since the
petitioner, who is from Mumbai, could not appear before the learned Magistrate,
the order under Section 82 of the Code came to be passed on 19-7-2004. Hence,
this application.

3. It is against a backdrop of these facts, I would like to consider the
question of law raised by the learned Advocates appearing for the parties. I
heard all the learned counsel appearing in these matters for quite some time.
The leading arguments were advanced by Mr. Jha and Mr. Siddiqui, learned counsel
appearing for the petitioners. The submissions of the learned counsel for the
parties, in brief, are as follows.

(a) The accused in the cases under Section 138 of the Act need not remain
present in the trial Court on every date of hearing and that the Court should
exercise discretionary powers conferred on it under Sections 205 and 317 of the
Code to grant personal exemption to the accused. Mr. Jha, learned counsel, took
me through the various judgments of the Apex Court and High Courts. He placed
heavy reliance on the judgment of the Apex Court in Bhaskar Industries Ltd. vs.
Bhiwani Denim and Apparels Ltd. and Ors., and contended that the personal
attendance of the accused can be dispensed with throughout or at any particular
stage of the proceedings in a summons case. Reliance was also placed on the
judgment of this Court in Shri Walmik s/o Deorao Bobde vs. The State of
Maharashtra and Anr., 2001 All MR (Cri) 1731 to contend that NBW should
ordinarily be issued as a last resort. He further placed reliance upon the
judgments of Calcutta High Court in Ajit Kr. Chakraborty and Ors. vs. Serampore
Municipality, 1989 Cri.LJ.523 and of Orissa High Court in Ganesh Choudhury vs.
Harish Chandra Misra, 1998 Cri.LJ.2412. My attention was also invited to the
judgment of the Apex Court in Chandu Lal Chandraker vs. Puran Mal and Anr., 1988
(Supp) SCC 570 to contend that in the said case in view of the accused's
statement before the Apex Court that he would not make any statement under
Section 313 of the Code and would not raise any question of prejudice, if any,
caused to him due to non-exemption, his request for personal exemption before
the trail Court was granted by the Apex Court.

(b) Mr. Siddiqui, apart from the judgment relied upon by Mr. Jha, learned
counsel for the petitioners, invited my attention to the judgments of the Apex
Court in U. P. Pollution Control Board vs. Mohan Meakins Ltd., and in R.
Annapurna vs.

Ramadugu Ananth Krishna Sastry, and contended that if any of the accused
applies for dispensing with his personal appearance in the Court, the trial
Court can exempt him from continuing to appear in the Court by imposing any
conditions which the Court deems fit. Such conditions can include, inter alia,
that a counsel on his behalf would be present when the case is called out, that
he would not dispute his identity as the particular accused in the case and that
he would be present in the Court when his presence is imperatively needed.

4. Keeping in view the importance of the issue involved in these petitions, I
called for some information from the registry, which would be relevant and
material to address the question raised in these petitions and appreciate the
submissions of the learned counsel for the parties better. Let me quote the
facts and figures furnished by the registry about pendency of the proceedings
under Section 138 of the Act. In the Metropolitan City of Mumbai, apart from
other summons cases, pendency of complaints filed under Section 138 of the Act
is 93,631 and in rest of the State of Maharashtra 2,28,249 cases. For dealing
with these cases in Mumbai, we have 41 judicial officers and outside Mumbai 492.
Their average disposal per month in Mumbai is 57.24 percent and in the Courts
outside Mumbai it is hardly 9.24 percent. These figures would show the alarming
situation of the huge pendency of the cases under Section 138 of the Act in the
State of Maharashtra.

(a) It is useful to note the observations of the Apex Court made while
dealing with the proceedings under Section 138 of the Act in Bhaskar Industrial
Ltd. case (supra). It has been observed that "These are days when prosecutions
for the offence under Section 138 are galloping up in criminal courts. Due to
the increase of inter-State transactions through facilities of the banks, it is
not uncommon that when prosecutions are instituted in one State the accused
might belong to a different State, sometimes a far distant State. Not very
rarely, such accused would be ladies also. For prosecution under Section 138 of
the NI Act the trial should be that of a summons case. When a Magistrate feels
that insistence of personal attendance of the accused in a summons case, in a
particular situation, would inflict enormous hardship and cost to a particular
accused, it is open to the Magistrate to consider how he can relieve such an
accused of the great hardships, without causing prejudice to the prosecution
proceedings."

5. It is common knowledge and general experience that due to heavy workload
of cases and huge pendency of complaints pending before the Courts of
Magistrates, enquiries or trials in criminal cases take long time than one
expected. I am informed that on daily board of different Courts, a large number
of cases are fixed on a single day which result in congestion of Court work,
litigants and advocates at a given point of time. This further results into
undue hardships to advocates and litigants. Though the cases are placed on
board, they do not reach for an enquiry or trial for months and years together.
For variety of reasons the Courts cannot proceed with the cases when they are
fixed for trial or for final argument. Resultantly, on most of the occasions,
the dates are given to the parties either by the Courts or on some occasions by
the Bench Clerk, particularly when the Court discharges the board. On every
date, however, parties require to attend the Court and mark their presence.
Parties go to the Court, remain sitting outside the Court from morning to
evening waiting for the call of their cases but without effective hearings for
want of time. It may be noted that most of the Courts do not have proper
infrastructure and/or facilities for the clients, such as waiting room, drinking
water and toilets etc. This causes tremendous hardships not only to the parties
but also to the staff in the Court and the Registry. If accused do not attend
the Court on the given date, the Court issues bailable or non-bailable warrant
even if the advocate appears and applies for exemption.

(a) It is also a general experience that a complainant and his advocate,
instead of proceeding with the case, pray for issuance of NBW against the
accused if he does not appear. Resultantly, the Court, even if is in a position
to proceed with the matter, instead of doing so issues bailable or NBW against
the accused which unnecessarily causes further delay in disposal of the case. In
this backdrop it has become imperative to consider as to whether the Court
should be generous and liberal in exercising the powers conferred under Sections
205 and 317 of the Code granting exemption to the accused from personal
appearance without causing prejudice to the prosecution proceedings.

6. Sections 205 and 317 of the Code give wide powers to the Courts for
dispensing with the personal attendance of the accused at every stage of the
case. The Apex Court in Bhaskar Industries Ltd (supra) while dealing with
Section 205, has observed that in appropriate cases the Magistrate can allow an
accused to make even the first appearance through a counsel. The Magistrate is
empowered to record a plea of the accused even when his counsel makes such plea
on behalf of the accused in a case where personal appearance of the accused is
dispensed with. It would be useful to quote Section 205 of the Code. It reads
thus :

"205. Magistrate may dispense with personal attendance of accused. -

(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to
do, dispense with the personal attendance of the accused and permit him to
appear by his pleader.

(2) But the Magistrate inquiring into or trying the case may, in his
discretion at any stage of the proceedings direct the personal attendance of the
accused, and if necessary, enforce such attendance in the manner hereinbefore
provided."

Sub-section (1) of Section 205 empowers the Magistrate to dispense with
personal attendance of the accused and permit him to appear by his pleader.
Subsection (2) provides that the Magistrate can exercise his discretion at any
stage of the proceedings including the first appearance in the case and direct
the personal attendance of the accused, if necessary. The Magistrate is expected
to see whether there is any justification for refusing the accused's prayer for
exemption from personal attendance and must indicate convincing reason for
rejecting that prayer.

(a) Section 317 of the Code reads thus :

"317. Provision for inquiries and trial being held in the absence of
accused in certain cases. ~ (1) At any stage of an inquiry or trial under this
Code, if any Judge or Magistrate is satisfied, for reasons to be recorded, that
the personal attendance of the accused before the Court is not necessary in the
interest of justice, or that the accused persistently disturbs the proceedings
in Court, the Judge or Magistrate may, if the accused is represented by a
pleader, dispense with his attendance and proceed with such inquiry or trial in
his absence, and may at any subsequent stage of the proceedings, direct the
personal attendance of such accused.

(2) If the accused in any such case is not represented by a pleader, or if
the Judge or Magistrate considers his personal attendance necessary, he may, if
he thinks fit and for reasons to be recorded by him, either adjourn such inquiry
or trial, or order that the case of such accused be taken up or tried
separately."

Section 317 of the Code, thus, empowers the Court to dispense with the
personal attendance of an accused at any stage of the enquiry provided he is
represented by a counsel and while so doing may direct the personal attendance
of such accused at any subsequent stage of the proceedings. Sub-section (2) of
Section 317 provides that if the accused is not represented by a pleader or if
the Judge or Magistrate considers his personal attendance necessary, he may, if
he thinks fit and for reasons to be recorded by him, either adjourn such inquiry
or trial or order that the case of such accused be taken up or tried separately.

(b) It is thus clear, that the powers under Section 317 could be and should
be exercised only if a Court is satisfied that in the interest of justice the
personal attendance of an accused need not be insisted and that the Court has
the power to dispense with the attendance of that accused. However, one
precaution which the Court should take in such a situation is that the said
benefit need be granted only to an accused who gives an undertaking to the
satisfaction of the Court that he would not dispute his identity as a particular
accused in the case, and that a counsel on his behalf would be present in the
Court and that he has no objection for recording a plea on his behalf of a
counsel and in taking evidence in his absence. This precaution is necessary for
further progress of the proceedings.

(c) Sections 205 and 317, if read jointly, they make it clear that the
Court has wide powers to dispense with the personal attendance of the accused at
all stages of the proceedings. Section 317 covers the stages after the
commencement of inquiry or trial. Section 205 deals with the stage at
commencement of the proceedings before the magistrate thereby indicating that in
appropriate cases the presence of the accused could be dispensed with even at
the initial stage including the first appearance and permit him to appear
through an advocate. When the presence of an accused is imperatively needed at
any subsequent stage of an inquiry or trial the Court is armed with sufficient
powers to secure his presence in such case, it may be stated that no hard and
fast rule can be laid down for the exercise of the power under Sections 205 and
317. Each case will have to be considered after giving due weight to attendant
circumstances. I am of the considered opinion, that ordinarily, the Court should
be generous and liberal in exercising the powers conferred under Sections 205
and 317 and grant exemption to the accused from personal appearance, except when
the presence of the accused is imperatively needed. The court should also bear
in mind the nature of accusation and the prejudice, if any, likely to be caused
to the prosecution or the complainant if personal attendance is dispensed with
or to the accused if personal attendance is made compulsory.

7. The Apex Court in Bhaskar Industries Ltd. (supra) has elaborately dealt
with all the relevant provisions of the Code while dealing with the issue of
dispensing with personal attendance of an accused in criminal Courts in the
interest of justice. The observations of the Apex Court in paragraphs 17, 18 and
19 could be useful. Paragraphs 17, 18 and 19 read thus :

"17. Thus, in appropriate cases the Magistrate can allow an accused to make
even the first appearance through a counsel. The Magistrate is empowered to
record the plea of the accused even when his counsel makes such plea on behalf
of the accused in a case where the personal appearance of the accused is
dispensed with. Section 317 of the Code has to be viewed in the above
perspective as it empowers the court to dispense with the personal attendance of
the accused (provided he is represented by a counsel in that case) even for
proceeding with the further steps in the case. However, one precaution which the
Court should take in such a situation is that the said benefit; need be granted
only to an accused who gives an undertaking to the satisfaction of the Court
that he would not dispute his identity as the particular accused in the case,
and that a counsel on his behalf would be present in Court and that he has no
objection in taking evidence in his absence. This precaution is necessary for
the further progress of the proceedings including examination of the witnesses.

18. A question could legitimately be asked - what might happen if the
counsel engaged by the accused (whose personal appearance is dispensed with)
does not appear or that the counsel does not co-operate in proceeding with the
case? We may point out that the legislature has taken care of such
eventualities. Section 205(2) says that the Magistrate can in his discretion
direct the personal attendance of the accused at any stage of the proceedings.
The last limb of Section 317(1) confers a discretion on the Magistrate to direct
the personal attendance of the accused at any subsequent stage of the
proceedings. He can even resort to other steps for enforcing such attendance.

19. The position, therefore, boils down to this: it is within the powers of
a Magistrate and in his judicial discretion to dispense with the personal
appearance of an accused either throughout or at any particular stage of such
proceedings in a summons case, if the Magistrate finds that insistence of his
personal presence would itself inflict enormous suffering or tribulations on
him, and the comparative advantage would be less. Such discretion need be
exercised only in rare instance where due to the far distance at which the
accused resides or carries on business or on account of any physical or other
good reasons the Magistrate feels that dispensing with the personal attendance
of the accused would only be in the interest of justice. However, the Magistrate
who grants such benefit to the accused must take the precautions enumerated
above, as a matter of course. We may reiterate that when an accused makes an
application to a Magistrate through his duly authorised counsel praying for
affording the benefit of his personal presence being dispensed with the
Magistrate can consider all aspects and pass appropriate orders thereon before
proceeding further."

8. The Apex Court in Chandu Lal Chandraker case (supra), made reference to
Sections 205 and 313 of the Code and observed that even the statement of the
accused under Section 313 of the Code in a given case, could be dispensed with
if he requests and gives an undertaking to the effect that he would not raise
any question of prejudice, if any, caused to him due to non-examination under
Section 313 at any subsequent stage of trial, appeal, or revision. In that case
after recording the statement of a counsel on behalf of the accused that he
shall not raise any question of prejudice, if any, caused to him on account of
his non-examination under Section 313, held that it was not necessary for the
accused to appear before the trial Court. While passing such order, the order of
the trial Court and the High Court directing the appellant to appear before the
trial Court for making statement under Section 313 of the Code was set aside by
the Apex Court.

9. At this juncture, it would be advantageous to make reference to some other
provisions in the Code. The Second Schedule of the Code provides Form No. 1,
i.e. Form of Summons to an accused person, as contemplated under Section 61 of
the Code. Form No. 1 reads thus:

"Summons to an accused person

To, (name of accused) of (address)

WHEREAS your attendance is necessary to answer to a charge of (state
shortly the offence charged), you are hereby required to appear in person (or by
pleader, as the case may be) before the (Magistrate) of........on the......day
of......Herein fail not.

Dated, this - day of------, 19

(Seal of the Court) (Signature)"

It clearly requires an accused to appear in person or by a pleader. It does
not insist that the accused should appear in person on receipt of summons in the
case.

(a) Section 273 of the Code is also useful. It says that except as
otherwise expressly provided, all evidence taken in the course of the trial or
other proceeding, shall be taken in the presence of the accused, or, when his
personal attendance is dispensed with, in the presence of his pleader. Section
273 requires that the evidence be taken in the course of trial in the presence
of the accused and that is why physical presence of an accused is insisted upon
in the trial. There does not seem to be any other reason contemplated or
envisaged under the Code requiring physical presence of the accused in the
trial. The legislature in its wisdom appears to have introduced Section 273 of
the Code for the benefit of the accused so that during the course of the trial
or other proceedings, he can assist his advocate or safeguard his interest.
Physical presence is not insisted upon because it is so desired by the
complainant. The section is, therefore, introduced for the benefit of the
accused and not for causing hardships or inconvenience to the accused. It is,
therefore, necessary that in a case where the accused himself applies to the
Court to be exempted from personal appearance, than the Court should grant such
request unless it is of the opinion that in the interest of justice it is
necessary that the accused should be present throughout the course of trial or
unless there are some other good reasons for directing the presence of the
accused throughout the course of the trial. It is, however, necessary in such
situation for the accused to give an undertaking to the Court that in his
absence his Advocate on record shall appear on every date of hearing and see to
it that under any circumstances progress of the proceedings is not hindered.

(b) In a given case that if an accused personally gives an undertaking
before the Court that he does not wish to answer any of the questions which
would be put to him by the trial Court under Section 313 of the Code and he
further states that he will not raise question of prejudice, if any, caused to
him on account of his non-examination at subsequent stage of the trial, in
appeal or revision, the Court may, in a given case, grant him such permission
and exemption from appearing before the trial Court till his case is disposed of
by the Court.

(c) Section 87 of the Code provides issue of warrant in lieu of, or in
addition to, summons. Section 87 of the Code reads thus :

"A Court may, in any case in which it is empowered by this Code to issue a
summons for the appearance of any person, issue, after recording its reasons in
writing, a warrant for his arrest - (a) if, either before the issue of such
summons, or after the issue of the same but before the time fixed for his
appearance, the Court sees reason to believe that he has absconded or will not
obey the summons? or (b) if at such time he fails to appear and the summons is
proved to have been duly served in time to admit of his appearing in accordance
therewith and no reasonable excuse is offered for such failure."

Thus, the power conferred under this provision is sufficient enough to
secure presence of an accused when his presence is imperatively needed or
becomes indispensable for the progress of the case. Under this provisions, it is
necessary that warrant of arrest for securing presence of the accused be issued
only in the following eventualities and, that to, by recording its reasons in
writing. Firstly, if Court sees reason to believe that he has absconded or will
not obey the summons and, secondly, if without reasonable excuse, he fails to
appear in spite of service of summons. His appearance through a counsel on
receipt of the summons would, however, be sufficient compliance of the summons
or that could be treated as abeyance of the summons. In other words, on receipt
of summons, the accused need not personally appear before the Court unless so
specifically directed by the Court for the reasons recorded to that effect by
the Court. Even the invocation of the provisions of Sections 82 and 83 of the
Code, should ordinarily be as a last resort.

(d) A reference to Section 143 of the Act, at this stage, would be useful.
It deals with power of Court to try cases summarily. It provides that
notwithstanding anything contained in the Code, all offences under Chapter XVII
of the Act shall be tried by a Judicial Magistrate of the first class or by a
Metropolitan Magistrate and the provisions of Sections 262 to 265 (both
inclusive) of the said Code shall, as far as may be, apply to such trials. Sub-
section (3) of Section 143 provides that every trial under this section shall be
conducted as expeditiously as possible and an endeavour shall be made to
conclude the trial within six months from the date of filing of the complaint.
It is general experience that Courts for variety of reasons can hardly, observe
the time frame under this provision. One of the main reasons, in my opinion, is
the absence of an accused on the date of hearing of the case. Considerable time
of the Courts is wasted in securing presence of the accused. The Courts, in such
cases, issue bailable or non-bailable warrants and as a result of which it
causes further delay in disposal of cases/complaints. Instead, if the Courts
proceed with the cases by taking precaution, which I would be indicating in the
next paragraph, in my opinion, that would help speedy disposal of cases,
reducing a huge pendency and that would also facilitate the parties to arrive at
a settlement, if any, in the complaints under Section 138 of the Act at an early
stage. It may be noticed that Section 147 of the Act has made every offence
punishable under this Act compoundable.

10. A large number of cases are being filed in this Court seeking
cancellation of NBW issued either while rejecting the application for exemption
or for non-appearance of the accused on one date of hearing even if Advocate for
the accused appears on his behalf. It is also observed that the complaints under
Section 138 of the Act are being filed against the companies in which all the
directors are being arraigned as accused and their presence is being insisted on
every date of hearing and no proceedings are being taken up in their absence. It
is further observed that the progress of the cases under Section 138 impedes for
want of their presence. The fact remains as to why their presence is being
insisted on every date of hearing. The idea is to see that the progress of the
case is not hindered for want of presence of the accused or even the complainant
for that matter. Keeping this in view and against a backdrop of the observations
made in the foregoing paragraphs, I deem it appropriate to issue the following
directions to the Courts trying summons cases and in particular, cases under
Section 138 of the Act.

(i) Ordinarily, the Court should be generous and liberal in exercising
powers under Sections 205 and 317 of the Code and grant exemption to the accused
from personal appearance unless presence is imperatively needed or becomes
indispensable. While considering the application for exemption, the Court should
also bear in mind the nature of accusations and prejudice, if any, likely to be
caused to the prosecution or the complainant, if personal attendance of the
accused is dispensed with or to the accused if personal attendance is insisted
upon, as case may be.

(ii) If an accused makes even the first appearance through a counsel, he
may be allowed to do so.

(iii) If an accused is seeking permanent exemption in a case, the Court,
while dealing with such application, should take precautions that the accused
gives an undertaking to the satisfaction of the Court that he would not dispute
his identity as the particular accused in the case, and that a counsel on his
behalf would be present in the Court on all dates of hearings and that he has no
objection for recording a plea on his behalf of a counsel and in taking evidence
in his absence.

(iv) While dealing with the application seeking permanent exemption from
appearing in the case as aforestated, if, the Court for any reasons is of the
opinion that such exemption should not be granted, it may do so by recording or
indicating reasons for rejecting such prayer.

(v) It is open for the Court to grant exemption which is either permanent
or for a specific period, depending upon the facts of each case, on the
conditions as it deems fit and proper, requiring the accused to file an
undertaking as indicated earlier.

(vi) In a given case, the Court may record a plea of the accused even when
his Advocate makes such plea on his behalf in a case where personal appearance
of the accused is dispensed with on his furnishing the undertaking in terms of
Clause (iii). However, it is open for the Court to refuse such permission for
reasons to be recorded separately.

(vii) The Court should avoid issuance of non-bailable warrant in the first
instance to secure presence of the accused facing trial and it should be applied
as a last resort.

(viii) If a counsel for the accused fails to appear in the matter and his
absence impedes further progress of the proceedings including examination of
witnesses, the Court may resort to any other course as may be available under
the provisions of the Code to secure presence of the accused, including issuance
of NBW and may cancel the order of exemption and in such case may or may not
grant exemption any more.

(ix) The Court should avoid requiring the accused or his Advocate to apply
for exemption on every date of hearing.

(x) While exercising the powers to grant exemption, under any circumstance,
the Court shall not compromise with the further progress of the proceedings and
see to it that the presence or absence of either of the parties does not impede
the proceedings.

(xi) In a given case, similar parameters be applied for granting exemption
to the complainant if his absence is not likely to cause prejudice, if any, to
the accused or hinder the progress of the case/complaint.

11. Insofar as the instant five petitions are concerned, the orders impugned
shall remain stayed until the concerned Magistrates pass appropriate orders
keeping in view the observations made in this Judgment. The learned Magistrates
to pass appropriate orders within two weeks from the date of receipt of this
judgment. The petitioners are directed to produce a copy of this judgment before
the concerned Magistrate within four weeks from today.

12. In the result, these petitions are disposed of.

An authenticated copy of this order may be made available to the parties.

BHASKAR INDUSTRIES LTD Vs BHIWANI DENIM & APPARELS LTD. ORS

2009-12-30T14:38:00.000-08:00

2001 AIR 3625 2001(2)Suppl.SCR219 2001(7)SCC401 2001(5)SCALE503 2001(7)JT127

CASE NO.:
Appeal (crl.) 858 of 2001

PETITIONER:
M/S. BHASKAR INDUSTRIES LTD.

Vs.

RESPONDENT:
M/S. BHIWANI DENIM & APPARELS LTD. ORS.

DATE OF JUDGMENT: 27/08/2001

BENCH:
K.T. Thomas & K.G. Balakrishnan

JUDGMENT:

THOMAS, J.

Leave granted.

A Sessions Judge, overlooking a legal interdict,
interfered with an interlocutory order and created a
situation for the trial magistrate to remain nonplussed.
That order of the Sessions Judge was sought to be rectified
at the behest of the appellant who, for that purpose, moved
the High Court. But a learned single Judge of the High
Court declined to interfere. Now the trial magistrate
might be under a dilemma as to what is the proper course
for him to adopt.

The facts lie in a narrow compass. Appellant company
filed a criminal complaint before the court of Judicial
Magistrate of First Class, Bhopal (M.P.) against 15 accused
for the offence under Section 138 of the Negotiable
Instruments Act. The first accused in the complaint is a
company having its registered office at Bhiwani in Haryana.
Second accused is the Managing Director of that company.
All the remaining accused are persons said to be associated
with the first accused - company and they are all living in
far distant places from Bhopal, some are in Haryana while
some others are in Chandigarh and some others are in New
Delhi. The magistrate took cognizance of the offence and
issued summons to the accused. It is not necessary to
narrate what happened to the summons issued to the various
accused except in the case of the second accused, because
this appeal is now restricted to the order concerning the
second accused who is arrayed as the second respondent in
the special leave petition.

On 28.4.2000 the trial magistrate recorded that the
notice issued to the second accused (Subhash Sahni) was
received back with the report that he was not seen at his
residence the address of which was shown on the notice.
When other members of the said house refused to accept the
notice it was affixed on the house. On the said
circumstances the magistrate issued bailable warrants to
the accused. Second accused filed an application for
exemption from personal appearance. Pending the same, the
magistrate ordered him to be released on bail if arrested
and directed him to be present in the court for the purpose
of furnishing security by executing a bond for Rs.5,000/-.

All the accused filed a revision petition before the
Sessions Court against the order passed by the magistrate
on 28.4.2000. Learned Sessions Judge (Shri Ranjit Singh,
VIth Additional Sessions Judge, Bhopal) minuted that the
advocate for the second accused had given an undertaking
that he shall appear before the trial court on behalf of
his client. After recording the above submission made by
the advocate the Sessions Judge passed an order the
operative part of which is as follows:

From the analysis of evidence above (sic)
it is clear that the impugned order of the
trial court is not in accordance with law.
Thus, the question under consideration is
decided in negative. On the basis of the
aforesaid analysis I reach a conclusion that
the impugned order of the trial court being
not in accordance with law does not deserve
to be maintained. Therefore, this revision
petition is allowed and the impugned order
of the trial court dated 28.4.2000 is set
aside.

When he set aside the order of the magistrate dated
28.4.2000, what should the magistrate do thereafter as
against second accused? We could not discern it, and we can
imagine the dilemma of the magistrate as to the course to
be adopted thereafter. If a Sessions Judge chooses to pass
such a vague and confusing order what could the subordinate
court do. The confusion got confounded when the Sessions
Judge set aside the order of the magistrate without
substituting with any other direction or order and
consequently the stage was set in a quandary. It was the
said order which the respondent-complainant challenged
before the High Court. But the confused situation was not
defused by the High Court as learned single Judge declined
to interfere with the order of the Sessions Court.

Dr. Abhishek M. Singhvi, learned senior counsel for
the appellant/complainant first contended that the
respondents could not move the High Court in revision
against the order dated 28.4.2000 which was purely an
interlocutory order. At the first blush we thought that
the contention was sustainable, but there are two drawbacks
for the appellant to raise such a contention. First is that
the appellant did not raise any such contention before the
High Court and hence it is not permissible for him to raise
it for the first time in this appeal by special leave.
Second is that it is difficult, in the absence of other
materials, to decide positively whether the order dated
28.4.2000 is an interlocutory order only.

The interdict contained in Section 397(2) of the Code
of Criminal Procedure (for short the Code) is that the
powers of revision shall not be exercised in relation to
any interlocutory order. Whether an order is interlocutory
or not, cannot be decided by merely looking at the order or
merely because the order was passed at the interlocutory
stage. The safe test laid down by this Court through a
series of decisions is this: If the contention of the
petitioner who moves the superior court in revision, as
against the order under challenge is upheld, would the
criminal proceedings as a whole culminate? If it would,
then the order is not interlocutory in spite of the fact
that it was passed during any interlocutory stage.

A three Judge Bench of this Court in Madhu Limaye vs.
State of Maharashtra {AIR 1978 SC 47 = 1977 (4) SCC 551}
laid down the following test: An order rejecting the plea
of the accused on a point which, when accepted, will
conclude the particular proceeding, will surely be not an
interlocutory order within the meaning of Section 397(2).
This was upheld by the four Judge Bench of this Court in
V.C. Shukla vs. State through CBI (AIR 1980 SC 962 = 1980
Supple. SCC 92).

The above position was reiterated in Rajendra Kumar
Sitaram Pande & ors. vs. Uttam and anr. {1999 (3) SCC 134}.
Again in K.K. Patel and anr. vs. State of Gujarat and anr.
{2000 (6) SCC 195} this Court stated thus:

It is well-nigh settled that in deciding
whether an order challenged is interlocutory
or not as for Section 397(2) of the Code,
the sole test is not whether such order was
passed during the interim stage (vide Amar
Nath v. State of Haryana, Madhu Limaye v.
State of Maharashtra, V.C. Shukla v. State
through CBI and Rajendra Kumar Sitaram Pande
v. Uttam). The feasible test is whether by
upholding the objections raised by a party,
it would result in culminating the
proceedings, if so any order passed on such
objections would not be merely interlocutory
in nature as envisaged in Section 397(2) of
the Code. In the present case, if the
objections raised by the appellants were
upheld by the Court the entire prosecution
proceedings would have been terminated.
Hence, as per the said standard, the order
was revisable.

At any rate the objection regarding maintainability of
the revision petition should have been raised before the
court which invoked such a revisional jurisdiction.
Inasmuch as the same was not done we leave that question
undecided now.

We cannot part with this matter without adverting to
the plea made by the second accused before the trial court
for exempting him from personal appearance. He highlighted
two factors while seeking such exemption. First is that
the offence under Section 138 of the Negotiable Instruments
Act is relatively not a serious offence as could be seen
from the fact that the legislature made it only a summons
case. Second is, the insistence on the physical presence of
the accused in the case would cause substantial hardships
and sufferings to him as he is a resident of Haryana. To
undertake a long journey to reach Bhopal for making his
physical presence in the court involves, apart from great
hardships, much expenses also, contended the counsel. He
submitted that the advantages the court gets on account of
the presence of the accused are far less than the
tribulations the accused has to suffer to make such
presence in certain situations and hence the court should
consider whether such advantages can be achieved by other
measures. Therefore, he relied on Section 317 of the Code.
It reads thus:

317. Provision for inquiries and trial
being held in the absence of accused in
certain cases.- (1) At any stage of an
inquiry or trial under this Code, if the
Judge or Magistrate is satisfied, for
reasons to be recorded, that the personal
attendance of the accused before the Court
is not necessary in the interests of
justice, or that the accused persistently
disturbs the proceedings in Court, the Judge
or Magistrate may, if the accused is
represented by a pleader, dispense with his
attendance and proceed with such inquiry or
trial in his absence, and may, at any
subsequent stage of the proceedings, direct
the personal attendance of such accused.

(2) If the accused in any such case is not
represented by a pleader, or if the Judge or
Magistrate considers his personal attendance
necessary, he may, if he thinks fit and for
reasons to be re corded by him, either
adjourn such inquiry or trial, or order that
the case of such accused be taken up or
tried separately.

Sub-section (1) envisages two exigencies when the
court can proceed with the trial proceedings in a criminal
case after dispensing with the personal attendance of an
accused. We are not concerned with one of those exigencies
i.e. when the accused persistently disturbs the
proceedings. Here we need consider only the other exigency.
If a court is satisfied that in the interest of justice the
personal attendance of an accused before it need not be
insisted on, then the court has the power to dispense with
the attendance of that accused. In this context a
reference to Section 273 of the Code is useful. It says
that except as otherwise expressly provided, all evidence
taken in the course of the trial or other proceeding shall
be taken in the presence of the accused or, when his
personal attendance is dispensed with, in the presence of
his pleader. If a court feels that insisting on the
personal attendance of an accused in a particular case
would be too harsh on account of a variety of reasons,
cant the court afford relief to such an accused in the
matter of facing the prosecution proceedings?

The normal rule is that the evidence shall be taken in
the presence of the accused. However, even in the absence
of the accused such evidence can be taken but then his
counsel must be present in the court, provided he has been
granted exemption from attending the court. The concern of
the criminal court should primarily be the administration
of criminal justice. For that purpose the proceedings of
the court in the case should register progress. Presence
of the accused in the court is not for marking his
attendance just for the sake of seeing him in the court.
It is to enable the court to proceed with the trial. If
the progress of the trial can be achieved even in the
absence of the accused the court can certainly take into
account the magnitude of the sufferings which a particular
accused person may have to bear with in order to make
himself present in the court in that particular case.

These are days when prosecutions for the offence under
Section 138 are galloping up in criminal courts. Due to
the increase of inter-State transactions through the
facilities of the banks it is not uncommon that when
prosecutions are instituted in one State the accused might
belong to a different State, sometimes a far distant State.
Not very rarely such accused would be ladies also. For
prosecution under Section 138 of the NI Act the trial
should be that of summons case. When a magistrate feels
that insistence of personal attendance of the accused in a
summons case, in a particular situation, would inflict
enormous hardship and cost to a particular accused, it is
open to the magistrate to consider how he can relieve such
an accused of the great hardships, without causing
prejudice to the prosecution proceedings.

Section 251 is the commencing provision in Chapter XX
of the Code which deals with trial of summons cases by
magistrates. It enjoins on the court to ask the accused
whether he pleads guilty when the accused appears or is
brought before the magistrate. The appearance envisaged
therein can either be by personal attendance of the accused
or through his advocate. This can be understood from
Section 205(1) of the Code which says that whenever a
magistrate issues a summons, he may, if he sees reason so
to do, dispense with the personal attendance of the accused
and permit him to appear by his pleader.

Thus, in appropriate cases the magistrate can allow an
accused to make even the first appearance through a
counsel. The magistrate is empowered to record the plea of
the accused even when his counsel makes such plea on behalf
of the accused in a case where the personal appearance of
the accused is dispensed with. Section 317 of the Code has
to be viewed in the above perspective as it empowers the
court to dispense with the personal attendance of the
accused (provided he is represented by a counsel in that
case) even for proceeding with the further steps in the
case. However, one precaution which the court should take
in such a situation is that the said benefit need be
granted only to an accused who gives an undertaking to the
satisfaction of the court that he would not dispute his
identity as the particular accused in the case, and that a
counsel on his behalf would be present in court and that he
has no objection in taking evidence in his absence. This
precaution is necessary for the further progress of the
proceedings including examination of the witnesses.

A question could legitimately be asked - what might
happen if the counsel engaged by the accused (whose
personal appearance is dispensed with) does not appear or
that the counsel does not co-operate in proceeding with the
case? We may point out that the legislature has taken care
for such eventualities. Section 205(2) says that the
magistrate can in his discretion direct the personal
attendance of the accused at any stage of the proceedings.
The last limb of Section 317(1) confers a discretion on the
magistrate to direct the personal attendance of the accused
at any subsequent stage of the proceedings. He can even
resort to other steps for enforcing such attendance.

The position, therefore, bogs down to this: It is
within the powers of a magistrate and in his judicial
discretion to dispense with the personal appearance of an
accused either throughout or at any particular stage of
such proceedings in a summons case, if the magistrate finds
that insistence of his personal presence would itself
inflict enormous suffering or tribulations to him, and the
comparative advantage would be less. Such discretion need
be exercised only in rare instances where due to the far
distance at which the accused resides or carries on
business or on account of any physical or other good
reasons the magistrate feels that dispensing with the
personal attendance of the accused would only be in the
interests of justice. However, the magistrate who grants
such benefit to the accused must take the precautions
enumerated above, as a matter of course. We may reiterate
that when an accused makes an application to a magistrate
through his duly authorised counsel praying for affording
the benefit of his personal presence being dispensed with
the magistrate can consider all aspects and pass
appropriate orders thereon before proceeding further.

In the result, we allow this appeal and set aside the
order passed by the Sessions Judge on 30.6.2000 (in
Criminal Revision Petition 197/2000). However, this course
is adopted without prejudice to the rights of the second
accused to move a fresh application seeking relief under
Section 317 of the Code. If any such application is filed
the magistrate shall pass orders thereon before proceeding
further in the light of the observations made in this
judgment.

J
( K.T. Thomas )

J
( K.G. Balakrishnan )
August 27, 2001.

K. Sunil V/s State

2009-12-30T10:43:00.000-08:00

IN THE HIGH COURT OF DELHI AT NEW DELHI

03.07.2008

Present: Mr. K. Sunil for the petitioners
Mr. Pawan Behl for the State

Crl. M.C.No.1303/2008 and Crl. M.A.4923/2008

The petitioners are aggrieved of the order dated 17.4.2008 passed by Shri
Rajender Kumar, ASJ, Delhi in SC- No.30/2006, whereby the application of the
petitioners for exemption from personal appearance under Section 205 and 317 of
Cr.PC, till such time the Court directs their appearance at a subsequent stage,
has been rejected. This application was rejected on the ground that merely
because the petitioner is an advocate or an agriculturist or a businessman and
has to travel a distance of about 1100 k.m. on each hearing, cannot in itself be
a ground for permanent injunction for appearance in the trial. The counsel for
the petitioners has drawn my attention to the fact that in the application
itself, which was moved before the Trial Court, the petitioners have pointed out
that they have not been disputing their identity and, therefore, the proceedings
before the Trial Court would not be hampered on any such ground. At the same
time, they had also consented to the entire cross-examination and evidence being
recorded in their absence. They also gave an undertaking to the effect that
whenever their appearance would be required by the Court, they will present
themselves before the Court.
It is well known that in criminal proceedings, the accused persons have a
right to be present during the trial to defend themselves either in person or
through a counsel of their choice. However, it cannot be said that there is any
compulsion on such accused persons to appear in person at every stage of the
trial. Furthermore, the Code nowhere enumerates such presence. On the other
hand, the Code provides power to the Court to exempt such appearances in cases

where such appearance is not necessary. The Supreme Court in Bhaskar Industries
Ltd. Vs. Bhiwani Denim and Apparels Ltd. (2001) 7 SCC 401 observed that;
?The concern of the Criminal Court should primarily be the administration of
criminal justice. For that purpose, the proceedings of the Court in the case
should register progress. Presence of the accused in the Court is not for
marking his attendance just for the sake of seeing him in the Court. It is to
enable the Court to proceed with the trial. If the progress of the trial can be
achieved in the absence of the accused, the Court can certainly take into
account the magnitude of sufferings which a particular accused person may have
to bear with in order to make himself present in the Court in that particular
case.?

It is, therefore, illogical that even though the presence of the accused does
not in any way cater the progress of the trial, the accused must be present. On
the other hand, if the accused person himself does not wish to avail that right
of personal appearance on every date, the Court should not arbitrarily deny him
such exemption if in the interest of justice, such exemption can be given. In
this regard, the counsel for the petitioners has relied upon the case of Bhagwan
Das and Ors. Vs. State reported as AIR 1953 ALL 630 (Vol. 40 C.N. 315) whereby
it is stated as follows:-
?The law enjoins that an accused should be present during the course of the
trial more to safeguard his interests than to cause him inconvenience. In a
case where the accused himself applies to the court to be exempted from personal
appearance, then a court should grant the request unless it is of opinion that
in the interests of justice it is necessary that the accused should be present
throughout the course of the trial, or unless there are some other good reasons
for directing the presence of the accused throughout the course of the trial.
Under the circumstances of this case, we are of the opinion that it would be a
hardship for the accused to be present during the course of the trial in the
Court of the Magistrate which may, for all we know, be a protracted and lengthy
one.?

The counsel for the petitioners has also cited a judgment of Madras High Court
in A. Sundara Pandian Vs. State, 1987 (3) Crimes 655 whereby it is held as
follows:-
?Courts should not hesitate to dispense with the personal appearance of the
accused, unless the interest of the prosecution would thereby suffer or under
the Code itself the presence of the accused is statutorily required.?

To the same effect the petitioner is also citing decision of the Jharkhand
High Court in the case of Dr. Prakash Amrut Mody and Anr. Vs. State of Jharkhand
reported as 2008 (1) BLJ 58.
In this case, it is held as follows:-
?The test basically is the assurance that the court?s proceedings would not be
hampered by allowing the personal attendance of the accused to be dispensed
with. It would no doubt also depend upon the gravity of offence. The approach of
the Magistrate should be to see whether personal attendance is absolutely
necessary for the purpose of case. While considering prayer for protection under
Section 205 Cr.P.C., the Magistrate should not adopt too technical or stringent
approach through the discretion should not be used liberally ?. Mere asking of
it. Regard should be had to exceptional special circumstances and the
inconvenience which the accused is likely to suffer on account of distance or
physical disability or for any such good reason, if his personal attendance is
insisted upon on each and every date till the conclusion of the trial.?

In S.V. Mazumdar and Ors. Vs. Gujarat States Fertilisers Company Ltd. (2005) 4
SCC 173, the Supreme Court observed as follows;
?it is has to be borne in mind that while dealing with an application in terms
of Section 205 of the Code, the Court has to consider whether any useful purpose
would be served by requiring the personal attendance of the accused or whether
progress of the trial is likely to be hampered on account of his absence.?

As far as the precaution which is necessary for the further progress of the
proceedings in case an exemption from appearance is granted, the Supreme Court
in the case of Bhaskar Industries Ltd. (supra) observed that;
?...one precaution which the court should take in such a situation is that the
said benefit need be granted only to an accused who gives an undertaking to the
satisfaction of the court that he would not dispute his identity as the
particular accused in the case, and that the counsel on his behalf would be
present in court and that he has no objection in taking evidence in his
absence?.

In the case at hand, as already pointed out, the accused themselves are
undertaking not to raise any issues with regard to their identification and also
that they will present themselves whenever their personal appearance is
required.
In that view of the matter, the petition deserves to be allowed. The
petitioners are exempted from personal appearance in SC-30/2006 in State Vs.
Shri Raja Ram Yadav and Ors. arising out of FIR No.166/99 under Sections 308/34
IPC, Police Station Dilshad Garden and permit the petitioners to appear only on
those dates when their presence will be necessary in the Court. It is also
directed that their counsel would be present in the Court whenever their case is
taken up.
The petition stands disposed of.
Dasti.

Sudershan Kumar Misra, J.
July 03, 2008
Rs

Neeraj Kumar Singh Vs State

2009-12-30T10:41:00.000-08:00

IN THE HIGH COURT OF DELHI AT NEW DELHI

16.12.2008
Present: Mr. Neeraj Kumar Singh for the petitioner.
Mr. U.L.Watwani, APP for the State.

Crl. M.A. NO. 14649/2008

Allowed subject to all just exceptions.
Crl. M.C. NO. 3931/2008
By way of the present petition filed under Section 482 Cr.P.C.,
the petitioner seeks to challenge the order dated 12.11.2008 and 24.11.2008
passed by the M.M., Karkardooma Court, Delhi.
Counsel for the petitioner states that three complaint cases
filed by the same respondent against the present petitioner were fixed before
the trial court on 12.11.2008 and in all the three cases the petitioner moved
application seeking his exemption from personal appearance. Counsel submits
that the petitioner was allowed exemption in the other two cases but as far as
the present case is concerned, the court had directed NBWs against the
petitioner through SHO returnable on 29.4.2008. Counsel further submits that
after passing of the said order, the petitioner moved another application under
Section 205 r/w Section 317 Cr.P.C. and under Section 70 Cr.P.C. to seek
cancellation of his NBWs and for grant of permanent exemption. The court
after hearing the arguments on the said application gave direction for the
personal presence of the accused petitioner at the time of hearing of his
application. The court also gave directions for the application to be
disposed of in the presence of the complainant/respondent and not in his
absence. The contention of the counsel for the petitioner is that the
learned M.M. ought to have allowed the application of the petitioner seeking
his exemption in the present case as well while his exemption was allowed in
the other two cases. Counsel for the petitioner has placed reliance on the
judgments of this court in Suresh V. Chaturvedi Vs. M/s. AES Control Pvt. Ltd.,
2003 V AD (Delhi) 145 and Prem Cashew Industries and Ors. Vs.Zen Paroo, 2000
III AD (Crl.)DHC 447 to contend that the court is not required to insist the
presence of the accused before dealing with his application seeking
cancellation of NBWs.
I have heard learned counsel for the petitioner at great length.
Notice be issued to the respondent, returnable on 24.3.2009.
Considering the aforesaid submissions made by the counsel for the
petitioner the impugned orders shall stand stayed till the next date.
DASTI.

December 16, 2008 KAILASH GAMBHIR, J.
mg

SHAIL KUMARI DEVI & ANR vs KRISHAN BHAGWAN PATHAK

2009-12-22T23:01:00.000-08:00

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4666 OF 2008 ARISING OUT OF

SPECIAL LEAVE PETITION (CIVIL) NO.17260 OF 2007

SHAIL KUMARI DEVI & ANR. ... APPELLANTS

VERSUS

KRISHAN BHAGWAN PATHAK @

KISHUN B. PATHAK ... RESPONDENT

J U D G M E N T

C.K. THAKKER, J.

1. Leave granted.

2. The present appeal is filed by

appellant No.1-wife and appellant No.2-daughter

of respondent herein-Krishan Bhagwan Pathak.

The appellants have approached this Court being

aggrieved by the judgment and order passed by

the High Court of Judicature at Patna on May 3, 2

2007 in Criminal Revision No. 67 of 2007. By

the said order, the High Court partly allowed

the revision filed by the respondent-husband

and modified the order passed by the Court of

Principal Judge, Family Court, Bhojpur on

October 30, 2006 in Miscellaneous Case No. 280

of 1997, renumbered as No.1 of 2005.

3. Shortly stated the facts of the case

are that the marriage between appellant No.1

and the respondent was solemnized according to

Hindu rites, customs and ceremonies before more

than three decades. From the said wedlock, nine

children were born. Appellant No.2-Kumari Babli

is the youngest among all and she is the only

child staying with her mother-appellant No.1.

At the time of filing of the application, she

was of twelve years.

4. On July 21, 1997, the appellants filed

a case for maintenance in the Court of Chief

Judicial Magistrate, Bhojpur under Section 125

of the Code of Criminal Procedure, 1973

(hereinafter referred to as `the Code') (Misc. 3

Case No. 280 of 1997) claiming maintenance of

Rs.500/- p.m. for appellant No.1 and Rs.500/-

p.m. for appellant No.2. It was the case of the

appellant No.1 that her husband had neglected

to maintain his wife-appellant No.1 as also his

legitimate daughter-appellant No.2. On November

20, 1999, an application was filed by the

appellants requesting the Court to grant

`interim' maintenance during the pendency of

proceedings before the Court. The learned Chief

Judicial Magistrate allowed the said

application, granted the prayer and fixed

interim maintenance at the rate of Rs.300/-

p.m. for each of the applicants with effect

from February 12, 1998. The parties,

thereafter, led the evidence which was closed

on September 3, 2001 and the case was adjourned

for final arguments. During the pendency of

proceedings, however, Family Court came to be

established and the case was transferred to the

Principal Judge, Family Court, Bhojpur. 4

5. From the evidence, it was clear that

the respondent was working as Cashier with the

State Bank of India, Bihita Branch and was

getting gross salary of Rs.18,508-98. After

deduction, his pay packet was of Rs.9,831-76.

The respondent retired from service in January,

2006. The appellants filed a petition on

September 12, 2006 with a prayer to direct the

respondent to pay arrears of maintenance which

came to Rs.11,600/- and the Family Court on

October 30, 2006, allowed the application and

directed the respondent to pay the entire

amount of the arrears in lump sum by the next

date of hearing.

6. The matter was finally disposed of by

the Family Court on November 29, 2006 and the

learned Principal Judge of the Family Court

directed the respondent to pay maintenance of

Rs.2,000/- p.m. to applicant-appellant No.1-

wife and Rs.1,000/- p.m. to applicant-appellant

No.2-minor daughter with effect from the date

of application i.e. July 21, 1997 with further 5

order to pay arrears within three months of the

order after deducting the amount which had

already been paid under the interim order

passed by the Court earlier.

7. The appellant was dissatisfied with

the order passed by the Principal Judge of the

Family Court and preferred Criminal Revision

No. 67 of 2007 in the High Court.

8. The High Court partly allowed the

Revision and modified the direction issued by

the Family Court. The High Court reduced the

amount of maintenance from Rs.2,000/- to

Rs.750/- to appellant No.1-wife and from

Rs.1,000/- to Rs.750/- to appellant No.2-

daughter. The High Court also directed that the

amount of maintenance would be payable to the

applicants-appellants not from the date of the

application i.e. July 21, 1997 but from the

date of the order i.e. November 29, 2006. The

said order is challenged by the appellants in

the present appeal.

6

9. On September 5, 2007, the matter was

placed for admission hearing. Delay of eight

days in filing Special Leave Petition was

condoned and notice was issued to the

respondent. Considering the nature of the

litigation, the Registry was directed by an

order dated April 16, 2008 to place the matter

for final disposal on a non-miscellaneous day

and that is how the matter is placed before us.

10. We have heard learned counsel for the

parties.

11. Learned counsel for the appellants

contended that the High Court was wrong in

partly allowing Revision filed by the

respondent and in modifying the directions

issued by the Family Court. It was submitted

that the High Court was in clear error in

reducing the amount of maintenance to appellant

No.1-wife and appellant No.2-daughter.

Similarly, the High Court was in error in

holding that the appellants were not entitled

to maintenance from the date of application but 7

only from the date of order passed by the

Court. It was, therefore, submitted that the

order passed by the High Court deserves to be

set aside by restoring the order of the Family

Court.

12. The learned counsel for the

respondent, on the other hand, supported the

order passed by the High Court. It was urged

that the Family Court was not right in granting

maintenance to the appellants from the date of

application. It was submitted that the Family

Court was again wrong in allowing maintenance

of more than Rs.500/- either to appellant No.1-

wife or to appellant No.2-daughter before 2001

when the relevant provisions of law (Section

125 of the Code as it then stood), allowed

Rs.500/- p.m. as maximum amount of maintenance.

The High Court was, therefore, justified in

reducing the amount as also issuing direction

to make payment from the date of the order. It

was also urged that no `interim' maintenance 8

could have been awarded before the amendment in

the Code in 2001.

13. The counsel submitted that even on

merits, the Family Court was not justified in

ignoring the evidence on record and in granting

maintenance to wife observing that appellant

No.1 was unable to maintain herself. The

evidence clearly revealed, submitted the

counsel, that some of the properties of the

respondent-husband were with the appellant

No.1-wife. She has also inherited land from her

father. Those facts, therefore, ought to have

been taken into account by the Family Court in

fixing the amount of compensation. On all these

grounds, it was submitted that no interference

in the order passed by the High Court is called

for in exercise of discretionary jurisdiction

under Article 136 of the Constitution and the

appeal deserves to be dismissed.

14. Three questions arise for our

consideration; (i) whether interim maintenance

could be awarded in absence of specific and 9

express provision in the Code; (ii) whether the

applicant-wife and her daughter are entitled to

maintenance from the date of the order passed

by the Family Court or from the date of

application made by them under Section 125 of

the Code; and (iii) what could be the amount of

maintenance which could be awarded by the

Court.

15. Before we proceed to consider these

questions, it would be appropriate if we

examine the relevant provisions of law. Sub-

sections (1) and (2) of Section 125 of the

Code, as they were originally enacted in 1973,

read thus:

125.Order for maintenance of wives, children and parents.- (1) If any
person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not,
unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter)
who has attained majority, where such 1

child is by reason of any physical or mental abnormality or injury unable to
maintain itself, or

(d) his father or mother, unable to maintain himself or herself,

a Magistrate of the first class may, upon proof of such neglect or refusal,
order such person to make a monthly allowance for the maintenance of his wife or
such child, father or mother, at such monthly rate not exceeding five hundred
rupees in the whole, as such Magistrate thinks fit, and to pay the same to such
person as the

Magistrate may from time to time

direct:

Provided that the Magistrate may order the father of a minor female child
referred to in clause (b) to make such allowance, until she attains her
majority, if the Magistrate is satisfied that the husband of such minor female
child, if married, is not possessed of sufficient means.

Explanation.- For the purposes of this Chapter, -

(a) "minor" means a person who, under the provisions of the Indian Majority Act,
1875( 9 of 1875) is deemed not to have attained his majority;

(b) "wife" includes a woman who has been divorced by, or has obtained a divorce
from, her husband and has not remarried.

(2) Such allowance shall be payable 1

from the date of the order, or, if so ordered, from the date of the
application for maintenance.

(emphasis supplied)

16. Bare reading of sub-section (1) of

Section 125 leaves no room for doubt that if

any person having sufficient means, neglects or

refuses to maintain his wife who is unable to

maintain herself or his legitimate (or

illegitimate) child (children) unable to

maintain itself (themselves), or his father, or

mother, unable to maintain himself or herself,

a Court, upon proof of negligence or refusal,

order such person to pay maintenance to his

wife or child (children) or parents, as the

case may be. It is also clear that maximum

amount which could be ordered to be paid was

Rs.500/- p.m. which was clear from the

expression "not exceeding Rs.500/- in the

whole".

17. It is further clear that under sub-

section (2), such maintenance can be made 1

payable "from the date of order" or "if so

ordered, from the date of the application for

maintenance".

18. By the Code of Criminal Procedure

(Amendment) Act, 2001 (Act 50 of 2001), sub-

sections (1) and (2) came to be amended with

effect from September 24, 2001. The amended

sub-sections now read thus:

125.Order for maintenance of wives, children and parents.- (1) If any
person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not,
unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter)
who has attained majority, where such child is by reason of any physical or
mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself,

a Magistrate of the first class may, upon proof of such neglect or
refusal, order such person to make a monthly allowance for the maintenance of
his 1

wife or such child, father or mother, at such monthly rate, as such Magistrate
thinks fit, and to pay the same to such person as the Magistrate may from time
to time direct:

Provided that the Magistrate may order the father of a minor female child
referred to in clause (b) to make such allowance, until she attains her
majority, if the Magistrate is satisfied that the husband of such minor female
child, if married, is not possessed of sufficient means.

Provided further that the Magistrate may, during the pungency of the proceeding
regarding monthly allowance for the maintenance under this sub- section, order
such person to make a monthly allowance for the interim maintenance of his wife
or such child, father or mother, and the expenses of such proceeding which the
Magistrate considers reasonable, and to pay the same to such person as the
Magistrate may from time to time direct:

Provided also that an application for the monthly allowance for the interim
maintenance and expenses of proceeding under the second proviso shall, as far as
possible, be disposed of within sixty days from the date of the

service of notice of the application to such person.

Explanation.- For the purposes of this Chapter, -

(a) "minor" means a person who, under the provisions of the Indian Majority 1

Act, 1875( 9 of 1875) is deemed not to have attained his majority;

(b) "wife" includes a woman who has been divorced by, or has obtained a
divorce from, her husband and has not remarried.

(2) Any such allowance for the maintenance or interim maintenance and
expenses of proceeding shall be payable from the date of the order, or, if so
ordered, from the date of the application for maintenance or interim maintenance
and expenses of proceeding, as the case may be.

(emphasis

supplied)

19. It is apparent that the ceiling which

was fixed under the original enactment of 1973

of Rs.500/- p.m. has been removed and now it is

open to a Court under the amended law to fix

such amount as it `thinks fit'.

20. Again, there is no substantial change

so far as the date of payment is concerned.

Under sub-section (2) as originally enacted, it

was provided that such maintenance could be

made payable from the date of the order or if

so ordered, from the date of application. Even 1

after the amendment of 2001, an order for

payment of maintenance can be made by a Court

either from the date of the order or where an

express order is made to pay maintenance from

the date of application, then the amount of

maintenance can be paid from that date, i.e.

from the date of application.

21. So far as `interim' maintenance is

concerned, it is true that Section 125 of the

Code as it originally enacted did not expressly

empower the Magistrate to make such order and

direct payment of interim maintenance. But the

Code equally did not prohibit the Magistrate

from making such order. Now, having regard to

the nature of proceedings, the primary object

to secure relief to deserted and destitute

wives, discarded and neglected children and

disabled and helpless parents and to ensure

that no wife, child or parent is left beggared

and destitute on the scrap-heap of society so

as to be tempted to commit crime or to tempt

others to commit crime in regard to them, it 1

was held that the Magistrate had `implied

power' to make such order. The jurisdiction of

the Magistrate under Chapter IX (Order for

Maintenance of Wives, Children and Parents) is

not strictly criminal in nature. Moreover, the

remedy provided by Section 125 of the Code is a

summary remedy for securing reasonable sum by

way of maintenance subject to a decree passed

by a competent civil Court. Hence, in absence

of any express bar or prohibition, Section 125

could be interpreted as conferring power by

necessary implication to make interim order of

maintenance subject to final outcome in the

application.

22. A direct question came up for

consideration before this Court in Savitri v.

Govind Singh Rawat, (1985) 4 SCC 337 : 1986

CriLJ 41. The Court considered that though

there was no specific provision for grant of

interim maintenance, considering the object

underlying the provision and social purpose 1

behind the legislation, such a power must be

conceded to the Court.

23. Speaking for the Court,

Venkataramaiah, J. (as His Lordship then was)

observed;

"It is true that there is no express provision in the Code which
authorises a magistrate to make an interim order directing payment of
maintenance pending disposal of an application for maintenance. The Code does
not also expressly prohibit the making of such an order. The question is whether
such a power can be implied to be vested in a magistrate having regard to the
nature of the proceedings under Section 125 and other cognate provisions found
in Chapter IX of the Code which is entitled "Order For Maintenance of Wives,
Children and Parents". Section 125 of the Code confers power on a magistrate of
the first class to direct a person having sufficient means but who neglects or
refuses to maintain (i) his wife, unable to maintain herself, or (ii) his
legitimate or illegitimate minor child, whether married or not, unable to
maintain itself, or (iii) his

legitimate or illegitimate child (not being a married daughter) who has
attained majority, where such child is, by reason of any physical or

mental abnormality or injury unable to maintain itself or (iv) his father
or mother, unable to maintain himself or herself, upon proof of such neglect or
1

refusal, to pay a monthly allowance for the maintenance of his wife or
such child, father or mother, as the case may be, at such monthly rate not
exceeding five hundred rupees in the whole as such magistrate thinks fit. Such
allowance shall be payable from the date of the order, or, if so

ordered from the date of the application for maintenance".

24. Interpreting the relevant provisions

of the Code, putting emphasis on the duty of a

person liable to pay maintenance and applying

the principle of `social justice', His Lordship

proceeded to state;

"In view of the foregoing it is

the duty of the court to interpret the provisions in Chapter IX of the
Code in such a way that the construction placed on them would not defeat the
very object of the legislation. In the absence of any express prohibition, it is
appropriate to construe the provisions in Chapter IX as conferring an implied
power on the magistrate to direct the person against whom an application is made
under Section 125 of the Code to pay some reasonable sum by way of maintenance
to the applicant pending final disposal of the application. It is quite common
that applications 1

made under Section 125 of the Code also take several months for being disposed
of finally. In order to

enjoy the fruits of the proceedings under Section 125, the applicant

should be alive till the date of the final order and that the applicant can do
in a large number of cases only if an order for payment of

interim maintenance is passed by the court. Every court must be deemed to
possess by necessary intendment all such powers as are necessary to make its
orders effective. This principle is embodied in the maxim ubi aliquid
conceditur, conceditur et id sine quo res ipsa esse non potest (Where

anything is conceded, there is conceded also anything without which the thing
itself cannot exist.) (Vide Earl Jowitt's Dictionary of English Law 1959 Edn. P.
1797). Whenever

anything is required to be done by law and it is found impossible to do that
thing unless something not authorised in express terms be also done then that
something else will be supplied by necessary intendment. Such a construction
though it may not always be admissible in the present case however would advance
the object of the legislation under consideration. A contrary view is likely to
result in grave hardship to the applicant, who may have no means to subsist
until the final order is passed. There is no room for the

apprehension that the recognition of such implied power would lead to the
passing of interim orders in a large number of cases where the liability to pay
maintenance may not exist. It is quite possible that such 2

contingency may arise in a few cases but the prejudice caused thereby to the
person against whom it is made is minimal as it can be set right

quickly after hearing both the parties. The magistrate, may, however, insist
upon an affidavit being filed by or on behalf of the applicant concerned stating
the grounds in support of the claim for interim maintenance to satisfy himself
that there is a prima facie case for making such an order. Such an order may
also be made in an

appropriate case ex parte pending service of notice of the application subject
to any modification or even an order of cancellation that may be passed after
the respondent is heard. If a civil court can pass such

interim orders on affidavits, there is no reason why a magistrate should not
rely on them for the purpose of issuing directions regarding payment of interim
maintenance. The affidavit may be treated as supplying prima facie proof of the
case of the

applicant. If the allegations in the application or the affidavit are not true,
it is always open to the person against whom such an order is made to show that
the order is unsustainable. Having regard to the nature of the jurisdiction
exercised by a magistrate under Section 125 of the Code, we feel that the said
provision should be interpreted as conferring power by necessary implication on
the magistrate to pass an order directing a person against whom an application
is made under it to pay a reasonable sum by way of interim maintenance 2

subject to the other conditions referred to there pending final disposal
of the application".

(emphasis supplied)

25. Parliament considered the object of

the legislation, the decision of this Court in

Savitri and the fact that though the remedy is

of a summary nature, the applicant who is

unable to maintain herself may have to wait for

`several years' for getting such relief. It,

therefore, amended the provision expressly

authorizing the Magistrate to grant interim

maintenance.

26. In the Statement of Objects and

Reasons, it was stated;

"It has been observed that an

applicant, after filing application in a Court under Section 125 of the
Code of Criminal Procedure, 1973, has to wait for several years for getting
relief from the Court. It is, therefore, felt that express provisions should be
made in the said Code for interim maintenance allowance to the aggrieved person
under said Section 125 of the Code. Accordingly, it is proposed that during the
pendency of the proceedings, the 2

Magistrate may order payment of interim maintenance allowance and such
expenses of the proceedings as the Magistrate considers reasonable, to the
aggrieved person. It is also

proposed that the order be made ordinarily within sixty days from the
date of the service of the notice".

27. In view of the decision of this Court

in Savitri, in our opinion, the learned

Magistrate was right and wholly justified in

ordering interim maintenance by an order dated

November 20, 1998. We see no infirmity in that

part of the order and hold that interim

maintenance could have been granted by the

learned Magistrate even before the amendment of

Section 125 in 2001.

28. Regarding date from which such amount

should be paid to the appellants, the Family

Court held that the appellants would be

entitled to claim maintenance from the date of

application i.e. July 21, 1997.

29. The Family Court stated;

"This order will be effective from the date of application i.e.
21.7.1997. The opposite party is

2

directed to pay the arrears within three months of this order and shall
pay the current monthly amount of maintenance by 15th of every succeeding
months."

(emphasis supplied)

30. The Family Court thus exercised the

power under sub-section (2) of Section 125

which enables the Court to make an order

whether the applicant would be entitled to

maintenance from the date of the order or from

the date of the application. The Family Court

ordered payment of maintenance from the date of

application.

31. The High Court, however, set aside

that part of the order of the Family Court. It,

inter alia, observed;

"On a consideration of the aforesaid arguments of the parties, this Court
finds that the court below has not considered the present matter in a proper
manner and keeping in view the purpose of the provisions of Section 125 of the
Code. As held in a catena of decisions, the purpose of the said provision is to
prevent vagrancy and destitution and essentially to financially support the
deserted wife or other to say that her own son has grabbed the property and that
she will 2

sit back and will take no steps in the matter. As a matter of fact, under
Section 125 of the Code of Criminal Procedure itself, it is the duty of the son
to maintain his father and mother, if they are unable to maintain themselves;
whereas the court has not even considered the said fact. When the petitioner has
raised the issue that the opposite party has income from the land and house of
her

matrimonial village, the same ought not to have been ignored by the Court in the
manner, which has been done. It raises the strong suspicion that the Court below
had made up its mind to disbelieve everything that was stated on behalf of the
petitioner and believe the contention of the opposite party, which is not the
correct way of looking at the evidence that comes in course of the said
proceedings. It is for the court, in such matter, to consider the probability of
the facts and then to come to a fair conclusion as to what is the real state of

affairs. From the impugned order, it does not appear that any such attempt has
been made by the Court below and even the important admission made by the
opposite party No.1 has been lost sight of by the Court below.

In the aforesaid view of the matter, this Court does not find that the Court
below has rightly looked into the aspect of the matter. The Court below has also
not considered as to what was the justification for passing an order for
maintenance from the date of application, which goes back to more than 9 years
from the date of the order. 2

As laid down in the decision of this Court such an order may be
necessitated if the party shows the dire need of money for the purpose of
maintaining herself, for which she had to raise debts, during the period when
the application had been pending. There is no such material on the record,
rather the opposite party was getting interim maintenance from November, 1998
itself by order dated 20.11.1998 although as a matter of fact the provision for
interim maintenance has been brought into existence for the first time by the
Amendment Act, 2001 with effect from 24.9.2001. However, since the said order is
not under challenge, therefore, this Court would not like to go into that issue
any further. In any case, it is a relevant fact that right from 1998, opposite
party Nos. 1 and 2, have been paid interim maintenance, by which they had
managed to sustain themselves during that period and thus there is no reason for
passing the order to pay maintenance with effect from the date of application
going back more than 9 years from the date of passing of the said order."
(emphasis supplied)

32. The above observations manifestly show

that according to the High Court, there must be

justification on the part of the Court in

making the order of maintenance from the date

of the application rather than from the date of

the order. As there was no such reason granting 2

maintenance from the date of the application,

the Family Court was not justified in doing so.

To that extent, therefore, the order passed by

the Family Court was vulnerable and

accordingly, it was set aside by granting

maintenance from the date of the order passed

by the Family Court.

33. Now, no direct decision of this Court

is available on the point as to from which date

a Magistrate may order payment of maintenance

to wife, children or parents. We may, however,

refer to decisions of some High Courts.

34. It seems that there is a cleavage of

opinion on the question. According to one view,

since sub-section (2) of Section 125 declares

that maintenance shall be payable "from the

date of the order", or, "if so ordered, from

the date of application for maintenance",

normal rule is that a Magistrate should pass an

order directing payment of maintenance only

from the date of the order. If he decides to

deviate that course and makes an order granting 2

maintenance not from the date of the order but

from the date of application for maintenance,

he must record reasons in support of such order

[vide Mohd. Inaytullah Khan v. Salma Bano,

1983 Jab LJ 55, Rameshwar v. Ramibai, 1987

CrLJ 1952 (MP), Lachhmani v. Ramu, (1983) 1

Crimes 590 MP, Qamruddin v. Smt. Rashida,

(1992) 1 WLC 305 (Raj), Shyamlal v. Mansha

Bai, 1998 CrLJ 2704 (Raj), Mohd. Ismail v.

Bilquees Bano, 1998 CrLJ 2803 (All), Nitha

Ranjan Chakraborty v. Smt. Kalpana

Chakraborty, 2002 CrLJ 4768 (Cal), Samaydin v.

State of U.P. & Anr., 2001 CrLJ 2064 (All)].

35. The High Court, in the impugned order,

also referred to a decision in Bijay Kapri v.

Smt. Kanishta Devi & Anr., (2000) 2 PLJR 241,

wherein it was held that such order could be

necessitated if the party shows `dire need' of

the money for the purpose of maintaining

herself for which she had raised debts during

the period when the application had been

pending. No such material had been brought on 2

record. Rather, the applicants were getting

interim maintenance from November, 1998 by an

order passed by the Magistrate though such

provision of interim maintenance had been

brought in the statute book for the first time

by the Amendment Act, 2001 with effect from

September 24, 2001.

36. In Samaydin, the High Court of

Allahabad observed that there may not be a

discussion of such circumstances which

warranted the Court to allow it to grant

maintenance from the date of application. But,

no other inference is permissible in the light

of the language of sub-section (2) of Section

125. The Court, by way of illustrative cases

considered certain situations, such as,

`dilatory tactics adopted by the husband in the

disposal of the proceeding', `untold cruelty

practised against wife', etc. In absence of

special circumstances, however, maintenance

cannot be ordered from the date of application. 2

37. Some other High Courts, have taken a

contrary view. It was held that normally,

maintenance should be granted from the date of

the application and not from the date of the

order. If the Magistrate is inclined to make

an order granting maintenance from the date of

the order and not from the date of application,

he should record reasons to do so.

38. In Gnanaselvi & Ors. v. Illavarasan,

(1999) 1 Crimes 22 (Mad), the High Court of

Madras observed that when the wife approaches a

Court claiming maintenance by filing

application on the ground that she is not able

to maintain herself, it is for her to prove

such inability from the date of application.

Hence, when the Court ultimately decides after

conducting the inquiry that she is entitled to

maintenance, the said decision must necessarily

be based upon the material showing that the

wife was unable to maintain herself when she

filed an application. As a general rule,

therefore, the Magistrate should pass an order 3

directing maintenance from the date of

application. It was also observed that the

remedy is a speedy remedy and summary procedure

is provided by the statute. Despite this,

usually, in such proceedings, the Court notices

that the husband does not allow the proceedings

to go on by raising one objection or the other.

The Court is required to deal with all such

objections, which takes time. Again, even after

the order is passed, the husband rushes to the

higher forum and challenges it. Sometimes, he

obtains interim orders which results in further

delay. The deserted wife and children are the

sufferers who seek shelter of the protective

umbrella provided by Section 125 of the Code.

If maintenance is not granted from the date of

application, the weaker sections are sure to

lose confidence in the justice delivery system.

The Court noted the deep concern expressed by

this Court in P.N. Duda v. P. Shiv Shankar,

(1988) 3 SCC 167 that "justice cries in silence

for long, far too long".

3

39. In Amarjit Kaur v. Sartaz Zingh, 1996

CriLJ 4476 (P&H), the High Court of Punjab &

Haryana held that sub-section (2) of Section

125 does not require the Magistrate to record

special reasons for granting maintenance from

the date of application. What it says is that

if the order is silent as to the date from

which such maintenance is payable, it has to be

paid from the date of the order. Where,

however, the maintenance is to be paid from the

date of the application itself, then there

should be a specific order in that behalf by

the Court. There is nothing in the statutory

provision to hold that the Magistrate must

record special reasons if he is to order that

maintenance shall be payable from the date of

application.

40. In Krishna Jain v. Dharam Raj Jain,

1992 CriLJ 1028 (MP), the Division Bench of

High Court of Madhya Pradesh considered the

ambit and scope of sub-section (2) of Section

125 in the light of other provisions of the 3

Code. It overruled Mohd. Inaytullah Khan,

Rameshwar and Lachhmani referred to above and

held that plain reading of sub-section (2) of

Section 125 makes it clear that allowance of

maintenance can be awarded from the date of

the order or from the date of the application.

To hold that, normally maintenance should be

made payable from the date of the order and not

from the date of the application unless such

order is backed by reasons would amount to

inserting something more in the sub-section

which the Legislature never intended. The Court

observed that it was unable to read in sub-

section (2) laying down any rule to award

maintenance from the date of the order or that

the grant from the date of the application is

an exception.

41. Regarding recording of reasons, the

Bench observed that in either case i.e. grant

of maintenance from the date of the order or

from the date of the application, the Court is

required to record reasons. The Court referred 3

to sub-section (6) of Section 354 of the Code

which reads thus:

(6) Every order under Section 117 or sub-section (2) of Section 138 and
every final order made under Section 125, Section 145 or Section 147 shall
contain the point or points for

determination, the decision thereon and the reasons for the decision.
(emphasis

supplied)

42. It was, therefore, observed that every

final order under Section 125 of the Code [and

other Sections referred to in sub section (c)

of Section 354] must contain points for

determination, the decision thereon and the

reasons for such decision.

43. Our attention was also invited to a

decision in K. Sivaram v. K. Mangalamba &

Ors., 1990 CrLJ 1880 (AP). In K. Sivaram, a

single Judge of the High Court of Andhra

Pradesh negatived the argument on behalf of the

husband that the maintenance could be awarded

from the date of the order and such maintenance

could be granted from the date of the 3

application only by recording special reasons.

The Court held that it is the discretion

conferred on the Court by the Code to award

maintenance either from the date of the order

or from the date of the petition as per the

circumstances of the case. The Code also noted

that wherever Parliament wanted special reasons

to be recorded for passing a particular order,

specific provision has been made to that effect

[See sub-section (3) of Section 167 of the Code

(default bail), Section 361 (refusal to grant

probation) etc].

44. In our considered opinion, the High

Court is not right in holding that as a normal

rule, the Magistrate should grant maintenance

only from the date of the order and not from

the date of the application for maintenance.

And if he intents to pass such an order, he is

required to record reasons in support of such

order. As observed in K. Sivaram, reasons have

to be recorded in both the eventualities. The 3

Court was also right in observing that wherever

Parliament intended the Court to record special

reasons, care had been taken to make such

provision by requiring the Court to record such

reasons.

45. Moreover, duration of litigation is

not within the power or in the hands of the

applicant and entitlement to maintenance should

not be left to the uncertain date of disposal

of the case. Keeping in view this hard reality,

this Court in Savitri held that in absence of

prohibition to grant `interim' maintenance such

power could be read in the salutary provision

of Section 125 of the Code ensuring maintenance

to unable wife to maintain herself during the

pendency of proceedings. Even Parliament took

into account the reality and by the Amendment

Act, 2001 express provision has been made for

the purpose.

46. Again, maintenance is a right which

accrues to a wife against her husband the

minute the former gets married to the latter. 3

It is not only a moral obligation but is also a

legal duty cast upon the husband to maintain

his wife. Hence, whenever a wife does not stay

with her husband and claims maintenance, the

only question which the Court is called upon to

consider is whether she was justified to live

separately from her husband and still claim

maintenance from him? If the reply is in the

affirmative, she is entitled to claim

maintenance. It is, therefore, open to the

Magistrate to award maintenance from the date

of application and there is nothing which

requires recording of `special reasons' though

he must record reasons as envisaged by sub-

section (6) of Section 354 of the Code in

support of the order passed by him.

47. We, therefore, hold that while

deciding an application under Section 125 of

the code, a Magistrate is required to record

reasons for granting or refusing to grant

maintenance to wives, children or parents. 3

Such maintenance can be awarded from the date

of the order, or, if so ordered, from the date

of the application for maintenance, as the case

may be. For awarding maintenance from the date

of the application, express order is necessary.

No special reasons, however, are required to be

recorded by the Court. In our Judgment, no

such requirement can be read in sub section (l)

of Section 125 of the Code in absence of

express provision to that effect.

48. The last question relates to quantum

of amount of maintenance. The Family Court

granted maintenance to the appellants--wife as

well as daughter--at the rate of Rs.2000/- and

Rs. 1000/- respectively from the date of

application i.e. July 21, 1997. We have

reproduced the relevant part of Section 125 as

originally enacted and as amended by the

Amendment Act, 2001. Before the amendment of

2001, the ceiling was Rs.500/-. In our opinion,

therefore, the Family Court could not have

granted maintenance exceeding Rs.500/- p.m 3

either to appellant No.1 or appellant No.2 from

the date of application i.e. July 21, 1997. At

the most, such an order could have been made

effective from the date the Amendment Act, 2001

came into force. To that extent, therefore, the

order passed by the Family Court was not in

accordance with law.

49. But even on merits, the Family court

was not right in fixing the amount of

maintenance. The learned counsel for the

respondent took us to the evidence adduced by

the parties. From the material on record, it is

clear that the appellant No.1-wife is residing

in the house belonging to the respondent-

husband and such finding has been recorded even

by the Family Court. It is also in evidence

that she was receiving income from the land in

her possession which belonged to her husband-

respondent herein. It is true that the

respondent could not state as to the actual

amount received by the wife from the

cultivation of the land. But it is also one of 3

the considerations which is relevant and

material while fixing the amount of

maintenance. Moreover, appellant No.1 has

inherited some land from her father.

50. In view of overall facts and

circumstances, in our opinion, ends of justice

would be served if we hold that both the

appellants are entitled to an amount of

Rs.1000/- each per month as maintenance. As

already clarified, the appellants would be

entitled to the said amount of maintenance from

the date the Amendment Act, 2001 came into

force. i.e. September 24, 2001. So far as the

order of payment of `interim' maintenance

passed by the Magistrate is concerned, the same

was in consonance with law and no interference

is called for.

51. For the foregoing reasons, the appeal

deserves to be partly allowed and is

accordingly allowed to the extent indicated

above.

4

.........................................................J.
(C.K. THAKKER)

NEW DELHI, .........................................................J. JULY 28,
2008. (D.K. JAIN)

LIMITATION IN COMPLAINT/SUIT AGAINST POLICE PERSONAL

2009-11-17T11:24:00.001-08:00

LIMITATION IN COMPLAINT/SUIT AGAINST POLICE PERSONAL

Prof. Sumer Chand vs Union of India and others

Facts

In this case the question before the Supreme Court was that whether the period of limitation for filing a suit for malicious prosecution against a member of the Delhi Police is governed by the provisions of Sec. 140 of Delhi Police Act, 1978 or by Article 74 of the Limitation Act, 1963.

Held

Where a suit for malicious prosecution against two Police Officers alleging that one Police Officer who was in charge of Police post has registered a false, vexatious and malicious report against a person and another officer who was Station House Officer had filed the challan in the Court against him and another accused on the basis of the said report was filed after expiry of three months from acts complained of, it colour of office of the said officers and would fall within the ambit of S.140 (1) of Delhi Police Act because it was the duty of the said first officer being in charge of Police Post to record the report and so also it was the duty of another officer to file the challan in Court. The acts complained of were, therefore, done under the colour of office of the said officers and fell within the ambit of Section 140(1) of the Act. In such a case, the period of limitation for institution of the suit would be that prescribed in Section 140 and not the period prescribed Art. 74 of the Limitation Act. The Limitation Act is an enactment which consolidates and amends the law of the limitation of suit and other proceedings connected therewith. It is a law which applies generally to all suits and proceedings. therefore, in the nature of a general enactment governing the law of limitation. The Delhi Police Act has been enacted for the purpose of amending and consolidating the law relating to regulation of Police in the Union Territory of Delhi. The Act is a special enactment in respect of matters referred to therein, Section 140 of the Act imposes certain restrictions and limitation in the matter of institution of suits and prosecutions against Police Officers in respect of acts done by a Police Officer under colour of duty or authority or in excess of such duty or authority. Since the Act is a special law which prescribes a period of limitation different from the period prescribed in the Schedule to the Limitation Act for suits against persons governed by the Act in relation to matters covered by Section 140, by virtue of S.29(2) of the Limitation Act, the period of limitation prescribed for such suits and not the period prescribed in the Schedule to the Limitation Act.

_______________

*1993 Cr.L.J.3531

S.P.Vaithianathan vs K.Shanmuganathan*

Facts

Complainant made complaint to higher Police Officer regarding involvement of a particular Police Officer in illegal distillation. The aggrieved Police Officer through summons called the complainant his office and tortured him. No. action was taken by senior official against this ill-treatment of the complainant. He then filed Crimiinal Complaint under Section 341, 342, 323, 363, 364, 506 Part II and 307 of the IPC. The learned CJM issued process, to this an objection was raised that the prosecution was barred by limitation in view of the provision in Sec.53 of the T.N.District Police Act, 1869, High Court upheld this contention and quashed the order by which process was issued.

The Supreme Court reversing the judgment of Madras High Court.

Held

It must be realized that in order to avail of the benefit of Sec.53 of the Act, the respondent must show that he acted ‘under’ the Act or any other law. Merely because the appellant was called through a summons issued under law, the conduct of beating and torturing the appellant on the latter appearing in obedience to the summons cannot establish any nexus between the official act of issuance of summons and the action of the respondent on the appearance of the appellant. Unless a relation ship is established between the provision of law ‘under’ which the respondent purports to act and the misdemeanor complained of, the provision of Sec.53 will not be attracted.

HC (Karnataka) Perjury - Two irreconcilable statements proves

2009-11-02T04:37:00.000-08:00

HC (Kar) Perjury - Two irreconcilable statements proves perj

Read in this Judgment:

6. I have already referred to Illustration (b) of S. 236 Cr.P.C. which
states that a person may be charged in the alternative and convicted of
intentionally giving false evidence, although it cannot be proved which
of the contradictory statements was false. Sri Vijaya Shankar has also
relied on Umrao Lal v. State, , which is an authority
for the proposition that in a prosecution under S. 193 IPC. if the
prosecution succeeds in proving that the accused in the witness box
deliberately made two statements which are so contradictory and
irreconcilable with each other, that both cannot possibly be true, he
can be convicted of perjury even without its being proved which one of
them was not true.

and

"giving false evidence in any stage of the judicial proceeding". What is a 'judicial
proceeding' is defined in S. 4(m) Cr.P.C. it reads thus:

"'Judicial proceeding' includes any proceeding in the course of
which evidence is or may be legally taken on oath."

Gangawwa vs State Of Mysore on 17/2/1967

ORDER

1. The petitioner has been convicted of an offence under section 193
I.P.C. by the Judicial Magistrate, Ist Class, Bijapur, and sentenced to
suffer one year's R. I. In the appeal filed by the petitioner against
the said conviction and sentence to the Sessions Judge of Bijapur, the
conviction was confirmed, but the sentence was reduced to three months'
R. I. The petitioner has come up in revision to this Court questioning
the correctness and legality of the said order of the Sessions Judge
confirming her conviction.

2. In P. R. Case No. 5/1963, in a proceeding under section 512 Cr.P.C.
the petitioner examined as a witness by the Judicial Magistrate, I
Class, Bagewadi, and made a certain statement on oath. When the
petitioner was examined in the committal proceedings in P. R. Case No.
2/65, she made another statement wholly irreconcilable and
contradictory to the previous statement. After issuing show cause
notice, the learned Magistrate directed that a complaint be filed
against the petitioner under S. 193 IPC. After the trail, the Judicial
Magistrate, I Class, Bijapur, convicted her of an offence under S. 193,
IPC.

3. Sri Malimath learned counsel on behalf of the petitioner, has
contended that the charge framed against the petitioner is defective.
The charge simply says that either of the statements made by her in the
two different proceedings is false and it does not say which particular
statement made by her is false. He also argues that the charge framed
is not consistent with the complaint or the committal order in the
case. I see no force in the said contentions.

4. It is not necessary for the charge to state specifically which of
the statements made by the petitioner is false. As pointed out by Sri
Vijaya Shankar, learned counsel appearing on behalf of the State, it is
open to the Court under section 236 Cr.P.C. to frame alternative
charges against a person. Illustration (b) to section 236 Cr.P.C.
states that a person may be charged in the alternative and convicted of
intentionally giving false evidence, although it cannot be proved which
of those contradictory statements is false. The charge framed by the
Court must depend on the evidence in the case and does not depend on
either the complaint or the order passed in the committal proceedings.

Further, there is no inconsistency between the complaint filed and the
charge framed in this case. the complaint sets out the contradictory
statements made by the petitioner and states that the answers given by
her go to show that she has perjured. In any case, even assuming there
are defects in the charge, S. 225 Cr.P.C. states, that no error in
stating either the offence or the particulars required to be stated in
the charge and no omission to state the offence or those particulars
shall be regarded at any stage of the case as material, unless the
accused was in fact misled by such error or omission, and it has
occasioned a failure of justice.

5. Sri Malimath has next contended that the prosecution has failed to
establish which of the statements made by the petitioner is false and
therefore the petitioner cannot be convicted under S. 193 IPC. He has
strongly relied on Emperor v. Ningappa Ramappa Kurbar, 43 Bom LR 864 :
(AIR 1941 Bom 408) in support of his said contention. The facts of that
case were entirely different from the facts of the present case. their
Lordships were considering there the question whether it was expedient
to prosecute a person under S. 476, Cr.P.C. and not under S. 479A,
Cr.P.C. They were considering the statement made by the accused under
S. 164 Cr.P.C. in the committal Court.

6. I have already referred to Illustration (b) of S. 236 Cr.P.C. which
states that a person may be charged in the alternative and convicted of
intentionally giving false evidence, although it cannot be proved which
of the contradictory statements was false. Sri Vijaya Shankar has also
relied on Umrao Lal v. State, , which is an authority
for the proposition that in a prosecution under S. 193 IPC. if the
prosecution succeeds in proving that the accused in the witness box
deliberately made two statements which are so contradictory and
irreconcilable with each other, that both cannot possibly be true, he
can be convicted of perjury even without its being proved which one of
them was not true.

7. Sri Malimath also contends that the examination of the petitioner by
the learned Magistrate under S. 342 Cr.P.C., is not according to law
and it has gravely prejudiced the petitioner. He has relied on Ajmer
Singh v. State of Punjab, and Ramashankar Singh v.
State of W. B., . He argues that the questions put by
the Court to the petitioner were so long, involved and confusing that
it was not possible for the petitioner to understand the same and give
proper answers. If the petitioner had been properly questioned, she
would have come out with an explanation. There is no doubt, the
question put by the Magistrate are long and complicated. But the point
for consideration is whether the petitioner has been prejudiced in her
defence and whether it has caused failure of justice.

8. In Moseb Kaka v. State of W. B., , their Lordships,
in paragraph 8, page 540, have observed as follows:

"There can be no doubt that this is very inadequate compliance with
the salutary provisions of S. 342, Cr.P.C. It is regrettable that
there has occurred in this case such a serious lacuna in procedure
notwithstanding repeated insistence of this Court, in various
decisions commencing Tara Singh v. State, on a due
and fair compliance with the terms of S. 342 Cr.P.C. But it is also
well recognised that a judgment is not to be set aside merely by
reason of inadequate compliance with Section 342 Cr.P.C. It is
settled that clear prejudice must be shown. This Court has clarified
the position in relation to cases where accused is represented by
Counsel at the trial and in appeal. It is up to the accused or his
Counsel in such cases to satisfy the Court that such inadequate
examination has resulted in miscarriage of justice."

The charge which the petitioner was upon to meet was a simple one. The
case was that she made two totally contradictory statements on oath in
P. R. Case No. 5/63 and P. R. Case No. 2 of 1965. The petitioner denied
that she made the statement alleged in P. R. Case No 5/63. Hence, I am
of opinion that it cannot be said that the petitioner has been
prejudiced and it has resulted in miscarriage of justice.

9. Sri Malimath has further contended that the statement under S. 512
Cr.P.C. made by the petitioner cannot be made use of when the
petitioner is alive and can give evidence. Further, he contends S. 512
Cr.P.C. is only a mode of recording evidence. It is neither an enquiry
nor a trial. The petitioner was not a witness when her statement was
recorded under S. 512 Cr.P.C. He also argues that a complaint could not
be made under S. 479A Cr. P.C. by the Committal Court. It could be made
only by the Sessions Court to whom the accused is committed. There is
no final order disposing of the case when the accused is committed to
the Court of Session for trial. Committal proceedings are not
independent proceedings, but only a stage of the judicial proceedings
before the Sessions Judge who and it is only the Sessions Judge who has
jurisdiction to file a complaint under S.479-A Cr.P.C. If the Committal
Court and the Sessions Court both have jurisdiction to pass an order
under S. 479A, this would result in conflicting orders.

9A. It may be pointed out that the contentions mentioned above have not
been urged either in the trial Court or in the appeal before the
Sessions Court. This Court has not got the benefit of the views of the
Courts below on these questions. Since Sri Malimath argues that they
are questions of law and could be raised revision, I will deal with
these points shortly.

10. With regard to the contention that the statement under S. 512
Cr.P.C. cannot be made use of when the petitioner is alive and could
give evidence, it may be pointed out that this has reference only to
the absconding accused in the said proceedings. There is no prohibition
for making use of a statement given by the petitioner under section 512
Cr.P.C. against herself in proceedings instituted under section 193
IPC. With regard to the contention that S. 512 proceedings are neither
inquiry, nor trial, it may be pointed out that S. 479A Cr.P.C. does not
refer to any inquiry or trial. All that it states is "giving false
evidence in any stage of the judicial proceeding". What is a 'judicial
proceeding' is defined in S. 4(m) Cr.P.C. it reads thus:

"'Judicial proceeding' includes any proceeding in the course of
which evidence is or may be legally taken on oath."

Explanation 2 to S. 193 IPC. states that even an investigation directed
by law, preliminary to a proceeding before a Court of Justice, is a
stage of a judicial proceeding, though that investigation may not take
place before a Court of Justice. Explanation 3 to the same section also
states that an investigation directed by a Court of Justice according
to law, and conducted under the authority of a Court of Justice, is a
stage of a judicial proceeding though that investigation may not take
place before a Court of Justice. It is therefore clear that both under
the Code of Criminal Procedure and the Indian Penal Code, a proceeding
under section 512 Cr.P.C. comes within the definition of 'judicial
proceeding.'

11. Sri Malimath has also contended that when a person is examined
under S. 512 Cr.P.C. he is not deposing as a witness. He has relied on
in re: Ramalingam, AIR 1965 Mad 100 in support of his contention. What
was decided in that case was that section 479A, Cr.P.C. applied only to
person appearing before Court as witnesses and does not apply to a case
where a person does not appear as a witness before Court but only files
an affidavit without entering the box. Here, it cannot disputed that
the petitioner had appeared before Court in both the proceedings as a
witness.

12. Sri Malimath has argued that committal proceedings are only a stage
of the judicial proceedings before the Sessions Court and that only the
Sessions Judge has got the power to take proceedings under S. 479A,
Cr.P.C. and not the Committal Court. He has strongly relied on the
observations made by their Lordships of the Supreme Court in Shabir
Hussain Bholu v. State of Maharashtra, in support of
his contention. The question which their Lordships were considering in
the said case was, in a case where proceedings under S. 479A Cr.P.C.
should have been taken, whether it was open to the Court to proceed
under S. 476 Cr.P.C. Their Lordships held that the provisions of S. 476
are totally excluded where the offence is of the kind specified in S.
479A. In that particular case, the accused had made conflicting
statements before the Committal Court and the Sessions Court.

Their Lordships held that the committal proceedings were not
independent proceedings and it was only the Sessions Court which decide
whether proceedings under S. 479A could be taken against the accused.
It may be pointed out in this case, the petitioner was never examined
in the Sessions Court. Hence the question of Sessions Court taking
proceedings S. 479A did not arise. The question of conflicting orders
by the Sessions Court and the Committal Court also does not arise in
the case.

13. There is equally no force in the contention of Sri Malimath that in
the committal proceedings there is no final order disposing of such
proceedings. So far as the Committal Court is concerned once it commits
an accused to the Sessions Court, there is final disposal of the
proceedings before it. In Dastagiramma v. State, it
has been held that committal proceedings are final so far as they
result in discharge or in committal. Such an order would be final order
disposing of such proceedings within the meaning of S. 478A Cr. P.C.

14. Finally, Sri Malimath has contended that the statement made by the
petitioner was not intentional and that she is an illiterate woman. It
is not possible to accept this contention. The learned Magistrate, who
recorded the evidence in both the proceedings has been examined as a
witness. He has stated that the petitioner after being administered
oath, made the above mentioned contradictory statements. The evidence
given by her was read over and explained to her and she admitted the
statements to be correct. There is, therefore, no force in any of the
contentions urged by Sri Malimath on behalf of the petitioner.

15. In the result, there is no merit in this revision petition and the
same is dismissed.

16. Petition dismissed

Munish Bhasin & Ors Vs N.C.T. of Delhi [ Irrelevant bail conditions can not be imposed]

2009-09-12T00:11:00.000-07:00

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 344 OF 2009 (Arising out of S.L.P. (Criminal) No.
637 of 2008) Munish Bhasin & Ors. ... Appellants Versus

State (Govt. of N.C.T. of Delhi) & Anr. ... Respondents JUDGMENT

J.M. PANCHAL, J.

Leave granted. The complainant (wife of first appellant) to whom notice was
ordered on 25.01.2008 is impleaded as second respondent.

2. Heard Counsel.

2

3. The appellant (accused no. 1) assails the condition imposed by the High
Court requiring him to pay a sum of Rs.12,500/- as maintenance to his wife and
child while granting anticipatory bail to him and his parents with reference
to the complaint filed by his wife for alleged commission of offences
punishable under Sections 498A and 406 read with Section 34 of the Indian Penal
Code.

4. The marriage of the appellant was solemnized with Ms. Renuka on December 05,
2004. She has filed a complaint in November 2006, against the appellant and
his parents for alleged commission of offences punishable under Sections 498A
and 406 read with Section 34 of the Penal Code on the grounds that after
marriage she was subjected to mental and physical cruelty for bringing less
dowry and that her stri-dhan entrusted to them has been dishonestly
misappropriated by them.

3

5. Apprehending arrest, the appellant and his parents moved High Court of Delhi
for anticipatory bail. The application came up for consideration before a
Learned Single Judge of the High Court on 22.02.2007. The Learned Additional
Public Prosecutor accepted notice and submitted that the matter was essentially
a matrimonial dispute and therefore the parties should be referred to the
Mediation and Conciliation Cell of the Delhi High Court. The Learned Judge
agreed with the suggestion made by the Additional Public Prosecutor and
directed the parties to appear before the Mediation and Conciliation Cell of
the Delhi High Court on March 02, 2007. The case was ordered to be listed on
10.05.2007. The Learned Judge further directed that in the event of arrest of
the appellant and his parents, before the next date of hearing, they shall be
released on bail on their furnishing personal bond in the sum of Rs.25,000/-
each with one surety of like amount to the satisfaction of the Investigating
Officer/ Arresting Officer concerned, subject however, to the condition that
the appellant and 4

his parents shall surrender their passports to the Investigating Officer and
shall file affidavits in the Court that they would not leave the country
without prior permission of the Court.

6. From the records, it appears that the conciliation proceedings failed and
therefore the bail application was taken up for hearing on merits. On
representation made by the wife of the appellant, the counsel of the appellant
was directed to produce appellant's salary slip. Accordingly, the salary slip
of the appellant was produced before the Court which indicated that the
appellant was drawing gross salary of Rs.41,598/- and after deductions of
advance tax etc., his net salary was Rs.33,000/-. The Learned Single Judge of
the High Court took the notice of the fact that the appellant had the duty to
maintain his wife and the child and therefore as a condition for grant of
anticipatory bail, directed the appellant, by the order dated 07.08.2007 to pay
a sum of Rs.12,500/- per month by way of maintenance to his 5

wife and child. The Learned Single Judge also directed to pay arrears at the
rate of Rs. 12,500/- per month from August 2005, that is Rs. 3,00,000/- within
six months. The imposition of these conditions for grant of anticipatory bail
is the subject matter of challenge in the instant appeal.

7. From the perusal of the provisions of sub-section (2) of section 438, it is
evident that when the High Court or the Court of Session makes a direction
under sub- section (1) to release an accused alleged to have committed non-
bailable offence, the Court may include such conditions in such direction in
the light of the facts of the particular case, as it may think fit, including
(i) a condition that a person shall make himself available for interrogation
by police officer as and when required, (ii) a condition that the person shall
not, directly or indirectly, make any inducement, threat or promise to any
person acquainted with the facts of the case so as to dissuade him from
disclosing such facts to the Court or to any 6

police officer, (iii) a condition that the person shall not leave India without
the previous permission of the Court and (iv) such other conditions as may be
imposed under sub-section (3) of section 437, as if the bail were granted
under that section. Sub-section (3) of Section 437, inter alia, provides that
when a person accused or suspected of the commission of an offence punishable
with imprisonment which may extend to seven years or more or of an offence
under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or
abetment of, or conspiracy or attempt to commit, any such offence, is released
on bail under sub-section (1), the Court shall impose the following conditions-

(a) that such person shall attend in accordance with the conditions of the
bond executed under this Chapter,

(b) that such person shall not commit an offence similar to the offence of
which he is accused, or suspected, of the commission of which he is suspected,
and

7

(c) that such person shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with the facts of the
case so as to dissuade him from disclosing such facts to the Court or to any
police officer or tamper with the evidence.

The Court may also impose, in the interests of justice, such other
conditions as it considers necessary.

8. It is well settled that while exercising discretion to release an accused
under Section 438 of the Code neither the High Court nor the Session Court
would be justified in imposing freakish conditions. There is no manner of
doubt that the Court having regard to the facts and circumstances of the case
can impose necessary, just and efficacious conditions while enlarging an
accused on bail under Section 438 of the Code. However, the accused cannot be
subjected to any irrelevant condition at all. The conditions which can be
imposed by the Court while granting anticipatory bail are 8

enumerated in sub-section (2) of Section 438 and sub- section (3) of Section
437 of the Code. Normally, conditions can be imposed (i) to secure the presence
of the accused before the investigating officer or before the Court, (ii) to
prevent him from fleeing the course of justice, (iii) to prevent him from
tampering with the evidence or to prevent him from inducing or intimidating
the witnesses so as to dissuade them from disclosing the facts before the
police or Court or (iv) restricting the movements of the accused in a
particular area or locality or to maintain law and order etc. To subject an
accused to any other condition would be beyond jurisdiction of the power
conferred on Court under section 438 of the Code. While imposing conditions on
an accused who approaches the Court under section 438 of the Code, the Court
should be extremely chary in imposing conditions and should not transgress its
jurisdiction or power by imposing the conditions which are not called for at
all. There is no manner of doubt that the conditions to be imposed under
section 438 of the Code cannot be harsh, 9

onerous or excessive so as to frustrate the very object of grant of
anticipatory bail under section 438 of the Code. In the instant case, the
question before the Court was whether having regard to the averments made by
Ms. Renuka in her complaint, the appellant and his parents were entitled to
bail under section 438 of the Code. When the High Court had found that a case
for grant of bail under section 438 was made out, it was not open to the Court
to direct the appellant to pay Rs. 3,00,000/- for past maintenance and a sum of
Rs.12,500/- per month as future maintenance to his wife and child. In a
proceeding under section 438 of the Code, the Court would not be justified in
awarding maintenance to the wife and child. The case of the appellant is that
his wife Renuka is employed and receiving a handsome salary and therefore is
not entitled to maintenance. Normally, the question of grant of maintenance
should be left to be decided by the competent Court in an appropriate
proceedings where the parties can adduce evidence in support of their
respective case, after which liability of 10

husband to pay maintenance could be determined and appropriate order would be
passed directing the husband to pay amount of maintenance to his wife. The
record of the instant case indicates that the wife of the appellant has
already approached appropriate Court for grant of maintenance and therefore the
High Court should have refrained from granting maintenance to the wife and
child of the appellant while exercising powers under section 438 of the Code.
The condition imposed by the High court directing the appellant to pay a sum of
Rs.12,500/- per month as maintenance to his wife and child is onerous,
unwarranted and is liable to be set aside.

9. For the foregoing reasons, the appeal succeeds. The direction contained in
order dated August 07, 2007 rendered by Learned Single Judge of Delhi High
Court in Bail Application No. 423 of 2007 requiring the appellant to pay a sum
of Rs.12,500/- per month by way of maintenance (both past and future) to his
wife and child 11

is hereby deleted. Rest of the directions contained in the said order are
maintained. It is however clarified that any amount received by the wife of the
appellant pursuant to the order of the High Court need not be refunded by her
to the appellant and will be adjusted subject to the result of application for
maintenance filed by wife of the appellant under Section 125 of the Code
before the appropriate Court.

10. The Appeal is accordingly disposed of. ..............................J.

[R.V. Raveendran]

..............................J.

[J.M. Panchal]

New Delhi;

February 20, 2009.

12

Rakesh Kumar And Others vs State Of Punjab And Another

2009-09-09T08:09:00.000-07:00

Criminal Misc. No.M-18404 of 2008 1 In the High Court of Punjab and Haryana at
Chandigarh Criminal Misc. No.M-18404 of 2008

Date of decision: 22.1.2009

Rakesh Kumar and others

......Petitioners

Versus

State of Punjab and another

.......Respondents

CORAM: HON'BLE MRS. JUSTICE SABINA

Present: Mr.P.S.Hundal, Sr.Advocate with Mr.N.S.Sondhi, Advocate,

for the petitioners.

Mr.Aman Deep Singh Rai, AAG, Punjab.

Mr.Vishal Aggarwal, Advocate,

for respondent No.2.

****

SABINA, J.

The petitioners have filed this petition under Section 482 of the
Code of Criminal Procedure ("Cr.P.C." for short) seeking quashing of order on
framing of charge dated 30.4.2007 (Annexure P-7), charge sheet dated 30.4.2007
(Annexure P-8) passed by the learned Judicial Magistrate, Ist Class, Ludhiana
order of the learned Additional Sessions Judge (Fast Track Court), Ludhiana
dated 4.6.2008 (Annexure P-9) dismissing the revision petition against framing
of charge and all subsequent proceedings. Petitioner Nos. 1 and 4 are brothers
of the husband of the complainant, whereas, respondent No.3 is the un-married
sister of Criminal Misc. No.M-18404 of 2008 2 the husband of the complainant.
Petitioner Nos. 2 and 5 are the wives of petitioner Nos. 1 and 4 respectively.
The case of the complainant, as set out in the First Information Report, is
reproduced as under:- "Application for registration of a case under Section
406, 498-A, 120-B and Protection of Woman from Domestic Violence Act, 2005
against 1. Mukesh Kumar s/o Sh.Ved Parkash Marwaha 2. Asha Rani wife of late
Sh.Ved Parkash Marwaha, 3. Rajesh Kumar Marwaha son of late Sh.Ved Parkash
Marwaha, 4. Simran wife of Rajesh Kumar Marwaha, 5. Rakesh Kumar son of late
Sh. Ved Parkash Marwaha, 6. Meenu wife of Sh.Rakesh Kumar, 7., Poonam daughter
of late Sh.Ved Parkash Marwaha all residents of 191, Kidwai Nagar, Near Shiv
Shakti Mandir, Ludhiana, 8. Neena wife of Sh.Anil Kumar resident of Denmark.
Sir, 1. That the marriage of the applicant was solemnized on 11.2.2004 with the
accused No.1 according to Hindu rites and ceremonies. This marriage was
solemnized by the mother of the applicant with the help of sister of the
applicant and spent about Rs.5,00,000/- on the marriage of the applicant. The
mother of the applicant gave items No. 1 to 6 to my husband namely Mukesh
Kumar, items No.7 to 9 to my mother-in-law namely Asha Rani, items No. 10 to 18
to Criminal Misc. No.M-18404 of 2008 3 my brother-in-law namely Rajesh Kumar,
items No.19 to 23 to Simran my sister-in-law (Jethani), items No.24 to 26 to
my sister-in-law namely Meenu (Jethani) and items No.27 to 34 to Rakesh Kumar
my brother-in-law (my husband's brother) and items No. 35 to 40 to my elder
sister-in-law namely Poonam as per Anexure 'A' and the cash receipts and Bills
of the items were handed over to the family members of the accused No.1 and
these items were given to the accused in presence of Kirpal Singh son of Amar
Singh cousin of the applicant and Rajinder Singh son of Sh.Balwant Singh cousin
of the applicant and these items were given to the above said accused with the
assurance that these items will be handed over to the applicant after reaching
the applicant to her in-laws house. But all the accused dishonestly
misappropriated all the items given to the applicant and converted the same
for their own use.

2. That all the accused were not satisfied with the dowry articles
given to accused at the time of the marriage. They started taunting,
humiliating the applicant on one excuse or the other. The accused No.1 and his
family members started demanding Santro Car from the mother of the applicant.
The applicant showed her inability to fulfil the demand of Santro Car because
her Criminal Misc. No.M-18404 of 2008 4 mother had already spent a huge amount
on the marriage of the applicant. Thereafter, all the accused started
harassing the complainant only to fulfil their demand of Santro Car. In the
meantime the complainant became pregnant during the month of June, 2004. But
the applicant did not disclose her mother and sister about the maltreatment by
the accused with the hope that after the birth of child, the accused may
change their attitude towards the complainant. But the complainant was
suffering from Ruptured Ectopil Pregnancy and was operated on 19.7.2004.
Thereafter, all the accused became so arrogant towards the complainant. They
started harassing the complainant. The information regarding the operation was
also sent given to accused No.8 Neena on telephone by the husband of the
complainant. She also used abusive language against the complainant and told my
husband to take divorce from me and instigated my husband to remarriage. The
accused separated the complainant from the in-laws house with the excuse that
there is no sufficient space in the in-laws house and the dowry articles give
by the mother of the complainant were retained in the in-laws house and we
were given some furniture, utensils etc. Criminal Misc. No.M-18404 of 2008 5
thereafter, in the month of December, 2005 the complainant again became
pregnant and was again suffering from Ruptured Ectopil Pregnancy and was
operated on 16.12.2005. After the operation of the complainant the behaviour of
all the accused was totally changed towards the complainant. They started
using derogatory language against the complainant by calling the complainant
"Baanj" by the accused 1,2,3 and 4. Even the respondent No.8 also used these
words against the complainant on telephone from Denmark and instigated my
husband to divorce me and said that she will arrange his second marriage at
Denmark. In this way all the accused mentally tortured the complainant on
account of non bringing of Santro car and by calling her 'Baanj". On 18.6.2006,
when the complainant was at her house the respondents No.1 to 7 namely Mukesh
Kumar, Asha Rani wife of late Sh.Ved Parkash Marwaha, Rajesh Kumar Marwaha,
Simran, Rakesh Kumar, Meenu, Poonam came there and accused No.1, 3 and 5 along
with other accused started beating the complainant under the influence of
liquor. The accused No.2 mother of my husband instigated all the accused to
beat the complainant. Ultimately the complainant was turned out of the house
Criminal Misc. No.M-18404 of 2008 6 in three clothes on 22.6.2006. The items
given by the mother of the applicant on different occasions as mentioned in
Annexure "A" and "B" have also been retained by the accused. Similarly the
items given by the in-laws of the applicant as shown in the Annexure "C" have
not been handed over to the applicant. It is pertinent to mention here that the
accused No.1 moved an application before the S.P.City (1), Ludhiana on a
flimsy ground only to save himself and his family members from the clutches of
law. Thereafter, the complainant and other family members requested the
accused to rehabilitate the complainant, but he refused to rehabilitate the
complainant.

3. That before the Panchayat consisting of Rajinder Singh s/o
Sh.Balwant Singh, Kirpal Singh son of Sh.Amar Singh, Raju c/o Sewak Tent House
and other respectables of the locality the accused and his family members
repeated the same demand of Santro Car and when the accused refused to
rehabilitate the complainant the Panchayat members and the complainant
demanded her ISTRI DHAN from all the accused, but they refused to return the
same to the complainant. So all the accused have committed breach of trust by
refusing to return the ISTRI DHAN. It Criminal Misc. No.M-18404 of 2008 7 is ,
therefore, prayed that a case under Section 406, 498-A, 120-B IPC and
Protection of Women from Domestic Violence Act, 2005 may kindly be registered
and items given in Annexures "A" and "B" be recovered from the accused and
accused be punished accordinglyl."

Learned counsel for the petitioners has submitted that there were
no specific allegations against the petitioners in the FIR. The petitioners had
merely been roped in this case being relatives of the husband of the
complainant.

Learned counsel for the complainant, on the other hand, has
submitted that all the accused including the petitioners had been harassing the
complainant and had misappropriated the dowry articles. He has further
submitted that the order, vide which the charge was framed, had been challenged
by the petitioners before the Additional Sessions Judge, Ludhiana by way of a
revision petition and hence, second revision petition under Section 482 Cr.P.C.
was not maintainable. In this regard, he has placed reliance on Darshan Singh
vs. State of Punjab, 1996 (1) RCR (Criminal) 464, Rajinder Prasad vs. Bashir,
2001(4) RCR (Criminal) 312 and Deepti vs. Akhil Raj, 1995 (3) RCR (Criminal)
638.

It has been held by the Apex Court in Krishanan vs. Krishnaveni,
AIR 1997 SC 987, in para 9 of its judgment, as under:- "The inherent power of
the High Court is not one Criminal Misc. No.M-18404 of 2008 8 conferred by the
Code but one which the High Court already has in it and which is preserved by
the Code. The object of Section 397(3) is to put a bar on simultaneous
revisional applications to the High Court and the Court of Sessions so as to
prevent unnecessary delay and multiplicity of proceedings . As seen, under sub
section (3) of Section 397, revisional jurisdiction can be invoked by "any
person" but the Code has not defined the word 'person'. However, under Section
11 of the IPC, 'person' includes any Company or Association or body of
persons, whether incorporated or not. The word 'person' would, therefore
include not only the natural person but also juridical person in whatever from
designated and whether incorporated or not. By implication, the State stands
excluded from the purview of the word 'person' for the purpose of limiting its
right to avail the revisional power of the High Court under Section 397 (1) of
the Code for the reason that the State, being the prosecutor of the offender
is enjoined to conduct prosecution on behalf of the society and to take such
remedial steps as it deems proper. The object behind criminal law is to
maintain law, public order, stability as also peace and progress in the
society. Generally, private complaints under Section 202 of the Code are laid
in respect of non- Criminal Misc. No.M-18404 of 2008 9 cognizable offences or
when it is found that police has failed to perform its duty under Chapter XII
of the Code or to report as mistake of fact. In view of the principle laid
down in the maxim Ex debito justitiae, i.e. in accordance with the requirements
of justice, the prohibition under Section 397 (3) on revisional power given to
the High Court would not apply when the State seeks revision under Section
401. So the State is not prohibited to avail the revisional power of the High
Court under Section 397 (1) read with Section 401 of the Code."

The said view has been followed by the Hon'ble Supreme Court in
later decisions also.

So far as the decision in Darshan Singh's case (supra), relied
upon by the learned counsel for the complainant, is concerned, there it was
held that the second revision petition under Section 482 Cr.P.C. was not
maintainable as disputed questions of fact were involved in the case. In
Deepti's case (Supra), Hon'ble Supreme Court held that the High Court Could not
interfere simply on the basis of the statement of the State Govt as there was
sufficient material on record to frame charge against the accused under Section
498-A IPC. In Rajinder Prasad's case (supra), the order, whereby the
cognizance taken by the Magistrate was set aside by the High Court, was
challenged in the Apex Court and it was held that since the revision petition
filed under Section 397 Cr.P.C. had been rejected by Criminal Misc. No.M-18404
of 2008 10 the High Court then the aggrieved party had no right to file a
petition under Section 482 Cr.P.C. with a prayer for quashing the same order.

In Rishi Anand vs. Govt. of NCT of Delhi, AIR 2002 SC 1531, the
Apex Court quashed the FIR under Section 482 Cr.P.C. because there were no
allegations of specific nature to connect the accused with the alleged offence
under Section 406 IPC. There was nothing in the FIR to show that the articles
were entrusted to the accused at the time of marriage. The accused had gone to
USA after his brief stay in India. In Prasanta Kumar vs. The State of West
Bengal, AIR 2003 SC 4412, the High Court had declined to entertain a petition
under Section 482/401 Cr.P.C. on the ground that the second revision petition
was not maintainable. The judgment of the High Court was set aside that
petition could not be dismissed on this technical ground and the High Court
should have gone out into the merit of the case to find out if it was a fit
case to interfere in revision. Reliance was placed on the decision in
Krishanan's case (Supra).

In Lakhwinder Singh vs. State of Punjab, 2004(4) RCR (Criminal)
104, it was held in para Nos. 12 and 19 as under:- "12. The observations made
above leave no manner of doubt that the wholesome jurisdiction conferred upon
the High Court by Section 482 of Code of Criminal Procedure cannot be
narrowed, confined or put in a strait-jacket. Criminal Misc. No.M-18404 of 2008
11 This inherent power can always be exercised by the High Court to prevent
abuse of the process of Court or to otherwise to secure the ends of justice.
The only constraint on the High Court is that since the power under this
section is very wide, it should be exercised with great care and and caution.
On the other hand, the court should not shy away from exercising this power
when the accused persons are being persecuted in the guise of prosecution.
Proceedings initiated and continued for oblique motives or to wreak vengeance
on the other party are liable to be quashed. Proceedings are also liable to be
quashed if even on the allegation being accepted in toto, prima facie no
offence could be made out.

19. It, thus, become fairly evident that the court have
consistently put an end to criminal proceedings which are an abuse of the
process of Court. At the initial stage, at the summoning stage and even after
charges have been framed, the High Court has the inherent power to quash
proceedings and to pass such orders as are necessary to prevent abuse of the
process of any court or otherwise to secure ends of justice. Section 482 of the
Code of Criminal Procedure contains a non-obstante clause to the effect that
nothing in the Code of Criminal Procedure shall be deemed to limit the powers
of the High Court to Criminal Misc. No.M-18404 of 2008 12 prevent abuse of the
process of Court. Therefore, filing of the charge-sheet in Court does not in
any manner affect the amplitude of the wholesome jurisdiction of the High
Court under Section 482 of the Code of Criminal Procedure. The only rider
being, that greater the power, greater the care and caution in exercise
thereof" This Court in para 6 of its judgment in Manoj vs. Prem Lal, 2006(3)
RCR(Criminal) 941, held as under:- "Power under Section 482 Cr.P.C. has to be
exercised sparingly and such power was not to be utilised as a substitute for
second revision. Ordinarily, when a revision has been barred under Section 397
(3) of the Code, the complainant or the accused cannot be allowed to take
recourse to revision before the High Court under Section 397 (1) of the Code,
as it is prohibited under Section 397 (3) Cr.P.C. However, the High Court can
entertain a petition under Section 482 of the Code, when there is serious
miscarriage of justice and abuse of the process of the Court or when mandatory
provision of law are not complied with and when the High Court feels that the
inherent jurisdiction is to be exercised to correct the mistake committed by
the revisional Court." Thus, the legal position that emerges is that this Court
is not expected to throw out a case on technicalities but is expected to
Criminal Misc. No.M-18404 of 2008 13 interfere wherever there has been failure
of justice or misuse of judicial mechanism or procedure. This Court is not
expected to be a mere silent spectator when it is made out that that criminal
prosecution is an abuse of process of the Court. This Court, in its discretion,
is expected to prevent the abuse of process or miscarriage of justice by
exercise of jurisdiction under Section 482 Cr.P.C.

In the present case the petitioners are the brothers, their wives
and sister of the husband of the complainant. A perusal of the FIR (Annexure
P-1) reveals that all the allegations are general in nature. So far as the
entrustment of dowry articles is concerned, the memos of recovery of dowry
articles (Annexure P-3 to P-6) reveal that dowry articles were recovered from
the husband and mother-in- law of the complainant. It has been averred that the
complainant had been tortured by all the accused for not bringing a Santro car
and by calling her baanj. It has also been averred in the FIR that petitioner
Nos.1 and 4 along with Mukesh Kumar, husband of the complainant, had given
beatings to the complainant under the influence of liquor. However, no specific
date has been mentioned nor the nature of injuries suffered by the complainant
has been disclosed in this regard.

In Kans Raj vs. State of Punjab and others, 2000 (2) RCR
(Criminal) 696 (SC), their Lordships of the Apex Court have observed that a
tendency has developed for roping in all the Criminal Misc. No.M-18404 of 2008
14 relations in dowry cases and if it is not discouraged, it is likely to
affect case of the prosecution even against the real culprits. The efforts for
involving the other relations ultimately weaken the case of the prosecution
even against the real accused. No doubt, the charge has been framed against the
petitioners by the trial Court and revision petition filed against the charge
has also been dismissed but each case has to be examined on its own facts. In
the present case, it is evident that the petitioners have been roped in the
case merely because they are relatives of the husband of the complainant.
Hence, in the facts and circumstances of this case, it would be just and
expedient to quash the order vide which charge was ordered to be framed against
the petitioners and the order, vide which revision petition was dismissed by
the Additional Sessions Judge, Ludhiana. Accordingly, this petition is allowed.
The impugned orders dated 30.4.2007 (Annexures P-7 and P-8) passed by the
learned Judicial Magistrate, Ist Class, Ludhiana, order dated 4.6.2008
(Annexure P-9) passed by the learned Additional Sessions Judge (Fast Track
Court), Ludhiana and all the subsequent proceedings, arising therefrom, qua
petitioners are quashed. (SABINA)

JUDGE

January 22, 2009

anita

Sm. Swastika Sen vs The State Of West Bengal And Sri Pritam Sen (Defendent Argument)

2009-07-26T01:42:00.001-07:00

Sm. Swastika Sen vs The State Of West Bengal And Sri Pritam Sen on 3/12/2002

JUDGMENT

M.K. Basu, J.

1. This revisional application under Sections 482 Cr.PC is directed against
the order dated 7.1.2002 passed by the learned SDJM, Alipur in Case No. M-244/01
pending before that Court under Section 125 CrPC rejecting a prayer for interim
maintenance of the petitioner and interim award of Rs. 1500/- per month on
account of the child till the hearing and disposal of the main petition. The
case of the petitioner is as follows.

She was married to the opposite party No. 2 Promit Sen according to Hindu
rites. On 18th June, 1998 soon after the marriage she was subjected to severe
mental and physical torture by the opposite party No. 2 and her in-laws. The
opposite party No. 2 was whimsical, selfish and irresponsible and he used to
abuse the petitioner and to pick up quarrel with her every now and then on
baseless and false accusations. She used to be constantly intimidated,
threatened and assaulted by the opposite party No. 2 on a number of occasions on
the ground of his dissatisfaction in respect of articles given by her parents
during their marriage. Ultimately she was sent by the opposite party No. 2 and
her in-laws to her parental home where she has been residing till now and the
expenses of her and her child's maintenance are being borne by her father. The
opposite party No. 2 neither care to bear any such expense nor paid any visit to
her father's house nor take any information about them. She has no independent
source of income. Under such circumstances she has filed the petition under
Section 125 Cr.PC in question claiming maintenance from the opposite party No. 2
on account of herself as well as the child who was born out of this wedlock. The
petitioner also filed a criminal case against the opposite party No. 2 and the
other in-laws under Sections 498A and 406 IPC which is in the Court of the
learned Magistrate being Jadavpur P.S. Case No. 190/2000. The Police after
investigation has submitted a charge sheet in that case against the opposite
party No. 2 and the other in-laws and that case is still pending in the Court of
SDJM, Alipur for trial. The opposite party No. 2 is a professional singer and is
the owner of an Export oriented Concern Style as M/s. Super Exports having its
office at Mission Road, Bangalore-56, He is also a major shareholder of M/s.
Super Plastic wherefrom he earns more than Rs. 1 1/2 lakhs per month. The
petitioner has 10% share in a Travel Agency Firm under this Style M/s. Capri
International which is owned by her mother but the form of business of that Firm
is absolutely uncallable and since July 2001 she did not receive any
remuneration from that firm in any manner. She has prayed for grant of
maintenance to the tune of Rs. 20,000/- per month for herself and Rs. 10,000/-
per month for the child.

2. The learned SDJM after hearing both sides and perusing a document filed by
both the parties passed the impugned order rejecting the prayer of the
petitioner for grant of interim maintenance and directing payment of Rs. 1500/-
per month by way of interim maintenance for the child. Being aggrieved by this
order the petitioner has preferred this revisional application challenging the
same as erroneous and unjustified being passed on the basis of vague surmises
and conjectures.

3. The contention of Mr. Basu, the learned advocate for the petitioner has
been that it is not understood wherefrom the learned Magistrate could draw the
conclusion that the petitioner was not a destitute lady and need not require any
maintenance. Mr. Basu has criticised the impugned order as improper and perverse
and his findings that the petitioner had some income of her own as totally
unwarranted. According to Mr. Basu, the learned SDJM has not given any reason
for coming to such finding and passing the impugned order and being a non-
speaking order it has been rendered liable to be set aside. In support of his
contention he refers to the decision

wherein it has been held that assigning of reason in an order passed by an
Administrative Authority or a judicial forum is of utmost importance and
necessity. This is so because giving of reason is the sine qua non of ajudicial
order and is a consequence of the principle of natural justice. Mr. Basu then
submits that the provisions of the Cr.PC having been amended by the Act No. 50
of 2001, a Magistrate is no longer required to keep the amount of maintenance
confined within the limit of Rs. 1500/- and in view of such Amending Act, the
limit is only reasonableness. According to him, considering the standard of
living of the parties and the rising price index in respect of the essential
articles which are being necessaries the learned Magistrate ought to have
awarded a much higher amount by way of maintenance for the child. So far as the
wife is concerned, according to Mr. Basu, she having no independent source of
income is entitled to get a reasonable amount of maintenance from the opposite
party No. 2 whose income has already been mentioned above. Mr. Basu refers to a
number of decisions of the Apex Court to bring home his point that the husband
is under a statutory duty to provide maintenance to his married wife and under
the shastric mandate also such an obligation has been cast upon the husband
irrespective of whether the wife has got any stridhan properties or even any
earnings. Mr. Basu's further contention is that in view of the Central Amendment
of Section 125 of the Cr.PC the limit of award of maintenance under the said
section need not be confined to Rs. 1500/- and the learned Magistrate is now at
liberty to award a higher amount if found justified or necessary. The question,
however, has been raised as to whether the said amendment has got any
retrospective effect, that is to say, whether the pending proceedings should be
governed by the same. Inasmuch as, it came into force with effect from 24th
September, 2001 when this proceeding had already been pending. Mr. Basu has
strenuously argued that such a beneficial legislation will have retrospective
effect and such pending proceedings will come under its purview. In this
connection he refers to the decision reported in (1) , (2) . (3) , (4)

AIR 1978 SC 741 & 1807, (5) AIR 1991 SC 1256 and (6) 2000 CCrLr (Cal) 179.

4. As against this, Mr. Gooptu, the learned advocate for the opposite party
No. 2 has argued that the petitioner cannot be entitled to get any award of
maintenance for herself, because she has an independent source of income, a fact
which is prima facie established from the document, namely, Income Tax Return
submitted by her before the Income Tax Authority and the learned Magistrate was
perfectly right refusing to award any interim maintenance at this stage after
being satisfied prima facie from the documents filed by the parties that the
petitioner having submitted Income Tax Return had definitely some source of
income of her own and in view of the legal position she could not be entitled to
get any maintenance from the husband. Mr. Gooptu draws my attention to pages 80
to 83 of the LCR. The Income Tax Statement pertaining to the Assessment Year
1999-2000. The next contention of Mr. Gooptu is that the amount of Rs. 1500/- as
awarded for the child would not be enhanced, inasmuch as, the amendment of
Section 125, Cr.PC as pointed out by Mr. Basu cannot have any retrospective
effect. In support of the contention he cites the following reference:

(1) (Y. Arul Nadar v. Authorised Officer, Land

Reforms, Thanjavur) wherein it has been held that as per the general rule
when an amendment is introduced in the statute governing the case already
pending, the rights and obligations of parties should be decided only according
to the law which existed when the action was begun unless a clear contrary
intention is evident in the Amending Act and there could not be any imputation
of retrospective operation to an Amending Act and that could be done only by the
Amending Act either expressly or by necessary implication; (2) (Bhagat Ram
Sharma v. Union of India and Ors.)

wherein it has been held that it is a matter of legislative practice to
provide while enacting an amending law that an existing provision shall be
deleted and a new provision substituted and such deletion has the effect of
repeal of the existing provision and such a law may also provide for the
introduction of a new provision. It bas been further held therein that amendment
is in fact a wider term and includes abrogation or deletion of a provision in an
existing statute and an amendment of substantive law is not retrospective unless
expressly laid down or by necessary implication inferred; (3) AIR 1924 All 563
(Kashmiri Lal v. Kishen Deb wherein it has been held that inasmuch as the
accused had incurred the liability to have his prosecution sanctioned and the
complainant on the dismissal of his application by the subordinate Judge had
acquired a right to apply for sanction to the Appellate Court, Section 6(sic) of
the General Clauses Act applied to the case and the repeal of the old Section
195 did not affect the investigation and (4) AIR 2000 Mad 167 wherein it has
been held that in case of Motor Vehicles Act being amended and each amending
provision providing for no fault liability cannot be given retrospective effect,
because if such retrospective effect was given, then it would definitely affect
existing right or obligation of the owner of the vehicle in question and the
insurer for no fault of theirs and it has to be decided in consonance with the
law as it stands on the day of its moving, since it is a matter pertaining to
procedure. It has been further held in this judgment that when two
interpretation are found possible regarding the question of retrospectivity, the
interpretation that the provision is prospective will be preferred.

5. Mr. Gooptu placing reliance upon the decision (Bhagban Dutt v. Sm. Kamala
Devi and Anr.) contends that a wife's right to maintenance is not absolute and
in determining the amount of maintenance a Magistrate is competent to take into
consideration the separate income and means of wife. Their Lordships in this
case have further observed that any other construction would be subversive of
the primary purpose of the section and encourage vindictive wives having ample
income and means of their own to misuse the section as a punitive weapon against
their husbands.

6. Mr. Gooptu then contends that Section 125 CrPC is not intended to provide
for a full and final determination of the status and personal rights of the
parties at the interim stage and the jurisdiction conferred by this eection on
the Magistrate is more in the nature of the preventive rather than a remedial
jurisdiction and it is certainly not punitive.

7. He then submits that his client is suffering from chronic thyroid problems
due to which he is undergoing medical treatment under the supervision of various
doctors and a large amount of money has to be mobilised in order to continue his
treatment and such facts are borne out from the medical documents annexed to the
written objection filed by this opposite party No. 2 before the trial Court and
due to such continued ailment and long absence from this city he is unable to
derive any income from his profession, namely, singing Rabindra Sangeet and
consequently he has to depend on others for his subsistence and medical
treatment as has been stated by him on oath in the affidavit.

8. Mr. Gooptu then refers to the decision

to bring home the point that when affidavits are submitted by the parties in
a proceeding for disposal of interim application under Section 125 CrPC, in the
event one version is rejected being untrue or not credible at the interim stage
pending trial, the other is to be accepted prima facie by the trial Court as
proved. Mr. Gooptu has further submitted that the Income Tax Statement of the
petitioner pertaining to the relevant year in question, that is, 2000-2001 has
not been produced before this Court, though the learned counsel of the
petitioner was so directed and on behalf of the petitioner the submission having
been made that no return has been filed by her for the subsequent Assessment
Year it should be taken that the petitioner having violated the mandatory
provisions of the law as she has not submitted the Income Tax Return for the
said Assessment Year, she is liable to serious penal consequences under the
Income Tax Act and the Indian Partnership Act.

9. The question for determination in this revisional application is whether
the impugned order suffers from any impropriety. By this order the learned
Magistrate has refused to grant any interim maintenance in favour of the
petitioner-wife, though he has allowed such maintenance for the child. The
ground on which her prayer for interim maintenance has been rejected appears to
have been couched in the following language.

"Some unproved documents are filed by both parties in the form of
affidavits and counter affidavits. These documents give some hints from which I
prima facie find that the 1st party has some income of her own ................
In view of the above discussed circumstances I think that the 1st party is not a
destitute lady required to be saved from vagrancy....."

10. Such a finding perhaps owes its origin to the existence of the Income Tax
Return (annexed to the affidavit) submitted by the petitioner, Swastika Sen, for
the Assessment Year 1999-2000, that is, for the period from 1.4.1998 to
31.3.1999. However, the learned Magistrate has not made it clear by using
express words and that omission has quite pertinently given rise to such a
criticism levelled by Mr. Basu against the order. This lapse may of course be
due to a poor power of expression on the part of the Magistrate concerned, but
the question which seriously arises is whether owing to such a reason, owing to
the Presiding Officer's inability to apply the appropriate words in the
reasoning part of his order which may be due to his poor expressive capacity,
the order should be thrown away, even though there are good grounds transpiring
from the materials on record justifying the passing of such an order.

11. Section 125(1)(a) CrPC clearly provides that a wife will be entitled to
get an award of maintenance, If, inter alia, she is unable to maintain herself.
It follows that if a wife is an employed person or has a business and earns a
definite sum by way of regular income and.if the Court finds such income as
sufficient for the purpose of enabling her to earn her livelihood, then
certainly she cannot claim maintenance from the husband. This is the clear
dictate of the law and a departure therefrom cannot be permissible. Otherwise,
the expression, "if she is unable to maintain herself' would lose all its
meanings. In the present case, the case of the opposite party-husband is that
the petitioner is a 50% partner of a Travelling Agency along with her mother
running in the name and style of M/s. Capri International and moreover, she is a
dance-teacher and her collective income from the aforesaid sources is not less
than Rs. 1,20,000/- per annum and this would be disclosed from the I.T. Return
submitted by her. A xerox copy of the I.T. Return submitted by the petitioner
before the Income Tax Authority for the Assessment Year 1999-2000 relating to
the period from 1st April, 1998 to 31st March, 1999 has been filed (vide page 80
of the LCR). This return shows that the gross income which she earned during the
said year from her business or profession amounted to Rs. 54,140/- and she paid
income tax of Rs. 414/- on this amount during that year. As against this, the
petitioner has stated in her counter-affidavit (vide page 68 of the LCR) that
the said Travel Agency has become sick industry and the petitioner only has a
share to the extent of 10% on the business of that Travel Agency and she gets
only Rs. 600/- per month. As regards the Income Tax Return purportedly filed by
her, her case is that she was forcibly made to sign this I.T. Return, although
she had no income of her own and she wrote a letter to the Income Tax
Commissioner dated 18.8.1999 stating that the I.T. Return in question had not
been submitted by her since she had no taxable income at all and she was a mere
student, but it was actually filed by her husband and further that the said
Return though filed does not reflect the correct position. A copy of this letter
bearing the stamp of the office of the Income Tax Commissioner initiating its
receipt by the officer has been filed. But this letter practically takes us
nowhere. Along with this Income Tax Return mentioned above statement that (sic)
has been submitted showing that the petitioner earned a gross income of Rs.
54,000/- and odd and paid income tax of Rs. 414/- and they included a balance-
sheet, self-assessment challan and a valuation return and the said Income Tax
Return appears to have been signed by the petitioner herself. It has got some
sanctity in the eye of law. As per the Income Tax Rule an assessee who starts
submitting Income Tax Return has to continue submitting such returns every year.
If she ceases to earn any income, even then she has to file a Nil Statement by
way of Return. Moreover, in her petition the petitioner's own case is that she
has 10% share in the said business and she earns only Rs. 600/- per month. In
such an event also she is required to submit a Income Tax Return although her
income may not be taxable. But curiously enough, the petitioner does not make
any whisper in her affidavits as to whether she has submitted any such Income
Tax Return in the subsequent years. During hearing of argument, on being
approached by me. Mr. Basu, the learned counsel submitted that his client would
not file any copy of such Income Tax Return before this Court relating to the
current year. It is not understood whether she has submitted before the Income
Tax Authority any such Income Tax Return at all during the current year or the
year in question because of her silence in her petition as to this aspect of the
matter. As a result, it is not clear as to whether any Return has at all be
filed, by her for the relevant year before the Income Tax Authority and
accordingly, as argued by the learned advocate for the opposite party, the
question of drawing adverse presumption arises. As per the Rule, once a Return
has been filed, one is required to go on submitting such Returns every year
irrespective of whether one's income has fallen or decreased. Under such
circumstances from the fact that the petitioner has not filed any such Income
Tax Return for the relevant year, not she has stated on affidavit that she has
not submitted any such Return before the Income Tax Authority for the relevant
year, it is to be presumed prima facie that she is witholding the same and . had
it been produced, sufficiently rebutted is a question of fact and cannot be
determined without reference to the evidence which may be adduced by the parties
during the inquiry to be held in the main proceeding.

12. At this stage when the question of payment of interim maintenance is
under consideration and the evidences are yet to be adduced by the parties such
documents and circumstances should serve as yardstick, only prima facie, to
enable the Court to come to a finding and pass an order touching the question of
interim relief. The question raised by the petitioner that the Income Tax Return
submitted by her was the result of force or coercion applied by her husband can
be decided only after taking evidence from both sides and cannot be adjudicated
upon at this stage simply on the basis of a copy of letter allegedly written by
the petitioner to the Income Tax Authority, particularly when such an allegation
does not find place in her affidavit. It would be unsafe and improper to hold
without taking evidence that the Income Tax Return filed by her before the
Income Tax Commissioner, which is an official and authentic document, is
falsified by a mere letter allegedly written by her to that Authority,

13. The Income Tax Return prima facie shows that she had an average income of
about Rs. 4500/- per month and in view of such earnings of the petitioner being
prima facie found from the record, the Court below was not unjustified in
refusing to award any interim maintenance for the wife so long as the main
matter as not heard and disposed of by obtaining evidence from the parties on
the prima facie substantial ground that she could not be said to be unable to
maintain herself during the interim period. However, the manner In which the
ordering part has been expressed by the learned Magistrate is not happy. Without
holding an enquiry he cannot come to such a finding, viz. "..... the 1st party
is not a destitute lady required to be saved from vagrancy." He ought to have
used the phrase, "prima facie" otherwise such an observation conveys a wrong
signal, as if he is disposing of the issue in the main proceeding once for all
-- a course which is fraught with the danger of prejudging of the issue which Is
to be decided after hearing of the main proceeding. It should not be forgotten
that interim orders in respect of such matters are only provisional until final
orders are made and such interim relief is granted only subject to what is found
and enjoined in the final orders and interim orders which are passed on a prima
facie satisfaction of the presiding officer of the concerned Court on the basis
of documents or affidavits may very well be altered, varied or even totally
vacated after considering the evidence both oral and documentary adduced by the
parties during hearing of the main matter.

14. It is true, as has been argued by Mr. Basu, that the learned Magistrate
has not assigned reasons for coming to his conclusions, for example, he has said
that the first party is found to have some income, but he does not discuss from
which documents he makes this observation, although the fact remains, as I have
discussed above, the petitioners drawing an Income regularly has been shown by
the document called Income Tax Return. Similarly, the learned Magistrate has
made the observations that from some 'unproved documents' it has been shown that
the lady was not a destitute person. Here again he ought to have elaborately
made a discussion about such documents which he was referring to. In the absence
of doing that his findings have been rendered unreasoned. Another instance of
the impugned order's being vague and confusing is where the learned Magistrate
uses the expression 'gives some hints'. Giving of hints and furnishing of proof
are totally different concepts and on the basis of the former a Court of law
cannot pass its verdict either granting or denying a relief sought by any party.
Then again, in the concluding part of his order he says that in view of the
'abovediscussed circumstances' he thinks that "the 1st party is not a destitute
lady required to be saved from variance". According to Mr. Basu, there is no
discussion on this point in the least in the body of the judgment and hence the
learned Magistrate's referring to the 'above discussed circumstances' is
absolutely hollow. He argues that due to such paucity of reasoning the order
becomes perverse and on that score alone it should be given a go-by. But this
contention of Mr. Basu is not acceptable to my mind. Simply because reasons have
not been assigned by the trial Court for arriving at a particular finding,
although from the materials on record it is prima facie found that there exist
some good grounds for drawing such conclusions, the said order cannot be set
aside on the sole ground that the Court below has not recorded such reasons or
grounds. This finding may or may not remain unaltered after evidence as adduced
by the parties are considered by the learned Magistrate during the main hearing,
but as an interim order it is quite justified. Since this part of the order does
not suffer from any illegality or infirmity of law I do not find anything to
interfere with the same.

15. The next point urged on behalf of the petitioner is relating to the
second part of the impugned order and is on the alleged inadequacy of the amount
of maintenance that has been awarded by the learned Magistrate on account of
maintenance of the child, namely, Rs. 1500/-. According to Mr, Basu, on the date
on which this order was passed, that is, 7th January, 2002 the amendment of the
CrPC in respect of Section 125(d) of the Code had already come into operation
and therefore, the learned Magistrate's hands were not tied and he was not to be
restricted regarding the quantum of maintenance to be awarded by him under this
section within an amount not exceeding Rs. 1500/-. In other words, since by
virtue of the said amendment a Court of Magistrate under this section became
entitled to award any sum by way of maintenance which would be deemed to be
reasonable in the circumstances, there was nothing to debar the learned
Magistrate from fixing an amount by way of maintained exceeding Rs. 1500/- in
order to do justice to the rising price and cost of living index and also to the
status and standard of living of the petitioner in particular. In support of his
argument Mr. Basu refers to a host of decisions of the Apex Court as well as of
different High Courts. Thus he cites the decision reported in AIR 1991 SC 1256
(Amirtham Kudumbah v. Sarnam Kudumban) wherein it has been held that in case of
a beneficial legislation whatsoever gives restriction use or constitutes an
embargo in the way of giving effect to such a welfare enactment should be
removed and according to Mr. Basu by stretching this logic to the present case,
the benefit of this amendment should be extended to the pending cases also. It
may be mentioned here that the above mentioned amendment came into operation on
and from 24.9.2001 (vide the Government Notification concerned). Mr. Basu also
refers to the decision wherein it has been held that

the words of remedial statute should be so construed as to ensure that the
relief contemplated under the status in the question may not be denied to the
clash intended to be relieved and on the basis of this ruling it should be taken
that the amendment of the CrPC in question should have retrospective operation
even though nowhere that has been mentioned in express terms. Then Mr. Basu
relies upon another ruling (Bengal Immunity Co. Ltd. v. State of

Bihar and Ors.) whereunder Their Lordships enunciated certain principles on
the strength of which propagated that ail beneficial status should be
retrospective operation. The next ruling cited by Mr. Basu is (Muktinarain Jha
v. State of

Bihar) and (Captain R.C. Kaushal v. Mrs. V. Kaushal) whrerein it was held
that the provisions of Section 125 formed a major of social justice for the
purpose of protection the weaker section and with that end in view, according to
Mr. Basu, any legislation containing beneficial provisions should have
retrospective operation.

16. The second line of Mr. Basu's argument consists in the point raised by
him that even if such a legislation is taken to be prospective, even then there
will be no difficulty In granting the relief at the new rate and at the same
time maintaining its prospectivity if with regard to a pending proceeding the
new rate is applied only on and from the date when the amendment takes effect.
In support of this contention he relies upon the decision reported in 1999 CCrLr
116 (Cal HC) and 2000 CCrLr (Cal) 179 (Dhananjoy Samanta v. Sobitri Samanta).

17. As against this, Mr. Gooptu vehemently argues that this petition for
maintenance having been filed on 13.4.2001 this amending provision which came
into effect on 24.9.2001 cannot govern this pending proceeding because of the
general principle that unless a clear, contrary intention is evident in the
amending Act, it cannot be retrospective and must be prospective. In support of
this contention, the decision (Y.A. Nadar v. The

Authorised Officer, Land Reforms, Thanjavur) is referred to wherein it has
been held that when an amendment is introduced in the statute governing the
cases already pending, the rights and obligations of parties should be decided
only according to the law which existed when the action was begun, unless a
clear and contrary intention is evident in the provisions of the amending Act
and there could not be imputation of retrospective operation to an amending Act.
He also cites a further couple of reported judgments to get his argument
strengthened, namely, (1) (Bhagat Ram Sharma v. Unions of India) & (2) AIR 1924
Allahabad 563 which I have already discussed above.

18. Mr. Gooptu raises the question that if the argument of Mr. Basu is taken
to its logical extreme, then by virtue of following of such a principle, namely,
giving retrospective effect to such an amending provisions we may be led to an
irreconcilable situation. Those cases which were filed before the coming into
operation of such a legislation, but which were pending at the time when it came
into operation and as disposed of without getting the benefit of this enactment
will be discriminated against and there may be the emergence of a spate of
applications seeking the newly awarded benefit-- an exigency which the law never
encourage.

19. Be that as it may, it should not be forgotten that after all this is an
application for interim maintenance and the main maintenance application is yet
to be heard. If this question, namely, whether the abovementioned amendment of
Section 125 CrPC should have retrospective effect or not is decided at this
stage, then that may involve the risk of pre-judging of the point falling for
determination in the main application under Section 125 CrPC before the learned
Magistrate. This is a stage wherein the question of granting of interim relief
is taken up for determination and for that purpose such thread-bare analysis of
the materials on record, vis-a-vis, the legal position will be highly
undesirable and also impermissible. The learned Magistrate has awarded a sum of
Rs. 1500/- on account of maintenance of the child by way of interim relief only
and that is not the be-all and end-all of the respective cases of the parties
and that amount has been fixed only as a provisional one in view of meet the
urgency of the situation and the proper and final order as regards all related
questions touching this application for maintenance will be passed by the Court
of Magistrate after taking evidence from both sides and after hearing their
arguments. Hence any observation or verdict given on the controversies raises by
the parties on the questions in issue at this stage will be bound to have
repercussions on the merits of the matter when the learned Magistrate will take
up the same for final hearing and in order to avoid such a possibility of pre-
judging of the issues awaiting determination by the learned Magistrate I refrain
myself from expressing my views on the contentions of the learned advocate for
both sides on this question as to whether the said amendment to Section 125 of
the CrPC in question will have retrospective effective or prospective operation
and (sic) the learned Magistrate could have granted an award of interim
maintenance for the child exceeding Rs. 1500/- a month.

20. Instead, I am inclined to fix a time-limit within which the main
proceeding under Section 125 CrPC in question may be finally disposed of by the
Court below, leaving the impugned order intact.

21. Accordingly, I do not interfere with the impugned order but I direct the
learned Magistrate to finally dispose of the main proceeding, that is, the
application for maintenance under Section 125 CrPC pending before it, within two
months from the date of receipt of the LCR without fail. If any of the parties
does not cooperate, the case may proceed according to law notwithstanding such
non-participation. While disposing of the main matter on merits the Court below
shall not be influenced by any observation made in this judgment regarding the
merits and shall adjudicate upon the same quite independently according to the
law and as per the evidence that may be adduced by the parties before him.

In the result, the revisional application be dismissed. The LCR be sent back
immediately to the Court below along with a copy of this judgment and order.

Interim order of stay, if there is any, be vacated.

Xerox certified copies, if applied for by any party, may be supplied without
delay.

HC: Litigant can not ride two horses simultaneously

2009-05-27T05:13:00.000-07:00

Ravindra Haribhau Karmarkar vs Mrs. Shaila Ravindra Karmarkar And Another on 17/7/1991

JUDGMENT

1. In the instant application, the substantial question of law, in the
public interest, has been raised and requires decision from this Court.
The substantial question of law raised is as under :

"Whether a Judicial Magistrate First Class trying an application
under Section 125 of Cr.P.C., is obliged under law, to stay the
proceedings, on the ground that a Civil Court of competent
jurisdiction has seized the matter in a suit, in which identical
pleadings are made, and same reliefs are claimed by one and the same
applicant/plaintiff, in whose favour the Magistrate has already
awarded interim maintenance ?"

2. The facts giving rise to the above question of law, in nutshell, are
as under :

The applicant and the non-applicant are the legally married spouses.
Their marriage was solmnised as per the customs and rites of Hindu
Religion, some times in the year 1969 at Buldana. Out of the
wed-lock, they have two issues viz. first issue is a son - Sagar who
is living with the applicant while the second issue a daughter Miss
Anjali is living with the non-applicant No. 1 Mrs. Shaila Karmarkar.
The couple had been to Canada and U.S.A. where they stayed for 12 to
13 years along with their children. Both returned some time in the
year 1984 to India and stayed at Buldana till 1986. During this
period, their relations became strained and ultimately on 19/5/86,
the non-applicant filed an application u/S. 125 of Cr.P.C. against
the applicant for maintenance for her and the daughter. Along with
the application for maintenance, the wife had also filed an
application for interim maintenance @ Rs. 500/- p.m. for both the
non-applicants, on the very day. The learned trial Court, after
hearing the parties and considering the facts, awarded Rs. 250.0
p.m. to the wife and Rs. 150/- p.m. to the daughter, as interim
relief. Since the day of the order, the applicant has paid Rs.
24,000/- to the non-applicants as maintenance allowance and that too
in advance. Mr. Vidwanash, the learned counsel for the applicant
submitted that the applicant has made the payment in advance till
October 1991.

3. On 15th or 16th of October 1986, the non-applicant No. 1 wife filed
a regular Civil Suit No. 227/86 for permanent alimony and also for
arrears of maintenance. Along with the plaint, an application for the
attachment of the property before judgment was also filed. On
28-4-1989, the Joint Civil Judge, Jr. Dn., Buldana passed the following
order on the said application :

"Perused the application and say at Exh. 64. The prayer of the
applicant is that Order of attachment before Judgment be passed or
direct the defendants to furnish solvent surety of Rs. one lakh. By
way of Exh. 64, the defendants showed their willingness to furnish
surety of one lakh. Hence, the defendants are directed to furnish
solvent surety of Rs. one lakh".

In compliance with the above order, on behalf of the defendants, Shri
W. Y. Godbole, resident of Nagpur has furnished the solvent surety
before the Joint Civil Judge, Jr. Dn., Buldana. On 20/3/1991, the
applicant has filed his written statement in the said Civil Suit,
denying the claim of the non-applicants. The case is now posted for
filing the documents.

4. The applicant filed an application to stay the proceedings of Misc.
Criminal Case No. 114/86 before the Judicial Magistrate, First Class,
Buldana, till the decision of the Regular Civil Suit No. 227/86. The
application was opposed. After hearing the parties, the learned
J.M.F.C., Buldana, rejected the application filed by the applicant for
stay of the Misc. Criminal Case No. 114/86 vide his order dated
24-1-1991.

5. Being aggrieved by the order passed by the learned J.M.F.C. Buldana
in Misc. Criminal Case No. 114/86 dated 24-1-1991, the applicant
approached this Court.

6. Mr. Vidwans, the learned counsel for the applicant submitted that
though the non-applicant wife instituted two proceedings, one in the
Criminal Court and another in the Civil Court, but the reliefs are one
and the same. The relief sought in the application u/s. 125 of Cr.P.C.
is to the following effect "to direct the opponent to pay the
subsistence allowance of Rs. 500/- p.m. each to both the applicants
Nos. 1 and 2".

In the Reg. C.S. No. 227/86, the relief claimed as per prayer clause
(i) is that "It is, therefore, prayed that this Hon'ble Court be
pleased to decree the claim of the plaintiffs by passing necessary
orders of maintenance against the defendant, directing him to pay
arrears of Rs. 7000/- to the plaintiffs and further be ordered him
to provide maintenance allowance @ Rs. 500/0 p.m. each to plaintiffs
i.e. total Rs. 1000/- p.m. from the date of filing of this suit and
onwards permanently".

The prayers made in the application u/s. 125 of Cr.P.C. and in the Reg.
C.S. No. 227/86 are one and the same.

7. Mr. Vidwans, the learned counsel for the applicant submitted that
practically pleadings are identical and verbatim in both the cases. He
took me through the pleadings of both cases and demonstrated that
practically the paras are identical as much as they are in verbatim.
Following paras of the application u/S. 125 of Cr.P.C. are identical to
the paras of the plaintiff in Reg. Civil Suit.

Application u/S. 125 Reg. C.S. No. 227/86 of Cr.P.C.

4 6 5 7
6 8 7 9
8 10 9 11
10 12 11 13
12 14 13 15
14 16

Therefore, according to Mr. Vidwans, in both the litigations, the fate
would be based on the same evidence.

8. The findings given by the Civil Court are binding on the Criminal
Court. Therefore, as the matter is seized with the Civil Court i.e. in
respect of the maintenance allowance and that too the similar amount
which she alleged to be entitled in the application u/s. 125 of
Cr.P.C., instead multiplying the litigations and to harass the
applicant to lead the evidence in different two courts, in the interest
of justice, the application pending in the court of J.M.F.C., Buldana
be stayed till the decision in the Reg. C.S. No. 227/86. It is further
submitted that any verdict given by the Criminal Court is not binding
on the Civil Court but it is vice versa. The reliefs being the one and
the same, the evidence will be common, so also the documents, it is the
interest of both the parties to get the verdict from the Civil Court.

9. Mr. Vidwans, the learned counsel for the applicant relied upon the
case of M/s. Bush India Ltd. v. Lekharaj Pohoomal Kewalramani reported
in 1984 Criminal Law Journal 346 (Bombay). Their Lordships observed in
para 7 as follows (at page 348) :

"I fail to understand what is the qualitative difference between the
two stands. The parties are merely formulating the same propositions
in the two proceedings in different words. The distinction made by
the learned Judge is without any difference, as observed by the
learned Magistrate and as is also apparent from the record, the
dispute in the criminal complaint also revolves on the pivot whether
or not respondents are the sole agents of the petitioners for sale
and export of the petitioner's goods to the countries concerned. The
learned Addl. Sessions Judge's interpretation is clearly wrong so
far as this aspect is concerned".

In para 8, Their Lordships observed that :

"The other two reasons given by the learned Magistrate and indicated
in para 6 supra, are also sound and the learned Addl. Judge has not
bothered himself to consider them. The learned Magistrate's order
staying the prosecution was eminently just and the learned Addl.
Sessions Judge should not have interfered with it in revision".

The reliance also been placed on the case of William J. W. Ross v.
Eleanor Agnes Ross reported in AIR 1932 Sind 210 (DB) : (1933 (34) Cri
LJ 548). In that case before their Lordships, the wife instituted the
proceedings u/Ss. 488 and 489 of Cr.P.C. and the husband had already
instituted the proceedings for divorce in the Divorce Corut. Their
Lordships observed that -

"I am of opinion that the learned Magistrate would have exercised a
better discretion on receiving an application u/s. 488 against a
husband who had already instituted proceedings in the divorce Court,
if he had referred the applicant for her remedy to the Civil Court.
I do not think that it was the intention of the legislature in S.
489 to encourage applicants to resort to criminal Courts up to the
very time when an order was passed by a competent Civil Court. As
the Civil Court was seized of the matter, it seems to me clear, it
is better that the Civil Court should dispose of it, and in the
circumstances which have arisen in the present case, I am of opinion
that a High Court would stay proceedings in a criminal Court until
the conclusion of the divorce petition. We accordingly direct the
learned Magistrate to stay the hearing of the application u/s. 488,
Cr.P.C., by adjournment from time to time until the conclusion of
the divorce petition".

10. On behalf of the non-applicants, Mr. Khapre, the learned counsel,
opposed the application and submitted that the remedies in the criminal
Court and Civil Court are altogether different. According to him, the
proceedings instituted in the Criminal Court u/s. 125 of Cr.P.C. are
the summary proceedings for the immediate relief to the wife and other
dependents. In the proceedings u/s 125 Cr.P.C. the Court has
jurisdiction to grant maintenance allowance to extent of Rs. 500/0 to
each claimant. If this amount is inadequate according to clainming
spouse or other claimants, the only remedy available is Civil Suit or
petition u/s. 25 of the Hindu Marriage Act, 1955.

11. In a case u/S. 125 of Cr.P.C. the non-applicant Smt. Shaila
Karmarkar, entered in the witness box and now the case is posed for her
cross-examination. He further submitted that the principles of res
judicata are not applicable in the instant case because though the
reliefs claimed in both the proceedings are one and the same, the
effect is not one. He further submitted that this Court has no power
under any statute to stay the proceedings. To substantiate his
submissions, he placed reliance on the case of Mohanlal v. Sau.
Kamlabai reported in 1985 II DMC 322 (Bom) (Nagpur Bench, S.B.). In the
case before his Lordship, the wife instituted the proceedings u/s. 125
of Cr.P.C. and also husband filed an application for Judicial
Separation and alimony in the Civil Court against the applicant under
the provisions of the Hindu Marriage Act. An ex parte order was passed
against the husband and she was awarded maintenance of Rs. 300/- p.m.
The Civil Court granted Rs. 100/- p.m. as permanent alimony to the
wife. In that case, the issue was raised to the effect that the
principle of res judicate is applicable. His Lordship held that the
Section 11 of the C.P.C. as such, is not, in terms, applicable to the
proceedings u/s. 125 of Cr.P.C.

12. In the instant case before me, the question of res judicata is not
involved. Shri Vidwans, the learned counsel for the applicant also has
not raised this issue. Therefore, the observations made in the case
supra are not of any assistance to the non-applicants.

13. Reliance also been palaced on the case of In re Taralakshmi
Manuprasad reported in AIR 1958 Bom 499 (DB) : (1939 (40) Cri LJ 91).
In that case their Lordships observed that :

"The mere existence of a decree of a Civil Court directing a certain
sum to be paid for maintenance does not oust the jurisdiction of a
Magistrate in a proper case to make an order u/s. 488. Of course the
existence of such a decree is relevant when the Magistrate is
considering what form of order he should make u/s. 488 and the
Magistrate should make it clear in his order that anything paid
under the decree of the Civil Court will be taken into account
against anything which he may order to be paid".

In the instant case before me, there is no decree passed by the Civil
Court. For the same relief, the non-applicant wife knocked the doors of
the Civil Court as well as of Criminal Court. So, the facts of the case
which was before their Lordships of the Bombay High Court are
altogether different having no relation with the facts and
circumstances before me and, therefore, it is also not of any
assistance.

14. Reliance has also been placed on the case of A. Joseph Fernando v.
Maria Navis reported in (1987) II DMC 342 (Madras, S.B.). It is held
that :

"The maintenance proceeding u/s. 125, Cr.P.C. was initiated earlier
though the order in the civil suit was passed earlier. In such
circumstances it is manifest that a petition u/s. 125 of Cr.P.C. is
perfectly maintainable notwithstanding a Civil Court's order for
maintenance. The criminal proceedings can not be quashed".

In the instant application, the applicant has not prayed for quashing
the criminal proceedings i.e. application presented u/s. 125 of Cr.P.C.
The only limited prayer is that the matter being seized with the Civil
Court, till the disposal of the Reg. C.S. No. 227/86, the proceedings
instituted u/s. 125 of Cr.P.C. be stayed. Therefore, the facts of the
case decided by the learned Court in the case supra and the facts
before me, being altogether different, this case is also not of any
assistance to the non-applicants.

15. In a case of Challapalli Sugars Ltd. v. Swadeshi Sugar Supply Pvt.
Ltd. (DB), in respect of the same subject matter,
there were two suits instituted though the relief was based on
different cause of action. The subject-matter in controversy in both
the suits being the same, arises out of the same contract and from the
same transaction, the later suit was stayed till the decision of the
earlier suit.

16. Considering the facts and circumstances and the submissions made by
the learned counsel for the parties, the relief in both the cases,
being one and the same, and the Civil Court being seized with the
matter, in the interest of justice, the proceeding pending in the court
of J.M.F.C. Buldana, be stayed till the decision of the Reg. C.S. No.
277/86.

17. The non-applicants could not be allowed to ride two horses at a
time (two simultaneous proceedings in two different Coruts) and could
not be permitted to continue the maintenance proceedings u/s. 125 of
Cr.P.C. when they had already chosen the alternative remedy in Reg.
C.S. No. 227/86. It is well settled law that the judgment of Civil
Court shall prevail over the judgment of Criminal Court. The natural
justice demands that parallel proceedings cannot be allowed to continue
in different Courts.

18. The Civil Judge, Sr. Dn. Buldana, is directed to expedite the
matter. Staying the proceedings pending in the Court of J.M.F.C.,
Buldana, will not cause any pre-judice to the non-applicants because
they are already receiving the maintenance allowance @ Rs. 250/- p.m.
for wife and Rs. 150/- p.m. for the daughter.

19. In these terms the application is allowed. Rule made absolute.

20. Ordered accordingly.

HC: Interim order passed under DV Act is revisable and any final order is Appealable

2009-05-27T00:03:00.001-07:00

Punjab-Haryana High Court 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

Crl. Misc. No.31518-M of 2008.
Date of Decision: 3.12.2008.
***
Balwinder Kaur & Anr.
.. Petitioners
Vs.

Mahan Singh & Ors.
.. Respondents.

CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR,

Present:- Mr. Arun Takhi, Advocate
for the petitioner.
***

ARVIND KUMAR, J.

Through the instant- petition, the petitioner has sought
quashing of orders dated 3.10.2007 and 20.9.2008 passed by learned Sub
Divisional Magistrate Nawanshahr and learned Additional District and
Sessions Judge, Nawanshahr.
It emerges out from the paper book that the petitioners, who are
wife and son respectively of respondent No.1 Mahan Singh filed a
complaint with the Chief Judicial Magistrate, Nawanshahr under the
Protection of Women from Domestic Violence Act, 2005 (for short, the Act)
against Mahan Singh and other in-laws. Along with the said complaint, they
also filed an application under Section 12 of the Act and sought interim
reliefs as provided under Sections 18 to 22 read with Section 23 of the Act.
After the contest, the application for interim reliefs was declined by the trial
court vide order dated 3.10.2007 and against that order, the petitioners
preferred a Crl. Misc. No. 51178-M of 2007 seeing quashing of the said
order, however, that petition was withdrawn with a liberty to avail
appropriate remedy under the law. Thereafter, the petitioners preferred a
revision before the Court of learned Sessions Judge, but the learned
Additional District and Sessions Judge, vide impugned order dated
20.9.2008 holding that the only relief available to the petitioners is to file an
appeal against the said order and that too within a period of thirty days and
hence doubting the maintainability of the revision, dismissed the same,
2

without touching the merits of the case
Learned counsel for the petitioners has contended that the
learned revisional court has fallen into error of law by misinterpreting the
provisions of the Act and that Sections 12, 18 to 23 of the Act are governed
by the provisions of Code of Criminal Procedure, 1973 and as such the
revision was very much maintainable and Section 29 of the Act attracts only
when there is final order passed by the Magistrate and an appeal would lie
for the same..
There is force in the contention of learned counsel for the
petitioners. A conjoint reading of Section 12 of the Act and Rule 6(5) of
The Protection of Women from Domestic Violence Rules, 2006 (for brevity,
the Rules) leaves no manner of doubt that the order passed on an application
for interim relief is very much revisable before the Court of Session and as a
consequence thereof, obviously, with the limitation as stipulated in the Code
of Criminal Procedure for the purpose.
At this stage, learned counsel has contended that if the order
passed by the revisional Court is set aside, he shall put up his case in respect
of legality and propriety of order dated 3.10.2007 passed by the Magistrate,
before that forum, on merits.
In view of this, the impugned order dated 20.9.2008 passed by
the Revisional Court is set aside and the matter is remitted back to it with a
direction to admit the revision of the petitioners and disposed it of
expeditiously, after hearing the parties on merit, that too without insisting
on the point of limitation.
The instant petition is disposed of without issuing any notice to
the opposite party, since in the considered opinion of this Court they have to
unnecessarily bear heavy expenses to contest this litigation. However,
liberty is given to the respondents to file an application for recalling of this
order, if they are dis-satisfied with the same.

(ARVIND KUMAR)
JUDGE
December 3,2008
Jiten

Documents ref:
The Protection Of Women From Domestic Violence Act, 2005
Section 12 in The Protection Of Women From Domestic Violence Act, 2005
Section 18 in The Protection Of Women From Domestic Violence Act, 2005
The Indian Penal Code, 1860
Section 29 in The Indian Penal Code, 1860

HC: Cognizance under DV Act taken for period before 26-10-06 is illegal

2009-05-26T23:35:00.000-07:00

Smt.Gita vs Smt.Raj Bala & Others on 26 November, 2008

Punjab-Haryana High Court Criminal Misc.-M No.47145 of 2007 :1 :

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

DATE OF DECISION: November 26, 2008

Smt.Gita

.....Petitioner

VERSUS

Smt.Raj Bala & others

....Respondents

CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH

1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?

PRESENT: Mr.Manoj Kaushik, Advocate,
for the petitioner.

Mr.Rohit Ahuja, Advocate,
for respondent No.1.

****

RANJIT SINGH, J.

Smt.Gita seeks quashing of notice/summoning order

dated 19.7.2006 passed by ACJM, Faridabad. She is a married

sister-in-law of the complainant and is separately residing at her

matrimonial home at Palwal, but is summoned to face prosecution

under the provisions of Protection of Women from Domestic Violence

Act, 2005. (for short "the Act").

The primary submission made on behalf of the petitioner
Criminal Misc.-M No.47145 of 2007 :2 :

is that she has wrongly and illegally been summoned for an offence

under the provisions of the Act, which was not even applicable on the

date the cognizance of the offence was taken. It is accordingly

pleaded that ACJM, Faridabad erred in taking cognizance of the

offence which was not an offence on the date he took cognizance of

the same.

The averment in the petition would show that the Act was

notified and came into effect w.e.f. 26.10.2006. The Magistrate,

however, has summoned the petitioner and his co-accused on

19.7.2006. The petitioner and her co-accused were summoned for

offences under Sections 12, 19, 20, 21, 22 and 23 of the Act. This is

stated to be an illegality as on 19.7.2006, the Act was not in force

and hence the so-called alleged offences under the Act, as noticed,

were not the offences on the Statute Book. Though other

submissions on merits have also been made, but need not be

noticed. The fact that this Act is enforced w.e.f. 26.10.2006 is not in

any serious dispute. Section 1(3) of the Act provides that the Act

shall come into force on such date as the Central Government may

by notification in the official Gazette appoint. The Central

Government has appointed 26 day of October, 2006 as the date on

which the said Act shall come into force as per Notification

No.S.O.1776(E) dated 17th October, 2006. It is, thus, clear that the

Act came into force w.e.f.26.10.2006. The learned counsel for

respondent No.1 did not dispute this factual position, but still insisted

in submitting that the Magistrate had rightly taken cognizance of

offence in this case as the Act is of the year 2005, i.e., prior to the

date, the Magistrate took cognizance on 19.7.2006. Without much
Criminal Misc.-M No.47145 of 2007 :3 :

justification, the counsel referred to a case of Pt.Rishikesh & Anr.

Vs. Smt.Salma Begum, 1995(3) RRR 429 in support of his plea. In

this case, the Hon'ble Supreme Court has observed that the

commencement of the Act is distinct from making the law. As per the

Hon'ble Supreme Court, as soon as the assent is given by the

President to the law passed by the Parliament it becomes law and

the commencement of the Act may be expressed in the Act itself,

namely, from the moment the assent was given by the President and

published in the Gazette, it becomes operative. However, it is also

observed that the operation may be postponed giving power to the

executive or delegated legislation to bring the Act into force at a

particular time unless otherwise provided. It is not understood as to

how this ratio of law would benefit the plea raised by the counsel for

the respondents. As already noticed, it is clearly provided in the Act

that it shall come into force on such date as the Central Government

may by notification in the official Gazette appoint. This Act came into

force on 26.10.2006, as already noticed. Thus, the legislature had

given power to the Central Government, delegated authority to notify

the date from which the Act was to come into force. This course is

permissible in terms of the law laid down in Pt.Rishikesh's case

(supra). There is no need, thus, to pursue further the argument

raised by the counsel for the respondent that the Act is of 2005 and,

so the Magistrate could take cognizance on 19.7.2006. This, if

permitted would violate the provisions of Article 20 of Constitution of

India. Article 20 grants protection in respect of conviction for

offences by providing that no person shall be convicted of any

offence except for violation of law in force at the time of the
Criminal Misc.-M No.47145 of 2007 :4 :

commission of the act charged as an offence. As per this Article,

when a certain act is not an offence according to law in force at the

time when the act is done, the person who does that act must not be

held guilty of an offence merely because subsequently a law is made

making such act an offence. When the petitioner is alleged to have

committed the offences under various sections of the Domestic

Violence Act, which is not in force on the date of such acts, then the

charge framed under the said sections would not be maintainable in

view of Art. 20(1) of the Constitution as the said penal provisions

were not in existence when the alleged offences were committed. In

fact, there was no law in force at the time when the petitioner

allegedly committed these acts and, therefore, would be entitled to

the protection of Art.20(1) of the Constitution. Once the Act came

into operation on 26.10.2006, the various provisions of the Act

creating offences would not be an offences for which the petitioner

can be put to trial. The action of the court in taking cognizance on the

basis of this complaint on 19.7.2006, as such, cannot be sustained.

The summoning order, thus, cannot be sustained and the same is

set-aside.

The petition is allowed.

November 26, 2008 ( RANJIT SINGH )
ramesh JUDGE

documents ref:
The Protection Of Women From Domestic Violence Act, 2005
Article 20 in The Constitution Of India 1949
Section 12 in The Protection Of Women From Domestic Violence Act, 2005
Section 23 in The Protection Of Women From Domestic Violence Act, 2005
Section 19 in The Protection Of Women From Domestic Violence Act, 2005

Landmark SC Judgments on S. 125 CrPC

2009-05-26T00:04:00.001-07:00

Landmark SC Judgment on S. 125 CrPC

Chaturbhuj Vs. Sitabai, (2008) 2 Supreme Court Cases 316

Dismissing the appeal, the Court

HELD: 1.1. The object of the maintenance proceedings is not to punish a person
for his past neglect, but to prevent vagrancy by compelling those who can
provide support to those who are unable to support themselves and who have a
moral claim to support. The phrase "unable to maintain herself" would mean that
means available to the deserted wife while she was living with her husband and
would not take within itself the efforts made by the wife after desertion to
survive somehow. S.125 Cr.P.C. is a measure of social justice and is specially
enacted to protect women and children and falls within constitutional sweep of
Article 15(3) reinforced by Article 39 of the Constitution of India, 1950. It
provides a speedy remedy for the supply of food, clothing and shelter to the
deserted wife. It gives effect to fundamental rights and natural duties of a man
to maintain his wife, children and parents when they are unable to maintain
themselves. [Para 5] [586-B, C,
D, E]

Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors., AIR (1978) SC
1807 and Savitaben Somabhai Bhatiya v. State of Gujarat and Ors., (2005) 2
Supreme 503, relied on.

1.2. Under the law, the burden is placed in the first place upon the wife to
show that the means of her husband are sufficient. In the instant case, there is
no dispute that the appellant has the requisite means. But there is an
inseparable condition which has also to be satisfied that the wife was unable to
maintain herself. These two conditions are in addition to the requirement that
the husband must have neglected or refused to maintain his wife. The appellant
has placed material to show that the respondent-wife was earning some income.
That is not sufficient to rule out application of s.125 Cr.P.C. It has to be
established that with the amount she earned the respondent-wife was able to
maintain herself. Whether the deserted wife was unable to maintain herself, has
to be decided on the basis of the material placed on record. Where the personal
income of the wife is insufficient she can claim maintenance under s.125 Cr.P.C.
The test is whether the wife
is in a position to maintain herself in the way she was used to at the place of
her husband.
[Paras 6, 7 and 8] [583-F, G; 584-A, B, C]

Bhagwan v. Kamla Devi, AIR (1975) SC 83, relied on and re-iterated.

2. The trial Court, the Revisional Court and the High Court analysed the
evidence and held that the respondent wife was unable to maintain herself. The
conclusions are essentially factual and they are not perverse. That being so
there is no scope for interference in this appeal. [Para 9] [584-D, E]

Shashindra Tirpathi, Sharad Tripathi and Debasis Misra for the Appellant.

Shashi Bhushan Kumar for the Respondent.

Code of Criminal Procedure, 1973:

s.125-Claim for maintenance by wife-Wife not having sufficient means to maintain
herself and husband having sufficient means-Order of maintenance by Courts below
after analyzing evidence-Interference with-Held: Conclusion of courts below that
wife was unable to maintain herself was essentially factual and not
perverse-Thus, interference not called for-Constitution of India-Article 136.

s.125-Maintenance proceedings-Object of-Held: s.125 is a measure of social
justice, especially enacted to protect women, children and parents when they are
unable to maintain themselves, and falls within constitutional sweep of Article
12(3) reinforced by Article 39 of the Constitution-Constitution of India,
1950-Articles 15(3) and 39-Social justice.

Words and phrases: "unable to maintain herself"-Meaning of-In the context of
s.125 of Code of Criminal Procedure, 1973.

The respondent-wife filed an application under s.125 Cr.P.C. claiming
Rs.10,000/- as maintenance from the appellant-husband. In the application, it
was claimed that she was unemployed and unable to maintain herself.

The stand of the appellant was that the wife was living in the house constructed
by him; that she had let out the house on rent and since 1979 was residing with
one of their sons; that the wife had sold the agricultural land and sale
proceeds were still with her; and that she could maintain herself from the money
received from the sale of agricultural land and rent.

Considering the evidence on record, the trial Court directed husband to pay
Rs.1500 per month opining that the wife did not have sufficient means to
maintain herself. The revisional Court analysed the evidence and dismissed the
revision petition holding that the appellant's monthly income was more than
Rs.10,000/- and the amount received as rent by the respondent-wife was not
sufficient to maintain herself.

Appellant filed an application under s.482 Cr.P.C. before the High Court. The
High Court dismissed the application holding that the conclusions by the trial
Court and the Revisional Court were arrived at on appreciation of evidence and
therefore there was no scope for any interference. Hence the present appeal.

2008 AIR 530 , 2007(12 )SCR577 , 2008(2 )SCC316 , 2007(13 )SCALE402 , 2008(1
)JT78

CASE NO.:
Appeal (crl.) 1627 of 2007

PETITIONER:
Chaturbhuj

RESPONDENT:
Sita Bai

DATE OF JUDGMENT: 27/11/2007

BENCH:
Dr. ARIJIT PASAYAT & AFTAB ALAM

JUDGMENT:
J U D G M E N T

CRIMINAL APPEAL NO. 1627 OF 2007
(Arising out of SLP (Crl.) No.4379 of 2006)

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order passed by a
learned Single Judge of the Madhya Pradesh High Court,
Indore Bench, dismissing the revision petition filed by the
appellant in terms of Section 482 of the Code of Criminal
Procedure, 1973 (in short 'Cr.P.C.'). The challenge before the
High Court was to the order passed by learned Judicial
Magistrate, First Class, Neemuch, M.P. as affirmed by the
learned Additional Sessions Judge, Neemuch, M.P. The
respondent had filed an application under Section 125 of
Cr.P.C. claiming maintenance from the appellant.
Undisputedly, the appellant and the respondent had entered
into marital knot about four decades back and for more than
two decades they were living separately. In the application it
was claimed that she was unemployed and unable to maintain
herself. Appellant had retired from the post of Assistant
Director of Agriculture and was getting about Rs.8,000/- as
pension and a similar amount as house rent. Besides this, he
was lending money to people on interest. The appellant
claimed Rs.10,000/- as maintenance. The stand of the
appellant was that the applicant was living in the house
constructed by the present appellant who had purchased 7
bighas of land in Ratlam in the name of the applicant. She let
out the house on rent and since 1979 was residing with one of
their sons. The applicant sold the agricultural land on
13.3.2003. The sale proceeds were still with the applicant.
The appellant was getting pension of about Rs.5,700/- p.m.
and was not getting any house rent regularly. He was getting
2-3 thousand rupees per month. The plea that the appellant
had married another lady was denied. It was further
submitted that the applicant at the relevant point of time was
staying in the house of the appellant and electricity and water
dues were being paid by him. The applicant can maintain
herself from the money received from the sale of agricultural
land and rent. Considering the evidence on record, the trial
Court found that the applicant-respondent did not have
sufficient means to maintain herself.

3. Revision petition was filed by the present appellant.
Challenge was to the direction to pay Rs.1500/- p.m. by the
trial Court. The stand was that the applicant was able to
maintain herself from her income was reiterated. The
revisional court analysed the evidence and held that the
appellant's monthly income was more than Rs.10,000/- and
the amount received as rent by the respondent-claimant was
not sufficient to maintain herself. The revision was
accordingly dismissed. The matter was further carried before
the High Court by filing an application in terms of Section 482
Cr.P.C. The High Court noticed that the conclusions have
been arrived at on appreciation of evidence and, therefore,
there is no scope for any interference.

4. Section 125 Cr.P.C. reads as follows:

"125. (1) If any person having sufficient means
neglects or refuses to maintain
(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child,
whether married or not, unable to maintain
itself, or

(c) his legitimate or illegitimate child (not being
a married daughter) who has attained
majority, where such child is, by reason of any
physical or mental abnormality or injury
unable to maintain itself, or

(d) his father or mother, unable to maintain
himself or herself,
a Magistrate of the First Class may, upon proof of
such neglect or refusal, order such person to make
a monthly allowance for the maintenance of his wife
or such child, father or mother, at such monthly
rate not exceeding five hundred rupees in the whole,
as such Magistrate thinks fit, and to pay the same
to such person as the Magistrate may from time to
time direct:
Provided that the Magistrate may order the
father of a minor female child referred to in clause
(b) to make such allowance, until she attains her
majority, if the Magistrate is satisfied that the
husband of such minor female child, if married, is
not possessed of sufficient means.
Explanation .For the purposes of this Chapter,
(a) 'minor' means a person who, under the
provisions of the Indian Majority Act, 1875 (9
of 1875), is deemed not to have attained his
majority;
(b) 'wife' includes a woman who has been
divorced by, or has obtained a divorce from,
her husband and has not remarried."
["(2) Any such allowance for the maintenance or
interim maintenance and expenses of proceeding
shall be payable from the date of the order, or, if so
ordered, from the date of the application for
maintenance or interim maintenance and expenses
of proceeding, as the case may be.";]
(3) If any person so ordered fails without sufficient
cause to comply with the order, any such Magistrate
may, for every breach of the order, issue a warrant
for levying the amount due in the manner provided
for levying fines, and may sentence such person, for
the whole, or any port of each month's allowance 4
[allowance for the maintenance or the interim
maintenance and expenses of proceeding , as the case
may be] remaining unpaid after the execution of the
warrant, to imprisonment for a term which may
extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the
recovery of any amount due under this section
unless application be made to the Court to levy
such amount within a period of one year from the
date on which it became due:
Provided further that if such person offers to
maintain his wife on condition of her living with
him, and she refuses to live with him, such
Magistrate may consider any grounds of refusal
stated by her, and may make an order under this
section notwithstanding such offer, if he is satisfied
that there is just ground for so doing.
Explanation.-If a husband has contracted marriage
with another woman or keeps a mistress, it shall
be considered to be just ground for his wife's
refusal to live with him.
(4) No wife shall be entitled to receive an 4 [allowance
for the maintenance or the interim maintenance and
expenses of proceeding , as the case may be] from her
husband under this section if she is living in
adultery, or if, without any sufficient reason, she
refuses to live with her, husband, or if they are living
separately by mutual consent.
(5) On proof that any wife in whose favour an order
has been made under this section is living in
adultery, or that without sufficient reason she
refuses to live with her husband, or that they are
living separately by mutual consent, the Magistrate
shall cancel the order."

5. The object of the maintenance proceedings is not to
punish a person for his past neglect, but to prevent vagrancy
by compelling those who can provide support to those who
are unable to support themselves and who have a moral claim
to support. The phrase "unable to maintain herself" in the
instant case would mean that means available to the deserted
wife while she was living with her husband and would not take
within itself the efforts made by the wife after desertion to
survive somehow. Section 125 Cr.P.C. is a measure of social
justice and is specially enacted to protect women and children
and as noted by this Court in Captain Ramesh Chander
Kaushal v. Mrs. Veena Kaushal and Ors. (AIR 1978 SC 1807)
falls within constitutional sweep of Article 15(3) reinforced by
Article 39 of the Constitution of India, 1950 (in short the
'Constitution'). It is meant to achieve a social purpose. The
object is to prevent vagrancy and destitution. It provides a
speedy remedy for the supply of food, clothing and shelter to
the deserted wife. It gives effect to fundamental rights and
natural duties of a man to maintain his wife, children and
parents when they are unable to maintain themselves. The
aforesaid position was highlighted in Savitaben Somabhai
Bhatiya v. State of Gujarat and Ors. (2005 (2) Supreme 503).

6. Under the law the burden is placed in the first place
upon the wife to show that the means of her husband are
sufficient. In the instant case there is no dispute that the
appellant has the requisite means.

7. But there is an inseparable condition which has also to
be satisfied that the wife was unable to maintain herself.
These two conditions are in addition to the requirement that
the husband must have neglected or refused to maintain his
wife. It is has to be established that the wife was unable to
maintain herself. The appellant has placed material to show
that the respondent-wife was earning some income. That is
not sufficient to rule out application of Section 125 Cr.P.C. It
has to be established that with the amount she earned the
respondent-wife was able to maintain herself.

8. In an illustrative case where wife was surviving by
begging, would not amount to her ability to maintain herself.
It can also be not said that the wife has been capable of
earning but she was not making an effort to earn. Whether the
deserted wife was unable to maintain herself, has to be
decided on the basis of the material placed on record. Where
the personal income of the wife is insufficient she can claim
maintenance under Section 125 Cr.P.C. The test is whether
the wife is in a position to maintain herself in the way she was
used to in the place of her husband. In Bhagwan v. Kamla
Devi (AIR 1975 SC 83) it was observed that the wife should be
in a position to maintain standard of living which is neither
luxurious nor penurious but what is consistent with status of
a family. The expression "unable to maintain herself" does not
mean that the wife must be absolutely destitute before she can
apply for maintenance under Section 125 Cr.P.C.

9. In the instant case the trial Court, the Revisional Court
and the High Court have analysed the evidence and held that
the respondent wife was unable to maintain herself. The
conclusions are essentially factual and they are not perverse.
That being so there is no scope for interference in this appeal
which is dismissed.

Complainant cannot seek remedy under two different enactments for same cause: HC

2009-05-16T08:01:00.000-07:00

Complainant cannot seek remedy under two different enactments for same cause: HC
Mohamed Imranullah S.
As a police complaint had already been filed, cognisance cannot be taken under Domestic Violence Act
MADURAI: Judicial Magistrates cannot take cognisance of a complaint under the Protection of Women from Domestic Violence Act, 2005 if the victim had already lodged a complaint with the police under the provisions of the Indian Penal Code, the Madras High Court has ruled.
Disposing of a petition filed in the Madurai Bench by a family from Dindigul, Justice V. Periya Karuppiah held that a victim could not seek remedy under two different enactments for the same cause of action as it would amount to double jeopardy which was prohibited under the Constitutional law.
The Judge also said that a woman could not demand action, under the Act, against her in-laws for writing a letter to her husband’s office seeking his employment details. He agreed with petitioners’ counsel N. Veera Kathiravan that the complainant would not be in anyway aggrieved by such a letter.
An aged woman, her daughter and son-in-law had filed the present petition seeking to quash an order passed by the Dindigul Judicial Magistrate-II who took cognisance of a complaint lodged by the former’s daughter-in-law alleging that the petitioners assaulted her and also wrote letters to her office and that of her husband.
“Apply mind”
Stating that the mother-in-law alone could be prosecuted for writing a letter to her daughter-in-law’s office, Mr. Justice Karuppiah said: “When a complaint is filed under the Act, the lower court must apply its mind and ensure if the allegations attract provisions of the special enactment. But in this case, it has been taken on file abruptly.”
The Judge quashed the case with respect to the victim’s sister-in-law and brother-in-law on the ground that there was no evidence to prove that they assisted in writing the letter.
In so far as the allegation of assault was concerned, a complaint was pending with the police and hence the victim could not invoke the 2005 Act,
The Hindu

####################################################################
COURT JUDGEMENT:
####################################################################

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 28/04/2009
CORAM
THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH

Crl.O.P.(MD)No.11066 of 2008
And M.P.(MD)No.1 of 2009

1.K.Kamala
2.K.Pasungili
3.C.Vasantharaja
... Petitioners
Vs.

1.M.Parimala
2.The District Social Welfare Office cum
The District Dowry Prohibition Officer,
Dindigul.
... Respondents

PRAYER

Petition filed under Section 482 of the Code of Criminal Procedure praying to call for the records relating to the impugned order in C.C.No.465 of 2008 on the file of the learned Judicial Magistrate No.II, Dindigul, and to quash the same.

For Petitioners ... Mr.Veera Kathiravan
For Respondents ... Mr.R.R.Kannan for R1
Mr.L.Murugan for R2
Govt. Advocate (Crl.Side)

:ORDER
This petition has been filed by the petitioners seeking to quash the cognizance order passed by the learned Judicial Magistrate No.II, Dindigul, in C.C.No.465 of 2008 as illegal and abuse of process of law and misuse of provisions of the Protection of Women from Domestic Violence Act, 2005 (herein after called as 'Act').

2. The brief facts of the case are as follows:-

The first petitioner is the mother-in-law, the second petitioner is the sister-in-law and the third petitioner is the husband of the sister-in-law of the first respondent. The first respondent preferred a complaint against the petitioners under the said Act. The allegation against the first petitioner/mother-in-law is that she wrote a letter to the Secretary, L.I.C. Employees Association, Dindigul, where the first respondent is working and a second letter to the Public Relation Officer, Deputy Commercial Tax Officer-IV, Commercial Tax Office, Dindigul, where the first respondent's husband is working, with some allegations against the petitioner, under the guise of seeking for certain informations. The only allegation as against the petitioners 2 and 3 is that the 2nd petitioner/sister-in-law had written complaint where the first petitioner/mother-in-law had put her signature.
Further, on 09.05.2008 the petitioners 2 and 3 were attacked the first respondent and based on which, a complaint has been given and based on the complaint a case has been registered in 128 of 2008 which is pending on the file of the Police. Further, the first respondent claimed compensation of Rs.10 lakhs under the Act. The learned Judicial Magistrate concerned has also taken cognizance of the same, as if the complainant is entitled for compensation. The offence said to have committed by the petitioners are under Sections 18, 20, 21, 22 and 23 of the Act. Based on the complaint, the 2nd respondent has forwarded it to the trial court for prosecution and a criminal case was registered in C.C.No.465 of 2008 on the file of the learned Judicial Magistrate No.II, Dindigul and they were arrayed as respondents/accused.
The learned Judicial Magistrate No.II, Dindigul has taken cognizance and issued summons in the said complaint. Challenging the same, the petitioners have come forward with the present Criminal Original Petition for the relief as stated supra.

3. Heard Mr.Veera Kathiravan, learned counsel appearing for the petitioner and Mr.R.R.Kannan, learned counsel appearing for the first respondent and Mr.L.Murugan, learned Government Advocate(Crl.Side) appearing for the second respondent.

4. The learned counsel for the petitioner would submit in his argument that the petition given by the first respondent against the petitioners herein, who are the mother-in-law, sister-in-law and husband of the sister-in-law of the first respondent, was without any verification to be submitted by the protection Officer before the learned Judicial Magistrate No.II, Dindigul and the same was taken cognizance and summons were issued in contravention of the provisions of the Act and therefore, the order of cognizance passed by the learned Judicial Magistrate No.II, Dindigul, in C.C.No.465 of 2008 has to be quashed.

5. The learned counsel for the petitioners would further submit in his argument that the first respondent's husband was not included as respondent and therefore, it cannot be said that the petitioners are liable to be proceeded under the provisions of the said Act. The said inclusion of female members, as the relatives of the husband, as respondents, is not sustainable under Section
2(q) of the Act. He would further submit that the allegations said to have been made against the petitioners in Form-I under the Act, are not adequate, to take cognizance and on the face of it, the offence against the petitioners pertaining to the 3 days' cause of action viz., 26.04.2008, 30.04.2008 and 09.05.2008 are not sustainable and admittedly, on 09.05.2008, a complaint has been already lodged before the Police, North Police Station, Dindgul Town, Dindigul, and the Police have also given the receipt in C.S.R.No.128 of 2008. Now, the very same cause of action, has been repeated here and it would amount to 'double jeopardy' against the petitioners.

6. The learned counsel would further submit that the allegations as against the 2nd and 3rd petitioners in the said complaint would be that they helped the first petitioner to write the petition against the first respondent on 26.04.2008 and another petition against the husband of the first respondent on 30.04.2008 to their respective offices. He would state that no material has been produced for the purpose of incriminating the 2nd and 3rd petitioners and merely because they are living with the first petitioner, it cannot be said that they have instigated the first petitioner to write so. Moreover, he would also submit that the dispute between the first petitioner and her son namely, the husband of the first respondent and another younger son, in respect of the property, bequeathed by her husband in her favour for enjoying the property till her lifetime and the vested remainder to the sons. The first petitioner is in possession of the said property, situated in Salem, in pursuance of her life interest, the first respondent wanted her to get out of the property and immediately she caused disturbances by harassing the first petitioner by giving this complaint. He would further submit that the allegations in the letter dated 26.04.2008, written by the first petitioner to the Secretary, L.I.C.
Employees Association might not have been disclosed to the first respondent for warranting a cause of action. For this, an enquiry has to be conducted by the L.I.C. Employees Association, where the first respondent is working and therefore, there could not be any mental stress or domestic violence as told by the first respondent in the petition.

7. He would further submit that the letter dated 30.04.2008 written by the first petitioner seeking for information about the particulars of the employment of her son from his employer, and her son was not in any way prejudiced by the first petitioner and absolutely there was no cause of action for the aggrieved person. If any stress is emanating out of the letter dated 30.04.2008, it would be the first petitioner's son and the second cause of action is also not sustainable both in law and on facts. Without following of the legal formalities, the learned Judicial Magistrate No.II, Dindigul, has taken the complaint on file, which has to be quashed.

8. The learned counsel for the first respondent would submit in his argument that after taking cognizance of the complaint, about 39 hearings have passed and the petitioners have appeared for 5 hearings only and now, they have come forward with this case at the belated stage only. He would further submit that the petitioners are certainly attracted under the definition of 'domestic relationship' as per Section 2(f) of the said Act and the first respondent is entitled to give such a complaint against the petitioners, who are defined as 'respondents', as per Section 2(q) of the said Act and this petition has been filed only for prolonging the case so as to defeat the provisions of Section 12(5) of the Act, regarding the disposal of the case made under Sub-Section (1) within a period of 60 days from the date of taking cognizance. Therefore, he requests the Court to dismiss the petition as not sustainable.

9. The learned Government Advocate (Criminal Side) would reiterate the argument of the first respondent and he would also submit that the Protection Officer has promptly filed the application in time and it has been taken cognizance and there is no infirmity in the order passed by the learned Judicial Magistrate No.II, Dindigul in taking cognizance of the case and therefore, the petition may be dismissed.

10. I have carefully considered the submissions made on either side.

11. The foremost contention of the petitioners would be that the implication of the petitioners, as respondents in C.C.No.465 of 2008 on the file of the learned Judicial Magistrate No.II, Dindigul, cannot be sustained as female relatives of the husband are not attracted under the definition of the respondents under Section 2(q) of the said Act. For the better understanding the meaning of the term 'respondent', we have to extract the said provision itself.
Section 2(q) runs as follows:
"(q)"respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:
Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner;"

12. According to the main part of the said Section, the respondent in any case means any adult male person who must be in a domestic relationship with the aggrieved person. However, the proviso to Section 2(q) of the said Act, would go to show that an aggrieved wife or a female partner may also file a complaint against a relative of husband or male partner. Whether the term 'a relative' will spread its ambit to attract the petitioners, who are the female relatives of the husband, is a question to be decided. No doubt, the first petitioner is the mother and the second petitioner is the sister and the 3rd petitioner is the bother-in-law of the husband of the first respondent. Therefore, a relative in a 'domestic relationship', shall be the 'respondent' in a case. The definition of domestic relationship under Section 2(f) runs as follows:
"(f)"domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;"

13. According to the said Section, two persons should live at any point of time together in a shared household, when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or as members of the joint family. This domestic relationship qualification is given to a relative member of her husband, to be impleaded as 'respondent'. According to the petitioners they are not attracted by the said provisions.The insistence of the learned counsel for the petitioners would be that when the term 'respondent' is defined with a qualification as to be an adult male person in the Section, the reference "a relative" should also be a male relative of the husband or male partner and therefore, the case against the 1st and 2nd petitioners, who are the female members, cannot be sustained. For the purpose of determining as to whether a female relative of the husband cannot be a respondent in view of the mentioning of any adult male person in the Section, and therefore it would also apply to the proviso of 2(q), we have to necessarily to apply our mind to find the intention of the legislation, from the Statement of Objects and Reasons for enactment of this Act. In the sub Section
(i) of the 4th paragraph of the Statement of Objects and Reasons, it has been categorically mentioned as follows:
"4.The Bill, Inter alia, seeks to provide for the following:
(i) It covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. In addition, relationships with family members living together as a joint family are also included. Even those women who are sisters, widows, mothers, single women, or living with the abuser are entitled to legal protection under the proposed legislation. However, whereas the Bill enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female relative of the husband or the make partner to file a complaint against the wife or the female partner."

14. The objects and reasons would categorically show that the aggrieved wife or female partner can file a complaint against any relative of the husband or male partner. Thus it helps us to understand the word 'a relative' mentioned in the proviso to section 2(q), could be construed as any relative. Will the words any relative include both female and male relatives? is an important question to be decided at this juncture. According to 'Concise Oxford English
Dictionary - Eleventh Edition', "any" means, to refer to one or some of a thing or number of things, and it does not matter how much or how many. As regards, the meaning of 'any', it does not restrict to a singular and a particular category, it applies to all categories or classes of persons. In this background, when we approach the object and reasons, it has been categorically mentioned that the bill was prepared to enable the wife or the female partner living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, even though, it does not enable any female relative of the husband or of the male partner to file a complaint against the wife or the female partner. Therefore, the Act has been enacted to protect the wife or the female partner, who is living with her husband or a male partner in a relationship in the nature of marriage from the harassment or violence emanated from any of the relative of her husband or male partner living in a relationship in the nature of marriage, including the adult female persons of the family. The benefits and protection given under this Act is not available to other female members of the family.
Therefore, the meaning given in the proviso of Section 2(q) would be against any relative of the husband or male partner which includes, the petitioners 1&2 being the adult female persons as per the allegations made by the first respondent.

15. As regards, the maintainability of the allegations, we have to see the ingredients of the complaint made by the first respondent against the petitioners as 'respondents' in the said case which is pending before the court below. The allegations against the 2nd and 3rd petitioners would be that they helped the first petitioner to write and send a petition to the Secretary, L.I.C. Employees Association, where the first respondent is working and to the Public Relation Officer, Deputy Commercial Tax Officer-IV, Commercial Tax Office, Dindigul, where the first respondent's husband is working. Except the said allegations, nothing was mentioned against the petitioners in respect of cause of action dated 26.04.2008 and 30.04.2008.

16. On 26.04.2008, the first petitioner was stated to have written a complaint to the Secretary, L.I.C.Employees Association, Dindigul Branch I, 45, New Agraharam, Palani Road, Dindigul. Similarly, on 30.04.2008, the first petitioner is said to have sent a letter seeking for information under the Right to Information Act, to the Public Relation Officer, Deputy Commercial Tax Officer-IV, Dindigul. These letters were signed by the first petitioner only.
Either the letters were neither signed nor attested by the second and third petitioners or nothing is available to show that both the letters were prepared by the 2nd and 3rd petitioners.

17. In the aforesaid circumstances, it cannot be said that there is a prima facie case against the petitioners 2 and 3 in respect of the cause of action dated 26.04.2008 and 30.04.2008.

18. So far as the second cause of action dated 30.04.2008 is concerned, it was a letter alleged to have been written by the first petitioner to the Public Relation Officer, Deputy Commercial Tax Officer-IV, Dindigul seeking for certain information from the said office regarding the employment of the first petitioner's son. The allegations in the said letter is in respect of the first petitioner's son's employment and he is a male member and the first respondent is in no way aggrieved as it was not addressed to her office. Moreover, the son of the first petitioner, who is the husband of the first respondent, is the aggrieved person and not the first respondent. The said letter would in any way affect or harm the first respondent to give a complaint against the petitioners under the provisions of the said Act.

19. Regarding the third cause of action dated 09.05.2008, it has been categorically mentioned in the complaint that the petitioners 1 and 2 and two other persons had come to the office of the first respondent and the second petitioner had abused the first respondent, slapped on her cheek and twisted her hand. It was also alleged that the first petitioner had criminally intimidated the first respondent and for that the first respondent had given a complaint to North Town Police Station, Dindigul and she was given with a receipt in C.S.R.No.128 of 2008. It has been also told that the Police is yet to take action against the petitioners. It has not been averred by the first respondent that the Police, North Town Police Station, Dindigul had dropped the action.
When the said case is pending for the same cause of action, the complaint given by the first respondent in the third cause of action is not sustainable. It has been taken cognizance by the learned Judicial Magistrate No.II, Dindigul, which would be certainly amounting to 'double jeopardy', as prohibited by the Constitutional Law. Whenever a complaint is given by the Protection Officer before the Court, the Court must apply its mind and go through the provisions of the special enactment and to take cognizance of the cases, if the allegations are attracting the provisions of the said Act. But, in this case, it is evident that it had abruptly taken the complaint without going through the provisions of the said Act.

20. For the foregoing discussion, I am of the considered view that the complaint does not disclose any cause of action against the petitioners 2 and 3 even though they are the relatives of the husband of the aggrieved wife and no case is made out in all the three causes of action namely, 26.04.2008, 30.04.2008 and 09.05.2008. As regards, the first petitioner is concerned, the first respondent, who is said to be the aggrieved wife, had chosen to file complaint against the first petitioner being the closest relative of her husband for all the three cause of action. It is found that the cause of action dated 30.04.2008 and 09.05.2008 can not be sustained against the first petitioner.
The second cause of action dated 30.04.2008 had pointed out only at the husband of the first respondent and not against the first respondent. Regarding the third cause of action dated 09.05.2008 already a Police complaint is pending before the Dindigul North Police and the present complaint based on the same cause of action dated 09.05.2008 would be certainly amounting to a 'double jeopardy'. The cause of action dated 26.04.2008 could alone be taken cognizance by the court and that too only against the first petitioner. It is already considered that an adult female relative of the husband of the aggrieved person may also be proceeded under the provisions of the Act. For the foregoing discussions, it has become necessary for this Court to quash the entire case against the 2nd and 3rd petitioner and the case in respect of causes of action dated 30.04.2008 and 09.05.2008 against the first petitioner. Accordingly the cognizance taken by the learned Judicial Magistrate No.II, Dindigul, in C.C.No.465 of 2008 has been partially quashed and the learned Judicial Magistrate No.II, Dindigul is competent to proceed against the first petitioner alone in respect of the cause of action dated 26.04.2008 only and nothing-else.

21. The submission of the learned counsel for the petitioner at this juncture regarding the claim for compensation of Rs.10 lakhs should have been referred to. According to the provisions of the said Act, only the penalty has been envisaged under Section 31 of the Act. Therefore, there is no provision for awarding compensation.

22. According to the provisions of the Act, there is no reference as to the awarding of compensation. Therefore it is open for the learned Judicial Magistrate No.II, Dindigul, to apply his mind at the time of trial and to pass appropriate orders in accordance with law.

23. With the aforesaid observation, the petition is ordered partially and the cognizance taken by the learned Judicial Magistrate No.II, Dindigul in C.C.No.465 of 2008 is quashed in respect of the case taken on file against the petitioners 2 and 3 and in respect of the causes of action namely, 30.04.2008 and 09.05.2008 against the first petitioner. The learned Judicial Magistrate No.II, Dindigul is competent to proceed with the case against the first petitioner in respect of the cause of action dated 26.04.2008 alone. Petition is ordered accordingly. Consequently, connected M.P. is closed.

nbj
To
1.The District Social Welfare Office cum
The District Dowry Prohibition Officer,
Dindigul.
2.The Judicial Magistrate No.II,
Dindigul.

[SOURCE] = http://judis.nic.in/judis_chennai/qrydispfree.aspx?filename=54954

RTI judgement to get Certified copies from court

2009-04-30T23:49:00.000-07:00

CENTRAL INFORMATION COMMISSION
Room no. 415, 4th Floor, Block IV,
Old JNU Campus, New Delhi – 110066
Tel: +91 11 26161796
Decision No. CIC/SG/A/2008/00064/SG/1287
Appeal No. CIC/ SG/A/2008/00064
Relevant facts emerging from the Appeal:
Appellant : Mr. N. Venkatesan
Plot No. 28, 1st Floor,
Krishnamachari Nagar,
2nd Street, Alapakkam,
Chennai-600116
Respondent 1 : Mr. Raj Kumar Khudania
Superintendent
Public Information Officer (CPIO)
Office of the District and Sessions Judge
Tis Hazari Courts, Delhi-110054
RTI application filed on : 01/08/2008
Reply of the PIO : 11/08/2008
First Appeal filed on : 24/08/2008
First Appellate Authority order : 10/09/2008
Second Appeal filed on : 23/10/2008
Information Sought:
The appellant had sought information in form of the certified copies of the judgment issued under the case No. HMA 926 of 2005 (Lt Col. Srinivas v Subha Srinivas ) from Mr. Raj Kumar Khudania, Superintendent, Public Information Officer (CPIO), Office of the District and Sessions Judge, Tis Hazari Courts, Delhi-110054.
The PIO replied stating that the appellant can move the application before the concerned copying agency as per the rules for obtaining certified copies after paying necessary charges as per the rules.
Not satisfied by the Reply of PIO the appellant filed First Appeal on 24/08/2008.
First Appellate Authority Ordered:
‘In the view of provisions contained in Section 22 of the Hindu Marriage Act 1955, the appellant who is not a party to the said matrimonial proceedings cannot be supplied a copy and judgment or decree. Further the appellant was informed about the name of the copying agency i.e. Copying Agency, Sessions, Tis Hazari Courts, Delhi.’
Relevant facts emerging during hearing on 20 January 2009:
The following were present.
Appellant: Absent
Respondent: Mr. K.S.Rawat PIO
The PIO states that:
1- No information is being ‘held’ by the Court because there is a provision of the inspection of the record with the permission of the court and taking certified copy from the copying agency Under Section 76 of the Indian evidence act and if the case is pending before the court of law, it is a dispute between a party and party to the case can inspect the file with the permission of the Court, otherwise it will be contempt of court under Section 8(1)(b) of the RTI act. The PIO contends that the word ‘held’ occurring in Section 2(j) means “withholding and not giving.”
2- It has not been indicated in the application whether the information required, belongs to the third party.
3- The applicant is an advocate and it has not been disclosed whether the information is required is under the profession or not.
The order is reserved.
Decision given on 27 January 2009 :
The denial by the PIO is based on the three contention made by him before the Commission. He has also claimed that since there are existing rules for giving certified copies from the concerned agency the appellant must obtain the information by using the copying agency.
The First appellate authority has given two contradictory directions by first stating that the information cannot be given as per provisions of the Section 22 of the Hindu Marriage Act and then implied that the information could be obtained from the Copying agency.
We will first deal with the contentions of the PIO. He has invented a meaning of the word ‘held’ as meaning ‘withholding and not giving’. The word ‘held’ is usually understood to mean to be in possession of. ‘Held is a past participle of the word ‘hold’. Oxford Dictionary defines hold as ‘grasp, carry or support; have in one’s possession’. Nobody would ascribe the meaning ‘withholding and not giving up’ as contended by the PIO. Since there is no specific order of a Court expressly forbidding the information from being published the PIOs plea that disclosing this information will constitute contempt of court is without any basis.
The PIO states that the applicant has not disclosed whether the information belongs to a third party, and that he has not disclosed whether the information is required by him for use in his profession. Neither of these is relevant, since there is no requirement in law for the applicant to disclose either of these.
The First appellate authority’s has stated that under Section 22 of the Hindu Marriage Act 1955 a copy of the judgement passed by a Matrimonial Court cannot be supplied. The RTI act at Section 22 has clearly stated, ‘ The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.’. Hence unless there is a provision in the RTI act to deny the information, it will have to be provided.
No claim has been made by the PIO of any exemption under the RTI act to deny the information.
If a Public authority has a process of disclosing certain information which can also be accessed by a Citizen using Right to Information, it is the Citizen’s right to decide which route he wishes to use. The existence of another method of accessing information cannot be used to deny the Citizen his freedom to use his fundamental right codified under the Right to Information Act. If Parliament wanted to restrict his right, it would have been stated in the Law. Nobody else has the right to constrain or constrict the rights of the Citizen.
There is no proviso in the Right to Information Act which restrains the Citizen’s right to use it, if another route to avail information has been offered. It is a Citizen’s right to use the most convenient and efficacious means available to him.
The Appeal is allowed.
The PIO will provide the certified copies of the judgment issued under the case No. HMA 926 of 2005 (Lt Col. Srinivas v Subha Srinivas ) to the appellant free of cost before 10 February 2009.
Notice of this decision be given free of cost to the parties.
Shailesh Gandhi
Information Commissioner
27 January 2009
(In any case correspondence on this decision, mention the complete decision number.)

RTI regarding 498-A IPC

2009-04-30T23:46:00.000-07:00

CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2007/01515 dated 12.12.2007
Right to Information Act 2005 – Section 19
Appellant - Shri Kollu Durga Prasad
Respondent - Ministry of Home Affairs (MHA)
Facts:
By two RTI applications addressed to Prime Minister’s Office and Ministry of Law & Justice, both dated 25.7.07 and a third application dated 22.9.07 addressed to the President’s Secretariat Shri Kollu Durga Prasad of Hyderabad has sought the following information:
Application of 25.7.07
“I would like you to study about 498A cases implementation and usage and provide detailed information for following points. If it is possible, please circulate the same information to all departments (Also to major news papers) which are involved in implementing this section.
1. What is the procedure to be following by police and judicial system when a 498A case is field?
2. When a 498A case is filed, if in the police enquiry it was found false, what procedure to be followed.
3. What are the guidelines given to police department and judges to ensure that this act is not misused and innocent people do not suffer?
4. When Mallinath committee suggestions would get implemented.
5. When Supreme Court response for PIL would be taken into consideration when implementing section 498A.
6. Why Jharkhand High Court Decision is not applicable to entire India.
7. From the time section 498A came into place to till date,
a. How many 498A cases are filed in each state, year wise, total out many people got arrested?
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b. Out of these cases how many are genuine and how many are false cases. What is the average time taken for resolving each case?
c. How many are out of court settlements, how much actual court time each case is taking.
d. What is the conviction rate in these cases?
8. Please conduct a study and prepare a report of what is the life style of females who filed 498a cases and also accused in 498a cases. Has it helped anybody?
9. I would like PM’s office opinion on this act.”
Application of 22.9.07
“I would like you to study about 498A cases implementation and usage and provide detailed information for following points. If it is possible, please circulate the same information to all departments (Also to major news papers) which are involved in implementing this section.
1. When Mallinath committee suggestions would get implemented. If not why?
2. What is the action taken on Supreme Court response for a PIL filed against 498A Sushil Kumar Sharma vs. Union of India and Ors. Jul 19, 2005 *citation : JT 2005 (6) SC 266 by Hon’ble Judges : Ajit Pasayat and H. K.Sema, JJ, when implementing Sec. 498A.
3. Why Jharkhand High Court Decision is not applicable to entire India. Chief Justice of Jharkhand Mr. V. K. Gupta on 11.7.2001 against a case “Birendra Jha vs. The State of Jharkhand, A.B.A. No. 4654 of 2001.”
4. What is the action taken by Central Government for the Judgment given by HON’BLE MR. JUSTICE J. D. KAPOOR in case No. 462/2002 19.5.2003
5. What is the action taken by Central Government for the Judgment given by JUSTICE SHIV NARAYAN DHINGRA, IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on 12.2.2007, Date of Decision: February 23, 2007. CRL. M.C. 7262/2006 which clearly talks about the procedure to be followed when these cases are filed.
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6. What is the procedure to be following by police and judicial system when a 498A case is field?
7. What are the guidelines given to police department and judges to ensure that this act is not misused and innocent people do not suffer?
8. Why government is not following the rules laid by Supreme Court and high court when courts many times saying these sections are misused.?
9. Statistics of 498A cases with following details in following format:
a. No. of 498A cases filed in each state, year wise from year 1990 to till date.
b. Total No. of accused.
c. No. of people got arrested.
d. No. of people who got anticipatory bail.
e. No. of accused who are women.
f. No. of cases found false at FIR Stage.
g. No. of cases found false as Trial stage.
h. No. of cases got convicted.
i. No. of people got convicted (Male/Female)”
The application to the PMO was transferred on 30.7.07 to the Ministry of Home Affairs and to the Chief Secretary, Andhra Pradesh, upon which Shri Durga Prasad received a response on 3.8.07 from Shri D. R. Meena, CPIO, Dep't. of Legal Affairs, Ministry of Law & Justice, as follows:
“As per section 2(f) of the Right to Information Act, 2005 a Public Authority may provide information which is held by it or under it s control and a requestor is entitled for information only in respect of categories information as mentioned in Section 2(f) of the said Act. Moreover, a requestor right extend only to seeking information as defined in section 2(f) either by pinpointing the files, documents, papers and records etc or by mentioning the type of information as may be available with the specified Pubic Authority.
As per Government of India (Allocation of Business) Rules, 1961 the basic function of this Department is to render advice to various Ministries/ Departments of the government of India on legal matters, conveyancing etc…… You have vide your aforesaid letter sought opinion of this Department that cannot be tendered in terms of the said rules. Moreover, tendering opinion is also not covered within the ambit of the definition as defined in Section 2 (f) of the Right to Information Act, 2005. It is also evident from position
3
explained in Para 3 above that you have not sought for any information as defined in Section 2(f) of the Right to Information Act, 2005. However, a copy of your aforesaid request is being forwarded to Ministry of Home Affairs, for action as deems fit.’
He received a further response from CPIO Shri S. K. Bhatnagar, Dy. Secretary, Ministry of Home Affairs on 13.8.07, as follows:
“You have asked for opinion and conducting study on life style of females who file 498A cases, etc. The matter has been examined in this Ministry and since you have not sought any information as defined in Section 2 (f) of the RTI Act, 2005 no action on the request is taken.’
In this case appellant Shri Durga Prasad preferred two appeals:
1) To the Ministry of Home Affairs in which he has pleaded as follows:
“I would like appellate authority to consider my appeal and my first application in its entirely and directs the CPIO to provide information for each point. If information can’t be provided for certain points, explanation can be given why information can’t be provided. If law minister and government take notice of this issue it would help thousands of people who have been suffering in false cases.
Supreme Court and high courts have commented may times about misuse of these cases and forwarded the Judgments to Law Ministry and other concerned government authority but it seems government has just ignored these judgments and still continuing the laws which are highly misused so I would like to know what government is doing on the issues.’
2) The other appeal of the same date is addressed to the Jt. Secretary, PMO in which he submitted as follows:
“Till now I have not received any information from CPIO’s of Home Secretary, Home Affairs and Chief Secretary of Andhra Pradesh other than forwarding my application from one office to other office. The CPIO from PMO office also just forwarded my application to these offices but not bothered whether other CPIOs responded to my application or not. Other CPIOs followed same thing and they were also not bothered to answer my application. It is the responsibility of CPIO when forwarding any application to others to make sure that it is addresses on time. If PMO office and Central
4
Government does not follow the rules laid by it then who will follow the act.”
Shri S. K. Chattopadhyay, Jt. Secretary and Appellate Authority, Ministry of Home Affairs in his order of 25.9.07 responded as follows:
“The information in respect of points 8 & 9 has already been communicated to you by the Shri D. R. Meena, CPIO, Ministry of Law & Justice, Department of Legal Affairs vide his letter No. 21 (305)/2007-IC dated 3.5.2007. Shri S. K. Bhatnagar, Deputy Secretary & CPIO, MHA vide letter of even number dated the 13th August, 2007 had also drawn your attention to the reply already given to you by CPIO Ministry of Law & Justice, Department of Legal Affairs. However, inadvertently it was not intimated to you that your application has been transferred by this Ministry to the concerned CPIOs for reply in respect of points 1 to 7 of your application dated 25.7.2007. Thus, there has been no violation of the procedure on the part of Shri S. K. Bhatnagar, Dy. Secretary & CPIO and accordingly your appeal against him stands disposed off.
Anyway copies of your appeal dated 27.8.07 are being forwarded to the concerned appellate authorities in respect of the CPIOs mentioned in Para- above to whom your application was forwarded for necessary action under the Right to Information Act,2005.”
Shri Javed Usmani, Jt. Secretary to Prime Minister and Appellate Authority on his part responded on 25.10.07, as below:
“In transferring your said application to the Ministry of Home Affairs & to the Government of Andhra Pradesh u/s 6 (3) of the RTI Act, the Central Public Information Offer of the PMO has followed the prescribed statutory provisions and has appropriately dealt with your said application.’
In the meantime, Shri Durga Prasad received responses from other Departments to whom the application had been transferred by MHA, as follows:
1) From the Crime Records Bureau on 16.8.07 as follows:
“The requisite details under 498A IPC (Cruelty by husband or His relatives) for last five years from 2001 to 2005 are enclosed. The details include Cases Reported, Persons Arrested, Total Cases for Investigation, Cases found False, True Cases, Cases compounded or withdrawn, Cases in which Trials completed, cases convicted and conviction rate during 2001 to 2005.’
5
2) From CPIO Shri N. N. Perumal, Director, Judicial, Judicial Cell of the Ministry of Home Affairs. On the other hand, Shri Kollu Durga Prasad received a more exhaustive reply dated 12.11.07 as below:
“Reply to Question Nos. (i) & (iii): The criteria/ guidelines followed in registering a case under section 498A is similar to registering any other cognizable offence as laid down in the Code of Criminal Procedure, 1973. Particularly, Chapter V & VI are applicable as far as arrest of persons or processes to compel appearance.
Reply to Question No. (ii): Section 182 and 211 of Indian Penal Code provide punishment for making wrong complaint and false charges of offence. Similarly Section 358 of Code of Criminal Procedure, deals with cases of groundless arrests.
Reply to Question No. (iv): Acceptance/ implementation of the recommendation/ suggestions made by the Mallimath Committee would require amendments to the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973 through an amendment Bill. Since the Criminal Law and the Criminal Procedure are on the Concurrent List of the Seventh Schedule to the Constitution of India and criminal laws are administered by the State Governments, any amendment to them requires consultation with the States. The report is being processed in consultation with the State Governments and no time frame can be fixed.
Reply to Question No. (v): The Malimath Committee on Reforms of Criminal Justice System in its Report has inter-alia recommended to make Section 498A bailable and compoundable. Acceptance/ implementation of the recommendation/ suggestions made by the Mallimath Committee would require amendments to the Indian Penal Code 1860. Any amendment to the Indian Penal Code requires consultation with the States. The report is being processed in consultation with State Governments and no time frame can be fixed.
Reply to Question No. (vi): The decision/ judgment of a particular High Court is not applicable to the entire country as in the case of a judgment/ decision of the Supreme Court of India. However such decision / judgment of a High Court has a persuasive value in respect of other High Courts.”
6
The latter reply was, as can be seen, received by Shri Kollu Durga Prasad after he had received orders on the first appeal from the Ministry of Home Affairs. This information has not been challenged in appeal. The response received from the National Crime Bureau, however, was challenged in an appeal on 27.8.07 addressed to Jt. Secretary (CS) Shri K. Skandan, MHA received in NCRB on 29.8.07 from MHA to which a reply was sent by Shri AC Awasthy Dy. Director (ANT), Appellate Authority, NCRB on 1.10.07 providing the following information:
“Data on Section 498A IPC is available with NCRB from the year 1995. The State/ UT wise and year wise details of cases reported, persons arrested total cases for investigation, cases found false, true cases, cases compounded or withdrawn, cases in which trial completed cases convicted and conviction rate from 1995 to 2005 are enclosed herewith.’
This decision in first appeal has not been challenged.
The application to the President’s Sectt. was on its part transferred on 5.10.07 to the MHA and the Deptt. of Legal Affairs. MHA in turn transferred the matter to the Dy. Secy., Legal Affairs, which in turn through its letter of 15.10.07 further transferred the matter to the MHA Judicial Cell, which in turn responded to the application of Shri Kollu Durga Prasad on 12.11.07, through a letter of CPIO Shri NM Perumal, Director as follows :
“Reply to Question No. (1)
Acceptance / implementation of the recommendation / suggestions made by the Mallimath Committee would require amendments to the Indian Penal Code 1860 and the Code of Criminal Procedure, 1973 through an amendment Bill. Since the Crime Law and the Criminal Procedure are on the Concurrent List of the Seventh Schedule to the Constitution of India and criminal laws are administered by the State Governments, any amendment to them requires consultation with the States. The report is being processed in consultation with the State Governments and no time frame can be fixed.
Reply to Question Nos. (5) & (8)
No guidelines were received by this Ministry relating to section 298A.
7
Reply to Question No. (3) :
The decision / judgment of a particular High Court is not applicable to the entire country as in the case of a judgment / decision of the Supreme Court of India. However, such decision / judgment of a High Court have a persuasive value in respect of other High Courts.
Reply to Question Nos. (6) & (7)
The criteria / guidelines followed in registering a case under section 498A is similar to registering any other cognizable offence as laid down in the Code of Criminal Procedure, 1973, Chapter V & VI are applicable as far as arrest of persons or processes to compel appearance.
Section 182 & 211 of Indian Penal Code provide punishment for making wrong complaint and false charges of offence. Similarly Section 358 of Code of Criminal Procedure deals with cases of groundless arrests.”
Appellant’s prayer before us in second appeal is as below:
“I would like CIC, Second appellate authority to consider my appeal and my first application in its entirely and directs the CPIO’s to provide information for each point as detailed as possible and also why they have not provided the required information on time.
Supreme Court and high courts have commented many times about misuse of these cases and forwarded the Judgments to Government and concerned government authority but it seems government has just ignored these judgments and still continuing these gender biased laws which are highly misused and thousands of innocent people suffering. So I would like CIC to look into my appeal with kindness and direct the PIO to provide detailed information and also direct the government take necessary action on my application.”
In response to our appeal notice CPIO Shri S. K. Bhatnagar, Dy. Secy. Submitted his letter of 25.3.09 pleading as follows:
“Shri Prasad has alleged in his second appeal to CIC that the reply received by him from Shri Perumal is vague and casual. It is requested that the hearing may be attended by the present CPIO to present the case in respect of Judicial Division.’
8
The appeal was heard through videoconference on 24.4.2009. The following are present:
Appellant at NIC Studio, Hyderabad
Sh. Durga Prasad
Respondents at CIC Studio, New Delhi
Sh. M. K. Sharma, Addl. LA & CPIO MoL
Sh. R. K.Srivastava, ALA & CPIO MoL
Sh. A. K. Srivastava, S.O. MoL
Sh. R. P. Nath, Jt. Secy., MHA
Sh. S. K. Bhatnagar, D.S., MHA
Sh. K.K. Majumdar, U.S., MHA
Sh. Mohinder Singh, Dir. , MHA
Sh. R. B. Singh, S.O., NCRB
Sh. Amit Agrawal, Director & CPIO, PMO
We noted that the portion concerning PMO has already been resolved and the CPIO of that public authority is not required. Shri Agrawal, Director, PMO was, therefore, permitted to leave.
Appellant Shri Durga Prasad submitted that there are court orders enjoining certain action on Govt. with regard to implementation of Sec. 498A IPC i.e. harassment of the wife by the husband and his relative and inadequate dowry or non-fulfillment of demands of dowry. He submitted that what he wanted to know was what had been done in compliance of the orders of the Courts. In this matter he has specifically quoted the judgment of Hon’ble J.D. Kapoor J. of the Delhi High Court in CRL R 462/2002 of 19.5.03, Savitri Devi vs. Ramesh Chand & Ors in which the Hon’ble Justice has held as follows:
“31. there is growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband and if one of them happens to be of higher status or of vulnerable standing, he or she becomes an easy prey for better bargaining and blackmailing.
32. These ground realities have persuaded this court to recommend to the authorities and lawmakers to have a review of the situation and legal provision.
33. Copy of the order is sent to Law Secretary, Union of India.”
9
Shri Kollu Durga Prasad has quoted very extensively from the following judgments in his application before the President’s Secretariat:
“IN THE HIGH COURT OF DELHI CRL. M. 7262/2006
Date of Decision: February 23, 2007 Shiv Narayan Dhingra J.”
“IN THE HIGH COURT OF DELHI CRL. R / 2002
Date of Decision: May 19, 2003
Savitri Devi Versus Ramesh Chand and Ors. J. D. Kapoor J.”
“IN THE HIGH COURT OF KARNATAKA Criminal Petition no.4121/2003
Date of Decision April 15, 2005
AC Kabbin J
In his argument, however, he has specifically relied on the decision in CRL R 426/2002 Savitri Devi vs. Ram Chander & Ors. of the High Court of Delhi. He was aggrieved with the response from MHA, which he found to be of general nature and does not address the specific question raised by him. However, PIO Sh. Mohinder Singh, Director, Judicial Cell, MHA submitted that such information as is held by the Judicial Cell, which is the nodal office in matters of this nature has been provided to appellant. In addition, Shri M. K. Verma, Addl. L.A. & CPIO Deptt. of Legal Affairs submitted that since the decision of the Delhi High Court pertains to a question concerning women, the matter had been referred to the Ministry of Women & Child Development on 6.2.08. Shri Kollu Durga Prasad, however, submitted that he had received a response from MOW&CD in which the latter has informed him that they have no information in this matter. A copy of this response was shown to us in the hearing.
DECISION NOTICE
Having heard the arguments and examined the records, we find that all information that is held by the public authorities impleaded in the appeal and present in the hearing, has indeed been provided to Shri Kollu Durga Prasad. In response to his question, as to which Ministry is to be held responsible for compliance with the orders of the High Court of Delhi in CRL R 426/2002 –
10
Savitri Devi vs. Ram Chander & Ors., we have examined the complete decision of Hon’ble J. D. Kapoor J. In this judgment the learned Judge has dealt extensively with matters relating to dowry death and cases registered u/s 498A/406/306 IPC arising out of domestic violence. He has come to the following conclusion:
“27. It is rightly said sometimes that the remedies are worse than the perils or disease. Having seen and experienced the enforcement of these laws for decades, time has come to take stock and review them as thousands of marriages have been sacrificed at the altar of this provision. In one metropolis alone, thousands divorce cases arising from the cases under Section 498A/406 IPC are pending in Courts. There are equal or more numbers of marriages which are in limbo. What else is it if not a social catastrophe? This should be a matter of concern for social scientists, lawmakers and Judges also. Sterner provisions have failed to make any dent. Menace and evil of dowry is till looming large. In he words of Supreme Court (Pawan Kumar’s case AIR 1998 SC 958) in spite of stringent measures, sections of society are still boldly pursuing this chronic evil to fulfill their greedy desires.
28. It does not mean that the wolves masquerading in the human flesh should be given a free hand. They should rather be dealt with iron hand. Again it is because of tendency to involve innocent persons that the Supreme Court has cautioned the court.
29. To start with, marital offences under Sections 498A/406 IPC be made bail able, if no grave physical injury is inflicted and necessarily compoundable. If the parties decide to either settle their disputes amicably to salvage the marriage or decide to put an end to their marriage by mutual divorce, they should be allowed to compound the offences so that criminal proceedings don’t chase them if they want to start their marital life afresh or otherwise. The past should not haunt them nor the hatred they have buried should be allowed to be dug up and mar their present life or future married life.
30. Lastly in view of sensitivity of such offences and in order to avoid clumsiness in human relations and viewing this problem from human and social point of view, and the law, as it stands today it is required that the investigation into these offices be vested in civil authorities like Executive Magistrates and after his finding as to the commission of the offence, cognizance should be taken. Till such a mechanism is evolved, no police officer below the rank of ACP for the offences under sec. 498A/406 IPC and D.C.P. for the offence
11
under Sec. 304-B IPC i.e. dowry death should be vested with investigation and where minor school going children are named, they shall not be arrested and be sent to the court for taking cognizance and further proceedings. Their arrest ruins their future life and lower them in their self-esteem. This fact that their names also figured in the complaint lodged by the wife. In certain cases even grand parents of the husband who are in their eighties and nineties suffer this traumatic situation.
31. There is growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband and if one of them happens to be of higher status or of vulnerable standing, he or she becomes an easy prey for better bargaining and blackmailing.
32. These ground realities have persuaded this court to recommend to the authorities and law makers to have a review of the situation and legal provision.”
As will be clear from the above, the orders of the High Court of Delhi are of general nature. As is also clear from the processing of the RTI application of Sh. Kollu Durga Prasad no complete legislation has resulted there from. The information sought by appellant Sh. Kollu Durga Prasad is now in his possession, which he may use for whatever legal recourse he wishes. The mandate of the RTI Act 2005 however, stands fulfilled. We, therefore, find no merit in this appeal, which is hereby dismissed.
Reserved in the hearing, this decision is announced in the open chamber on this 28th day of April, 2009. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah)
Chief Information Commissioner
28.4.2009
12
Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
(Pankaj Shreyaskar)
Joint Registrar
27.4.2009
13

Court ordered Legal Terrorist to pay 7.7cr Rs. to innocent sibling of th husband

2009-04-26T12:00:00.000-07:00

G.A. No. 1297 of 2007
C.S. No. 223 of 2005

IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction

PRITAM SEN

-V-

SMT. SWASTIKA SEN (MUKHERJEE)

For Plaintiff/Responden t: Mr. Krishnendu Gooptu,
Mr. C. K. Saha, Advs.

For Defendant/Petitione r: Mr. Malay Kr. Ghose,
Mr. S. K. Trivedi, Advs.

Heard on : 2-5-2007, 10-5-2007, 16-5-2007, 5-6-2007,
29-4-2008, 14-5-2008, 3-6-2008, 17-6-2008,
8-7-2008, 14-7-2008.

BEFORE:
THE HON'BLE MR. JUSTICE MAHARAJ SINHA.

Judgement delivered..: 25-9-2008.
MAHARAJ SINHA, J.

On 16 April 2007, when the plaintiff was about to complete his
evidence, learned Counsel engaged by the sole defendant appeared in
Court for the first time and submitted that the defendant was willing to
defend the suit and for such purpose the defendant would make necessary
application for obtaining leave to enter appearance and seek direction for
filing a written statement to contest the suit instituted by the plaintiff in
this Court. When this prayer was made on behalf of the defendant by the
defendant's learned Counsel the suit was already heard on several days,
namely 11 December 2006, 18 December 2006, 15 January 2007, 20
February 2007, 7 March 2007, 14 March 2008, 28 March 2007, 4 April
2007 and 5 April 2007, as an undefended suit.

It should, however, be mentioned here that the plaintiff was allowed
to proceed with the suit treating it to be an undefended suit as I was
satisfied on the basis of the records of the proceeding regarding the due
service of writ of summons upon the defendant including the necessary
certificates issued by the Registrar, Original Side and by the Sheriff's
Office.

It is an admitted position however that when the learned Counsel
appeared on behalf of the defendant on 16 April 2007 and made the above
prayer the defendant did not even enter appearance to contest the suit. It
was submitted on behalf of the defendant that the defendant was unable to
contest the suit as no writ of summons was ever served upon the
defendant and as such the defendant was not in the know that the above
suit was instituted by the plaintiff in this Court and the same was being
heard as an undefended suit.

However, after considering the submissions of the learned Counsel
both for the plaintiff and the defendant I adjourned the suit till 25 April
2007 and in the mean time learned Advocate-on- record of the defendant
was given liberty to inspect the records of the suit proceeding except the
depositions of the plaintiff and his witness/witnesses, who had already
given evidence in Court by then, upon notice to the learned Advocate-on-
record of the plaintiff and in the presence of an officer of this Court.

The defendant thereafter made an application essentially for a
direction upon the plaintiff that the plaintiff should serve the writ of
summons together with the copy of the plaint filed in the suit upon the
defendant, that the defendant be granted leave to enter appearance and
thereafter file written statement within a specified time after the service of
writ of summons upon the defendant and stay of hearing of the suit as an
undefended suit. The full prayers, however, are set out in the defendant's
above application at pages 13, 14 and 15 thereof, G. A. No. 1297 of 2007.
Since the plaintiff wanted to contest the above application of the
defendant, direction was given for using affidavits for final disposal of the
defendant's application on merits.

The defendant, who is the only defendant as aforesaid, has primarily
based her case only on one ground for obtaining leave of this Court to
enter appearance for contesting the suit by filing a written statement, that
since no writ of summons or copy of the plaint was received by the
defendant the defendant was unable to enter appearance and consequently
file the written statement to contest the suit. (Paragraph 23 of the Petition).

It is an admitted position however that in this case the service of writ
of summons upon the defendant was sought to be effected by two modes,
namely delivery of summons by Court and issue of summons for service by
post in addition to personal service.

It was, however, rightly pointed out by the learned Counsel for the
plaintiff that simultaneous issue of summons of service by post in addition
to personal service "is no longer required" in view of the amendment of the
Code of Civil Procedure with effect from 2002, to be precise from 1 July
2002, as by virtue of such amendment, rule 19(a) of Order 5 of the Code of
Civil Procedure (CPC, in short) was omitted altogether. Before the said rule
was omitted a simultaneous issue of summons for service by post in
addition to personal service was generally regarded as necessary though
Court could dispense with such simultaneous issue of summons for
service if the Court considered such service unnecessary. The effect of the
2002 amendment or rather the effect of deletion of rule 19(a) of Order 5 of
CPC on the present case is that if the plaintiff is in a position to satisfy the
Court that the writ of summons was duly served upon the defendant
through Court or rather by the process server of the Court in question,
then and in that event, the proof of service of writ of summons by post
upon the defendant would no longer be treated to be necessary.
In the instant case, however, as far as the records of the proceeding
show both modes were used for service of writ of summons upon the
defendant, one through the process server of the District Court of Alipore
since the place of residence of the defendant was (is) outside the original
jurisdiction of this Court and also by registered post.

I would first examine the relevant averments made by the petitioner,
namely the defendant in her petition in support of her case that no writ of
summons or copy of the plaint was received by the defendant.

In order to demonstrate that no writ of summons or the copy of the
plaint was received by the defendant, the contents of the report dated 22
December 2005 of the process server have been relied on. The defendant
has tried to show that according to the process server's report he "went to
the 4th floor (Panch Tala in Bengali) at premises no. 49/65, Gulam
Muhammad Shah Road, Calcutta 700 033 on 25 December 2005 and
affixed copy of the writ of summons and the plaint on the outer door of a
room on the 4th floor (Panch Tala in Bengali) of the said premises. [Sub-
paragraph VI of Paragraph 16 at page 8 of the Petition].

According to the defendant, since 1999 "the defendant has been
living and still is residing with her father in the flat on the third floor of
premises no. 49/65, Gulam Muhammad Shah Road, Calcutta 700 033.
The said premises is a four storied building". [Paragraph 17 at
Page 9 of the Petition].
There is no denial, however, that the premises number mentioned in
the report, which I would also call a declaration, is the residential premises
of the defendant. The defendant has also said that the same is a four
storied building but the defendant "has never met any process server".
[Paragraph 17 of the Petition].

The defendant has categorically stated that the defendant had not
received the writ of summons or a copy of the plaint "relating to the suit
being C.S. No. 223 of 2005 and as a result thereof" the defendant could not
enter appearance and file the written statement to defend the suit "by
engaging lawyer when the said suit was heard by this" Court. (Paragraph
23 of the Petition).

Since no writ of summons has been received by the defendant, the
defendant should be given leave to enter appearance and file the written
statement for the purpose of contesting the suit within a specified time
after the due service of the writ of summons upon the defendant with a
copy of the plaint filed in the suit.

Admittedly, the plaintiff instituted the suit in this Court and since
the defendant was(is) residing outside the ordinary original jurisdiction of
this Court the writ of summons was sent to the District Court at Alipore
(as the defendant was(is) residing within the jurisdiction of that Court) for
delivery of writ of summons to the defendant and that is why it is the
process server of the District Court of Alipore who had to serve the writ of
summons upon the defendant as provided in the relevant provisions of the
Code of Civil Procedure, namely sub-rule 4 of rule 9 of Order 5 thereof and
the relevant provisions under chapter 8 of the Original Side Rules.

In support of due service of the writ of summons upon the defendant
by both the modes, as aforesaid, the plaintiff has annexed the relevant
documents to the affidavit-in- opposition used by the plaintiff to contest the
present proceeding initiated by the defendant for the purpose of obtaining
leave to enter appearance and to file the written statement.

For my present purpose, as I would first deal with the service of writ
of summons by the process server, the original report of the process server,
Chunilal Sardar, dated 22 December 2005 as appearing in the writ of
summons and the certificate issued by Sovan Das, Dealing Assistant of the
Sheriff's Office of this Court dated 6 March 2006, need I think be examined
once again. In addition to that the plaintiff, needless to mention, also had
relied on the certificate issued on behalf of the Registrar, Original Side
dated 13 November 2006 certifying that the defendant "has not entered
appearance either in person or by Advocate up to 10 November 2005".

At this juncture, I must say that when I allowed the plaintiff to prove
his claims made in his suit ex parte treating the suit to be an undefended
suit, I was fully satisfied with the due service of the writ of summons upon
the defendant and this satisfaction on my part was based on the above
documents relied upon by the plaintiff or rather on his behalf by his
learned Counsel at the hearing of the suit, copies whereof have also been
annexed to the present affidavit-in- opposition. However, as the hearing of
the present proceeding was initiated by the defendant on the basis of the
leave granted by me I decided to give the defendant a chance to prove the
defendant's case as made out in the petition that the defendant was unable
to appear on the day when the suit was fixed for hearing as the writ of
summons of the suit was not delivered to the defendant, or rather, more
appropriately, the defendant had not received the writ of summons nor a
copy of the plaint which prevented the defendant from entering appearance
and filing the written statement to contest the suit. (Paragraph 23 of the
Petition).

It must be made clear at this stage also that since the plaintiff was
allowed to prove his claims made in the suit ex parte it was not for the
plaintiff to prove due service of summons upon the defendant all over again
either by the delivery of writ of summons by Court or by mail or post as
provided in the Code of Civil Procedure and in the High Court Rules. The
plaintiff, as aforesaid, was allowed to proceed with the suit ex parte as I
was fully satisfied with the due service of writ of summons upon the
defendant after the institution of the suit. Even then, keeping in view the
provisions of rule 19 of order 5 of CPC and more importantly the
statements made by the defendant that "the contents of the report of the
process server should not be taken to be correct without giving" the
defendant an opportunity to cross-examine the process server through her
advocate, (Paragraph 16 Page 10 of the Affidavit-in- Reply), I made the order
on 29 April 2008 whereby the concerned process server, namely Chunilal
Sardar, an employee of the District Court of Alipore, was summoned by me
to give evidence in Court as I thought that his evidence was necessary for
an effective adjudication of the present proceeding, meaning thereby the
proceeding initiated by the defendant with the leave of this Court for
obtaining leave to enter appearance and file the written statement for the
purpose of contesting the suit.

The plaintiff, I repeat, had discharged his initial burden of proving
due service of writ of summons upon the defendant on the basis of the
above mentioned documents including the necessary certificates before
being allowed to prove his claims in the suit ex parte by me.

Since in the present proceeding the defendant has stated that she
was not served with the writ of summons, or rather, had not received the
writ of summons which prevented her from entering appearance for the
purpose of contesting the suit, the onus is on the defendant to prove that
she was not, in fact served with the writ of summons as claimed by the
plaintiff, or rather, the officials of this Court and the Court of Alipore as the
alleged non-service or non-receipt of writ of summons upon or by the
defendant gave the defendant her cause of action for the present
proceeding for obtaining leave to enter appearance and file the written
statement. The defendant, therefore, must discharge the onus of proving
that there was no service of writ of summons upon her as claimed by the
plaintiff together with the concerned departments of this Court including
the process server of the District Court. The plaintiff is under no obligation
to prove due service of writ of summons upon the defendant repeatedly or
all over again since the plaintiff was allowed to proceed with the suit by
this Court as this Court was satisfied with the due service of the writ of
summons upon the defendant in the first place.
Pursuant to my above order, the process server, the said Chunilal
Sardar, an employee of the District Court of Alipore, was examined before
me on 14 May 2008 and he was also thoroughly cross-examined by the
defendant's Counsel on 3 June 2008. The process server gave evidence
that he was working as a process server for nearly 40 years, 38 years to be
precise, and never in the past he was summoned by any Court to give
evidence on due service of writ of summons upon the parties in any matter
and this was the first time that he was summoned to give evidence in
Court. The process server has indeed an unblemished record of nearly
forty years. His appearance, the age and experience are, I have found, very
convincing as well.

The process server in his evidence from the witness box stated in
clear terms that he visited the premises in question on 22 December 2005
at about 2 p.m. when he was told by a person who came out from the
building to go on to the top floor of the said premises, or rather, of the
building in question at the premises as the defendant, the process server
was told by that person, was to be found on the top floor, namely the 4th
floor which, in Bengali, he said "Panch Tala". When he knocked the door
of the flat in question "two ladies came out along with two dogs who were
barking at" him. The ladies opened the door but the collapsible gate of the
flat remained closed. The process server was asked by the ladies the
purpose of his visit, when he explained as to why he was visiting the place.
The process server also mentioned the name of the defendant or rather
called the defendant by name and said that he came to deliver the writ of
summons to the defendant but the ladies refused to accept the same. The
process server then tied the summons with the collapsible gate and as he
was climbing down the stairs the collapsible gate was opened and two dogs
who were little behind the two ladies came running after the process server
but the process server somehow escaped. One of the two ladies who came
out in fact said that she was the defendant. The process server also
approached the person who showed him the way to the top floor but the
person did not keep the request of the process server to sign on the
document i.e. the writ of summons "as that person did not want to sign
any Court's document". On being asked in examination- in-chief why did
the process server mention in his report that he went to the 4th floor
whereas the flat in question was, in fact on the third floor, he said that he
described it to be 4th floor as the person who showed him the way said that
it was "Panch Tala" so the process server went to the top floor and found
the same to be the roof of the building. He then came down to the next
floor and knocked the door when the two ladies came out to answer. I
specifically asked the process server whether he first went to the roof top
and then came down, his answer was "yes", then he said that he came
down to the very next floor. When I asked the process server when he
reached the roof top what he found, he said that he did not find any other
floor on the roof. [Questions 19 to 26 in Examination- in-Chief] .

In his cross-examination the process server, I find, clearly repeated
what he stated in his report dated 12 December 2005, which I take it to be
his declaration as well. He also said the person who showed him the way
to the roof top at the premises in question, in fact, came out from the
house in question when he "called but the person did not disclose his
name, or rather, his identity". He also mentioned that one of the two ladies
who came out from the flat in question did say that she was the defendant
but both of them refused to put their signatures on the documents. In
cross-examination, he explained the whole thing in detail as to how he
went to the roof top and then came down to the next floor and then
knocked the door when two ladies came out, one of whom said that she
was the defendant and then refused to put any signature on the
documents then the process server "tied the writ of summons with the
collapsible gate with thread". In answer to specific questions put by the
defendant's Counsel, namely questions 60 and 61 he explained how he
served the writ of summons

To Counsel:
The expression "latkaya dia jari karilam" in your report written in
Bengali what did you mean by that expression? / By hanging with thread.

What did you hang with the thread? / The true copy of the writ of
summons was hanged with thread by me.

When the defendant's Counsel asserted that there was no collapsible
gate in front of the door of the flat in question, he said that there was a
collapsible gate as well as the door of the flat.

In his entire evidence, which I have examined more than once, the
process server stated in clearest possible terms as to how he served or
delivered the writ of summons to the defendant (who is the only defendant
in the suit).

His evidence in Court, I find, tallies exactly with his report, or rather
corroborates his report or the declaration made by him on 22 December
2005 after the process server completed his service of writ of summons.
Taking an extremely technical approach, learned Counsel on behalf
of the defendant was trying to make out a case that though the process
server mentioned in his report that he served the writ of summons, he did
not say that he also served the copy of the plaint. If the evidence is
analyzed, which I have done very closely and repeatedly, it would be seen
that the only question that was put to the witness, namely the process
server by the defendant's counsel was that he did not serve the writ of
summons to which he repeatedly answered that he did serve the writ of
summons. Why the defendant's Counsel was so shy to suggest the process
server that he "neither served the writ of summons, nor a copy of the
plaint," when the case that the defendant has tried to make out in the
petition is that the defendant did not receive the copy of the writ of
summons nor a copy of the plaint, cannot however be understood with any
rational approach.

It should be mentioned at this stage, however, that the suit was
instituted in this Court and the concerned department of this Court sent
the writ of summons together with the copy of the plaint, as it is done
regularly as a matter of course in every suit, to the concerned District
Court for the purpose of delivering the writ of summons to the defendant
concerned as the defendant admittedly was residing outside the original
jurisdiction of this Court. In this connection, it will be enough to mention
the question put to the process server by the defendant's counsel, namely
question 71 "I put it to you that no writ of summons was served by you
on the defendant" to which his answer was rather specific, he said, "I went
there, I showed her the document, she read it, thereafter she refused to
accept it, then I hanged the copy of the writ of summons with the
collapsible gate with a thread".

Then in answer to question 72 which happened to be the last
question in cross-examination, namely, "I put it to you that the contents of
your report dated 22 December 2005 are not correct", the process server
answered in the positive saying that "it is correct and my report was right".

As I have said above that the process server gave the correct and
perfect answer to the suggestion made by the defendant's Counsel i.e.
question 71 as it was not put to him at the same time that he neither
served the writ of summons nor the copy of the plaint upon the defendant
on 22 December 2005.

In this connection, I shall deal with the judgment of the Supreme
Court relied upon by the defendant's Counsel a little later, before that, I
must also point out that the process server came and gave evidence in
support of his report or the declaration dated 22 December, 2005
regarding his service of writ of summons upon the defendant. He made
positive statements from the witness box in his evidence which I find no
reason to disbelieve, on the contrary, in the absence of any better evidence
from the defendant, I believe and accept the evidence of the process server
and his report or declaration on the due service of the writ of summons
together with the copy of the plaint upon the defendant. It may well be,
that the defendant's counsel did not deliberately ask the process server
whether he served the copy of the plaint together with the written
statement because the answer was expected to be so obvious.
Above all, I find it extremely difficult to appreciate as to why the
defendant did not come forward and give evidence to substantiate her case
made in the petition. As I said above, in order to proceed with the suit the
plaintiff had to satisfy this Court, which the plaintiff did, that after the
institution of the suit the writ of summons was duly served upon the
defendant and in spite of such service the defendant did not enter
appearance and as such the plaintiff had a right to proceed ex parte and
the Court on that basis should allow the plaintiff to proceed ex parte
treating the suit to be an undefended one.

Since the defendant has attempted to set up a case that the
defendant did not receive the writ of summons or the copy of the plaint or
that there was no proper service of writ of summons either by the process
server or by the registered mail the onus is on the defendant to prove that
the service that was alleged to have been effected upon the defendant
either by the Court through its process server or by the registered mail was
not in fact a true service in the first place.

In this connection, the decision of the Supreme Court relied upon by
the defendant's Counsel, namely Sushil Kr. Sabharwal V- Gurpreet Singh
& Ors., reported in A.I.R. 2002 S.C. 2370, is referred to. In that case the
appellant before the Supreme Court was trying to establish that since the
service of writ of summons was sought to be effected upon the defendant
just a day before the date of hearing of the suit and that the process server
concerned did neither affix a copy of the summons nor the plaint on the
wall of the premises in question and since the alleged affixation of the writ
of summons was not witnessed by any person who could identify the
defendant, the so-called service of writ of summons should be treated to be
"non-service of summons" and that should be held to be a good ground for
setting aside an ex parte decree. The High Court in that case, in fact,
refused to set aside the ex parte decree without satisfying itself as to the
due service of the writ of summons, the Supreme Court found.

The facts of that case undoubtedly differ substantially from the facts
of this case so far as the service of writ of summons upon the defendant in
the present case is concerned. However, the Supreme Court after
examining the facts as to how the writ of summons was sought to be
served upon the defendant concerned was satisfied that there was no
proper service of writ of summons upon the concerned defendant as the
endorsement made by the process server was contradictory. The Supreme
Court said in paragraph 8 at page 2371 of the report "We find several
infirmities and lapses on the part of the process server. Firstly, on the
alleged refusal by the defendant either he did not affix a copy of the
summons and the plaint on the wall of the shop or if he claims to have done
so, then the endorsement made by him on the back of the summons does not
support him, rather contradicts him. Secondly, the tendering of the
summons, its refusal and affixation of the summons and copy of the plaint
on the wall should have been witnessed by persons who identified the
defendant and his shop and witnessed such procedure. The endorsement
shows that there were no witnesses available on the spot. The correctness
of such endorsement is difficult to believe even prima facie. The tenant runs
a shoe shop in the suit premises. Apparently, the shop will be situated in a
locality where there are other shops and houses. One can understand
refusal by unwilling persons requested by the process server to witness the
proceedings and be a party to the procedure of the service of summons but to
say that there were no witnesses available on the spot is a statement which
can be accepted only with a pinch of salt. Incidentally, we may state that
though the date of appearance was 23 February 1993 the summons is said
to have been tendered on 22 February 1993, i.e. just a day before the date
of hearing".

But the decision of the Supreme Court, I think, was based on the
evidence of the appellant himself, namely the defendant in the suit, who
complained that there was no proper service of the writ of summons upon
him in the first place and gave evidence to that effect in Court, as the
Supreme Court said "The appellant has himself appeared in the witness-
box and deposed on oath that no summons was tendered to him by any
process server of the Court. It is a case of oath against oath. In view of the
facts which we have noticed hereinabove clearly the oath of the appellant
was more weighty than the oath of the process server. In the ordinary
course of events, the Court of facts should have discarded the statement of
the process server and believed the statement of the appellant". [See
Paragraph 9 at Page 2372 of the report].

In my opinion, the evidence given by the appellant/tenant from the
witness-box was the deciding factor as the Supreme Court accepted the
evidence of the appellant/tenant given from the witness box to be the
better evidence than the evidence of the process server in that case. The
Supreme Court undoubtedly was dealing with a case of the
defendant/appellant who was seeking an order of setting aside the ex parte
decree against him. The Supreme Court on facts was satisfied that the
defendant had no notice of the date of hearing and that the case before the
Supreme Court was not a mere irregularity in the service of writ of
summons but it was a case of non-service of writ of summons and the
appellant, namely the defendant by his evidence from the witness-box
could prove that there was no due service of writ of summons upon him in
the first place.

Most importantly, however, the defendant in her petition has not
questioned the correctness of the process server's visit to the defendant's
residence for the purpose of service of the writ of summons on 22
December 2005 at all. The defendant has made only one line statement
that the "petitioner has not met any process server", and in the affidavit-in-
reply the defendant, I repeat, has said "that the contents of the report of
the process server should not be taken to be correct without giving" the
defendant "an opportunity to cross-examine the process server through"
her "advocate". (Paragraph 16 at Page 10 of the Affidavit-in- Reply).

In the present case, however, it is only the one sided evidence of the
process server in support of the service of writ of summons upon the
defendant which I have examined very closely and repeatedly and found to
be good evidence of due service of the writ of summons upon the
defendant. No challenge has been thrown to the positive statements made
by the process server in support of his report from the witness-box. The
process server also stated that the person who showed him the way to the
defendant's flat refused to put his signature on the writ of summons since
he was not willing to sign "any Court's paper".
As the truth has the bad habit of coming out any way, the process
server from the witness-box said that not only two ladies appeared behind
the collapsible gate but there were two dogs as well with them who were
barking at him. A process server cannot have the special knowledge of pet
dogs unless he had gone to the premises, or rather to the flat in question
to deliver the writ of summons, how the process server could go on
asserting that there were two dogs who, in fact, chased him and he
somehow escaped. True it is, that he did not mention this incident in the
report as he said that there were several difficulties faced by a process
server every day in effecting service of writ of summons to different parties.
In other words, what he wanted to say was that this was one of the usual
hazards faced by a process server in discharging his duties very often and
that is why these things are not normally mentioned in the reports.

Interestingly enough, however, the defendant did not challenge this
positive assertion on the part of the process server that there could not be
any presence of dogs at the defendant's premises or rather at the flat in
question as the defendant or her family never had any "pet dogs" in the
first place or that the dogs did not belong to the defendant or her family or
that the evidence on dogs was false or untrue "for some reason or the
other". No challenge on this assertion was thrown to the process server in
cross-examination by the defendant's learned Counsel except that the
process server did not mention this incident in the report, to which, the
process server answered, and answered quite honestly, that these things
are not mentioned by a process server as there are many hazards like this
which a process server has to face in discharging his duties practically
everyday.
However, the evidence of the process server from the witness-box that
he was chased by the dogs is rather too serious. By allowing the dogs to
chase the process server at the time when he was discharging his duties or
acting under the authority of "Court", the defendant and the other lady
(her companion), in my opinion, have also rendered themselves liable for
committing criminal contempt.

I repeat that the process server's evidence has remained
uncontroverted and the defendant even by cross-examining the process
server to the fullest extent has not been able to throw any doubt on the
due service of the writ of summons upon the defendant at all.

I also accept the case of the plaintiff that since the defendant has
said that there has not been any service of writ of summons, or rather any
service of writ of summons in the first place, the question whether the copy
of the plaint was served or not becomes immaterial as it is not the case of
the defendant that "even assuming the copy of the writ of summons was
served, but there was no service of copy of the plaint upon her at all. The
case of the defendant in the petition is that the defendant did not receive
the writ of summons nor the copy of the plaint. The defendant has also
said that the defendant did not meet any process server.

The defendant however, I believe, knew full well that merely the
allegation of non-service of copy of the plaint upon the defendant would
not take the case of the defendant too far as far as the present proceeding
is concerned and that is why the petition proceeds on the basis that no
writ of summons was served upon the defendant. The defendant has not
said that since "I was not served with the copy of the plaint I could not file
the written statement" her case is, as aforesaid, she did not receive the writ
of summons nor the copy of the plaint and that is why the defendant could
not enter appearance to contest the suit by filing her written statement.

I, therefore, do not attach any importance to the faint and feeble
attempt on the part of, or rather on behalf of the defendant to suggest that
the report or the declaration of the process server and his evidence from
the witness-box do not prove that a copy of the plaint was also served upon
the defendant with the writ of summons. Even if the defendant were duly
served with the writ of summons without the copy of the plaint, then it
would be obligatory on the part of the defendant to enter appearance to
contest the suit and then apply for a direction for service of the copy of the
plaint to enable the defendant to file the written statement.

In this connection the decision relied upon on behalf of the
defendant, namely Nahar Enterprises V- Hyderabad Allwyn Ltd. & Anr.,
reported in (2007) 9 SCC 466 does not take the case of the defendant
anywhere, as in that case the writ of summons was admittedly served
upon the defendant after the date fixed for his appearance and that is why
the Supreme Court said that it was obligatory on the part of the Court, or
rather the Trial Court to fix another date for hearing for the defendant's
appearance and for filing of the written statement and as such the Trial
Court should have directed that as the writ of summons was admittedly
served after the date fixed for his appearance in the summons, a fresh writ
of summons should be served upon the defendant. A plain reading of
paragraphs 4 and 10 at pages 467 and 468 of the report makes the above
position absolutely clear.

The Supreme Court in that case found that in the summons sent to
the appellant, a particular date, namely 10-10-1988 was fixed for his
appearance but since the writ of summons had not been served upon the
defendant the Court had to adjourn the matter till 02-12-1988. But the
writ of summons was, in fact, served on the appellant on 14 October 1988
after the expiry of the date of appearance of the defendant, namely 10-10-
1988 mentioned in the summons. The defendant was diligent enough to
inform the Trial Court by his telegram and his letter that although he
received a writ of summons after the expiry of the date of his appearance
mentioned in the same, he did not receive any copy of the plaint along with
the writ of summons. The said telegram or the letter of the defendant was
not even replied to. The Court did not issue any further summons fixing
another date for his appearance but since on the adjourned date the
appellant/defendant was absent the Court fixed another date for ex parte
hearing and on the adjourned date the suit was decreed ex parte.

It is on that issue the Supreme Court observed that there was a
manifest error on the part of the learned Trial Court as it failed to take into
consideration that the summons having been served upon the appellant
after the date fixed for his appearance it was obligatory on the part of the
Court to fix another date for his appearance and for filing a written
statement and as such the Trial Court should have directed the plaintiff to
take steps for fresh service of writ of summons and this the Supreme Court
said - "is explicit in view of provisions of Order 9 Rule 6(1)(c) of the CPC".
(See Paragraph 10 at Page 468 of the Report).
I do not think I need to say more as to why I think that the above two
Supreme Court decisions do not come in aid of the case of the defendant
which the defendant has attempted to make out in her petition for
obtaining leave to enter appearance and for filing the written statement for
the purpose of contesting the suit. On the contrary, both the above
decisions in fact make the feeble attempt on the part of the defendant to
somehow make out a case of "non-service or non-receipt of the writ of
summons" even weaker.

Now comes the question as to whether the defendant was duly served
with the writ of summons by mail, or rather by registered post. At the very
outset it must be said that learned Counsel on behalf of the plaintiff has
rightly argued that by virtue of rule 19(a) of Order 5 of CPC which was
brought about by way of amendment of the Code with effect from 1 July
2002 the simultaneous issue of writ of summons for service by post in
addition to personal service has lost its importance as the service by
anyone of the modes, namely the personal service or the service of writ of
summons by post will suffice.
However, since I am fully satisfied that the writ of summons together
with the copy of the plaint was duly served upon the defendant by the
process server on 22 December 2005, my attempt to examine whether the
defendant was also duly served with the writ of summons by registered
post would practically be academic.

In support of the service of writ of summons by post an affidavit of
Sri Amar Kr. Sengupta, "an assistant in the Sheriff's Office, High Court at
Calcutta", affirmed on 29 March 2006 and the receipt acknowledging that
the writ of summons with a copy of the plaint was delivered to the
premises in question and received by one Gopal Roy (Gopal, in short) on
behalf of the defendant was and is relied upon. The said acknowledgement
receipt was signed by Gopal who was admittedly the driver of the father of
the defendant at the time when the writ of summons was delivered to the
residence of the defendant by the postman and received by Gopal, the
driver. However, the defendant has said that Gopal never informed the
defendant or her father or mother or any other family member of the father
of the defendant that he received any copy of the writ of summons or the
plaint filed in the suit, nor Gopal had handed over the copy of the writ of
summons or the plaint in question to the defendant or her mother or her
father or anybody else in the family. Gopal is not a member of the family
and that the defendant had never authorized or empowered Gopal to
accept any writ of summons or copy of the plaint or any other paper or
document relating to any "Court proceedings" . [Paragraphs 18, 19, 20, 22
of the defendant's petition].

On a plain reading of the petition of the defendant it is clear that the
father of the defendant plays a very important role in her life and that the
defendant has the fullest faith and confidence in her father who also looks
after the Courts' proceedings on behalf of the defendant. Admittedly, at
the relevant point of time Gopal was employed as the driver of the father.
It is not the case of the defendant that the father of the defendant or the
defendant had no confidence in Gopal, the driver, otherwise how could he
be trusted as the driver of the father of the defendant. Unless the employer
or the owner of the car, namely the father of the defendant, had the fullest
faith in the person who was employed as his driver, he would not have
been retained as "driver". As far as the question of authority is concerned
the onus was on the defendant to prove that Gopal, the driver had no
authority to accept or was not empowered to accept the copy of the writ of
summons from the postman who went to the defendant's place to deliver
the same.

The writ of summons together with the copy of the plaint was, no
doubt mailed to the correct address, namely the premises of the defendant.
It was also received by a person who held as important position as the
driver of the defendant's father with whom the defendant was living (or
perhaps is still living as well). The father of the defendant, as aforesaid,
has a very important role to play, if not the most important role to play as
far as the Courts' proceedings in which the defendant has interest are
concerned as evident from the statements of the defendant made in
paragraphs 1 to 18 of the petition.

I do not know why the defendant did not even make any attempt to
produce the driver as witness or why did not the defendant herself come
forward and say that she did not receive any copy of the writ of summons
or the copy of the plaint from Gopal, the driver. At no point of time the
defendant was ready to examine Gopal as well. The presumption of due
service of writ of summons together with the copy of the plaint by
registered post is, in my view, overwhelmingly in favour of such service on
the basis of the documents evidencing such service.

I see no reason to hold that the service by registered post is improper
service in the facts and circumstances of this case. I also accept the
submissions on the basis of Section 114 (e) of the Indian Evidence Act as
well as Section 3(e) of the Indian Post Office Act 1898 made by the learned
Counsel of the plaintiff. Section 3(e) of the 1898 Act contains the meaning
of the expression "in the course of transmission by post" and "delivery".
Section 3 (e)(c) says that "the delivery of postal article at the house or office
of the addressee, or to the addressee or his servant or agent or other person
considered to be authorized to receive the article according to the usual
manner of delivering postal articles to the addressee, shall be deemed to be
delivery to the addressee". In this case the postman rightly considered
Gopal, the driver to be authorized to receive the writ of summons for and
on behalf of the defendant.

The presumption, as aforesaid, under Section 114(e) of the Indian
Evidence Act, in the present case, as rightly submitted by the plaintiff's
learned Counsel, is that "the postman had duly served on the person who
could be served in the regular course and in due discharge of his duties".

As rightly contended by the defendant's learned Counsel that the
presumption under Section 27 of the General Clauses Act and under
Section 114(e) of the Indian Evidence Act, 1872 is rebuttable, but I am
afraid that in the facts and circumstances of the case and the evidence on
record the defendant has miserably failed to rebut that presumption. On
the contrary, the defendant has tried to take an extremely technical, or
rather, hypertechnical approach to make out a case that no writ of
summons was served upon the defendant. In order to show that the driver
of the defendant's father had no authority to accept the service of writ of
summons by post, it was pointed out that a servant is not regarded as a
member of the family within the meaning of rule 15 of order 5 of the Code
of Civil Procedure. Indeed, nobody suggests that a driver is to be regarded
as the member of the family of his employer, the question is whether the
driver or the servant is authorized or empowered to accept the delivery of
the writ of summons or the documents regarding Courts' proceedings.

I have already said that the driver of the father of the defendant was
employed as the driver as the father of the defendant and his family
members including the defendant being the daughter had the full
confidence in the person concerned, namely Gopal, otherwise he could not
be retained in the service as driver of the family or driver of the father of
the defendant. The relationship, as I have already said, between the
defendant and the father has been very close and the defendant with her
daughter has been living with her father and mother as the members of the
family of the father since 1999 as evident from the statements made in the
petition itself by the defendant.

I repeat that the defendant has made no attempt to show that the
driver of the defendant's father had no authority to accept the writ of
summons by post on her behalf. She has done nothing to rebut the
presumption, as aforesaid. The defendant could have easily come forward
to give evidence to demonstrate that the driver had no authority and could
have also asked for the driver's presence in Court for examining him.

The feeble attempt on behalf of the defendant to show that Gopal had
no authority or was not empowered to accept the delivery of the writ of
summons from the postman and for such purpose reliance on the
unreported Judgment of this Court on an application for revocation of the
grant of probate by this Court in the goods of Bhagawati Prasad
Chowdhury, G.A. No. 1803 in PLA No. 28 of 2002, is nothing but an
exercise in futility.
In the above case, on facts it was found that there was no proof "that
the citation was received either by the petitioner or by some other persons
said to be Darwan of the house and also another person who were
authorized by him". (See Page 6, the 2nd Paragraph of the Judgment.)

The learned Judge thought that "the propounder executor could have
come with the affidavit of the Darwan", who was the "common Darwan" of
the petitioner as well as the propounder, as the common Darwan allegedly
received the citation. Since no such affidavit of the common Darwan was
on record acknowledging due service of citation the learned Judge was not
prepared to accept the service of citation as due service in the facts of that
case and that is why it was said that the executor propounder had failed to
discharge the burden as he failed to produce any counter-affidavit of the
common Darwan, or "any other person that it was received by him and the
same was handed over to the petitioner". (See the 1st, 2nd paragraphs at
page 6 of the Judgment).

The driver in the present case (if he is not still the driver) was the
driver of the defendant's father, and I have already explained why I think
that both the defendant's father and the family members of the defendant
including the defendant herself should be taken to have the full confidence
in Gopal, the driver, as otherwise he could not have served the family as
driver. It is common knowledge that a person who engages another as his
driver must have the fullest confidence in the person as without such
confidence an important job such as of a driver cannot be entrusted with a
person by the employer, the owner of a vehicle. Similarly, without the
confidence of the family members of the owner of a car in the driver, the
owner cannot retain such driver.
Since in the facts and circumstances of the entire case and on
repeated reading of the evidence on record I am convinced that the writ of
summons together with the copy of the plaint was duly served upon the
defendant both by the process server and by registered post I do not think
I need to go on dealing with the cases cited in support of the plaintiff's case
in detail. Suffice it to say, however, that the decisions amongst others in
United Commercial Bank V- Mrs. Raka Sen(Nandi), AIR 1996 Cal. 242,
and in Basant Singh & Anr. V- Roman Catholic Mission, AIR 2002 SC
3557 relied on by the plaintiff's learned Counsel fully support the stand of
the plaintiff taken in his affidavit used in opposition regarding the due
service of writ of summons upon the defendant.

I must say at the end that I thoroughly disbelieve the case attempted
to be made out in the petition by the defendant for obtaining leave to enter
appearance and file the written statement for contesting the suit instituted
by the plaintiff against the sole defendant. Needless to mention, leave to
enter appearance for contesting a suit cannot be granted in this case to the
defendant as a matter of course in the absence of a genuine non-service of
writ of summons.

Since I have also the feeling that the attempt on the part of the
defendant to obtain leave of this Court to enter appearance and to file
written statement for the purpose of defending the suit has not been an
honest one, inasmuch as the defendant has not really told the truth,
instead has taken a hypertechnical approach to demonstrate that the writ
of summons was not served or delivered either by the process server or by
registered post, the defendant is liable to pay cost to the plaintiff assessed
at 500 GMs which cost the defendant must pay by 11 November 2008 to
the plaintiff or the plaintiff's Advocate on record.

The application is thus dismissed with cost as above.

Let the suit appear as an undefended suit as before for further
hearing on the second Wednesday, 12 November 2008 after the Puja
Vacation.

Let an urgent Xerox certified copy of the Judgment be given to the
parties, if applied for, on the urgent basis.

[MAHARAJ SINHA, J.]

HIGH COURT OF ANDHRA PRADESH: DV ACT 2005 is not retrospective

2008-11-12T12:51:00.000-08:00

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH
AT HYDERABAD
THURSDAYITHESECONDDAYOFAUGUST
TWO THOUSAND AND SEVEN
PRESENT
THE HON'BLE SRI JUSTICE K.C. BHANU
CRIMINAL PETITION NO : 3714 of 2007
Between:
1 U.U. Thimmanna, Slo U. U. Ayyanna
2 U.U. Sankaramma, W/o U. U. Thimmanna
3 U.U. Sreenivasulu, Slo U. U. Thimmanna
4 U.U. Paramesh, Slo U. U. Thimmanna
5 U.U.Ramesh, Slo U. U. Thimmanna
..... PETITIONERS
AND
1 Smt. U.U. Sandhya, Dlo U.M. Venkateswarlu
2 The State of Andhra Pradesh, rep. by its Public Prosecutor,
High Court of A.P., at Hyderabad.
I
..... RESPONDENTS
Petition under Section 482 of the Cr1.P.C praying that in the
circumstances stated in the quash proceedings filed therewith, the High
Court will be pleased to quash the proceedings in D.V.C.No. 1 of 2007
on the file of the Judicial Magistrate of First Class, Yemmiganur, Kurnool
District.
The Petition coming on for hearing, upon perusing the
Petition and the quash proceedings filed in support thereof and upon
hearing the arguments of Sri. C.PRAVEEN KUMAR, Advocate for the
Petitioner and of Smt. P. Rajeswari, Advocate for the Respondent No.1
and of the Public Prosecutor, on behalf of State.
The Court made the following:ORDER
THE HONt BLE SRI JUSTICE ' K . C . BEANU
CRIMINAL PETITION N0.3714 OF 2007.
O-RDER :
This Criminal Petition is filed by the
petitioners under Section 482 Cr.P.C. to quash the
proceedings in DVC No.1 of 2007 on the file of the
Judicial Magistrate of I Class, Yemrniganur, Kurnool
District.
1
Heard both the counsel.
Admittedly, husband of the complainant died on
14-06-2004 and since then the de facto complainant is
not residing with the petitioners. The shared household
is defined under Section 2 (s) of the Protection
of Women from Domestic Violence Act, 2005 (for short
'the Act'), which reads as follows:
' 'shared household' means a household where the
person aggrieved lives or at any stage has lived
in a domestic relationship either singly or along
with the respondent and includes such a household
whether owned or tenanted either jointly by the
aggrieved person and the respondent or owned or
tenanted by either of them in respect of which
either the aggrieved peSrson or the respondent or
both jointly or singly have any right, title,
interest or equity and includes such a household
which may belong to the joint family of which the
respondent is a member, irrespective of whether
the respondent or the aggrieved person has any
right, title or interest in the shared
household. "
Domestic relationship is defined under Section 2
( E ) of the Act, which reads as follows:
" 'domestic relationship' means a relationship
between two persons who live or have, at any
point of time, lived together in a shared ,
household, when they are related by
consanguinity, marriage, or through a
relationship in the nature of marriage, adoption
or are family members living together a3 a joint
family."
On the face of the allegations in the complaint,
the de facto complainant is not residing with the
petitioners. She is ' residing in House No.2361, Near
M.G. Petrol, Yemmiganur, whereas petitioners 1 and 2
have been residing in House No. 3/31, Uppara street,
Yemmiganur, 3 r" petitioner .i. s rcaidi.nq n I;
Mahaboobnagar, 4th petitioner is residing at
H.No.S/2267,Laxmipeta, Yemmiganur and 5th petitioner is
rcsi di nq at: l l . N o . 3/31, tlppata Street, Yemmiqanur.
Admittedly, the de facto complainant filed a suit in
O.S. No.111 of 2005, which is pending, She also filed
a case in C.C.No.94 of 2005 under Section 498-A IPC,
which is pending trial before the Judl. Magistrate of
I Class, Yemmiganur. The domestic incident report does
not disclose any of the acts of violence that were
C A L Lc.r~lpLcd or1 t i cornplainant after 26-10-2006. There
is no dispute that the Act came into effect when the
Central Government appoints 26-10-2006 as the date on
which the Act was came into force. For acts of
violence, certain penal provisions are incorporated.
Therefore, it is a fundamental principle of law that
any penal provision has no retrospective operation,
o n l y t ) r ~ o : ; ~ ) c ' c I . i v c . 'I'llere is 110 ctlleyation either in the
report or in the statement or in the complaint of the
lSt respondent with regard to the acts of domestic
violence that took place on or after 26-10-2006.
Therefore, continuation of proceedings against the
petitioners is nothing but abuse of process of Court.
Accordingly, the Criminal Petition is allowed
quashing the proceedings in DVC No.1 of 2007 on the
file of the Judicial Magistrate of I Class,
Yemrniganur, Kurnool District.
SO/-N.MURALIDHAR RAO
ASSISTANT REGISTRAR
I/ TRUE COPY N
SECTION OFFICER
To
,l.Th e Judicial First Class Magistrate , Yemmiganur, Kurnool District
2. Two CC's to the Public Prosecutor, High Court of Andhra
Pradesh, Hyderabad (OUT)
3. Two CD copies
4. One CC to Sri. C. Praveen Kumar, Advocate (OPUC).
5. One CC to Smt. P. Rajeswari, Advocate (OPUC).
Prk w
HIGH COURT
DATED: 02-08-2007
ORDER
CRL.P. NO. 3714 OF 2007
Allowing the Petition.