Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court: Sanjay Dhar, J., expressed that, there may be stray incidents where the advocates have resorted to levelling allegations against the Judicial Officers in order to seek transfer of their cases from one Court to another to suit their convenience, but then this cannot be generalized.

The petitioners have challenged an order passed by Chief Judicial Magistrate, Srinagar whereby transfer application filed by the petitioners for transfer of a case under Section 12 of the Protection of Women from Domestic Violence Act from the Court of Judicial Magistrate 1st Class to any other Court of competent jurisdiction was declined.

Analysis, Law and Decision

High Court noted that the main grouse of the petitioners was that their application for modification or vacation of order passed by the trial Magistrate in ex-parte against the petitioners was not being considered on its merits expeditiously.

Further, it was also noted that there had been some exchange of harsh words between the petitioners’ counsel and the Magistrate, which had forced the petitioner to approach the Chief Judicial Magistrate seeking transfer of proceedings from the Court of trial Magistrate.

The Bench expressed that the Chief Judicial Magistrate had vide the impugned order rightly declined to transfer the proceedings from the Court of trial Magistrate, but, while doing so, the Chief Judicial Magistrate had made certain sweeping remarks against the advocates by stating that the advocates level unnecessary allegations against the Judicial Officers in order to facilitate their personal convenience.

“Merely because the Magistrate has failed to dispose of the application of the petitioners, is not a ground to transfer the case. It is also not a ground for transfer of a case if there is exchange of some hot words between the court and the Counsel.”

Hence, in view of the above, the decision of Chief Judicial Magistrate Srinagar to decline the transfer of the matter from the trial Magistrate, is legally correct and cannot be interfered with.

Therefore, the sweeping remarks made by the Chief Judicial Magistrate were uncalled for an unnecessary for the decision of the case.

High Court also remarked that,

Bench and Bar are two wheels of the chariot of justice. Both are equal and no one is superior to the other.

The members of the Bar, as such, deserve the utmost respect and dignity. There may be some rotten apples in profession, but to say that the advocates generally adopt these tactics is not the correct position.

Hence, the remarks of the Chief Judicial Magistrate, as such, deserve to be expunged. [Latief Ahmad v. Shafeeqa Bhat, 2022 SCC OnLine J&K 249, decided on 8-4-2022]


Advocates before the Court:

For the Petitioner: Hazim Quershi, Advocate

For the Respondents: None

Case BriefsSupreme Court

Supreme Court: The bench of Indira Banerjee and JK Maheshwari, JJ has given split verdict on the issue as to whether the Special Court is debarred from taking cognizance of an offence under Section 23 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and obliged to discharge the accused under Section 227 CrPC, only because of want of permission of the jurisdictional Magistrate to the police, to investigate into the offence.

Factual Background

The Court was hearing the appeal is against a judgment by the High Court of Karnataka, upholding an order dated 19th April 2018 passed by the Principal District Judge, Uttar Kannada, Karwar, taking cognizance against the Appellant of offence under Section 23 of POCSO.

On or about 27th October 2017, a news report was published in the Newspaper, Karavali Munjavu, regarding the sexual harassment of a 16 year old girl. On or about 30th October 2017, the victim’s mother lodged a complaint, inter alia, against the appellant i.e. Editor of the said Newspaper for disclosing the identity of the victim under Section 23 of POCSO that deals with the procedure to be followed by the Media while reporting the POCSO related cases.

The Appellant filed an application for discharge under Section 227 of the Cr.P.C. on the purported ground that an offence under Section 23 of POCSO being non-cognizable, the police could not have investigated the offence without obtaining an order of the Magistrate under Section 155(2) of the Cr.P.C. The Trial Court dismissed the application of the Appellant, whereupon the Appellant filed a Criminal Petition in the High Court under Section 482 of the Cr.P.C.

The High Court dismissed the Criminal Petition, holding that the non obstante provision of Section 19 of POCSO overrides the provisions of the Cr.P.C., including Section 155 thereof. The High Court refused to quash the proceedings initiated against the Appellant under Section 23 of POCSO.

Relevant Provision under POCSO Act

  1. Section 23 deals with the procedure to be followed by the Media while reporting the POCSO related cases.
  2. Section 19(5) provides that where the Special Juvenile Police Unit or local police is satisfied that the child against whom an offence has been committed, is in need of care and protection it shall, after recording reasons in writing, make immediate arrangements to give the child such care and protection including admitting the child into a shelter home or hospital within 24 hours of the report.
  3. Section 19(6) requires the Special Juvenile Police Unit or local police, as the case may be, to report information to the Child Welfare Committee and the Special Court or where no Special Court has been designated to the Court of Sessions without unnecessary delay, within 24 hours from the receipt of information. The report is to include need, if any, of the concerned child for care and protection and steps taken in this regard.
  4. Section 31 of POCSO, provides that the provisions of the Cr.P.C., including provisions as to bail and bonds are to apply to the proceedings before a Special Court, and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Sessions and the person conducting prosecution before a Special Court shall be deemed to be a Public Prosecutor.
  5. Section 33(9) of POCSO confers powers of a Court of Sessions on the Special Court to try offences under POCSO, also has nothing to do with the reporting or investigation of an offence. Subject to the provisions of POCSO, the Special Court is to try an offence under POCSO, as if it were a Court of Sessions “as far as may be”, in accordance with the procedure 17 specified in the Cr.P.C. for trial before a Sessions Court. Neither Section 31 nor Section 33(9) of POCSO makes any reference to investigation.

Relevant provisions of CrPC

  1. Section 4(1) requires all offences under the Penal Code, 1860 to be investigated, inquired into, tried or otherwise dealt with according to the CrPC.
  2. Section 4(2) requires all offences under any other law to be investigated, inquired into, tried or otherwise dealt with according to the provisions of the CrPC, subject to any enactment for the time being in force, regulating the manner and place of investigating, inquiring into, trying or otherwise dealing with offences.
  3. Section 5 categorically states that nothing in the CrPC shall, in the absence of a specific provision to the contrary, affect any special law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed by any other law for the time being in force.
  4. As per Section 155(2), for non-cognizable offence, the order is required to be taken from the Magistrate.

Justice Banerjee’s opinion

Banerjee, J refused to accept the argument of the Appellant that the proceedings were vitiated and liable to be quashed or the Appellant was liable to be discharged without trial, only because of want of prior permission of the jurisdictional Magistrate to investigate into the alleged offence.

On a combined reading of Sections 4(1) and (2) with Section 5 of the Cr.P.C., all offences under the IPC are to be investigated into, tried or otherwise dealt with in accordance with the provisions of the Cr.P.C. and all offences under any other law are to be investigated, inquired into, tried or otherwise dealt with, according to the same provisions of the Cr.P.C., subject to any enactment for the time being in force, regulating the manner of investigating, inquiring into, trying or otherwise dealing with such offences. POCSO is a special law for protection of children against sexual abuse.

Applying the well settled principle that legislative intent is to be construed from the words used in the statute, as per their plain meaning, Banerjee. J observed that had Legislature intended that the CrPC should apply to investigation of an offence under Section 23 of POCSO, would specifically have provided so. The expression “investigation” would, as in Section 4(1) or (2) of the CrPC, have expressly been incorporated in Section 31 or Section 33(9) or elsewhere in POCSO.

She explained that the language and tenor of Section 19 of POCSO, that deals with reporting of offence, and sub-sections thereof makes it absolutely clear that the said Section does not exclude offence under Section 23 of POCSO. This is patently clear from the language and tenor of Section 19(1), which reads “…. any person who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed……”. The expression “offence” in Section 19 of POCSO would include all offences under POCSO including offence under Section 23 of POCSO of publication of a news report, disclosing the identity of a child victim of sexual assault.

Banerjee, J was of the opinion that a child against whom offence under Section 23 of POCSO has been committed, by disclosure of her identity, may require special protection, care and even shelter, necessitating expeditious investigation for compliance of sub-sections (5) and (6) of Section 19 of POCSO.

“POCSO not only protects children from sexual offences but also protects the interests of children in general, as victims as well as witnesses. The right of a child to dignity not only requires that the child be protected from offences of sexual assault, sexual harassment and pornography but also requires that the dignity of a child be safeguarded. Disclosure of the identity of a child who is a victim of sexual offences or who is in conflict with the law is in fundamental breach of the right of the child to dignity, the right not to be embarrassed.”

Justice Maheshwari’s Opinion

Under the POSCO Act, it is not clear all the offences under the said Act are cognizable or some are non-cognizable. However, the Court may have to take the assistance from the provisions of CrPC on the said issue.

The offence under Section 23 is non-cognizable and Section 19 or other provisions of POCSO Act do not confer power for investigation except to specify the manner of reporting the offence. However, in absence of having any procedure for investigation under the POCSO Act, either for cognizable or non-cognizable offences, as mandated by sub-section (2) of Section 4 of CrPC, the procedure prescribed in CrPC ought to be followed in the matter of investigation enquiring into and trial. Section 5 of CrPC is a saving clause by which the procedure prescribed in the special enactment will prevail otherwise in absence of the provision and the procedure specified in CrPC may be applicable.

To state that all offences under POCSO Act are cognizable, would not be justified without taking note of the provisions of CrPC. It is true that to decide the cognizability and non-cognizability, the maximum sentence prescribed for the offence would be taken into consideration, but if the sentence prescribed for the offence is less than 3 years then those offences of POCSO Act would be non-cognizable. It is clarified, Section 19 of the POCSO Act overrides the provisions of Cr.P.C. only to the extent of reporting the matters to the police or SJPU and other ancillary points so specified in Section 19.

Therefore, the procedure of Section 155(2) is required to be followed in an offence of POCSO Act under Section 23 which is non-cognizable and the Special Court is required to look into the procedure followed in the investigation. As per Section 155(2), for non-cognizable offence, the order is required to be taken from the Magistrate but in the light of Sections 2(l) and 28 of POCSO Act, the Special Courts are required to be designated to deal with offences under POCSO Act and they have been authorized under Section 33, conferring a power to such Special Courts to take cognizance. Therefore, Maheshwari, J was of the opinion that the word used in Section 155(2) be read as “Special Courts” in place of “Magistrate”, which may take cognizance of any offence under POCSO Act.

Conclusion

In view of the split verdict in the case at hand, the matter will now be placed before a larger bench.

[Gangadhar Narayan Nayak v. State of Karnataka, 2022 SCC OnLine SC 337, decided on 21.03.2022]


For appellant: Senior Advocate Devdutt Kamat

Case BriefsSupreme Court

Supreme Court: In a case where the Magistrate had passed an order under Section 156(3) CrPC even in absence of an affidavit duly sworn by the complainant, the bench of BR Gavai* and Krishna Murari, JJ that many a times the applications under Section 156 (3) of the Cr.P.C. are filed in a routine manner without taking any responsibility only to harass certain persons and hence, such applications are to be supported by affidavits.

The Court held that, prior to the filing of a petition under Section 156 (3) of the Cr.P.C., there have to be applications under Section 154 (1) and 154 (3) of the Cr.P.C. Filing of an affidavit is necessary so that the persons making the application would be conscious and not make false affidavit. With such a requirement, the persons would be deterred from causally invoking authority of the Magistrate, under Section 156 (3) of the Cr.P.C. If the affidavit is found to be false, the person would be liable for prosecution in accordance with law.

Factual Matrix

The Court was deciding a case where the parties entered into various Agreements for Sale with respect to properties situated at Bangalore. It is the case of the appellants that, after receipt of the payments, the respondent was avoiding to get the Sale-deed registered. The respondent, on the other hand, filed a   complaint, almost after a period of two years from the date of institution of suits by the appellants, and almost after a period of one and a half year from the date on which written statement was filed by respondent, thereby making allegations of cheating. The allegations in the complaints were basically that the appellant No. 1, who is the son of appellant Nos. 2 and 3, had obtained blank stamp papers from the respondents and created Agreements for Sale by misusing the said blank stamp papers. As such, it is case of the respondents that, the appellants committed forgery and cheated them, and as such they are liable for punishment for offences punishable under Sections 420, 464, 465, 468 and 120-B IPC.

The Magistrate ordered that,

“In the complaint, the complainant has made serious allegations against the accused persons. Therefore, it appears this court that, it is just and proper to refer the matter to the jurisdiction police for   investigate and submit report.”

The Karnataka High Court also refused to interfere with the order.

Ruling

The Court held that the Magistrate was required to apply his mind before passing an order under Section 156 (3) of the Cr.P.C. It was further submitted that, unless an application under Section 156 (3) of the Cr.P.C. was supported by an affidavit duly sworn by the complainant, the Magistrate could not have passed an order under the said provision.

When the complaint was not supported by an affidavit, the Magistrate ought not to have entertained the application under Section 156 (3) of the Cr.P.C.

The Court was of the opinion that, though power to quash criminal proceedings should be exercised very sparingly and with circumspection and that too in the rarest of rare cases, there are certain category of cases wherein such power can be exercised for quashing proceedings.

One of such categories laid down in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 is,

“Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

In the case at hand, since the complaint was filed almost after a period of two years from the date of institution of suits by the appellants, the Court held that continuation of the present proceedings would amount to nothing but an abuse of process of law.

[Babu Venkatesh v. State of Karnataka, 2022 SCC OnLine SC 200, decided on 18.02.2022]


*Judgment by: Justice BR Gavai


Counsels

For Appellants: Advocate Abdul Azeem Kalebudde,

For State: Advocate Shubhranshu Padhi

Case BriefsHigh Courts

Karnataka High Court: Rajendra Badamikar, J., reversed an order of the Magistrate which had directed the petitioner accused to deposit 20% of the cheque amount before the court. The High Court said that Section 143-A of the Negotiable Instruments Act, 1881 is not a mandatory provision.

Factual Matrix

The respondent herein had filed a private complaint before the Trial Court against the present petition for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

As per the Respondent-Complainant, the petitioner accused had taken a hand loan of Rs 9 lakhs from the complainant in order to purchase a plot. But the sale deed was not executed and when complainant requested the accused-petitioner for repayment of the amount or else to execute the sale deed he issued a cheque and when the said cheque was presented through the banker of the complainant it was returned for insufficient funds.

Further, it was alleged that the complainant issued a legal notice calling upon the petitioner for payment within 15 days, but he failed to make any payment as such he filed a private complaint under Section 138 of NI Act.

Magistrate passed the impugned order directing the accused-petitioner to deposit 20% of the cheque amount before the Court.

Analysis, Law and Decision

High Court noted that the complaint was filed under Section 138 of NI Act in respect of bouncing of cheque issued by present accused of a sum of Rs 9 lakhs. After recording the sworn statement, the Magistrate took cognizance and issued the process against the accused/petitioner who appeared and enlarged on bail.

Present petitioner appeared before the Trial Court and was enlarged on bail and the matter was adjourned to 28-11-2019 for recording the plea. On that date, the counsel for the complainant/respondent herein filed an application under Section 143A of NI Act.

Magistrate’s order disclosed that as per the mandatory provisions of Section 143A he passed the impugned order for deposit of 20% of the cheque amount. It was noted that he did not hear the counsel for the accused and no opportunity of being heard was given to him.

Bench expressed that,

Section 143A (1) is not a mandatory provision and it says that Court may order the drawer of the cheque to pay the interim compensation as per conditions stipulated there under.

It was evident that the power under Section 143A was vested with the magistrate to be exercised judiciously after recording the plea and it was not mandatory, but the Magistrate was required to exercise his judicious discretion under Section 143A of the Act.

But in the instant case, the impugned order disclosed that the Magistrate had not even applied his mind and in a mechanical way as per the mandatory provisions of Section 143A he has directed the accused to deposit 20% of the cheque amount. The provisions of Section 143A are not mandatory but the discretion was given to the magistrate to be exercised judiciously.

In Court’s opinion, the entire approach of the Magistrate was against the settled principles of natural justice and he did not even pass a summary speaking order giving reasons for passing such an order.

The order itself disclose that he carried on impression that Section 143(A) of the Act is a

mandatory provision of law but ignored the fact that the word used in the Section is ‘may’ and not ‘shall’ which gives a discretion to the Court to be exercised in a judicious way.

 Therefore, the entire approach of magistrate was against the settled principles and the impugned order called for interference. [Jahangir v. Farooq Ahmed Abdul Razak, Criminal Petition No. 201213 of 2020, decided on 6-7-2021]


Advocates before the Court:

For the Petitioner: Sanjay A. Patil, Advocate

For the Respondent: S.S. Mamadapur, Advocate

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., granted bail to a person accused of kidnapping a minor, which eventually in view of the minor’s statement was a case of her running away on her own accord and living a happy married life with him.

The instant petition was filed to seek bail in FIR registered for offences under Sections 363, 366, 376 of Penal Code, 1860, Sections 4 and 6 of the POCSO Act read with Section 10 of the Prohibition of Child Marriage Act.

Factual Background

It was stated that a missing complaint was registered in 2017 where the complaint was given by the father of the victim that his minor daughter was kidnapped, and she had been missing and last seen details were given in the complaint.

Further, the investigation was completed and did not result in a fruitful outcome.

Later in the year 2020, the victim telephoned her mother stating that she had delivered a baby boy and he was 3 months old and she revealed that she had been married for the last four years.

The said information was passed on to the Police, who landed in Madhya Pradesh to trace the young girl/ victim. The police tracked down and recovered the young girl. When she was being taken for conducting a medical examination, the same was refused. She was brought back to Delhi and her statement was recorded under Section 161 CrPC, thereafter under 164 CrPC.

In the said statement she stated that she ran away from home and met the petitioner and got married to him and now she has a 3-year-old daughter and a 3-month-old infant.

Police after noting the school records found the date of birth of the victim to be 2-3-2001, and therefore amended the charges against the petitioner and added offences under Sections 4 and 6 of the POCSO Act and Section 10 of the Child Marriages Act.

Petitioner was arrested and his bail application was rejected stating that he had kidnapped the then minor victim, and repeatedly had sexual intercourse with her which resulted in the victim getting pregnant as a minor. The said offence was a serious one that involved the exploitation of the minor.

Analysis, Law and Decision

Parameters for consideration of enlarging a person on bail are as follows:

  • Nature of accusation and severity of punishment in case of conviction
  • Person concerned shall not tamper with evidence or influence witnesses
  • Person should not flee justice
  • Person shall be available as and when the trial requires into to do so
  • Prima Facie satisfaction of the court in support of the charge.

Victim’s statement recorded by the Magistrate indicated that she was peacefully living with the petitioner and their two children and was not kidnapped by the petitioner, infact ran away on her own accord.

Court prima facie was satisfied that the petitioner and the victim were happily cohabiting with each other and raising their family.

No custodial interrogation of the petitioner was required, infact keeping him in custody would only drive the prosecutrix and her two children to starvation.

“Petitioner and the victim are happily married, and they have two children and have been raising a family together is a ground enough to release the petitioner on bail.”

Petitioner was granted bail in view of certain bail conditions. [Ram Sevak v. State,  2021 SCC OnLine Del 5195, decided on 3-12-2021]


Advocates before the Court:

For the Petitioner:

Mohammed Shamikh, Advocate

For the Respondent:

Meenakshi Dahiya, APP for the State with W/SI Pooja, P.S. Sonia Vihar

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., held that an aggrieved person cannot choose to file a petition under Section 12 of the Domestic Violence Act at any and every place, even if she was a mere casual visitor to that place.

Instant petition assailed the order by which the Metropolitan Magistrate refused to entertain an application under Section 12 of the Domestic Violence Act, 2005 for want of jurisdiction envisaged under Section 27 of the said Act and in consequence, directed to return the application to the petitioner.

Analysis, Law and Decision

High Court stated that every statute has to be interpreted keeping in mind the purpose for which it has been enacted and the interpretation must be such, so as to advance the purpose of the act and should not be such as to defeat, the intention of the legislature.

In the case on hand, since after applicant’s marriage, she was continuously residing in Hyderabad. It appeared that she was subjected to domestic violence at Hyderabad, whereupon she had filed a complaint.

Later, she came to Mumbai and resided in a hotel situated within the local limits of Metropolitan Magistrate, Bandra. Soon thereafter, she filed two non-cognizable complaints and reported that she was forced to flee to Mumbai, to protect herself and she believed and apprehended being under constant surveillance at the instance of her husband and son in their attempt to keep a watch on her actions, whereby she was frightened and harassed by them.

Whereafter, she filed an application under Section 12 of the D.V. Act, which was within 23 days, after her arrival in Mumbai from Hyderabad.

Court noted from the complaint, and argument that Respondents being highly influential persons in Hyderabad and although applicant ventured to lodge a complaint against them, she won’t be able to secure any relief from police or such other agency under the D.V. Act. From 1993 till 2021 she was subjected to domestic violence, she did not take any measure to protect her life, property or to prevent the respondents from causing or inflicting domestic violence to her.

Question for Consideration

 Whether application under Section 12 filed by the Petitioner discloses or implies her intention to reside at a place in Mumbai or was it just casual or flying visit to acquire jurisdiction?

In Court’s opinion looking at the applicant’s background it was difficult to accept her contention that she could not seek a protection order at Hyderabad.

“…application in no way suggest or implies that she was forced to leave the Hyderabad and or she was intending to reside in Mumbai.”

In view of the chronology of the events, applicant engineered the cause of action with an intention to file a case and confer jurisdiction upon the Magistrate.

Thus, Court held that the applicant was not “temporarily” residing within the jurisdiction of the Court of Magistrate and no cause of action arose in Mumbai. The facts of the case suggest that the applicant’s visit to Mumbai was ‘casual visit’ and did not imply a definite intention to stay at a particular place. Therefore, Magistrate’s order cannot be faulted with, either for wrong or non-exercise of jurisdiction.

“…if liberal construction is placed upon the provision, made under Section 27 of the Act, as sought by the Applicants, it may lead to abuse of legal process of law, as aggrieved person may choose, any place, where she may be a casual visitor.”

Hence, impugned order declining to entertain, petitioner’s application under Section 12 for want of jurisdiction could not be faulted with.  [Afia Rasheed Khan v. Dr Mazharuddin Ali Khan, 2021 SCC OnLine Bom 4605, decided on 3-12-2021]


Advocates before the Court:

Mr. Rizwan Merchant a/w Ms. Z. Abdi i/by Mr. Rizwan Merchant and Associates, Advocate for Petitioner.

Mr. K. Krishna Shrawan i/by Mr. Ajay Khaire, Advocate for 1 and 2.

Ms. M.R. Tidke, APP for State/ Respondent 3.

Saket Court
Case BriefsDistrict Court

Saket Courts, New Delhi: Anuj Agrawal, Additional Sessions Judge, dismissed an appeal filed by the husband against the order of the trial court granting maintenance to the wife.

Factual Background

A complaint was filed under Section 12 of the Domestic Violence Act by the respondent/complaint stating that she was subjected to domestic violence by the husband as well as his other family members. Respondent added that she had been sustaining herself with great hardships and thus, she claimed monetary relief from the husband.

Trial Court had also granted maintenance. Appellants was aggrieved with the said order.

Analysis, Law and Decision

Settled Law:

Serious disputed questions of fact (requiring evidence) cannot be gone into at the time of deciding an application for grant of interim maintenance and as the same can only be decided during course of trial after-parties lead their respective evidence.

In the instant matter, respondent made allegations of she being subjected to domestic violence, a prima facie case for domestic violence was made out.

Court stated that it will decide the legality of award of interim maintenance.

“…while fixing an interim maintenance, court has to take a prima facie view of the matter and need not to critically examine the respective claims of the parties regarding their respective incomes and assets because for deciding the same, the evidence would be required.”

 Bench expressed that an aggrieved person cannot be rendered to lead a life of a destitute till the completion of the trial.

No income affidavit came to be filed by the appellant/husband before the trial court, therefore, trial court was left with no option but to make guesswork regarding the monthly income of the husband. Hence, Trial Court’s approach cannot be faulted.

In the present appeal, the appellant/husband did not dispute his monthly income. Therefore, there was no infirmity with the order of Trial Court whereby monthly income of appellant/husband was assessed as Rs 35,000/-.

Therefore, the interim maintenance to the respondent/wife has to be commensurate with the income of husband.

Principle of apportionment has been reiterated by Delhi High Court in Nitin Sharma v. Sunita Sharma, 2021 SCC OnLine Del 694.

Appellant’s contention that no Domestic Incident Report was called by Trial Court is also without merit as it was evident from Trial Court record same was duly called from Protection Officer concerned.

Settled Law:

A Magistrate, when petitioned under Section 12 (1) of the Act, is not obliged to call for a domestic incident report before issuing notice to respondent.

Court relied on the decision of Delhi High Court in Shambhu Prasad Singh v. Manjari, 2012 SCC OnLine Del 1371

Hence, no merit was found in the instant appeal. [Anjan Kumar Sahoo v. Kamla Sahoo, Criminal Appeal No. 444 of 2017, decided on 21-10-2021]

Case BriefsHigh Courts

Delhi High Court: While stating the well-settled law that even when an appellate Court affirms the order of the Court below, it has to adjudicate on the issues which arise in the appeal, Subramonium Prasad, J., emphasized why reasons laid down in a judgment are essential and in view of that referred to certain decisions of the Supreme Court.

Present matter was directed against the decision of Additional Sessions Judge arising out of the order passed by Metropolitan Magistrate.

The Metropolitan Magistrate had dismissed the petition filed under Section 12 of the Domestic Violence Act on the ground of non-prosecution. Further, the MM had also issued notice to the Deputy Director, Directorate General of All India Radio to furnish details of empanelment of the petitioner along with other details in order to determine the maintenance.

Additional Sessions Judge heard the appeal under Section 29 of the DV Act.

Under Section 29 of the DV Act, an appeal is maintainable against an order passed by the Magistrate on both law and facts.

“…reasons are the live links between the mind of the decision taker to the controversies in decision and the decision or conclusion arrived at. An order sans reasons takes away a very valuable right of a litigant – to challenge that order.”

 Supreme Court’s decision in CCT v. Shukla & Bros., (2010) 4 SCC 785 was also referred wherein it was observed that,

“…Court has consistently taken the view that recording of reasons is an essential feature of dispensation of justice. A litigant who approaches the court with any grievance in accordance with law is entitled to know the reasons for grant or rejection of his prayer. Reasons are the soul of orders…” 

“…A judgment without reasons causes prejudice to the person against whom it is pronounced, as that litigant is unable to know the ground which weighed with the court in rejecting his claim and also causes impediments in his taking adequate and appropriate grounds before the higher court in the event of challenge to that judgment…”

Supreme Court’s decision in State of Orissa v. Dhaniram Luhar, (2004) 5 SCC 568 was also referred to.

Bench held that the impugned order was completely bereft of any reasons.

Duty of the Appellate Court is to see whether the Metropolitan Magistrate had considered the claim of the petitioner on merits and what are the reasons given by the Metropolitan Magistrate to reject the claim.

High Court while setting aside the order of the Additional Sessions Judge remanded the matter back to the ADJ for consideration. [BSR v. PSR, 2021 SCC OnLine Del 4789, decided on 21-10-2021]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Bechu Kurian Thomas, J., held that if the final report had not been filed and no cognizance had been taken it would mean that there is no criminal proceeding pending and the Passport Authority are free to decide the grant of passport.

The petitioner had challenged communication issued by the Regional Passport Officer informing him of the shortcomings in his application for issuance of a passport.

Noticeably, the petitioner was involved in a case for offences under Sections 406, 419 and 420 of IPC apart from sections 12(1)(a), (d) of Passports Act, 1967. Claiming that the police had dropped the proceedings against him the petitioner had applied for issuance of passport which was earlier denied due to adverse report on the pendency of the crime. The petitioner contended that despite having proper police clearance and despite the closure of the crime registered against him, the passport authorities were harassing him by referring to those false crimes.

Section 6(2)(f) of the Passports Act, 1967 makes it mandatory for the passport issuing authority to reject the application for issuance of a passport if “criminal proceedings are pending” in any Court in India.

Thus to make the deprivation of the personal liberty of the right to travel abroad, just, fair and reasonable, the Government of India in exercise of the powers under section 22 of the Act, issued a notification (as GSR 570(E) dated 25-8-1993), which is statutory in character, exempting citizens of India against whom criminal proceedings are pending before a criminal court from the operation of section 6(2)(f) of the Act on condition that the applicant produces orders from the Court concerned permitting to depart from India.

Opining that there are still lacuna about the parameters that govern the grant of no objection by the criminal courts, the Bench stated that though it is for the legislature to fill up the lacuna through proper amendments, in the absence of such amendments, the Bench expressed,

“It is essential that till then there must be some yardstick to govern the grant of such no objections by criminal courts as otherwise, there is a possibility of the grant of permission turning into a subjective satisfaction rather than an objective one.”

In Muhammed v. Union of India, 2018 (4) KHC 945, the Court had clarified that, a criminal proceeding is pending only when cognizance is taken and in the absence of a final report filed in court, a criminal case cannot be treated as pending. It was also held that mere registration of a crime does not invoke either section 6 or section 10 of the Act and the police verification report must mention the stage of the crime.

Motivated by the pristine principle that an accused is presumed innocent unless and until he is found guilty, and the fact that false prosecutions can mar the career and future of a person and  that criminal trials take ages to complete, the Bench expressed that,

“The grant of permission by the Magistrate enabling an accused to travel abroad will be of great significance, especially since it will be a process of balancing the fundamental right of a citizen to travel abroad and the need to ensure the presence of the accused during trial.”

Foreseeing the probability of such consideration by Magistrate being of subjective satisfaction rather than the required objective satisfaction, and to avoid the same, the Bench laid down following parameters to govern the grant of permission for future guidance:

  1. “The stage of the criminal proceeding and the duration of time within which the trial may take place;
  2. The criminal antecedents and past conduct of the accused;
  3. The nature and gravity of the crime; offences under Statutes dealing with acts of terrorism and acts of smuggling should require a different consideration.
  4. In heinous crimes, if the court decides to grant permission, the period for which permission is granted can be limited;
  5. Chances of the accused fleeing or evading the trial in the case;
  6. Mode in which the presence of the accused can be ensured during trial, including stipulating conditions like providing the address/ change of address in the country of residence abroad, either with the Indian Consulate at the country of residence abroad or with the Court where the trial is pending.
  7. Since in cases where time is not fixed by the Magistrate while granting permission, the Passport authorities are issuing passports only for one year, the period for which the accused can be permitted to travel can also be fixed by the Magistrate, while granting permission.”

Emphasising that aim of granting permission is to balance the competing claims of fundamental right to travel abroad and the need to ensure the presence of the accused during trial, the Bench clarified that the parameters laid down were not exhaustive.

Resultantly, the petitioner was directed to approach the jurisdictional Magistrate and obtain appropriate orders if the final report had been filed and cognizance taken. However, in case the final report had not been filed and cognizance not taken yet, the Bench clarified that that would imply that no criminal is proceeding pending and the Passport Authority would be free to decide the grant of passport without permission from the Magistrate.  [Thadevoose Sebastian v. Regional Passport Office, WP(c) No. 15182 of 2021, decided on 30-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Advocate S.Saju, Advocate A.V.Sajan, Advocate Neelanjana Nair and Advocate Pooja Sebastian

For the Respondent: ASG P. Vijayakumar and CGC Jaishanker

Case BriefsSupreme Court

Supreme Court: The bench of MR Shah* and AS Bopanna, JJ has held that merely because someone is the Chairman/Managing Director/Executive Director/Deputy General Manager/Planner & Executor, automatically they cannot be held vicariously liable, unless there are specific allegations and averments against them with respect to their individual role in a criminal case.

Factual Background

The Court was dealing with a case wherein it was alleged that all the accused had conspired with common intention to lay the pipeline beneath the schedule properties belonging to the complainant without any lawful authority and right whatsoever.

It is pertinent to note that original accused no.1 was a company incorporated under the Companies Act, original accused nos. 2 & 3 being Chairman and Managing Director of Accused no.1- company and accused no.4 was arrayed as an accused being Deputy General Manager (Civil & Env.) of accused no.1. Accused No.5 was the Planner and Executor of the project work of accused no.1. Likewise, accused no. 6 was also a company incorporated under the Companies Act, accused nos. 7 & 8 were arrayed as an accused being Chairman and Executive Director respectively of accused no.6. Accused no.9 was the Site Supervisor of accused no.6 and accused no.10 was the Sub-Contractor under accused no.6 and accused nos. 11 to 13 were the employees of accused no.10.

Accused No.1 intended to lay water pipeline by the side of Mangalore-Bajpe Old Airport Road abutting the schedule properties. Accused No.2 on behalf of accused No.1 appointed accused No.6 as a contractor for execution of the said project of laying the water pipe line. Accused No.6 in turn authorized accused Nos. 7 and 8 to execute and oversee the said work. They in turn had appointed accused No.9 as site supervisor and the accused No.10 being the sub-contractor engaged accused Nos. 11 to 13 as labourers. Accused Nos. 4 and 5 were entrusted the work of supervision and overseeing the pipeline works carried out by accused Nos. 6, 7 and 8 through accused Nos. 9 and 10 to 13. Accused Nos. 6 to 8 had put into service heavy machineries and excavators and their vehicles for carrying out the work. It was contended that accused Nos. 2 to 5 and 7 to 13 had conspired with common intention to lay the pipeline beneath the schedule properties belonging to the complainant without any lawful authority and right whatsoever. In furtherance thereof, they had trespassed over the schedule properties 3 and demolished the compound wall which was having the height of 7 feet and foundation of 2 feet to a distance of 500 metres. They had cut and destroyed 100 valuable trees and laid pipeline beneath the schedule properties.

It was contended that

“… the accused have committed the act of mischief and waste and caused pecuniary loss of more than Rs.27 lakhs to the complainant. All the accused are jointly and severally liable to make good the loss to the complainant.”

Analysis

The bench noticed that except the bald statement that accused nos. 2 to 5 and 7 & 8 have conspired with common intention to lay the pipeline within the schedule properties belonging to the complainant, without any lawful authority and right whatsoever and in furtherance they have committed to trespass into the schedule properties of the complainant and demolished the compound wall, there were no other allegations that at that time they were present.

There were no further allegations that at the command of A2 to A5 and A7 & A8, the demolition of the compound wall has taken place. All of them are merely arrayed as an accused as Chairman, Managing Director, Deputy General Manager (Civil & Env.), Planner & Executor, Chairman and Executive Director respectively.

“Therefore, as such, in absence of any specific allegations and the specific role attributed to them, the learned Magistrate was not justified in issuing process against accused nos. 1 to 8 for the offences punishable 12 under Sections 427, 447, 506 and 120B read with Section 34 IPC.”

The Court held that issuing summons/process by the Court is a very serious matter and therefore unless there are specific allegations and the role attributed to each accused more than the bald statement, the Magistrate ought not to have issued the process.

Here are some authorities on the power of the magistrate of summoning of an accused in a criminal case:

Sunil Bharti Mittal v. Central Bureau of Investigation, (2015) 4 SCC 609

“No doubt, a corporate entity is an artificial person which acts through its officers, Directors, Managing Director, Chairman, etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so.

(…)

When the company is the offender, vicarious liability of the Directors cannot be imputed automatically, in the absence of any statutory provision to this effect.”

Read more: Order issuing summons to Sunil Mittal and others in 2G Scam case by Special Judge, CBI, set aside

GHCL Employees Stock Option Trust v. India Infoline Limited, (2013) 4 SCC 505

In the order issuing summons, the learned Magistrate has to record his satisfaction about a prima facie case against the accused who are Managing Director, the Company Secretary and the Directors of the Company and the role played by them in their respective capacities which is sine qua non for initiating criminal proceedings against them.

Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 668

“13. Where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. The Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the company. The learned Magistrate failed to pose unto himself the correct question viz. as to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the respondents herein were personally liable for any offence. The Bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability.”

Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749

“28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the 14 Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”

[Ravindranatha Bajpe v. Mangalore Special Economic Zone Ltd, 2021 SCC OnLine SC 806, decided on 27.09.2021]

_________________________________________________________________________

Counsels:

For original complainant: Advocate Shailesh Madiyal

For accused persons: Advocates Nishanth Patil and P.P. Hegde


*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Hot Off The PressNews

Chief Justice of Sikkim High Court noted that there had been an undue delay in recording of statement of the victims under Section 164 of the Code of Criminal Procedure, 1973 by Magistrates.

Against the Mandate of Law

CJ noted that the Magistrates had been fixing dates after a week or two with respect to the recording of statements after receiving the application from the investigating officer concerned, which is against the mandate of law.

Summoned – Improper Practice as it entails unnecessary wastage of time & resources

It also came to the notice of Chief Justice that the Magistrates recording the statements were being routinely summoned by the Session Court and Special Courts to prove the contents of the statement.

Citing the decision of Sikkim High Court in State of Sikkim v. Rakesh Rai, 2012 Crl. L.J. 2737 observed that there was no justification in calling the Magistrate as a witness.

Andhra Pradesh High Court in Guruvindapalli Anna Rao v. State of Andhra Pradesh, 2003 Crl. L.J. 3253 observed that if any Magistrate records the statement of a witness under Section 164 CrPC, it is not necessary for the Sessions Judge to summon the Magistrate to prove the contents of the statement recorded by him. When a Magistrate, discharging his official functions as such, records the statement of any witness under Section 164 CrPC such statement is a ‘public document’ and it does not require any proof.

Hence, in view of the above, Chief Justice of Sikkim High Court directed that the magistrates shall record the statement of victims/witnesses on the same day when such applications are received and in case the same is not possible, then the statement has to be recorded on the immediate next day.

Further, the Sessions Judges/Special Judges may not summon the Magistrates in a routine manner to prove the contents of such statement.


Sikkim High Court

 

[Dt. 09-04-2021]

Case BriefsDistrict Court

Court of Sessions Judge, Gondia: Suhas V. Mane, Sessions Judge, remanded the matter to Magistrate on noting no foundation in the Magistrate’s observation.

Factual Matrix

Applicant who was the husband of respondent 1 had filed a missing complaint stating that his wife was missing and he suspected that respondent 2 kidnapped her. But no cognizance for the same was taken by the Police, therefore complainant approached the Magistrate by filing the application under Sections 97 and 98 of the Code of Criminal Procedure for issuing search warrant.

It was alleged in the application that respondent 2 seduced respondent 1 and forced her to flee away with him. Further, it was also alleged that respondent 2 wrongfully confined respondent 1.

Magistrate rejected the application by observing that the applicant mentioned in the report that there was a love affair between respondent 1 and 2. Prima Facie it was revealed that respondent 1 voluntarily went with respondent 2.

Magistrate did not issue search warrant, though it was alleged that his wife was wrongfully confined.

“…provisions of section 97 and 98 of the Code of Criminal Procedure are identical with the provisions of Article 32 of the Constitution of India as there are concerns with life of person and liberty of the person.”

 Revision Petitioner submitted that rejection of application was not legal and proper, hence the request was made to set aside the order and allow the revision petition.

Bench laid down the following points for consideration:

1] Whether the impugned order passed by Judicial Magistrate First Class, Tiroda in Miscellaneous Criminal Case No. 58/2021 dated 02-03-2021relating to rejecting the application, is legal, valid and proper?

2] Whether any interference is required in the said order?

3] What order?

Bench noted that when it was alleged in the application that respondent 2 seduced and wrongfully confined respondent 1 in a secret place, then without recording the statement of respondent 1, how did the magistrate conclude that prima facie it reveals that respondent 1 voluntarily went with respondent 2.

The above observation of Magistrate had no foundation, he ought to have followed the procedure when it was pointed out to him that the applicant’s wife had been wrongfully confined by a particular person.

Hence, Magistrate erred and did not follow proper procedure, therefore interference was required.

Adding to the above Sessions Judge expressed that issuance of search warrant directing police to produce respondent 1 before the Magistrate is necessary and after that recording of respondent 1’s statement.

Conclusion

  • Revision Petition was allowed.
  • Order of the Magistrate was set aside.
  • Matter remanded to the Judicial Magistrate with direction that he shall issue a search warrant and after production of respondent 1 appropriate steps may be taken.

[Kavidas v. Varsha, Criminal Revision Application No. 9 of 2021, decided on 18-03-2021]


Advocates who appeared before the Court:

Advocate Shri. S. J. Chavhan, for Petitioner. Ld. APP Shri Khandelwal for Respondents.

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjay Dhar, J., addressed the instant petition against the order of Judicial Magistrate, Bandipora, whereby the Magistrate had returned the petition seeking maintenance stating it to be beyond the jurisdiction of the Trial Court. The Bench remarked,

“If at all there was any ground for returning the petition to the petitioners, the same should have been done at the very first hearing, not after proceeding with the case for more than six months, that too in a case where a destitute lady had approached the learned Magistrate for grant of maintenance.”

The petitioner, who was the wife of the respondent and was the mother of a minor son. The petitioner approached the Court of Chief Judicial Magistrate, Bandipora, with a petition under Section 488 of CrPC seeking maintenance from the respondent. The petition was transferred by CJM to Judicial Magistrate 1st Class, Bandipora, for disposal.

The Trial Court had observed that the petitioner at the time of filing the petition were residing at Hajin, Bandipora whereas the respondent was residing at Grath Saloora, Ganderbal, and according to the magistrate, neither Hajin, Bandipora nor Grath Saloora, Ganderbal fall within his territorial jurisdiction. The Magistrate had further observed that it was not the case of the petitioners that they at any point in time last resided within the jurisdiction of the Trial Court. Therefore, the Trial Court held that it did not have territorial jurisdiction to entertain the petition and, accordingly, the same was directed to be returned to the petitioner.

Observation and Analysis

The Bench, after going through the provisions of Section 488(8) of the J&K CrPC, which is in pari material with Section 126(1) of Central CrPC opined that proceedings for maintenance could be filed by a wife against her husband either in the district where she resides or in the district where the husband resides and also where she had last resided with her husband. The provisions of Section 488(8) read as under:

“488(8)Proceedings under this section may be taken against any person in any district where he is or his wife resides or where he last resided with his wife, or as the case may be, the mother of the illegitimate child.”

Noticing that the petition was transferred to the Trial Court by the orders of CJM, Bandipora, who was vested with jurisdiction over whole of the District Bandipora and that Section 192 of J&K CrPC gave jurisdiction to CJM to transfer any case of which he had taken cognizance, for inquiry or trial, to any Magistrate subordinate to him, the Bench opined,

“When a Chief Judicial Magistrate transfers a petition or a complaint to a Magistrate subordinate to him, the said subordinate Magistrate is conferred with the jurisdiction to entertain and try such complaint or petition.”  

Hence, the Court reached the findings that the Magistrate, while passing the impugned order, had ignored the provisions contained in section 192(2) of the J&K CrPC. Also, the Court vehemently criticised the fact that, the petition was pending in the Court of Judicial Magistrate for about six months and the Trial Court had put the hapless petitioner in a precarious position by returning the petition citing lack of jurisdiction.

Consequently, it was held that the impugned order of the Trial Court suffered from grave illegality as the same had been passed in disregard of the provisions contained in Section 192 of the J&K CrPC and, therefore, was unsustainable in law. Hence, the impugned order was set aside with the directions to the Trial Court to entertain and dispose of the petition filed by the petitioners with utmost promptitude in accordance with the law.[Masooda Begum v. Mohammad Ashraf Dar,  2021 SCC OnLine J&K 163, decided on 03-03-2021]


Appearance before the Court by:

For the Petitioner: Adv. Aftab Ahmad


Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsInternational Courts

Caribbean Court of Justice: A Full Bench of Justice Saunders, Wit, Anderson, Rajnauth-Lee, Barrow and Jamadar dismissed the appeal being devoid of merits.

BACKGROUND

The facts of the case are such that criminal complaints were filed in the Magistrates’ Court by the Respondents pursuant to Sections 56 and 59 of the House of Assembly (Elections) Act (i.e. “Elections Act”). The Respondents alleged that the Appellants (members of the Dominica Labour Party, “DLP”) were guilty of the offence of treating by hosting two free public concerts shortly before the 2014 General Elections, intending thereby to corruptly influence the electorate to vote for the DLP. After the Magistrate issued the summons, the Appellants sought judicial review of his decision to assume jurisdiction over the complaints. It was held that the Magistrate was acting in excess of his jurisdiction since a charge of treating challenged the validity of the Appellants’ election, and as such, any action had to be brought by election petition to the High Court. This view was premised on Section 40 (1) (a) of the Constitution which provides that the High Court has the jurisdiction to hear questions of membership and questions concerning the validity of an election. The summons was quashed. The Respondents appealed. The majority Court of Appeal decided in favour of the Respondents and reinstated the summons. The majority stated that Section 59 created a summary process and gave the Magistrate the power to summarily try and convict a person for treating. That power did not intrude upon the accepted exclusive jurisdiction of the High Court in Section 61 of the Elections Act and Section 40 (1) (a) of the Constitution to determine questions of membership of the House. Therefore, the relevant sections did not conflict. Thereby instant appeal before the CCJ was filed.

ISSUES

The parties disagree on four main points which may conveniently be encapsulated as follows:

  1. The ‘Parallel Modes of Trial Point’;
  2. The ‘Constitutionality Point’;
  3. The ‘Weight of Jurisprudence Point’ and
  4. The ‘Equality before the Law Point’.

OBSERVATION AND DECISION

The ‘Parallel Modes of Trial Point’

The Court observed that where a candidate was involved, there were two distinct modes of addressing elections offences, evident on a reading of the Elections Act. First, the summary offences procedure, where offences like treating are tried before a Magistrate. Second, the election petition procedure, which was concerned with the undue return or undue election of a member of the House and where one of the bases upon which such return or election can be found to be undue is the engagement in certain corrupt practices, inclusive of treating. The imposition of the disqualification from retaining a seat in the House set out in Section 61 of the Act did not fall within the summary jurisdiction mode of trial and therefore, was not within the Magistrate’s power.

The ‘Constitutionality Point’;

The Court observed that the relevant provisions of the Elections Act did not conflict with Section 40 (1) of the Constitution. First, summary proceedings for treating did not concern the validity of elections; they were concerned to vindicate the criminal law. Second, on reading section 35 (4) of the Constitution, it was clear that ‘any person’ may be convicted of treating and such conviction impacts, inter alia, their membership, or prospective membership, in the House. Such a person necessarily included members of the House of Assembly.

‘Weight of Jurisprudence Point’,

The Court observed that the cases relied on by the Appellants were all inapplicable to the present appeal as they dealt with the quite separate issue of the exclusive jurisdiction of the High Court, to determine the validity of an election by way of election petition. The proceedings before the Magistrate did not directly concern any question of the validity of elections, it concerned the criminal prosecution of the summary offence of treating.

 ‘Equality Before the Law Point’,

The Court observed that the Appellants’ contention, if correct and put into practice would create two categories of offenders, that is, ordinary citizens subject to the summary prosecution process and members of the House who were immune from it. Such an interpretation offended the principles of equality before the law and the rule of law which were deeply embedded in the Constitution. There was no evidence that it was the intention of the Legislature of Dominica to create this bifurcation in the exposure to the criminal law.

In a concurring judgment, Burgess J. agreed with the decision of the majority, that the appeal should fail as the Elections Act created a two-pronged punitive approach aimed at eliminating corrupt electoral practices, first, the imposition of criminal consequences and second, the unseating of successful candidates. A comparative analysis of legislation from various Commonwealth jurisdictions demonstrated that this two-pronged approach is not anomalous. The Appellants argued that the words, “every person” in Section 56 of the Elections Act did not encompass successful candidates, and Justice Burgess found that in the absence of express language by Parliament, that argument must fail.

In view of the above, appeal was dismissed.[Roosevelt Skerrit v. Antoine Defoe, CCJ Civil Appeal No DMCV2020/001, decided on 09-03-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Allahabad High Court: The Full Bench of Sanjay Yadav, Mahesh Chandra Tripathi and Siddhartha Varma, JJ., in a very significant ruling expressed that:

“…writ of Habeas Corpus is not maintainable against the judicial order or an order passed by the Child Welfare Committee under the J.J. Act.”

Instant writ petition was listed in the reference made by the Division Bench of this Court, in order to consider the various provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 and the law laid down by various Courts.

Following issues were framed by the Division Bench:

“(1) Whether a writ of habeas corpus is maintainable against the judicial order passed by the Magistrate or by the Child Welfare Committee appointed under Section 27 of the Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home?;

(2) Whether detention of a corpus in Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home pursuant to an order (may be improper) can be termed/viewed as an illegal detention?; and

(3) Under the Scheme of the Juvenile Justice (Care and Protection of Children) Act, 2015, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and as such, the proposition that even a minor cannot be sent to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home against his/her wishes, is legally valid or it requires a modified approach in consonance with the object of the Act ?”

Ancillary Issues

Bench noted that apart from the above framed issues there were some ancillary issues attached in cases of elopement of minor girls ad on recovery, sending them to Nari Niketan/Protection Home/Care Home.

Run-away Marriages

Large number of habeas corpus petitions are filed by the parents/guardians or alleged husband for production of their wards or wife, who leave their parental houses in “run-away marriages”.

Court while dealing with habeas corpus petitions are required to ensure that the person whose production is sought is not illegally detained.

Further, elaborating more on the above aspect, Bench expressed that difficulty arises in the cases where the minor girl has entered into matrimonial alliance and is steadfast in her resolve to continue to cohabit with the partner of her choice. —- At times, the girl is even on family way.

On perusal of Section 11 and 12 of the Hindu Marriage Act, it would be seen that contravention of the prescribed age under Section 5(iii) of the Act would not be given as a ground on which the marriage could be void or voidable.

Child Marriage Restraint Act, 1929 aims to restrain performances of child marriages but does not affect the validity of a marriage, even though it may be in contravention of the age prescribed under the Act. Performance of such marriage punishable under the law with imprisonment which can extend up to three months and with a fine. Even Section 12 of the Act provides to issue an injunction to prevent performance of any child marriage.

Supreme Court while considering the provisions of the Child Marriage Restraint Act has observed that contravention of the provisions of the said Act would only lead to punishment and marriage would not be void.

Now coming back to the issues framed, Court addressed the first issue in the following manner:

Nature and scope of the habeas corpus writ has been considered by the Constitution Bench of the Supreme Court in Kanu Sanyal v. District Magistrate, Darjeeling, (1973) 2 SCC 674.

In dealing with a petition for habeas corpus, High Court has to see whether the detention on the date, on which the application is made to Court, is legal, if nothing more has intervened between the date of application and the date of hearing …”Ref. A.K. Gopalan v. Government of India, AIR 1966 SC 816.

High Court expressed that: writ of habeas corpus lies against the order of remand made by a court of competent jurisdiction. It is well accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical or wholly illegal manner.

In Serious Fraud Investigation Office v. Rahul Modi, (2019) 5 SCC 266 the Supreme Court cancelled bail granted by the Delhi High Court to Rahul Modi and Mukesh Modi accused of duping investors of several hundred crores through a ponzi scheme run by their Gujarat based other co-operative societies. Both the accused were released by the Delhi High Court in a habeas corpus writ petition even though they were remanded to judicial custody under the orders of a competent court.

Proceeding further to analyse the questions, Bench opined that the Magistrate or the Committee in case directing the girl to be kept in protective home under the J.J. Act the Magistrate or the Committee, should give credence to her wish.

In order to bring more clarity on the matter, Bench referred to the decision of Supreme Court in Raj Kumari v. Superintendent Women Protection House, 1997 (2) A.W.C. 720, wherein it was held that a minor cannot be sent to Nari Niketan against her wishes and the same preposition of law is being incorporated in the orders passed by this Court while entertaining the Habeas Corpus Writ Petition of minor girl, who has been detained in Nari Niketan by a judicial order.

High Court considered an issue as to whether there is any authority for detention of the corpus with any person in law.

Can Magistrate direct the detention of a person?

Corpus was detained in the Nari Niketan under the directions of the Magistrate, the first thing to be determined is – whether the Magistrate can direct the detention of a person in the situation in which the petitioner is. To which the answer was no the magistrate has no absolute right to detain any person at the place of his choice or any other place unless the same could be justified by some law and procedure.

Detention at Nari Niketan

Elaborating further, Bench expressed that no law has been quote with regard to whether the Magistrate may direct detention of a witness simply because she does not like to go to any particular place. Hence, in such circumstances, the direction of the Magistrate that she shall be detained at Nari Niketan is absolutely without jurisdiction and illegal.

It is the paramount responsibility of the Committee to take all necessary measures for taking into account the child’s wishes after making due enquiry, which contemplates under Section 36 of J.J. Act and take final decision.

Therefore, Bench stated that in case corpus is in Women Protection Home pursuant to an order passed by the Child Welfare Committee, which is neither without jurisdiction nor illegal or perverse, the detention of the corpus cannot be said to be illegal and in case petitioner is aggrieved with the Child Welfare Committee or Magistrate’s order, petitioner is at liberty to take recourse or remedy of an appeal or revision under Sections 101 and 102 of the J.J. Act.

In the present matter, Bench observed that the petitioner corpus was 17 years, one month and 8 days old, hence was directed to be placed in Women Protection Home, since she came under the ambit of a child as defined under Section 2(12) of the J.J Act.

Once corpus is minor and the girl had refused to go with her parents, then in such situation arrangement has to be made. Her interest in paramount.

Therefore, wish of minor and the wish/desire of girl can always be considered by the Magistrate concerned/Committee and as per her wishes/desire further follow up action be taken in accordance with law under the J.J. Act.

Conclusion

Issue 1: If the petitioner corpus is in custody as per judicial orders passed by a Judicial Magistrate or a Court of Competent Jurisdiction or a Child Welfare Committee under the J.J. Act. Consequently, such an order passed by the Magistrate or by the Committee cannot be challenged/assailed or set aside in a writ of habeas corpus.

Issue 2: An illegal or irregular exercise of jurisdiction by a Magistrate or by the Child Welfare Committee appointed under Section 27 of the J.J. Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home cannot be treated illegal detention.

Issue 3: Under the J.J. Act, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and the Magistrate/Committee must give credence to her wishes. As per Section 37 of the J.J. Act the Committee, on being satisfied through the inquiry that the child before the Committee is a child in need of care and protection, may, on consideration of Social Investigation Report submitted by Child Welfare Officer and taking into account the child’s wishes in case the child is sufficiently mature to take a view, pass one or more of the orders mentioned in Section 37 (1) (a) to (h).

[Rachna v. State of U.P.,  2021 SCC OnLine All 211, decided on 08-03-2021]


Advocates before the Court:

For the Petitioner: Avinash Pandey, Amicus, Sri Shagir Ahmad

For the Respondent: G.A., JK Upadhyay

Case BriefsHigh Courts

Delhi High Court: Suresh Kumar Kait, J., quashed a complaint about defamation filed by a lawyer against Business Standard. It was held that the complainant had no locus to file the complainant.

What do the petitioners want?

Petitioner sought the quashing of Order as well as Complaint Case titled: Lohitaksha Shukla v. Business Standard (P) Ltd. pending before the Metropolitan Magistrate.

What was the basis of complaint?

Complaint was based on an article titled: “The Long and Short of it” which was published in the petitioner’s newspaper – Business Standard under the authorship of Mitali Saran.

Averments of the Complainant

Lohitaksha Shukla, Complainant who was an advocate by profession averred that he was informed about the factum of publication of the article by his friends. In the complaint he alleged that the article was not based on facts and contained some defamatory insinuations against RSS and it’s members, as it accused members of RSS being oppressive to Indians, mentally disturbed and disrespectful to Indian National Symbols ridden with psycho sexual complexes, practitioners of discrimination based on caste and physically unfit.

Further, he added that being a member of RSS, his reputation had been adversely affected.

Metropolitan Magistrate found that there was sufficient material for summoning the accused 1, 2 and 3 under Section 500 IPC.

Petitioner’s Stand

Petitioners submitted that if a Magistrate were to take cognizance of the offence of defamation on a complaint filed by one who was not an “aggrieved person”, the trial and conviction of an accused in such a case by Magistrate would be void and illegal.

Petitioner 2 has averred that the allegation of complainant that he was ‘Editor in Chief’ of petitioner 1 at the time of publication of the article was baseless, as he had never been ‘Editor in Chief’ of petitioner 1.

Adding to the above, it was submitted that the complainant was not “person aggrieved” within the meaning of Section 199(1) CrPC and hence, was not competent to institute a private complaint and even if the complaint was taken on the face value, the same did not disclose any offence whatsoever which falls within the ambit of Sections 499 and 500 IPC.

Complainant could not establish how his reputation was harmed or his moral or intellectual character was lowered as a result of the said article. Though he claimed that he had been asked by his friends to leave RSS as a result of that article, but he could not bring anyone to the witness box in support of the said assertion, hence failed to prove that article brought any kind of defamation to him.

Bench noted that Section 199(1) CrPC mandated that the magistrate could take cognizance of the offence only upon receiving a complaint by a person who was aggrieved.

Purpose and intent of this provision is to limit the power of Magistrate to take cognizance of offences pertaining to defamation in order to prevent and discourage the filing of frivolous complaints. 

Court observed that, in the present case, the complainant had not been able to show as to how he was the “person aggrieved” within the definition of Section 199(1) CrPC and thus, the contents of complaint suffered from vices of illegality or infirmity. Even complainant was not a part of “identifiable class” or definite “association or collection of persons” as enumerated in Explanation (2) to Section 499 of IPC.

Trial Court did not take into consideration the above-stated provision.

High Court referred to the Supreme Court decision in Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 with regard to the scope of “opinion of Magistrate”.

Hence, in view of the above discussions, Court held that the complaint in question was not maintainable and was liable to be dismissed.  [Business Standard (P) Ltd. v. Lohitaksha Shukla,  2021 SCC OnLine Del 988, decided on 01-03-2021]

Case BriefsHigh Courts

Allahabad High Court: Dr Y.K. Srivastava, J., expressed while deciding the present application that:

“Proceeding for interim maintenance, shall as far as possible, be disposed of within 60 days from the date of service of notice on the husband.”

Instant application was filed under Section 482 CrPC, seeking quashing of order in proceedings in a case filed under Section 125 of CrPC.

Additional Advocate General appearing for the State respondents raised an objection with regard to the maintainability of the present petition on the ground that the order sought to be quashed, related to grant of interim maintenance, is subject to a final adjudication on the main petition filed under Section 125 CrPC It is submitted that it is open to the applicant to raise all his objections before the Family Court.

Section 125 CrPC falls under Chapter IX of the Code of Criminal Procedure, 1973 and it contains provisions whereunder, an order for maintenance of wives, children and parents can be made. The object of the provisions contained under Chapter IX is to provide a speedy and effective remedy against persons, who neglect or refuse to maintain their dependent wives, children and parents.

It was observed that the proceedings for maintenance under Section 125 CrPC are of a summary nature and the purpose and object of the same is to provide immediate relief to the applicant.

An application under Section 125 CrPC can be moved by the wife on fulfilment of two conditions :-

a) the husband has sufficient means and;

(b) he neglects or refuses to maintain his wife, who is unable to maintain herself. The Magistrate, in such a case, may direct the husband to pay such monthly sum of the money, as deemed fit taking into consideration the financial capacity of the husband and other relevant factors.

Bench observed that Section 125 CrPC is in the nature of a benevolent provision having a social purpose with the primary objective to ensure social justice to the wife, child and parents, who are unable to support themselves so as to prevent destitution and vagrancy.

With regard to the third proviso of Section 125 CrPC, Court expressed that it gives a timeline by providing that the proceeding for interim maintenance, shall as far as possible, be disposed of within 60 days from the date of service of notice on the husband.

Hence, an order granting interim maintenance is subject to a final adjudication on the main petition and the interim maintenance granted during the pendency of the proceedings is only provisional maintenance subject to final determination to be made on the conclusion of the proceedings.

In light of the above discussion, the Court exercised its inherent jurisdiction in respect of the reliefs prayed for.

Counsel for the applicant at this stage made a prayer that he may be permitted to withdraw the present application and stated that the applicant would contest the proceedings before the court below.

The present application filed under Section 482 CrPC stood, accordingly, dismissed. [Mithilesh Maurya v. State of U.P., Application u/s 482 no. – 19612 of 2020, decided on 08-01-2021]

Case BriefsHigh Courts

Allahabad High Court: Raj Beer Singh, J., observed that:

“The object of the Section 125 CrPC being to afford a swift remedy, and the determination by the Magistrate as to the status of the parties being subject to a final determination by the Civil Court, when the husband denies that the applicant is not his wife, all that the Magistrate has to find, in a proceeding under Section 125 CrPC, is whether there was some marriage ceremony between the parties, whether they have lived as husband and wife in the eyes of their neighbours, whether children were born from the union.”

The instant revision was preferred against the order passed under Section 125 of Criminal Procedure Code.

Contention that falls for consideration:

Whether respondent 2 has been able to show herself as married wife of revisionist in order to claim maintenance from revisionist under Section 125 CrPC?

Proceedings under Section 125 CrPC. are summary proceeding. In Supreme Court’s decision of Dwarika Prasad Satpathy v. Bidyut Prava Dixit, (1999) 7 SCC 675, it was observed that the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 IPC.

Bench expressed that it is a well-settled law that for the purposes of a proceeding under Section 125 CrPC, the factum of marriage has to be prima facie considered.

“If there is prima facie material on record to suggest that the parties have married or are having relationship in the nature of marriage, the court can presume in favour of the woman claiming maintenance.”

 Court also stated that an order passed in an application under Section 125 CrPC does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide a summary remedy for providing maintenance to a wife, children and parents.

In the decision of S. Sethurathiuam Pillai v. Barbara it was observed that maintenance under Section 488 CrPC, 1898 (similar to Section 125 Cr.P.C.) cannot be denied where there was some evidence on which conclusion for grant of maintenance could be reached. It was held that order passed under Section 488 is a summary order which does not finally determine the rights and obligations of the parties; the decision of the criminal court that there was a valid marriage between the parties will not operate as decisive in any civil proceeding between the parties.

Court observed that in a proceeding for maintenance under Section 125 CrPC, a Magistrate or Judge of the Family Court has to be prima facie satisfied about the marital status of the parties, as a decision under Section 125 CrPC is tentative in nature, subject to the decision in any civil proceeding, as has been held in Santosh v. Naresh Pal (1998) 8 SCC 447.

In light of the above discussions, High Court states that if from the evidence which is led, the Magistrate/Court is prima facie satisfied with regard to the performance of marriage in proceedings under Section 125 CrPC which are of summary nature, strict proof of performance of essential rites is not required.

In the instant matter, respondent 2 had submitted that her nikah was solemnized with the revisionist and out of that marriage, she gave birth to a daughter, but she was killed by the revisionist, whereas the case of the revisionist was that his nikah was never solemnized and they never lived as husband and wife together.

Limited Scope of Revisional Court

Question whether the respondent 2 was a married wife of revisionist, is a question of fact and thus, this court cannot upset the finding of the trial court by entering into re-appreciation of evidence, unless it is shown such a finding is not based on evidence or some patent error of jurisdiction is shown. In the instant case, no such eventuality could be shown. In fact, if the wife had been neglected and the wife was entitled to maintenance, the scope of interference by the Revisional Court is very limited.

Further, the Court added that in view of evidence on record, the grant of maintenance from the date of application cannot be said arbitrary or against law. The quantum of maintenance also appeared reasonable and appropriate.

“If a party deliberately delays the proceedings for long period, such party must not be allowed to take advantage of such tactics.”

 High Court found no illegality, perversity or error of jurisdiction in the impugned order.

While parting with the decision, Court added that the Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. [Irshad Ali v. State of U.P., 2021 SCC OnLine All 92, decided on 08-01-2021]


Advocates who appeared on behalf of the parties:

 Counsel for Revisionist: Krishna Mishra

Counsel for Opposite Party: G.A.

Telangana High Court
Case BriefsHigh Courts

Telangana High Court: P. Naveen Rao, J., discussed and reiterated the scope of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 extensively.

“As against the procedure envisaged in the Code of Criminal Procedure, where power is vested in the Magistrate, to monitor investigation of a crime under the Act, 1989 and take cognizance of the crime, the power is now vested in the Special Court.”

Illegal Intimacy

First petitioner submitted that second petitioner is her daughter and her marriage was performed in the year 2017. After 4 months of their marriage, the husband of the second petitioner developed illegal intimacy with another woman who is stated to be the daughter of the sixth respondent and were living under one roof.

The husband of petitioner 2 started harassing her. Later in the panchayat held by the elders, there was an understanding that Shivakumar would lead marital life with the second petitioner by leaving the daughter of respondent 6.

Even after the above-held panchayat, the illegal relationship of Shivakumar and daughter of respondent 6 continued.

Based on the above complaint, a crime was registered under Sections 498-A and 497 IPC. Sixth respondent’s daughter gave an assurance in front of the police that she would not interfere in marital life of second petitioner and requested the petitioners to withdraw the case.

Later, even after the settlement, the illegal relationship continued and this time, the respondent filed a complaint alleging that petitioners abused them in filthy language and on caste lines.

Complaint under Section 34 IPC and Sections 3(1)(r)(s), 3 (2) (va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Petitioners have now alleged that taking advantage of the registration of crime, sixth respondent and his daughter threatened the petitioners and were forcing the second petitioner to give divorce to her husband.

Petitioners contended that the police has not been following the procedure and requires the Court to direct the fourth respondent to follow the Supreme Court decision in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

Scope of Power of Police

On the issue of the scope of power of police to conduct an investigation, the arrest of accused, grant of bail, and the role of Constitutional Courts in such matters was extensively considered by the Hon’ble Supreme Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335.

Further, the Bench expressed that it is a settled principle of law that once a cognizable crime is reported, police have to register the crime and investigate into the crime. Such an investigation has to be taken up immediately, collect the evidence and then take steps to finalize the investigation and file the final report.

Scope of  The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

The scope of provisions of the Act, 1989 came up for consideration before the Supreme Court in Subhash Kashinath Mahajan v. State of Maharashtra,(2018) 6 SCC 454. The Supreme Court held that merely because a crime is reported under the Act, 1989, it need not be registered automatically and to avoid false implication of an innocent person, a preliminary enquiry may be conducted by the Deputy Superintendent of Police concerned to find out whether allegations in the complaint made out a case to proceed under the Atrocities Act, and that the person need not be arrested.

In Union of India v. State of Maharashtra, (2020) 4 SCC 761, Supreme Court reviewed the directions issued in Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454.

Further, after extensively referring to the view taken by the Supreme Court in Union of India v. State of Maharashtra, (2020) 4 SCC 761, Supreme Court observed in Prithvi Raj Chauhan v. Union of India, (2020) 4 SCC 727:

“9. Concerning the provisions contained in Section 18-A, suffice it to observe that with respect to preliminary inquiry for registration of FIR, we have already recalled the general Directions 79.3 and 79.4 issued in Subhash Kashinath case [Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454 : (2018) 3 SCC (Cri) 124]. A preliminary inquiry is permissible only in the circumstances as per the law laid down by a Constitution Bench of this Court in Lalita Kumari v. State of U.P. [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524], shall hold good as explained in the order passed by this Court in the review petitions on 1-10-2019 [Union of India v. State of Maharashtra, (2020) 4 SCC 761] and the amended provisions of Section 18-A have to be interpreted accordingly.

10. Section 18-A(i) was inserted owing to the decision of this Court in Subhash Kashinath [Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454 : (2018) 3 SCC (Cri) 124], which made it necessary to obtain the approval of the appointing authority concerning a public servant and the SSP in the case of arrest of accused persons. This Court has also recalled that direction on Review Petition (Crl.) No. 228 of 2018 decided on 1-10-2019 [Union of India v. State of Maharashtra, (2020) 4 SCC 761] . Thus, the provisions which have been made in Section 18-A are rendered of academic use as they were enacted to take care of mandate issued in Subhash Kashinath [Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454 : (2018) 3 SCC (Cri) 124] which no more prevails. The provisions were already in Section 18 of the Act with respect to anticipatory bail.”

Therefore, in light of the above discussion, bench dismissed the petition. [Sattarsetti Nirmala v. State of Telangana, 2021 SCC OnLine TS 167 , decided on 06-01-2021]

Case BriefsHigh CourtsTribunals/Commissions/Regulatory Bodies

It’s the last day of 2020, and here we are with the 20 most-read Case Briefs of the SCC Online Blog in the Year 2020.

The following lists consist of the most-loved Case Briefs by SCC Blog Readers.

[Bombay High Court]

Bom HC | State Govt. declares ATMA, XAT, MAT, GMAT entrance tests not to be valid eligibility for MBA/MMS courses, instead only MS-CET, CMAT and CET to be valid: Read HC’s decision on Government Circular

[Anmol Jagdish Baviskar v. Minister, Higher and Technical Education Department Mumbai; 2020 SCC OnLine Bom 3853, decided on 11-12-2020]


[National Consumer Disputes Redressal Commission]

If a person carries out trading in shares on an occasional basis by opening a Demat Account, will that person come under the ambit of Consumer? Read NCDRC’s opinion

[Vaman Nagesh Upaskar v. India Infoline Ltd., 2020 SCC OnLine NCDRC 469, decided on 28-10-2020]


[Bombay High Court]

Bom HC | If the wife is earning something for livelihood, can the same be a ground to refuse alimony under S. 24 of Hindu Marriage Act? Read Court’s ruling reiterating SC’s decision

[Arpana Vijay Manore v. Dr Vijay Tukaram Manore, 2020 SCC OnLine Bom 3925, decided on 09-12-2020]


[Delhi High Court]

Del HC | Schools free to decline Online Education Facility to students whose parents fail to pay tuition fees

[Queen Mary School Northend v. Director of Education, 2020 SCC OnLine Del 736 , decided on 08-07-2020]


[Allahabad High Court]

All HC | Offences under Ss. 498-A IPC and 3/4 of Dowry Prohibition Act compounded in light of settlement between parties

[Deena Nath v. State of U.P., 2020 SCC OnLine All 1057, decided on 23-09-2020]


[Supreme Court]

Maintenance of wife|Husband doesn’t have to pay maintenance in each of the proceedings under different Maintenance laws [Explainer on Supreme Court guidelines]

[Rajnesh v. Neha,  2020 SCC OnLine SC 903, decided on 04.11.2020]


[Kerala High Court]

Ker HC | If a particular income is not taxable under Income Tax Act, it cannot be taxed on basis of estoppel or any other equitable doctrine; Court reiterates principles for recovery under Income Tax Act

[Uniroyal Marine Exports v. CCE,  2020 SCC OnLine Ker 5175, decided on 17-11-2020]


[Allahabad High Court]

[Maintenance to Muslim wife] All HC | “S. 125 CrPC perhaps one of the most secular enactment ever made in this country”: HC while upholding maintenance awarded to a divorced Muslim wife

[Jubair Ahmad v. Ishrat Bano, 2019 SCC OnLine All 4065, decided on 18-10-2019]


[Kerala High Court]

Ker HC | No blanket order should be passed under S. 438 CrPC to prevent accused from being arrested when there is no crime registered against him; Court quashes order granting anticipatory bail

[State of Kerala v. Ansar M.C.,  2020 SCC OnLine Ker 4569, decided on 21-10-2020]


[Supreme Court]

SC clarifies law on admissibility of electronic evidence without certificate under Section 65B of Evidence Act, 1872

[Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020 SCC OnLine SC 571, decided on 14.07.2020]


[Allahabad High Court]

All HC | Can a complaint filed in light of S. 138 NI Act be dismissed on ground of one day delay? Read Court’s reasoned order

[Pankaj Sharma v. State of U.P., 2020 SCC OnLine All 1339, decided on 22-09-2020]


[Chhattisgarh High Court]

Chh HC | Can an application for anticipatory bail under S. 438 CrPC be filed directly before the High Court? || Thorough Analysis

[Hare Ram Sharma v. State of Chhattisgarh, 2020 SCC OnLine Chh 639, decided on 18-11-2020]


[Bombay High Court]

[S. 125 CrPC] Bom HC | Wife cannot be denied maintenance on ground of having a source of income

[Sanjay Damodar Kale v. Kalyani Sanjay Kale, 2020 SCC OnLine Bom 694, decided on 26-05-2020]


[Calcutta High Court]

Cal HC | Rejection of complaint under S. 156(3) CrPC by Magistrate without taking cognizance under S. 190(1)(a) is an error in law; correct approach explained

[Pranati v. State of W.B., 2020 SCC OnLine Cal 132, decided on 21-01-2020]


[Delhi High Court]

Del HC | If interim maintenance by wife has already been secured under Domestic Violence Act, will application under S. 125 CrPC be maintainable? Court answers

[Rani v. Dinesh, Crl. Rev. P. 1091 of 2019 and Crl. M.A 13677 of 2020, decided on 02-12-2020]


[Himachal Pradesh High Court]

HP HC | Remedy under S. 125 CrPC and S. 12 of DV Act, 2005 are distinct and different; Law does not prohibit wife to proceed under both of the said statutory provisions simultaneously or otherwise; Petition dismissed

[Sachin Sharma v. Palvi Sharma,  2020 SCC OnLine HP 2109, decided on 26-10-2020]


[Chhattisgarh High Court]

Chh HC | S. 320 CrPC is no bar to the exercise of power of quashing of FIR in matrimonial matters; Petition allowed

[Gurumukh Das Chandani v. State of Chhattisgarh, 2020 SCC OnLine Chh 568, decided on 27-10-2020]


[Allahabad High Court]

All HC | Principle contained in S. 141 of NI Act is not applicable to a sole-proprietary concern, firm need not be arraigned as an accused while making a claim for recovery under S. 138 of the NI Act

[Dhirendra Singh v. State of U.P., 2020 SCC OnLine All 1130, decided on 13-10-2020]


[Karnataka High Court]

[MV Act] Kar HC | Will the insurance company be liable for compensation if the vehicle was insured as ‘private vehicle’ but plyed on ‘hire’ at the time of accident? HC decides

[United India Insurance Co. Ltd. v. Basavaraj, 2020 SCC OnLine Kar 1652, decided on 02-11-2020]


[National Consumer Disputes Redressal Commission]

NCDRC | Can a consumer claim refund of principal amount if flat not delivered on time? Commission untangles two fundamentals for Buyer — Consumer

[Ankur Goyal v. Rise Project (P) Ltd., 2020 SCC OnLine NCDRC 465, decided on 14-10-2020]