tag:blogger.com,1999:blog-44272296269627721912024-03-13T05:07:41.681-07:00LAW OF CRIMES - ONLY FOR LEGAL AWARENESScriminal laws applicable in IndiaAdvocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.comBlogger157125tag:blogger.com,1999:blog-4427229626962772191.post-19946619721739981152019-06-02T22:12:00.001-07:002019-06-02T22:12:58.877-07:00COURT HAS TO EXAMINE THE CONTENTS OF 'B' SUMMARY REPORT SO AS TO ASCERTAIN WHETHER THE POLICE HAVE DONE INVESTIGATION IN A PROPER MANNER OR NOT<div dir="ltr" style="text-align: left;" trbidi="on">
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<span style="font-family: Times, Times New Roman, serif;"><b>Karnataka High Court</b><o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">Sri K T Mathew vs The State on 6 March, 2019<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;"><b>Author: JUSTICE John Michael Cunha</b><o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">Hon'ble Supreme Court in the case of Kamalapati Trivedi v.
State of W.B. </span><span style="font-family: Times, "Times New Roman", serif;">reported in (1980)2 SCC 91, which is followed by this Court
in the case of Dr.Ravikumar vs. Mrs.K.M.C.Vasantha and Another reported
in ILR 2018 KAR 1725, wherein it is held as under: </span><span style="font-family: Times, "Times New Roman", serif;">"5. ................... It is well recognized principle of
law that, once the Police submit 'B' Summary Report and protest petition is
filed to the same, irrespective of contents of the protest petition, the
Court has to examine the contents of 'B' Summary Report so as to ascertain
whether the Police have done investigation in a proper manner or not and if the
Court is of the opinion that the investigation has not been conducted properly,
the Court has got some options to be followed, which are,-</span></div>
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<span style="font-family: Times, Times New Roman, serif;">i) The court after going through the contents of the
investigating papers, filed u/s 173 of Cr.P.C., is of the opinion that the
investigation has not been done properly, the court has no jurisdiction to
direct the Police to file the charge sheet however, the Court may direct the
Police for re or further investigation and submit a report, which power is
inherent under section 156(3) of Cr.P.C, but before taking cognizance
such exercise has to be done. This my view is supported by the decisions of the
Hon'ble Apex Court in a decision reported in AIR 1968 S.C. 117 between ABHINANDAN
JHA vs. DINESH MISHRA (para 15) and also Full Bench decision of Apex
Court reported in (1980) SCC 91 between KAMALAPATI TRIVEDI vs. STATE OF
WEST BENGAL.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">ii) If the court is of the opinion that the material
available in the 'B' Summary Report makes out a cognizable case against the
accused and the same is sufficient to take cognizance, and to issue process,
then the court has to record its opinion under Sec.204 of Cr.P.C., and the
Court has got power to take cognizance on the contents of 'B' Summary Report
and to proceed against the accused, by issuance of process.<o:p></o:p></span></div>
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<span style="font-family: Times, Times New Roman, serif;">iii) If the court is of the opinion that the 'B' Summary
Report submitted by the Police has to be rejected, then by expressing its
judicious opinion, after applying its mind to the contents of 'B' report, the
court has to reject the 'B' Summary Report.<o:p></o:p></span></div>
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<span style="line-height: 150%;"><span style="font-family: Times, Times New Roman, serif;">iv) After rejection of the 'B' Summary Report, the court has to look
into the private complaint or Protest Petition as the case may be, and contents
therein to ascertain whether the allegations made in the Private complaint or
in the Protest Petition constitute any cognizable offence, and then it can take
cognizance of those offences and thereafter, provide opportunity to the
complainant to give Sworn Statement and also record the statements of the
witnesses if any on the side of the complainant as per the mandate of
Sec.200 Cr.P.C."</span></span></div>
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Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-4427229626962772191.post-11159588398117670532015-04-10T00:18:00.000-07:002015-04-10T00:18:03.010-07:00UNDER WHAT CIRCUMSTANCES A PERSON CAN BE ADDED AS ACCUSED IN PENDING TRIAL RELAVANT CASE LAW REGARDING <div dir="ltr" style="text-align: left;" trbidi="on">
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In Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167, Court held : once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence.<br />
In Raj Kishore Prasad v. State of Bihar & Anr., AIR 1996 SC 1931, wherein Court while observing that Section 319 (1) Cr.P.C. operates in an ongoing inquiry into, or trial of, an offence, held that at the stage of Section 209 Cr.P.C., the court is neither at the stage of inquiry nor at the stage of trial. Even at the stage of ensuring compliance of Sections 207 and 208 Cr.P.C., it cannot be said that the court is at the stage of inquiry because there is no judicial application of mind and all that the Magistrate is required to do is to make the case ready to be heard by the Court of Sessions.<br />
In Lok Ram v. Nihal Singh & Anr., AIR 2006 SC 1892, it was held that it is evident that a person, even though had initially been named in the FIR as an accused, but not charge-sheeted, can also be added as an accused to face the trial. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge- sheet or the case diary, because such materials contained in the charge-sheet or the case diary do not constitute evidence.<br />
In Guriya @ Tabassum Tauquir & Ors. v. State of Bihar & Anr., AIR 2008 SC 95, Court held that in exercise of the powers under Section 319 Cr.P.C., the court can add a new accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge sheet or the case diary.<br />
In Lal Suraj @ Suraj Singh & Anr. v. State of Jharkhand, (2009) 2 SCC 696, a two-Judge Bench of Court held that “Court framing a charge would have before it all the materials on record which were required to be proved by the prosecution. In a case where, however, the court exercises its jurisdiction under Section 319 Cr.P.C., the power has to be exercised on the basis of the fresh evidence brought before the court. There lies a fine but clear distinction.”<br />
Court in Rajendra Singh v. State of U.P. & Anr., AIR 2007 SC 2786, observing that court should not exercise the power under Section 319 Cr.P.C. on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge-sheet or the case diary do not constitute evidence.<br />
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Court in Vikas v. State of Rajasthan, 2013 (11) SCALE 23, held that on the objective satisfaction of the court a person may be 'arrested' or 'summoned', as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.<br />
<br />
Rajender Singh vs. State of U.P. [2007 (7) SCC 378] where it was reiterated that although a person may not have been charge-sheeted by the Investigating Agency or may have been discharged at an earlier stage, the Court could summon such person to face trial if it appeared to the Court that an offence had been committed by such person. It was held that while the decision to proceed or not to proceed against a person under Section 319 of the Code was in the discretion of the Trial Court, the said decision would have to be taken after the Court applied its mind to the evidence before it.<br />
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In Brindaban Das & Ors. v. State of West Bengal, AIR 2009 SC 1248, a two-Judge Bench of Court “The court is required to consider whether such evidence would be sufficient to convict the person being summoned. Since issuance of summons under Section 319 Cr.P.C. entails a de novo trial and a large number of witnesses may have been examined and their re-examination could prejudice the prosecution and delay the trial, the trial court has to exercise such discretion with great care and perspicacity.”<br />
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In Palanisamy Gounder & Anr. v. State, represented by Inspector of Police, (2005) 12 SCC 327, Court deprecated the practice of invoking the power under Section 319 Cr.P.C. just to conduct a fishing inquiry, as in that case, the trial court exercised that power just to find out the real truth, though there was no valid ground to proceed against the person summoned by the court.<br />
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In Anju Chaudhary v. State of U.P. & Anr., (2013) 6 SCC 384, a two-Judge Bench of Court held that even in the cases where report under Section 173(2) Cr.P.C. is filed in the court and investigation records the name of a person in Column 2, or even does not name the person as an accused at all, the court in exercise of its powers vested under Section 319 Cr.P.C. can summon the person as an accused and even at that stage of summoning, no hearing is contemplated under the law.<br />
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In Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors., AIR 1983 SC 67, Court held that if the prosecution can at any stage produce evidence which satisfies the court that those who have not been arraigned as accused or against whom proceedings have been quashed, have also committed the offence, the Court can take cognizance against them under Section 319 Cr.P.C. and try them along with the other accused.<br />
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Y. Saraba Reddy v. Puthur Rami Reddy (2007) 4 SCC 773, “11. … Undisputedly, it is an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word ‘evidence’ in Section 319 contemplates the evidence of witnesses given in court.”<br />
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Apex Court in Mohd. Shafi (2007) 14 SCC 544 was further explained by the Apex Court in Lal Suraj v. State of Jharkhand (2009 ) 2 SCC 696 and it was held as under : (SCC p. 701, para 16) “16. … The principle of strong suspicion may be a criterion at the stage of framing of charge as all the materials brought during investigation were required to be taken into consideration, but, for the purpose of summoning a person, who did not figure as accused, a different legal principle is required to be applied. A court framing a charge would have before it all the materials on record which were required to be proved by the prosecution. In a case where, however, the court exercises its jurisdiction under Section 319 of the Code, the power has to be exercised on the basis of the fresh evidence brought before the court. There lies a fine but clear distinction.”<br />
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There is no legal bar based on the principle of issue estoppel to proceed under Section 319 against a person complained against if on the same material the court had dismissed a complaint under Section 203, Cr.P.C. (S.S. Khanna v. Chief Secretary (1983) 3 SCC 42 : AIR 1983 SC 595)<br />
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The scope of this section is wide enough to include cases instituted on private complaint; Sohan Lal v. State of Rajasthan (1990) 4 SCC 580 : AIR 1990 SC 2158.<br />
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In the case of Lal Suraj Alias Suraj Singh And Another Vs. State of Jharkhand, [(2009) 2 SCC 696], the Hon’ble Apex Court has observed about nature, scope and applicability of Section 319 Cr.P.C. and trial of persons not already arraigned as accused and held that power under Section 319 Cr.P.C. is required to be exercised very sparingly. Before order summoning such persons is passed, trial court must form an opinion on the basis of evidence brought before it that a case has been made out that such person could be tried together with the other accused. If on the basis of evidence produced before the trial court there was possibility of recording a judgment of conviction against the accused, the order can be passed under Section 319 Cr.P.C.<br />
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PRINCIPLES UNDER WHAT CIRCUMSTANCES POWER UNDER SECTION 319 CRPC BE USED - RAJASTHAN HIGH COURT 2013<br />
HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN of Rajasthan High Court in the case of Rekha Sharma vs State Of Rajasthan Decided on 3 May, 2013 - The following broad principles as to under what circumstances power under Section 319 Cr.P.C. should be exercised can be safely summed up from the opinion expressed by Hon’ble Apex Court in various judgments:<br />
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i) Power to summon an accused is discretionary and extra-ordinary power, which should be exercised sparingly and only if compelling reasons exist at any stage of case.<br />
ii) The order passed under Section 319 of the Code of Criminal Procedure summoning an additional accused should not be a mechanical exercise. Court should record reasonable satisfaction and reasons in support of the order.<br />
iii) Power cannot be exercised to conduct a fishing enquiry;<br />
iv)There should be reasonable prospects of the case against the newly added accused ending in their conviction.<br />
v) Step to summon an accused can be taken only on the basis of evidence adduced before the Court and not on the basis of materials available in the charge-sheet of the case-diary as such material does not constitute evidence,<br />
vi) Power can be exercised suo moto or on an application by some one including accused already before the Court,<br />
vii) An accused is not entitled to be heard before the Court exercises power under Section 319 of the Code of Criminal Procedure;<br />
viii) Satisfaction of the Court is paramount before summoning an accused, which can be arrived at inter-alia upon completion of cross-examination of the witness,<br />
ix) Mere statement of the complainant without there being any other evidence on record may not be sufficient to summon the accused. Each case on this aspect needs cautious examination on facts before passing order of summoning of additional accused,<br />
x) Each case has to be considered on its own facts as there may be different stages of the case where the Court can reach to a conclusion that a prima facie case is made out against the accused sought to be summoned.<br />
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Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-4427229626962772191.post-47987764939629117132015-04-08T21:59:00.001-07:002015-04-08T21:59:37.107-07:00CASE LAW RELATED TO SECTION 125 CRPC PROCEEDINGS REGARDING MAINTENANCE<div dir="ltr" style="text-align: left;" trbidi="on"><div style="background-color: white; border: 2px double 224422; color: #2222cc; font-family: georgia; font-size: 12px; height: 100px; overflow: auto; padding: 4px; text-align: justify; width: 500px;">Hon'ble the Apex Court in the case of "Savitaben Somabhai Bhatiya Vs. State of Gujarat", [(2005) 3 SCC 636 in which it is held that if the wife is not found to be a wife in the eye of law, then she could not get any maintenance from her husband.<br />
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Apex Court in the case of Chaturbhuj Vs. Sita Bai [(2008) 1 SCC (Crl.) 356] in a proceeding under Section 125 of Cr.P.C., the burden in the first place is on the wife to show the means of her husband are sufficient. Therefore, the burden is on the petitioner wife to establish the financial condition of the respondent- husband for the Court to come to the just conclusion while determining the question as to the quantum of maintenance.<br />
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Chaturbhuj v. Sita Bai. reported in AIR 2008 SUPREME COURT 530 "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 specifically 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 9 SCC 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)."<br />
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Chaturbhuj v. Sita Bai. reported in AIR 2008 SUPREME COURT 530 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. 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. ……….. 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.<br />
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In Dwarika Prasad Satpathy v. Bidyut Prava Dixit and Anr. (AIR 1999 SC 3348) it was held that the validity of the marriage for the purpose of summary proceedings under Section 125 of the Code is to be determined on the basis of the evidence brought on record by the parties. The standard of proof of marriage in such proceedings is not as strict as is required in a trial of offence under Section 494 of Indian Penal Code, 1860 (in short the 'IPC'). If the claimant in proceedings under Section 125 succeeds in showing that she and the respondent have lived together as husband and wife, the Court has to presume that they are legally wedded spouses, and in such a situation one who denies the marital status can rebut the presumption. Once it is admitted that the marriage procedure was followed then it is not necessary to further probe as to whether the said procedure was complete as per the Hindu rites, in the proceedings under Section 125 of the Code. It is to be noted that when the respondent does not dispute the paternity of the child and accepts the fact that marriage ceremony was performed though not legally perfect, it would hardly lie in his mouth to contend in proceedings under Section 125 of the Code that there was no valid marriage as essential rites were not performed at the time of said marriage. The provision under Section 125 cannot be utilized for defeating the rights conferred by the legislature on the destitute women, children or parents who are victims of social environment. The provision is a measure of social justice and as noted above specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution. …….. The sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfill. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause-the cause of the derelicts. (See Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors. (AIR 1978 SC 1807).<br />
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In Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Anr. (AIR 1988 SC 644), it was held that expression 'wife' used in Section 125 of the Code should be interpreted to mean only a legally wedded wife. The word 'wife' is not defined in the Code except indicating in the Explanation to Section 125 its inclusive character so as to cover a divorcee. A woman cannot be a divorcee unless there was a marriage in the eye of law preceding that status. The expression must therefore be given the meaning in which it is understood in law applicable to the parties. The marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is therefore not entitled to the benefit of Section 125 of the Code or the Hindu Marriage Act, 1955 (in short the 'Marriage Act'). Marriage with person having living spouse is null and void and not voidable. However, the attempt to exclude altogether the personal law applicable to the parties from consideration is improper. Section 125 of the Code has been enacted in the interest of a wife and one who intends to take benefit under sub- section (1)(a) has to establish the necessary condition, namely, that she is the wife of the person concerned. The issue can be decided only by a reference to the law applicable to the parties. It is only where an applicant establishes such status or relationship with reference to the personal law that an application for maintenance can be maintained. Once the right under the provision in Section 125 of the Code is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the personal law. The issue whether the Section is attracted or not cannot be answered except by reference to the appropriate law governing the parties.<br />
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In Dwarika Prasad Satpathy v. Bidyut Prava Dixit and Anr. (AIR 1999 SC 3348) Their lordships held that, the order passed in an application under Section 125 Cr.P.C. does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide summary remedy for providing maintenance to a wife, children and parents. The provision under Section 125 is not to be utilized for defeating the rights conferred by the Legislature to the destitute women, children or parents who are victims of social environment.<br />
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The provisions of Section 125 CrPC are meant for avoiding vagrancy and penury of the dependent spouse and child who have been neglected to be maintained by the earning is responsible spouse. The petitioners are unable to maintain themselves by earning any income. It is in evidence that the respondent-husband has considerable properties including wet lands from which he is earning substantial income.<br />
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Badri Prasad v. Dy. Director of Consolidation & Ors. [(1978) 3 SCC 527], the Supreme Court held that a strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin.<br />
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Tulsa and Ors. v. Durghatiya & Ors. [2008 (4) SCC 520], this Court held that where the partners lived together for a long spell as husband and wife, a presumption would arise in favour of a valid wedlock.<br />
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Vimala (K) v. Veeraswamy (K) [(1991) 2 SCC 375], a three-Judge Bench of this Court held that Section 125 of the Code of 1973 is meant to achieve a social purpose and the object is to prevent vagrancy and destitution. Explaining the meaning of the word `wife' the Court held: "...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. When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage. The term `wife' in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term `wife' consistent with the objective... "<br />
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Constitution Bench of this Court in Mohammad Ahmed Khan v. Shah Bano Begum & Ors. reported in [(1985) 2 SCC 556], considering the provision of Section 125 of the 1973 Code, opined that the said provision is truly secular in character and is different from the personal law of the parties. The Court further held that such provisions are essentially of a prophylactic character and cut across the barriers of religion. The Court further held that the liability imposed by Section 125 to maintain close relatives, who are indigent, is founded upon the individual's obligation to the society to prevent vagrancy and destitution.<br />
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Gayathri vs Ramesh ILR 1993 KAR 1857, 1993 (2) KarLJ 447 (DB) . When Section 126(2) of the Code prescribes the procedure to be followed regarding recording of evidence in a proceeding initiated under Section 125 thereof and when Section 10(2) of the Act enjoins that the provisions of the Code shall apply to the proceedings under Chapter IX of the Code before the Family Court, it is clear that though the proceeding is initiated before the Family Court and not a Magistrate, in a proceeding under Section 125 of the Code, the Family Court is bound to follow the procedure prescribed in Section 126 of the Code, so far as recording of evidence is concerned. ……. In a proceeding under Section 125 of the Code the evidence shall be recorded in the manner prescribed for summons case. There is no provision in the Code enabling a Magistrate to take affidavit evidence in a summons case. Therefore the procedure of taking an affidavit in a summons case is completely unknown to the provisions of the Code and evidence has to be recorded as prescribed by Section 274 of the Code which relates to record in summons cases and inquiries. If the party against whom the order for payment of maintenance is proposed to be made is absent, the Court cannot straight-away place the said person ex-parte and proceed as in a civil matter. It must be come to a conclusion that, that person is wilfully avoiding service or was wilfully neglecting to attend the Court and then only he could proceed and determine the case ex-parte as per proviso to Sub-section (2) of Section 126 of the Code. …….<br />
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After an order is passed directing to pay maintenance, the party in whose favour such an order has been passed has got two options to work out to recover the arrears from the other. He can choose to approach the court under Section 125(3) Cr.P.C. requesting the court to punish the defaulter by imposing appropriate imprisonment. On the other hand, he can also approach the court under Section 128 of Cr.P.C. seeking to recover the amount due under the maintenance order. A comparison of Sections 125(3) and 128 of Cr.P.C. would keep things beyond any pale of doubt that in so far as the proceeding under Section 125(3) is concerned, the statuete has prescribed a period of limitation of one year, whereas in respect of a proceeding under Section 128 of Cr.P.C., there is no limitation provided at all. This is because, while exercising the power under Section 125(3) Cr.P.C. the action being essentially a criminal in nature, resulting in punishment of imprisonment, the legislature has perhaps, thought it fit to provide such a period of limitation of one year to file a petition. Since, while enforcing an order under Section 128 of Cr.P.C. for recovery of the amount, there is no question of straight away imposing such a punishment of imprisonment and that may be the reason for the legislature not to provide for such a period of limitation. Therefore, to put it in nutshell, for initiating a proceeding for enforcing an order by invoking Section 128 of Cr.P.C., absolutely, I find no provision providing for limitation as it is provided in respect of proceedings under Section 125(3) of Cr.P.C. In the case on hand, the petition was filed under Section 128 of Cr.P.C. Though it was filed beyond one year, in my considered opinion, the lower court was right in entertaining the same as the same is not barred by any limitation. <br />
<br />
THE HON'BLE MR.JUSTICE JAWAD RAHIM Ramappa S/O. Hanamantappa ... vs Lalita W/O. Ramappa Kumkumgar on 3 October, 2012 The mode of enforcement has to be ascertained from the language of Section 128 and 125(3) of Cr.P.C which provides, if any person 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 part of each month's 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 of fine. The only contention stipulated in the proviso is 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.<br />
<br />
MANOJ YADAV VS PUSPHA @ KIRAN YADAV [2010] 13 (ADDL.) SCR 894 No doubt the object of Section 125 Cr.P.C. is to orevent vagrancy, but vagrancy is relative word. For many women awarding them Rupees 1500/- per month, or even Rs. 3,000/- per month may amount to keeping them in a condition of vagrancy.<br />
<br />
THE HON'BLE MR.JUSTICE K.S. Radhakrishnan, THE HON'BLE MR.JUSTICE Dipak Misra in the case of Nagendrappa Natikar vs Neelamma Decided on 15 March, 2013 Section 125 Cr.P.C. is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself and her children. Section 125 is not intended to provide for a full and final determination of the status and personal rights of parties, which is in the nature of a civil proceeding, though are governed by the provisions of the Cr.P.C. and the order made under Section 125 Cr.P.C. is tentative and is subject to final determination of the rights in a civil court.<br />
<br />
THE HON'BLE MR.JUSTICE C.R. KUMARASWAMY in the case of Harish Kumar N vs Bhavya H L Decided on 14 December, 2012 To grant maintenance amount there should be proof of neglect or refusal by the husband. In the instant case, the wife has lodged a complaint against the husband and she has suffered mental and physical torture. Therefore, she was constrained to leave separately from her husband. Husband has also not filed any petition for restitution of conjugal rights. Therefore, it is difficult to accept the contention of the learned counsel for the revision petitioner that there is no proof of neglect or refusal to maintain wife by the respondent-husband.<br />
<br />
<br />
In Vimalben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and others (2008) 4 SCC 649, Maintenance of a married wife, during subsistence of marriage, is on the husband. It is a personal obligation. The obligation to maintain a daughter-in-law arises only when the husband has died. Such an obligation can also be met from the properties of which the husband is a co-sharer and not otherwise. For invoking the said provision, the husband must have a share in the property. The property in the name of the mother-in-law can neither be a subject matter of attachment nor during the life time of the husband, his personal liability to maintain his wife can be directed to be enforced against such property.<br />
<br />
<br />
Smt. Narinder Pal Kaur Chawla vs Shri Manjeet Singh Chawla AIR 2008 Delhi 7 The measures for maintenance by themselves are secular and social in character. Those aim at avoiding immorality and destitution. Maintenance for juridical purposes has its own pragmatics having relation to the need and necessity to make provisions for securing reasonable bioeconomic as well as biocultural requirements for persons, such as shelter, food, garment and health. In the tenets of Hindu Shastric law, two principles subserve this need to provide reliefs of maintenance and those emanated firstly from social ethics and secondly because of personal economics. The persons related to each other and dependent as such, could look for such relief by reason of law both on the moral and secular grounds, Subject to conditions, it was a personal obligation and where there was estate. The rights in maintenance could be worked against the estate, nay, was a charge upon. It the moral of pious obligations mostly arose as personal liabilities, while those against property could be classed as economic of secular ones.<br />
<br />
Kerala High Court in Saraswati v. Madhavan AIR 1961 Ker 297: (1961) 2 Cri LJ 640. In the said decision, P. Govinda Menon, J. has observed in Para 11 as follows: Again in this case the petitioner for whom maintenance is claimed, is aged 22 years. She Is a fairly well educated lady, healthy and is not stated to be suffering from any illness. Such a person should be presumed capable of maintaining herself until the contrary is proved. The burden of proving that she is not capable of maintaining herself is on her and if she fails to adduce sufficient proof the Magistrate would be perfectly justified in disallowing her claim for maintenance.<br />
<br />
Abdulmunaf vs Salima 1979 CriLJ 172 (Kar) When the object of the two provisions viz., in the two Codes is the same, I am of opinion that the attachment to the word 'unable' to the word 'wife' in Section 125(1)(a) of-the new Code does not make any difference. It only means that the speedy remedy is avail- able to a wife who is unable to maintain herself so that there should be prevention of vagrancy. What is meant by vagrancy is to be gathered by taking into consideration the ordinary dictionary meaning. The relevant meaning as gathered from the Shorter Oxford English Dictionary is 'Idle wandering with no settled habitational occupation or obvious means of support'.<br />
<br />
Bhagwan Dutt's case (1975 Cri LJ 40 (SC)). their Lordships of the Supreme Court have, in para 18 (of SCWR): (Para 19 of Cri LJ) laid down as follows: The object of those provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income also is taken into account together with the earnings of the husband and his commitments.<br />
<br />
Smt. Prabhavathi vs K. Somashankar AIR 2002 Kant 431, ILR 2002 KAR 3505 The degree of proof is not merely one of preponderance of probabilities, but proof beyond reasonable doubt. In the circumstances, we are of the clear view that the husband had failed not simply but miserably in proving desertion, particularly in the light of the maintenance order and the confirmation order in the criminal matter. Deliberate desertion on the part of the wife could not have been inferred in the circumstances of the case. In fact it cannot even be said that the wife without any reason had remained living separately and on the other hand circumstances indicated that she had sufficient justification for her living separately. When such is the situation, the inference of desertion which requires deliberate conscious living apart can never have been inferred by the trial Court.<br />
<br />
Zubedabi v. Abdul Khader, (1978 (2) Kant LJ 143) …..Petitioner must positively aver in her petition that she is unable to maintain herself in addition to the facts that her husband has sufficient means to maintain her and that he has neglected to maintain her. On going through the petition carefully, I find that though Smt. Zubedabi has averred in the petition that her husband has means and that he has neglected to maintain her, she has nowhere whispered that she is unable to maintain herself. That being so, her husband in his statement of objections had no occasion to meet that point.<br />
<br />
AN APPLICATION BY A FATHER CLAIMING MAINTENANCE FROM HIS MARRIED DAUGHTER IS PERFECTLY MAINTAINABLE.<br />
Dr. (Mrs.) Vijaya Manohar Arbat vs Kashi Rao Rajaram Sawai And Anr 1987 AIR 1100, 1987 SCR (2) 331 The object of section 125 Criminal Procedure Code is to provide a summary remedy to save dependents from destitu- tion and vagrancy and thus to serve a social purpose. There can be no doubt that it is the moral obligation of a son or a daughter to maintain his or her parents. It is not desirable that even though a son or a daughter has sufficient means, his or her parents would starve. Apart from any law, the Indian Society casts a duty on the children of a person to maintain their parents if they are not in a position to maintain themselves. It is also their duty to look after their parents when they become old and infirm. …… A daughter after her marriage does not cease to be a daughter of the father or mother. If it is not so, parents having no son but only daughters and unable to maintain themselves, would go destitute, if the daughters even though they have sufficient means refuse to maintain their parents. <br />
<br />
UNDER WHAT CIRCUMSTANCES COURT CAN REFUSE MAINTENANCE UNDER SECTION 125 CRPC<br />
THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA in the case of Smt. Shantavva ... vs Hanumantappa Decided on 27 March, 2014 CRIMINAL REVISION PETITION NO. 2298/2013 The question is under what circumstances the Court can refuse maintenance under Section 125 of Cr.P.C. If the wife herself has deserted the husband and if the wife is living in adultery or if the wife is married for second time and she is living separately without any reasonable cause, under those circumstances only the Court can refuse to grant maintenance. Mere delay, in my opinion, cannot be a ground for refusing the maintenance. The very object of Section 125 of Cr.P.C. is to avoid vagrancy of the woman and also to see that the rights of woman are respected. The provisions under Section 125 of Cr.P.C. which gives effect to the natural duty of a man to maintain his wife. Section 125 of Cr.P.C. was applicable to all irrespective of their religion. It was, therefore applicable to a person, who has neglected and refused to maintain his wife. The object of said section is to avoid vagrancy by providing that the Court depending on the facts of the case grant some relief to the parties to see that a wife and children are maintained. It nowhere describes that the petition has to be dismissed if it is filed on the basis of unreasonable delay. Even if it is accepted that the petition is dismissed, the respondent has to show before this Court that particularly under Section 125 of Cr.P.C. petition is not maintainable. If maintenance petition is allowed and monthly maintenance is awarded to wife, then again second maintenance petition for claiming maintenance unless it is for alteration or modification of the earlier order passed by Court is not maintainable. Looking to the above said facts and circumstances, particularly, when the petition before trial Court is uncontested and even though opportunity was given to respondent to engage counsel, who actually engaged a counsel but, he has not filed objections nor cross- examined the witnesses. Hence, it cannot be said that the trial Court has committed any error in allowing the petition. Therefore, in my opinion, the Sessions Court has committed a serious error in allowing the revision petition and dismissing the maintenance petition filed by wife as well as minor son.<br />
<br />
<br />
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RAJAWAT DY DIRECTOR OF PROSECUTION CBI<p style=" margin: 12px auto 6px auto; font-family: Helvetica,Arial,Sans-serif; font-style: normal; font-variant: normal; font-weight: normal; font-size: 14px; line-height: normal; font-size-adjust: none; font-stretch: normal; -x-system-font: none; display: block;"><a title="View The Witness is Only Person Who Has No Personal Interest Other Than to Serve the Justice - j s Rajawat Dy Director of Prosecution Cbi on Scribd" href="http://www.scribd.com/doc/157029871/The-Witness-is-Only-Person-Who-Has-No-Personal-Interest-Other-Than-to-Serve-the-Justice-j-s-Rajawat-Dy-Director-of-Prosecution-Cbi" style="text-decoration: underline;" >The Witness is Only Person Who Has No Personal Interest Other Than to Serve the Justice - j s Rajawat Dy Di...</a></p><iframe class="scribd_iframe_embed" src="http://www.scribd.com/embeds/157029871/content?start_page=1&view_mode=scroll&show_recommendations=true" data-auto-height="false" data-aspect-ratio="undefined" scrolling="no" id="doc_21140" width="100%" height="600" frameborder="0"></iframe>Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-4427229626962772191.post-32962281309471592802013-05-26T06:56:00.003-07:002013-05-26T06:56:37.963-07:00WHETHER DIRECTORS AND PRESIDENT OF COOPERATIVE SOCIETY CAN BE PROSECUTED UNDER PREVENTION OF CORRUPTION ACT_YES<p style=" margin: 12px auto 6px auto; font-family: Helvetica,Arial,Sans-serif; font-style: normal; font-variant: normal; font-weight: normal; font-size: 14px; line-height: normal; font-size-adjust: none; font-stretch: normal; -x-system-font: none; display: block;"><a title="View Whether Directors and President of Cooperative Society Can Be Prosecuted Under Prevention of Corruption Act on Scribd" href="http://www.scribd.com/doc/143759851/Whether-Directors-and-President-of-Cooperative-Society-Can-Be-Prosecuted-Under-Prevention-of-Corruption-Act" style="text-decoration: underline;" >Whether Directors and President of Cooperative Society Can Be Prosecuted Under Prevention of Corruption Act...</a></p><iframe class="scribd_iframe_embed" src="http://www.scribd.com/embeds/143759851/content?start_page=1&view_mode=scroll&show_recommendations=true" data-auto-height="false" data-aspect-ratio="undefined" scrolling="no" id="doc_29891" width="100%" height="600" frameborder="0"></iframe>Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-4427229626962772191.post-45063451945109648102013-05-06T20:52:00.000-07:002013-05-06T20:52:31.233-07:00CRIMINAL LAW AMENDMENT ORDINANCE PASSED TO PROTECT WOMEN WITH SEVERAL MEASURES 2013<a href="http://www.scribd.com/doc/139873440/Several-Criminal-Law-Amendment-Ordinance-03-02-2013-to-Take-Strict-Action-on-Women-Atrocity">READ FULL AMENDMENT</a> <div style="width: 500px; height: 100px; background-color: FFFFFF; color: 2222CC; font-family: georgia; font-size: 12px; text-align: justify; border: 2px double 224422; overflow: auto; padding: 4px;"><br />
EXAMPLE OF IPC :- (NEW SECTION ADDED) Public servant disobeying direction under law. "166A. Whoever, being a public servants-. a) knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter, or b) knowingly disobeys, to the prejudice or any person, any other direction of the law regulating the manner in which he shall conduct such investigation, or c) fails to record any information given to him under subsection (1) of section 154 of the Code of Crimina! Procedure, 1973 and in particular in relation to cognizable offence punishable under section 354, section 354A, section 354B; section 354C, sub-section (2) of section 354D, section 376, section 376A, section 376B, section 376C, section 376D or section 376E, (2 of 1974). shall be punished with imprisonment for a term which may extend to one year or with fine or with both.".<br />
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The Honble Justice K. S. Radhakrishnan and The Honble Justice Dipak Misra of Supreme court of India, in the case of Kanhaiya Lal & Ors. Vs State of Rajasthan Decided on 22-04-2013 It is settled in law that mere delay in lodging the First Information Report cannot be regarded by itself as fatal to the case of the prosecution. However, it is obligatory on the part of the court to take notice of the delay and examine, in the backdrop of the case, whether any acceptable explanation has been offered, by the prosecution and if such an explanation has been offered whether the same deserves acceptance being found to be satisfactory. In this regard, we may refer with profit a passage from State of H.P. v. Gian Chand , (2001) 6 SCC 71 wherein a three-Judge Bench of this Court has expressed thus: - “Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case.”<br />
<br />
In Ramdas and others v. State of Maharashtra (2007) 2 SCC 170, Court has observed that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and, in a given case, the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court has to consider whether the delay in lodging the report adversely affects the case of the prosecution. That is a matter of appreciation of evidence. There may be cases where there is direct evidence to explain the delay. Even in the absence of direct explanation, there may be circumstances appearing on record which provide a reasonable explanation for the delay. There are cases where much time is consumed in taking the injured to the hospital for medical aid and, therefore, the witnesses find no time to lodge the report promptly. There may also be cases where on account of fear and threats, witnesses may avoid going to the police station immediately. The time of occurrence, the distance to the police station, mode of conveyance available, are all factors which have a bearing on the question of delay in lodging of the report. It is also possible to conceive of cases where the victim and the members of his or her family belong to such a strata of society that they may not even be aware of their right to report the matter to the police and seek legal action, nor was any such advice available to them.<br />
<br />
In Meharaj Singh v. State of U.P. (1994) 5 SCC 188, a two-Judge Bench of this Court has observed that FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of<br />
appreciating the evidence led at the trial and the object of insisting<br />
upon prompt lodging of the FIR is to obtain the earliest information<br />
regarding the circumstance in which the crime was committed, including<br />
the names of the actual culprits and the parts played by them, the<br />
weapons, if any, used, as also the names of the eyewitnesses, if any,<br />
for delay in lodgment of the FIR results in embellishment which is a<br />
creation of afterthought. Emphasis was laid on the fact that on<br />
account of delay, the FIR not only gets bereft of the advantage of<br />
spontaneity but also danger of introduction of a coloured version or<br />
exaggerated story. Thus, whether the delay creates a dent in the prosecution story and ushers in suspicion has to be gathered by scrutinizing the explanation offered for the delay in the light of the totality of the facts and circumstances. Greater degree of care and caution is required on the part of the court to appreciate the evidence to satisfy itself relating to the explanation of the factum of delay. In Kilakkatha<br />
Parambath Sasi and others v. State of Kerala AIR 2011 SC 1064, it has been observed that when an FIR has been lodged belatedly, an inference can rightly follow that the prosecution story may not be true but equally on the other side, if it is found that there is no delay in the recording of<br />
the FIR, it does not mean that the prosecution story stands<br />
immeasurably strengthened.<br />
<br />
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</script>Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-4427229626962772191.post-49820478670392543252013-04-30T22:16:00.002-07:002013-04-30T22:16:43.408-07:00PRINCIPLES GOVERNING CIRCUMSTANTIAL EVIDENCE <div style="width: 500px; height: 100px; background-color: FFFFFF; color: 2222CC; font-family: georgia; font-size: 12px; text-align: justify; border: 2px double 224422; overflow: auto; padding: 4px;">Justice K.S. Radhakrishnan, and Justice Dipak Misra in the case of Jagroop Singh vs State Of Punjab Decided on 20 July, 2012 AIR 2012 SC 2600 QUOTED FOLLOWING CASE LAWS <br />
In Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622, a three-Judge Bench has laid down five golden principles which constitute the “panchsheel” in respect of a case based on circumstantial evidence. Referring to the decision in Shivaji Sahebrao Bobade v. State of Maharashtra AIR 1973 SC 2622 = (1973) 2 SCC 793 , it was opined that it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between `may be’ and `must be’ is long and divides vague conjectures from sure conclusions. Thereafter, the Bench proceeded to lay down that the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; that the circumstances should be of a conclusive nature and tendency; that they should exclude every possible hypothesis except the one to be proved; and that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”<br />
In Padala Veera Reddy v. State of Andhra Pradesh and others 1989 Supp (2) SCC 706 : 1991 SCC (CRI) 407, this Court held that when a case rests upon circumstantial evidence, the following tests must be satisfied: (SCC pp. 710-11, para 10)<br />
“(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;<br />
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;<br />
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and<br />
(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.”<br />
The similar view has been reiterated in Ramreddy Rajesh Khanna Reddy and another v. State of A.P. (2006) 10 SCC 172.<br />
<br />
In Balwinder Singh v. State of Punjab AIR 1996 SC 607 , it has been laid down that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they may be, to take the place of proof.<br />
In Harishchandra Ladaku Thange v. State of Maharashtra AIR 2007 SC 2957, while dealing with the validity of inferences to be drawn from circumstantial evidence, it has been emphasised that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person and further the circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.<br />
In State of U.P. v. Ashok Kumar Srivastava AIR 1992 SCW 640 = AIR 1992 SC 840 emphasis has been laid that it is the duty of the Court to take care while evaluating circumstantial evidence. If the evidence adduced by the prosecution is reasonably capable of two inferences, the one in favour of the accused must be accepted. That apart, the circumstances relied upon must be established and the cumulative effect of the established facts must lead to a singular hypothesis that the accused is guilty.<br />
In Ram Singh v. Sonia and Ors. AIR 2007 SC 1218 , while referring to the settled proof pertaining to circumstantial evidence, this Court reiterated the principles about the caution to be kept in mind by Court. It has been stated therein that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts.<br />
In Ujagar Singh v. State of Punjab (2007) 13 SCC 90, after referring to the aforesaid principles pertaining to the evaluation of circumstantial evidence, this Court stated that it must nonetheless be emphasised that whether a chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted.<br />
<br />
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</script>Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-4427229626962772191.post-18440677110770805682013-02-10T05:40:00.000-08:002013-02-10T05:40:03.595-08:00INSENSITIVITY SHOWN BY LEARNED SESSIONS JUDGE TO A SERIOUS CRIME COMMITTED AGAINST A HAPLESS WOMAN – JUDGMENT CHARACTERISED AS PERVERSE<div style="width: 500px; height: 100px; background-color: FFFFFF; color: 2222CC; font-family: georgia; font-size: 12px; text-align: justify; border: 2px double 224422; overflow: auto; padding: 4px;">JUSTICE Aftab Alam, and JUSTICE Ranjana Prakash Desai in the case of Vajresh Venkatray Anvekar vs State Of Karnataka on 3 January, 2013 <br />
<br />
Learned Sessions Judge has refused to rely upon the evidence of the parents, brother and brothers-in-law of Girija primarily on the ground that they are interested witnesses. We find this approach to be very unfortunate. When a woman is subjected to ill-treatment within the four walls of her matrimonial house, ill-treatment is witnessed only by the perpetrators of the crime. They would certainly not depose about it. It is common knowledge that independent witnesses like servants or neighbours do not want to get involved. In fact, in this case, a maid employed in the house of the appellant who was examined by the prosecution turned hostile. It is true that chances of exaggeration by the interested witnesses cannot be ruled out. Witnesses are prone to exaggeration. It is for the trained judicial mind to find out the truth. If the exaggeration is of such nature as to make the witness wholly unreliable, the court would obviously not rely on him. If attendant circumstances and evidence on record clearly support and corroborate the witness, then merely because he is interested witness he cannot be disbelieved because of some exaggeration, if his evidence is otherwise reliable. In this case, we do not find any such exaggeration qua the appellant. The witnesses have stood the test of cross- examination very well. There are telltale circumstances which speak volumes. Injuries suffered by Girija prior to the suicide cannot be ignored. The pathetic story of Girija’s woes disclosed by her parents, her brother and her brothers-in-law deserves to be accepted and has rightly been accepted by the High Court. A1 and A3 have been acquitted by the Sessions Court. That acquittal has been confirmed by the High Court. The State has not appealed against that order. We do not want to therefore go into that aspect. But, we must record that we are not happy with the manner in which learned Sessions Judge has ignored vital evidence.<br />
<br />
Learned Sessions Judge’s observation need to be quoted: “… … …When the death of the deceased had come to the knowledge of P.W.1, it was around 2.30 p.m. and that house of the accused in which deceased committed suicide was hardly 2 K.Ms. away from the P.S. I feel that P.W.1, reaching the police station as late at 22.15 hours., is a delay and this delay is not explained. The possibility of P.W.1Suresh discussing with his relatives also to net in the in-laws as A-1 and 3 with oblique motive cannot be ruled out. Therefore this delay of 5 to 6 hours which is un-explained is a fatal to the case of prosecution. … … …”<br />
We are amazed at this observation. When a man looses his daughter due to cyanide poisoning, he is bound to break down. He would take time to recover from the shock. Six hours delay cannot make his case untrue. It is also not proper to expect him to give all minute details at that stage. The F.I.R. contains sufficient details. It is not expected to be a treatise. We feel that the comments on alleged delay in lodging the F.I.R. and its contents are totally unwarranted.<br />
<br />
We are wary of passing comments against the subordinate courts because such comments tend to demoralize them. But, in this case, we will be failing in our duty if we ignore the insensitivity shown by learned Sessions Judge to a serious crime committed against a hapless woman. We need to quote certain extracts from learned Sessions Judge’s judgment which will show why we are so anguished.<br />
“The other allegations in Ex-P1 complaint is that the deceased was asked to get up at 5.00 a.m. early in the morning and she was asked to attend to house-hold work. Even the accused had asked the deceased to attend to house hold chorus, that is not the act of cruelty, so as to drive the deceased to commit suicide………………………………… …………………………Conduct of the accused in reprimanding the deceased for her lethargic habits, strongly advising her to be more compatible with members of the family and to evince interest in the domestic shores cannot be considered as acts of cruelty.”<br />
<br />
Learned Sessions Judge further observes as under: “In 1995, Cri. L.J. Page -2472, (Neelakanth Patil vs. State of Orissa), it is held that; mere statement that the deceased wife was not happy with the husband-accused, is not sufficient. Particularly in the absence of any direct evidence, oral or documentary about ill treatment one or two incident of assault by the accused-husband is not likely to drive the wife to commit suicide. Therefore, the Hon’ble High Court held the conviction of the husband was not proper.” (emphasis supplied)<br />
Reproduction of Orissa High Court’s judgment does not appear to be accurate. Learned Sessions Judge further observes as under: “PW-11 has not stated the particular day of the noticing face of the deceased turning brownish and right eye upper portion blackening. He has not stated particular day on which he found deceased to be panic. He has not stated particular day on which he found the deceased physically weak. Therefore, again these imputations are all general allegations. As I said earlier even if upper eye portion or face of Girija had changed their colour because of A-2 giving beatings, that alone as I said earlier is not the act of cruelty driving the deceased to commit suicide.”<br />
“As I said earlier A-1 and 3 are the ordinary residents of Karwar. In between the date of the marriage and the death of the deceased on 13.6.2002 she was very much staying with her husband A-2 in Bombay. Therefore, giving one or two beating is not cruelty to drive the deceased to commit suicide.”<br />
<br />
The tenor of the judgment suggests that wife beating is a normal facet of married life. Does that mean giving one or two slaps to a wife by a husband just does not matter? We do not think that that can be a right approach. It is one thing to say that every wear and tear of married life need not lead to suicide and it is another thing to put it so crudely and suggest that one or two assaults on a woman is an accepted social norm. Judges have to be sensitive to women’s problems. Perhaps learned Sessions Judge wanted to convey that the circumstances on record were not strong enough to drive Girija to commit suicide. But to make light of slaps given to Girija which resulted in loss of her eyesight is to show extreme insensitivity. Assault on a woman offends her dignity. What effect it will have on a woman depends on facts and circumstances of each case. There cannot be any generalization on this issue. Our observation, however, must not be understood to mean that in all cases of assault suicide must follow. Our objection is to the tenor of learned Sessions Judge’s observations. We do not suggest that where there is no evidence the court should go out of its way, ferret out evidence and convict the accused in such cases. It is of course the duty of the court to see that an innocent person is not convicted. But it is equally the duty of the court to see that perpetrators of heinous crimes are brought to book. The above quoted extracts add to the reasons why learned Sessions Judge’s judgment can be characterized as perverse. They show a mindset which needs to change. There is a phenomenal rise in crime against women and protection granted to women by the Constitution of India and other laws can be meaningful only if those who are entrusted with the job of doing justice are sensitized towards women’s problems.<br />
<br />
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<p style=" margin: 12px auto 6px auto; font-family: Helvetica,Arial,Sans-serif; font-style: normal; font-variant: normal; font-weight: normal; font-size: 14px; line-height: normal; font-size-adjust: none; font-stretch: normal; -x-system-font: none; display: block;"><a title="View INSENSITIVITY SHOWN BY LEARNED SESSIONS JUDGE TO A SERIOUS CRIME COMMITTED AGAINST A HAPLESS WOMAN – JUDGMENT CHARACTERISED AS PERVERSE 2013 SC on Scribd" href="http://www.scribd.com/doc/124760875/INSENSITIVITY-SHOWN-BY-LEARNED-SESSIONS-JUDGE-TO-A-SERIOUS-CRIME-COMMITTED-AGAINST-A-HAPLESS-WOMAN-%E2%80%93-JUDGMENT-CHARACTERISED-AS-PERVERSE-2013-SC" style="text-decoration: underline;" >INSENSITIVITY SHOWN BY LEARNED SESSIONS JUDGE TO A SERIOUS CRIME COMMITTED AGAINST A HAPLESS WOMAN – JUDGME...</a> by <a title="View 's profile on Scribd" href="undefined" style="text-decoration: underline;" ></a> </p><iframe class="scribd_iframe_embed" src="http://www.scribd.com/embeds/124760875/content?start_page=1&view_mode=scroll" data-auto-height="false" data-aspect-ratio="undefined" scrolling="no" id="doc_78058" width="100%" height="600" frameborder="0"></iframe>Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-4427229626962772191.post-37287747747965620712012-12-29T05:06:00.001-08:002012-12-29T05:06:13.784-08:00DIRECTORS OF THE COMPANY CANNOT BE PROCEEDED WITH UNLESS THERE IS SOME SPECIFIC AVERMENT IN THE COMPLAINT ABOUT THEIR BEING RESPONSIBLE FOR THE DAY TO DAY AFFAIRS<div style="width: 500px; height: 100px; background-color: FFFFFF; color: 2222CC; font-family: georgia; font-size: 12px; text-align: justify; border: 2px double 224422; overflow: auto; padding: 4px;">Apex Court reported in 2007 AIR SCW 1880 : 2007 (3) AIR Kar R 247 to contend that when there is no material to show that the director of the company had a role to play, he cannot- be made liable under Section 141 of the Negotiable Instruments Act.<br />
ILR 2002 Kant 475 : 2002 AIR - Kant HCR 544 and this decision is to the effect that all the Directors of the Company cannot be proceeded with unless there is some specific averment in the complaint about their being responsible for the day to day affairs.<br />
In the case of N.K. Wahi v. Shekhar Singh and Ors. 2007 AIR SCW 1880 : 2007 (3) AIR Kar R 247 dealing with the case under the Negotiable Instruments Act, 1881, the Apex Court has held that where it was found on facts that the Director had resigned from the Directorship of the Company before the date of the cheaue being issued and before depositing of the cheque by the drawee and where there was no averment in the complaint as to, how and in what manner the Director was responsible for the conduct of the business of the company or otherwise responsible to it in regard to its functioning, the question of proceeding with against the said Director therefore, will not arise and consequently the Court quashed the proceedings as against the Director of the Company in the said case. This Court in the case of Sanjay G. Revankar v. State by Drug Inspector, Uttar Karnataka District, Karwar has observed that unless there is specific averment in the complaint about the Director of the Company being responsible for day-to-day affairs, the Director therefore cannot be proceeded with. The Court also: observed that where the complaint did not make any specific averment about the role of each of the Directors except baldly stating in the complaint that the Directors of the Company are also responsible for day-to-day affairs of the firm or company, the question of the Directors being proceeded with the case will not arise.<br />
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</script>Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-4427229626962772191.post-4352375437721877972012-12-29T05:03:00.005-08:002012-12-29T05:03:56.018-08:00OFFENCES COMMITTED BY A PARTY TO A PROCEEDING IN THAT COURT <div style="width: 500px; height: 100px; background-color: FFFFFF; color: 2222CC; font-family: georgia; font-size: 12px; text-align: justify; border: 2px double 224422; overflow: auto; padding: 4px;">In the decision in Raghunath and Others v. State of U.P. and Others AIR 1973 SC 1100, (1973) 1 SCC 564 it is observed : "In this Court the main contention raised on behalf of the appellants by their learned counsel was that even prosecution for an offence under Section 465 I.P.C. requires complaint by the revenue court concerned as such an offence is covered by Section 195(1)(c), Cr.P.C. This contention is difficult to accept. …….. The offences about which the court alone, to the exclusion of the aggrieved private parties, is clothed with the right to complain may, therefore, be appropriately considered; to be only those offences committed by a party to a proceeding in that court, the commission of which has a reasonably close nexus with the proceedings in that court so that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party. It, therefore, appears to us to be more appropriate to adopt the strict construction of confining the prohibition contained in Section 195(1)(c) only to those cases in which the offences specified therein were committed by a party to the proceeding in the character as such party." this Court then referred to Sections 476, 476A and 476B. Cr.P.C. and observed: All these sections read together indicate that the legislature could not have intended to extend the prohibition contained in Section 195(1)(c), Cr.P.C. to the offences mentioned therein when committed by a party to a proceeding in that court prior to his becoming such party. It is no doubt true that quite often if not almost invariably - the documents are forged for being used or produced in evidence in court before the proceedings are started. But that in our opinion cannot be the controlling factor, because to adopt that construction, documents forged long before the commencement of a proceeding in which they may happen to be actually used or produced in evidence, years later by some other party would also be subject to Sections 195 and 476, Cr.P.C. This in our opinion would unreasonably restrict the right possessed by a person and recognized by Section 190, Cr.P.C. without promoting the real purpose and object underlying these two sections. The Court in such a case may not be in a position to satisfactorily determine the question of expediency of making a complaint. It is thus clear that the factor of delay between the forgery and the production or use of the document in court had no direct bearing on the ratio.<br />
<br />
Patel Laljibhai Somabhai v. The State of Gujarat [1971] 2 SCC 376 after considering the conflict of judicial opinion on this point, approved the view taken in Kushal Pal Singh case (supra). According to that decision the words "to have been committed by a party to any proceeding in any court" in Section 195(1)(c) mean that the offence should be alleged to have been committed by the party to the proceeding in his character as such party, that is, after having become a party to the proceeding.<br />
<br />
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</script>Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-4427229626962772191.post-28884451309482172392012-11-28T07:07:00.003-08:002012-11-28T07:07:48.116-08:00MAGISTRATE CAN REGISTER CONTEMPT PROCEEDINGS IF FIR IS NOT REGISTERED WITHIN 24 HOURS OF MAGISTRATE ORDERS 2008 SC<div style="width: 500px; height: 100px; background-color: FFFFFF; color: 2222CC; font-family: georgia; font-size: 12px; text-align: justify; border: 2px double 224422; overflow: auto; padding: 4px;">The Apex Court in Lalita Kumari Vs. Government of U.P.& Ors.(2008) 7 SCC 164 expressed its utmost displeasure on the failure of the police authorities of the country in not registering FIR‟s unless directions are given by the Chief Judicial Magistrate or the High Courts or the Supreme Court. The case before the Apex Court concerned the kidnapping of a minor child for which the police did not register an FIR till the matter was reported to the senior officials of the police and then sat over the investigation. Recommending initiation of contempt proceedings against the delinquent officials and to punish them for violation of the orders if no sufficient cause is shown the Hon‟ble Apex Court held that: "6. In view of the above, we feel that it is high time to give directions to the Governments of all the States and Union Territories besides their Director Generals of Police/Commissioners of Police as the case may be to the effect that if steps are not taken for registration of FIRs immediately and copies thereof are not made over to the complainants, they may move the Magistrates concerned by filing complaint petitions to give direction to the police to register case immediately upon receipt/production of copy of the orders and make over copy of the FIRs to the complainants, within twenty-four hours of receipt/production of copy of such orders. It may further give direction to take immediate steps for apprehending the accused persons and recovery of kidnapped/abducted persons and properties which were the subject- matter of theft or dacoity. In case FIRs are not registered within the aforementioned time, and/or aforementioned steps are not taken by the police, the Magistrate concerned would be justified in initiating contempt proceeding against such delinquent officers and punish them for violation of its orders if no sufficient cause is shown and awarding stringent punishment like sentence of imprisonment against them inasmuch as the disciplinary authority would be quite justified in initiating departmental proceeding and suspending them in contemplation of the same."<br />
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</script>Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-4427229626962772191.post-88004539755648565982012-11-28T07:06:00.000-08:002012-11-28T07:06:08.113-08:00COMPLAINT SHOULD CONTAIN THE FACTS CONSTITUTING THE OFFENCE<div style="width: 500px; height: 100px; background-color: FFFFFF; color: 2222CC; font-family: georgia; font-size: 12px; text-align: justify; border: 2px double 224422; overflow: auto; padding: 4px;">Mahant Baba Madhav Das vs State Of Rajasthan And Anr. 1998 CriLJ 4341, (Raj) In Clause(d) of Section 2 of the Criminal Procedure Code, the complaint has been defined in the following words :<br />
"complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police-report.<br />
Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint and the police officer by whom such report is made shall be deemed to be the complainant.<br />
The definition of "complaint" requires that the complaint should contain allegations that some person, whether known or unknown, has committed an offence and that it should have been made with a view that action should be taken on it. Clause (a) of Sub-section (1).of Section 190 of the Criminal Procedure Code requires the complaint to contain "facts which constitute such offence". As indicated by the words "upon receiving a complaint of facts which constitute such offence", shows that the complain! which may be Submitted before the Magistrate under Clause(a) of Sub-section (1) of Section 190 of the Criminal Procedure Code must contain not only the allegation that an offence has been committed but should also contain the facts constituting the offence. The reason for insisting on "facts which constitute such offence" is not difficult to be found out. A mere allegation thai a certain person has committed an offence, without stating the facts which constitute the offence, cannot enable the Magistrate or the police officer to apply his mind independently to the case in order to ascertain whether any offence has or has not been committed. The Magistrate before whom the complaint is filed is required to apply his mind independently and judicially to the complaint Submitted before him in order to find out whether any offence has or has not been committed. Whatever the complainant alleges cannot be accepted as correct. The very fact that the Magistrate is required to act independently in the matter and that he should form his own opinion regarding the commission of one or more offences shows that the facts of the case must be brought to his notice. This is why clauses (a), (b) and (c) of Sub-section (1) of Section 190 of the Criminal Procedure Code expressly require that the complaint or the police-report or other information must contain facts constituting the alleged offence. If a complaint contains only the allegations and does not contain the facts constituting the offence such a complaint would not be a complaint contemplated under Clause(a) of Sub-section (1) of Section 190 of the Criminal Procedure Code.<br />
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</script>Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-4427229626962772191.post-58079356427409678702012-11-28T07:05:00.001-08:002012-11-28T07:05:02.863-08:00WHAT COURSE OF ACTION OPEN TO MAGISTRATE WHEN PCR IS FILED<div style="width: 500px; height: 100px; background-color: FFFFFF; color: 2222CC; font-family: georgia; font-size: 12px; text-align: justify; border: 2px double 224422; overflow: auto; padding: 4px;">Justice Hon'ble Bala Krishna Narayana, of Allahabad High Court, in the case of Smt. Javitri Devi vs State Of U.P. And Others, Decided on 11 January, 2010 <br />
In these circumstances, the question arises that when a Magistrate is approached by a complainant with an application praying for a direction to the police under Section 156 (3) to register and investigate an alleged cognizable offence, when should he—<br />
(A) grant the relief of registration of a case and its investigation by the police under Section 156 (3) Cr.P.C.,<br />
(B) treat the application as a complaint and follow the procedure of Chapter XV of Cr.P.C.<br />
The scheme of Cr.P.C. and the prevailing circumstances require that the option to direct the registration of the case and its investigation by the police should be exercised where some"investigation" is required, which is of a nature that is not possible for the private complainant, and which can only be done by the police upon whom State has conferred the powers essential for investigation, for example.<br />
(1) where the full details of the accused are known to the complainant and the same can be determined only as a result of investigation, or<br />
(2) where recovery of abducted person of stolen property is required to be made by conducting raids or searches of suspected places or persons, or <br />
(3) where for the purpose of launching a successful prosecution of the accused evidence is required to be collected and preserved. <br />
To illustrate by example cases may be visualised where for production before Court at the trial <br />
(a) sample of blood soaked soil is to be taken and kept sealed for fixing the place of incident, or <br />
(b) recovery of case property is to be made and kept sealed; or <br />
(c) recovery under Section 27 of the Evidence Act; or <br />
(d) preparation of inquest report; or <br />
(e) witnesses are not known and have to be found out or discovered through the process of investigation.<br />
But where the complainant is in possession of the complete details of all the accused as well as the witnesses who have to be examined and neither recovery is needed nor any such material evidence is required to be collected which can be done only by the police, no "investigation" would normally be required and the procedure of complainant case should be adopted. The facts of the present case given below serve as an example. It must be kept in mind that adding unnecessary case to the diary of the police would impair their efficiency in respect of cases genuinely requiring investigation. Besides even after taking cognizance and proceeding under Chapter XV the Magistrate can still under Section 202 (1) Cr.P.C. order investigation, even though of a limited nature.<br />
</div><script type="text/javascript">
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</script>Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-4427229626962772191.post-78697395949427460482012-11-28T07:03:00.003-08:002012-11-28T07:03:30.936-08:00TRANSFER OF AN UNDERTRIAL TO A DISTANT PRISON MAY ADVERSELY AFFECT HIS RIGHT TO DEFENCE & ISOLATE HIM FROM THE SOCIETY <div style="width: 500px; height: 100px; background-color: FFFFFF; color: 2222CC; font-family: georgia; font-size: 12px; text-align: justify; border: 2px double 224422; overflow: auto; padding: 4px;">That transfer of an undertrial to a distant prison may adversely affect his right to defend himself but also isolate him from the society of his friends and relations is settled by the decision of Court in Sunil Batra v. Delhi Administration AIR 1980 SC 1579, where Court observed: “48. Inflictions may take many protean forms, apart from physical assaults. Pushing the prisoner into a solitary cell, denial of a necessary amenity, and, more dreadful sometimes, transfer to a distant prison where visits or society of friends or relations may be snapped, allotment of degrading labour, assigning him to a desperate or tough gang and the like, may be punitive in effect. Every such affliction or abridgment is an infraction of liberty or life in its wider sense and cannot be sustained unless Article 21 is satisfied. There must be a corrective legal procedure, fair and reasonable and effective. Such infraction will be arbitrary, under Article 14 if it is dependent on unguided discretion, unreasonable, under Article 19 if it is irremediable and unappealable, and unfair, under Article 21 if it violates natural justice. The string of guidelines in Batra set out in the first judgment, which we adopt, provides for a hearing at some stages, a review by a superior, and early judicial consideration so that the proceedings may not hop from Caesar to Caesar. We direct strict compliance with those norms and institutional provisions for that purpose.”<br />
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</script>Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-4427229626962772191.post-76996099845125341672012-11-28T06:59:00.002-08:002012-11-28T06:59:43.413-08:00WHETHER A POA HOLDER APPEAR ON BEHALF OF ACCUSED ?<div style="width: 500px; height: 100px; background-color: FFFFFF; color: 2222CC; font-family: georgia; font-size: 12px; text-align: justify; border: 2px double 224422; overflow: auto; padding: 4px;">Hon'ble the Apex Court in the matter of T.C. Mathai v. District & Sessions Judge,[(1999) 3 SCC 614 : AIR 1999 SC 1385] has held that the provisions of Power of Attorney Act, 1882 can not override the specific provision of the statute which requires that a particular act should be done by a party in person and thus when the Criminal Procedure Code requires the appearance of an accused in a Court, it is no compliance with it if a power of attorney holder appears for him. Unlike the provisions of the Cr.PC where a party is required to appear in person and in case of exemption from personal appearance, is required to be represented by a pleader, the CPC does not enjoin on a party to appear in person in all circumstances until the appearance is dispensed with by the Court.<br />
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</script>Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-4427229626962772191.post-90398438152051394792012-09-25T10:14:00.000-07:002012-09-25T10:14:12.744-07:00WHEN THERE IS NO PROPER INVESTIGATION BY POLICE - A MAGISTRATE SHALL REFER THE MATTER TO SOME SENIOR OFFICER FOR PROPER INVESTIGATION 2012 SC<a href="http://www.scribd.com/doc/106934730">FULL JUDGMENT</a><div style="width: 500px; height: 100px; background-color: FFFFFF; color: 2222CC; font-family: georgia; font-size: 12px; text-align: justify; border: 2px double 224422; overflow: auto; padding: 4px;">JUSTICE Ashok Kumar Ganguly, & JUSTICE T.S. Thakur in the case of Azija Begum vs State Of Maharashtra & Anr Reported in 2012 (3 ) SCC 126 = 2012 (1 ) JT 167 = 2012 (1 ) SCALE 328 It was expected of the High Court to look into the matter with greater care and caution as a very serious offence had taken place followed by an investigation in respect of which the Magistrate himself had expressed serious reservations but failed to give proper direction. …………… Every citizen of this country has a right to get his or her complaint properly investigated. The legal framework of investigation provided under our laws cannot be made selectively available only to some persons and denied to others. This is a question of equal protection of laws and is covered by the guarantee under Article 14 of the Constitution. The issue is akin to ensuring an equal access to justice. A fair and proper investigation is always conducive to the ends of justice and for establishing rule of law and maintaining proper balance in law and order. These are very vital issues in a democratic set up which must be taken care of by the Courts. ……. <br />
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</script>Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-4427229626962772191.post-41196547492343734402012-09-25T04:49:00.000-07:002012-09-25T04:49:08.877-07:00MAGISTRATE MAY PERUSE THE COMPLAINT WITHOUT EXAMINING MERITS OF THE CLAIM DIRECT INVESTIGATION UNDER 156-3 CRPC<a href="http://www.scribd.com/doc/106905348">FULL JUDGMENT</a><div style="width: 500px; height: 100px; background-color: FFFFFF; color: 2222CC; font-family: georgia; font-size: 12px; text-align: justify; border: 2px double 224422; overflow: auto; padding: 4px;">JUSTICE SATHASIVAM & JUSTICE ANIL R DAVE IN THE CASE OF SRINIVAS GUNDLURI & ORS. .Vs. SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION & ORS. REPORTED IN 2010 (9 ) SCR 278 = 2010 (8 ) SCC 206 = 2010 (7 ) JT 534 = 2010 (7 ) SCALE 665 <br />
<br />
From the order of the Magistrate dated 04.07.2009 it is clear that the Magistrate only ordered investigation under section 156 (3) of the<br />
Code of Criminal Procedure, 1973. It also shows that the Magistrate perused the complaint without examining the merits of the claim that there is sufficient ground for proceeding or not, directed the police officer concerned for investigation under section 156 (3) of the Code. The Single Judge of the High Court rightly observed that the Magistrate did not bring into motion the machinery of Chapter XV of the Code. He did not examine the complainant or his witnesses under section 200 of the Code which is the first step in the procedure prescribed under the said Chapter. The question of taking next step of the procedure envisaged in section 202 did not arise. Instead of taking cognizance of the offence, the Magistrate merely allowed the application filed by the complainant/SEPCO under section 156(3) of the Code and sent the same along with its annexure for investigation by the police officer concerned under section 156 (3) of the Code. To proceed under section 156 (3) of the Code, what is required is a bare reading of the complaint and if it discloses a cognizable offence, then the Magistrate instead of applying his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, may direct the police for investigation. In the instant case, the Single Judge and Division Bench of the High Court rightly pointed out that the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding and, therefore, the Magistrate has not committed any illegality in directing the police to register FIR and conduct investigation. <br />
<br />
As a matter of fact, even after receipt of such report, the Magistrate<br />
under section 190 (1) (b) may or may not take cognizance of offence. In other words, he is not bound to take cognizance upon submission of the police report by the Investigating Officer, hence, by directing the police to file charge sheet or final report and to hold investigation with a particular result cannot be construed that the Magistrate has exceeded his power as provided in sub-section (3) of section 156. Neither the charge sheet nor the final report has been defined in the Code. The charge sheet or final report whatever may be the nomenclature, it only means a report under section 173 of the Code which has to be filed by the police officer on completion of his investigation. <br />
<br />
The Magistrate in passing the impugned order has not committed any illegality leading to manifest injustice warranting interference by the High Court in exercise of extraordinary jurisdiction conferred under Article 226 of the Constitution of India. The Single Judge as well as the Division Bench rightly refused to interfere with the limited order passed by the Magistrate. The challenge at this stage by the appellants is pre- mature and the High Court rightly rejected their request. <br />
<br />
<br />
<br />
<br />
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</script>Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-4427229626962772191.post-25766138425430938032012-09-25T03:39:00.000-07:002012-09-25T03:39:26.034-07:00WHETHER AN IO CAN RAISE JURISDICTION POINT AND REFUSE INVESTIGATION REFERRED UNDER 156(3)<a href="http://www.scribd.com/doc/106900054">FULL JUDGMENT</a> <div style="width: 500px; height: 100px; background-color: FFFFFF; color: 2222CC; font-family: georgia; font-size: 12px; text-align: justify; border: 2px double 224422; overflow: auto; padding: 4px;">RASIKLAL DALPATRAM THAKKAR .Vs. STATE OF GUJARAT & ORS. 2010 AIR 715 = 2009 (15 ) SCR 722 = 2010 (1 ) SCC 1 = 2009 (13 ) SCALE 628 <br />
<br />
The question which arose for consideration in the present appeal was<br />
whether in regard to the order passed under Section 156(3) Cr.P.C., the police authorities empowered under Sub-Section (1) of Section 156 can unilaterally decide not to conduct an investigation on the ground that they had no territorial jurisdiction to do so. Investigating agency cannot decide not to investigate a complaint forwarded to it under s.156(3) on the ground that offence complained of was allegedly committed outside its territorial jurisdiction.<br />
<br />
FACTS OF THE CASE:- In the instant case, the stage contemplated under Section 181(4) Cr.P.C. has not yet been reached. Prior to taking cognizance on the complaint filed by the Bank, the Chief Judicial Metropolitan Magistrate, Ahmedabad, had directed an inquiry under Section 156(3) Cr.P.C. A final report was submitted by the Investigating Agency entrusted with the investigation stating that since the alleged transactions had taken place within the territorial limits of the city of Mumbai, no cause of action had arisen in the State of Gujarat and, therefore, the investigation should be transferred to the police agency in Mumbai. Both the trial Court as well as the Bombay High Court correctly interpreted the provisions of Section 156 Cr.P.C. to hold that it was not within the jurisdiction of the Investigating Agency to refrain itself from holding a proper and complete investigation merely upon arriving at a conclusion that the offences had been committed beyond its territorial jurisdiction. A glance at the material before the Magistrate would indicate that the major part of the loan transaction, in fact, took place in the State of Gujarat and that having regard to the provisions of Sub-section (2) of Section 156 Cr.P.C., the proceedings of the investigation could not be questioned on the ground of jurisdiction of the officer to conduct such investigation. It was open to the learned Magistrate to direct an investigation under Section 156(3) Cr.P.C. without taking cognizance on the complaint and where an investigation is undertaken at the instance of the Magistrate a Police Officer empowered under Sub-section (1) of Section 156 is bound, except in<br />
specific and specially exceptional cases, to conduct such an investigation even if he was of the view that he did not have jurisdiction to investigate the matter. <br />
<br />
<br />
It is the settled law that the complaint made in a criminal case follows the place where the cause arises, but the distinguishing feature in the instant case is that the stage of taking cognizance was yet to arrive. The Investigating Agency was required to place the facts elicited during the investigation before the Court in order to enable the Court to come to a conclusion as to whether it had jurisdiction to entertain the complaint or not. Without conducting such an investigation, it was improper on the part of the Investigating Agency to forward its report with the observation that<br />
since the entire cause of action for the alleged offence purportedly arose in the city of Mumbai within the State of Maharashtra, the investigation should be transferred to the concerned Police Station in Mumbai. Section 156(3) Cr.P.C. contemplates a stage where the Magistrate is not convinced as to whether process should issue on the facts disclosed in the complaint. Once the facts are received, it is for the Magistrate to decide his next course of action. In this case, there are materials to show that the appellant had filed his application for loan with the Head Office of the Bank at Ahmedabad and that the processing and the sanction of the loan was also done in Ahmedabad which clearly indicates that the major part of the cause of action for the complaints arose within the jurisdiction of the Chief Metropolitan Magistrate, Ahmedabad. It was not, therefore, desirable on the part of the Investigating Agency to make an observation that it did not have territorial jurisdiction to proceed with the investigation, which was required to be transferred to the Police Station having jurisdiction to do so. <br />
<br />
The Magistrate was fully justified in rejecting the Final Report submitted by the Economic Offences Wing, State CID (Crime) and to order a fresh investigation into the allegations made on behalf of the Bank. The High Court, therefore, did not commit any error in upholding the views expressed by the Trial Court. Section 181(4) Cr.P.C. deals with the Court's powers to inquire or try an offence of criminal misappropriation or of a criminal breach of trust if the same has been committed or any part of the property, which is the subject of the offence, is received or retained within the local jurisdiction of the said Court. <br />
<br />
The powers vested in the Investigating Authorities under Sections 156(1) Cr.P.C., did not restrict the jurisdiction of the Investigating Agency to investigate into a complaint even if it did not have territorial jurisdiction to do so. Unlike as in other cases, it was for the Court to decide whether it had jurisdiction to entertain the complaint as and when the entire facts were placed before it. <br />
<br />
A police officer in charge of a police station can, without the order of a Magistrate, investigate any cognizable offence which a Court having jurisdiction over such police station can inquire into or try under Chapter III of the Code of Criminal Procedure. Sub-section (2) of Section 156 ensures that once an investigation is commenced under Sub-section (1), the same is not interrupted on the ground that the police officer was not empowered under the Section to investigate. It is in the nature of a "savings clause" in respect of investigations undertaken in respect of cognizable offences. In addition to the powers vested in a Magistrate empowered under Section 190 Cr.P.C. to order an investigation under Sub- section (1) of section 202 Cr.P.C., Sub-section (3) of Section 156 also empowers such Magistrate to order an investigation on a complaint filed before him. Sub-section (4) only indicates that an inquiry or trial of an offence of criminal misappropriation or criminal breach of trust can be conducted by a Court within whose jurisdiction the offence had been committed or any part of the property forming the subject matter of the offence is received or retained or was required to be returned or accounted for by the accused person. The said provisions do not account for a stage contemplated on account of an order made under Section 156(3) Cr.P.C.<br />
<br />
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</script>Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-4427229626962772191.post-2634730286401417042012-08-07T10:26:00.001-07:002012-08-07T10:28:28.188-07:00SOCIAL ACTIVIST VICTIMISED BY STATE THROUGH POLICE TORTURE AND HARASSMENT OF FALSE CASES– COMPENSATION AWARDED BY SUPREME COURT 2012 SC<div style="width: 500px; height: 250px; background-color: FFFFFF; color: 2222CC; font-family: georgia; font-size: 12px; text-align: justify; border: 2px double 224422; overflow: auto; padding: 4px;"><br />
Justice K. S. Radhakrishnan and Justice Dipak Misra, In the case of Dr. Mehmood Nayyar Azam Vs. State of Chattisgarh and Ors. Decided on 03-08-2012 <br />
<br />
“In “Kaplan & Sadock’s Synopsis of Psychiatry”, while dealing with torture, the learned authors have stated that intentional physical and psychological torture of one human by another can have emotionally damaging effects comparable to, and possibly worse than, those seen with combat and other types of trauma. Any psychological torture inflicts immense mental pain. A mental suffering at any age in life can carry the brunt and may have nightmarish effect on the victim. The hurt develops a sense of insecurity, helplessness and his selfrespect gets gradually atrophied. We have referred to such aspects only to highlight that in the case at hand, the police authorities possibly have some kind of sadistic pleasure or to “please someone” meted the appellant with this kind of treatment. It is not to be forgotten that when dignity is lost, the breath of life gets into oblivion. In a society governed by rule of law where humanity has to be a laser beam, as our compassionate constitution has so emphasized, the police authorities cannot show the power or prowess to vivisect and dismember the same.”<br />
<br />
<br />
“Term “harassment” In P. Ramanatha Aiyar’s Law Lexicon, Second Edition, the term “harass” has been defined, thus:- “Harass. “injure” and “injury” are words having numerous and comprehensive popular meanings, as well as having a legal import. A line may be drawn between these words and the word “harass” excluding the latter from being comprehended within the word “injure” or “injury”. The synonyms of “harass” are: To weary, tire, perplex, distress tease, vex, molest, trouble, disturb. They all have relation to mental annoyance, and a troubling of the spirit.” The term “harassment” in its connotative expanse includes torment and vexation. The term “torture” also engulfs the concept of torment. The word “torture” in its denotative concept includes mental and psychological harassment. The accused in custody can be put under tremendous psychological pressure by cruel, inhuman and degrading treatment.<br />
<br />
<br />
…Treatment meted to an accused while he is in custody which causes humiliation and mental trauma corrodes the concept of human dignity. The majesty of law protects the dignity of a citizen in a society governed by law. It cannot be forgotten that the Welfare State is governed by rule of law which has paramountcy. It has been said by Edward Biggon “the laws of a nation form the most instructive portion of its history.” The Constitution as the organic law of the land has unfolded itself in manifold manner like a living organism in the various decisions of the court about the rights of a person under Article 21 of the Constitution of India. When citizenry rights are sometimes dashed against and pushed back by the members of City Halls, there has to be a rebound and when the rebound takes place, Article 21 of the Constitution springs up to action as a protector. That is why, an investigator to a crime is required to possess the qualities of patience and perseverance as has been stated in Nandini Sathpaty v. P. L. Dani, AIR 1978 SC 1025.<br />
<br />
<br />
<br />
CASE LAW DISCUSSED<br />
<br />
In D.K. Basu v. State of W.B. AIR 1997 SC 610 : (1997) 1 SCC 416 it has been held thus: - “10. “Torture” has not been defined in the Constitution or in other penal laws. “Torture” of a human being by another human being is essentially an instrument to impose the will of the “strong” over the “weak” by suffering. The word torture today has become synonymous with the darker side of human civilization. “Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone, paralyzing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself.” - Adriana P. Bartow, No violation of any one of the human rights has been the subject of so many Conventions and Declarations as “torture” - all aiming at total banning of it in all forms, but in spite of the commitments made to eliminate torture, the fact remains that torture is more widespread now than ever before. “Custodial torture” is a naked violation of human dignity and degradation which destroys, to a very large extent, the individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilization takes a step backward – flag of humanity must on each such occasion fly half-mast. In all custodial crimes what is of real concern is not only infliction of body pain but the mental agony which a person undergoes within the four walls of police station or lock-up. Whether it is physical assault or rape in police custody, the extent of trauma, a person experiences is beyond the purview of law.”<br />
<br />
In the case of D.K. Basu , the concern shown by Supreme Court in Joginder Kumar v.State of U.P., (1994) 4 SCC 260 was taken note of. In Joginder Kumar’s case, Court voiced its concern regarding complaints of violation of human rights during and after arrest. It is apt to quote a passage from the same:- “The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violations of human rights because of indiscriminate arrests. How are we to strike a balance between the two? A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first – the criminal or society, the law violator or the law abider…” <br />
<br />
Two-Judge Bench decision in Sunil Gupta and others v. State of Madhya Pradesh and others, (1990) 3 SCC 119. The said case pertained to handcuffing where the accused while in judicial custody were being escorted to court from jail and bound in fetters. In that context, the Court stated that the escort party should record reasons for doing so in writing and intimate the court so that the court, considering the circumstances may either approve or disapprove the action of the escort party and issue necessary directions. The Court further observed that when the petitioners who had staged ‘Dharna’ for public cause and voluntarily submitted themselves for arrest and who had no tendency to escape, had been subjected to humiliation by being handcuffed, such act of the escort party is against all norms of decency and is in utter violation of the principle underlying Article 21 of the Constitution of India. The said act was condemned by this Court to be arbitrary and unreasonably humiliating towards the citizens of this country with the obvious motive of pleasing ‘someone’.<br />
<br />
In Bhim Singh, MLA v. State of J & K, (1985) 4 SCC 677 Court expressed the view that the police officers should have greatest regard for personal liberty of citizens as they are the custodians of law and order and, hence, they should not flout the law by stooping to bizarre acts of lawlessness. It was observed that custodians of law and order should not become depredators of civil liberties, for their duty is to protect and not to abduct.<br />
<br />
It needs no special emphasis to state that when an accused is in custody, his Fundamental Rights are not abrogated in toto. His dignity cannot be allowed to be comatosed. The right to life is enshrined in Article 21 of the Constitution and a fortiorari, it includes the right to live with human dignity and all that goes along with it. It has been so stated in Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others, (1981) 1 SCC 608 and D.K. Basu<br />
<br />
In Kharak Singh v. State of U. P., (1964) 1 SCR 332 court approved the observations of Field, J. in Munn v. Illinois, (1877) 94 US 113:- “By the term “life” as here [Article 21] used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed.” <br />
<br />
In Arvinder Singh Bagga v. State of U.P. and others, AIR 1995 SC 117 it has been opined that torture is not merely physical but may even consist of mental and psychological torture calculated to create fright to submit to the demands of the police.<br />
<br />
In Smt. Kiran Bedi v. Committee of Inquiry and another, (1989) 1 SCC 494 Court reproduced an observation from the decision in D. F. Marion v. Davism, 55 ALR 171:- “The right to enjoyment of a private reputation, unassailed by malicious slander is of ancient origin, and is necessary to human society. A good reputation is an element of personal security, and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property.” <br />
<br />
In Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni and others, (1983) 1 SCC 124 it has been ruled that right to reputation is a facet of right to life of a citizen under Article 21 of the Constitution.<br />
<br />
In Smt. Selvi and others v. State of Karnataka, AIR 2010 SC 1974 while dealing with the involuntary administration of certain scientific techniques, namely, narcoanalysis, polygraph examination and the Brain Electrical Activation Profile test for the purpose of improving investigation efforts in criminal cases, a three-Judge Bench opined that the compulsory administration of the impugned techniques constitute ‘cruel, inhuman or degrading treatment’ in the context of Article 21. Thereafter, the Bench adverted to what is the popular perception of torture and proceeded to state as follows:- “The popular perceptions of terms such as ‘torture’ and ‘cruel, inhuman or degrading treatment’ are associated with gory images of blood-letting and broken bones. However, we must recognize that a forcible intrusion into a person’s mental processes is also an affront to human dignity and liberty, often with grave and long-lasting consequences. [A similar conclusion has been made in the following paper: Marcy Strauss, ‘Criminal Defence in the Age of Terrorism – Torture’, 48 New York Law School Law Review 201-274 (2003/2004)].” After so stating, the Bench in its conclusion recorded as follows:- “We have also elaborated how the compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to ‘cruel, inhuman or degrading treatment’ with regard to the language of evolving international human rights norms.”<br />
<br />
Vishwanath S/o Sitaram Agrawal v. Sau. Sarla Vishwanath Agrawal, 2012 (6) SCALE 190 although in a different context, while dealing with the aspect of reputation, this Court has observed as follows:- “……..reputation which is not only the salt of life, but also the purest treasure and the most precious perfume of life. It is extremely delicate and a cherished value this side of the grave. It is a revenue generator for the present as well as for the posterity.” <br />
<br />
In Delhi Judicial Services Association v. State of Gujarat, (1991) 4 SCC 406 while dealing with the role of police, Court condemned the excessive use of force by the police and observed as follows:- “The main objectives of police is to apprehend offenders, to investigate crimes and to prosecute them before the courts and also to prevent commission of crime and above all to ensure law and order to protect citizens’ life and property. The law enjoins the police to be scrupulously fair to the offender and the Magistracy is to ensure fair investigation and fair trial to an offender. The purpose and object of Magistracy and police are complementary to each other. It is unfortunate that these objectives have remained unfulfilled even after 40 years of our Constitution. Aberrations of police officers and police excesses in dealing with the law and order situation have been subject of adverse comments from this Court as well as from other courts but it has failed to have any corrective effect on it. The police has power to arrest a person even without obtaining a warrant of arrest from a court. The amplitude of this power casts an obligation on the police and it must bear in mind, as held by this Court that if a person is arrested for a crime, his constitutional and fundamental rights must not be violated.”<br />
<br />
In D.K. Basu v. State of W.B. AIR 1997 SC 610 : (1997) 1 SCC 416 “There can be no gainsaying that freedom of an individual must yield to the security of the State. The right of preventive detention of individuals in the interest of security of the State in various situations prescribed under different statutes has been upheld by the Courts. The right to interrogate the detenus, culprits or arrestees in the interest of the nation, must take precedence over an individual’s right to personal liberty. …….… The action of the State, however, must be “right, just and fair”. Using any form of torture for extracting any kind of information would neither be ‘right nor just nor fair’ and, therefore, would be impermissible, being offensive to Article 21. Such a crime-suspect must be interrogated-indeed subjected to sustain and scientific interrogationdetermined in accordance with the provisions of law. He cannot, however, be tortured or subjected to third degree methods or eliminated with a view to elicit information, extract confession or derive knowledge about his accomplishes, weapons etc. His constitutional right cannot be abridged except in the manner permitted by law, though in the very nature of things there would be qualitative difference in the method of interrogation of such a person as compared to an ordinary criminal.” <br />
<br />
<br />
Nilabati Behera v. State or Orissa, (1993) 2 SCC 746 wherein it has been held thus:- “A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is ‘distinct from, and in addition to, the remedy in private law for damages for the tort’ resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution.” Dr. A.S. Anand J., (as his Lordship then was), in his concurring opinion, expressed that the relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by the Supreme Court or under Article 226 by the High Courts for established infringement of the indefeasible right guaranteed under Article 21 is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting ‘compensation’ in proceedings under Article 32 or 226 seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making ‘monetary amends’ under the public law for the wrong done due to breach of public duty, by not protecting the fundamental rights of the citizen. The compensation is in the nature of ‘exemplary damages’ awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law.<br />
<br />
In Sube Singh v. State of Haryana, AIR 2006 SC 1117 a three-Judge Bench of the Apex Court, after referring to its earlier decisions, has opined as follows:- “It is thus now well settled that award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. The quantum of compensation will, however, depend upon the facts and circumstances of each case. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a civil court, in enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering compensation under Section 357 of Code of Civil Procedure.” <br />
<br />
Hardeep Singh v. State of Madhya Pradesh, (2012) 1 SCC 748. The appellant therein was engaged in running a coaching centre where students were given tuition to prepare for entrance test for different professional courses. On certain allegation, he was arrested and taken to police station where he was handcuffed by the police without there being any valid reason. A number of daily newspapers published the appellant’s photographs and on seeing his photograph in handcuffs, the appellant’s elder sister was so shocked that she expired. After a long and delayed trial, the appellant, Hardeep Singh, filed a writ petition before the High Court of Madhya Pradesh at Jabalpur that the prosecution purposefully caused delay in conclusion of the trial causing harm to his dignity and reputation. The learned single Judge, who dealt with the matter, did not find any ground to grant compensation. On an appeal being preferred, the Division Bench observed that an expeditious trial ending in acquittal could have restored the appellant’s personal dignity but the State instead of taking prompt steps to examine the prosecution witnesses delayed the trial for five long years. The Division Bench further held there was no warrant for putting the handcuffs on the appellant which adversely affected his dignity. Be it noted, the Division Bench granted compensation of Rs. 70,000/-. This Court, while dealing with the facet of compensation, held thus:- “Coming, however, to the issue of compensation, we find that in light of the findings arrived at by the Division Bench, the compensation of Rs. 70,000/- was too small and did not do justice to the sufferings and humiliation undergone by the appellant. In the facts and circumstances of the case, we feel that a sum of Rs. 2,00,00/- (Rupees Two Lakhs) would be an adequate compensation for the appellant and would meet the ends of justice. We, accordingly, direct the State of Madhya Pradesh to pay to the appellant the sum of Rs. 2,00,000/-(rupees Two Lakhs) as compensation. In case the sum of Rs.70,000/- as awarded by the High Court, has already been paid to the appellant, the State would naturally pay only the balance amount of Rs.1,30,000/- (Rupees One Lakh thirty thousand)”. <br />
<br />
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</script>Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0tag:blogger.com,1999:blog-4427229626962772191.post-51238069528579819652012-07-29T07:17:00.001-07:002012-07-29T07:17:24.423-07:00WHAT MATERIALS CAN BE RELIED AT THE TIME OF CHARGE<div style="width: 500px; height: 100px; background-color: FFFFFF; color: 2222CC; font-family: georgia; font-size: 12px; text-align: justify; border: 2px double 224422; overflow: auto; padding: 4px;">Hem Chand Vs. State of Jharkhand (2008) 5 SCC 113 on the basis of admitted documents i.e. the documents admitted by the prosecution, the accused has a right to show that no case is made out against him. <br />
<br />
Court in State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568. The documents, which were in the possession of the CBI, were required to be looked into at the stage of charge. <br />
<br />
In view of Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja and others (1990) 4 SCC 76 it is contended that even at the stage of charge, the Court has to sift the evidence to see whether any charge is made out against the accused or not. Further the Court is duty bound to look at the material placed on record. <br />
<br />
Relying upon State of Madhya Pradesh Vs. Sheetla Sahay and Ors. (2009) 3 SCC Crl. 901 the Court cannot ignore the material, which is in favour of the accused, at the stage of charge.<br />
<br />
Hon‟ble Supreme Court in State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568. At the stage of charge Court cannot hold a mini trial. As held in N.Ramakrishna Ayyar through legal heirs Vs. State of Andhra Pradesh (2008) 17 SCC 83 and Hem <br />
<br />
Chand v. State of Jharkhand (2008) 5 SCC 113 the Court will not delve deep into the matter for the purpose of appreciating the evidence and the stage to weigh the evidence would be when the entire evidence is brought on record.<br />
<br />
The scope and jurisdiction of a trial Judge while framing a charge and while considering the application for discharge are now well-settled through a catena of the decisions of the Honourable Apex Court. In State of Maharashtra v. Priya Sharan Maharaj and others [(1997) 4 SCC 393], the Apex Court has held that while framing charge, the purpose is limited to find out whether a prima facie case is made out or not and at that stage, the court is not required to undertake an elaborate enquiry in sifting and weighing the material to arrive at the conclusion that it will not lead to conviction.<br />
<br />
In Palwinder Singh v. Balwinder Singh and Others [(2008) 14 SCC 504], the Apex Court has held that marshalling or appreciation of evidence is not permissible at the stage of framing of charge. It is also relevant to note that in the decision reported in P.Vijayan v. State of Kerala and another [(2010) 2 SCC 398], it was held that the court is not a mere post office and also held that the court has no jurisdiction to see on the basis of the materials that whether the trial will end in conviction or acquittal. <br />
<br />
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</script>Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com1tag:blogger.com,1999:blog-4427229626962772191.post-40443125579854376502012-07-29T07:12:00.001-07:002012-07-29T07:12:55.733-07:00IN CORRUPTION CASES KNOWN SOURCES OF INCOME MEANS KNOWN SOURCES TO PROSECUTION<div style="width: 500px; height: 100px; background-color: FFFFFF; color: 2222CC; font-family: georgia; font-size: 12px; text-align: justify; border: 2px double 224422; overflow: auto; padding: 4px;">In State of Maharashtra v. Wasudeo Ramchandra Kaidalwar (1981) 3 SCC 199 the Hon‟ble Supreme Court observed that the expression "known sources of income" occurring in Section 5(1)(e) has a definite and legal connotation which in the context must be the sources known to the prosecution and not sources relied upon and known to the accused. Their Lordships observed: "23. Even after Section 5(3) was deleted and Section 5(1)(e) was enacted, the Supreme Court in the case of State of Maharashtra v. Wasudeo Ram Chandra Kaidalwar : (1981) 3 SCC 199 has observed that the expression "known sources of income" occurring in Section 5(1)(e) has a definite legal connotation which in the context must mean the sources known to the prosecution and not sources relied upon and known to the accused. Section 5(1)(e) , it was observed by the Supreme Court, casts a burden on the accused for it uses the words "for which the public servant cannot satisfactorily account". The onus is on the accused to account for and satisfactorily explain the assets.<br />
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</script>Advocate Sridharababuhttp://www.blogger.com/profile/13434697673533673010noreply@blogger.com0