Madras High Court
Case BriefsHigh Courts

Madras High Court: The five-judge bench of P.N. Prakash, N. Anand Venkatesh, R. Mahadevan, M. Sundar, A.A. Nakkiran, JJ. in a 3:2 majority decision, held that jurisdiction of the High Court on its original side over matters of child custody and guardianship is not ousted in view of the provisions of the Family Courts Act, 1984 (FCA)and the decision in Mary Thomas v. Dr.K.E.Thomas 1989 SCC OnLine Mad 268 continues to be a good law; while P.N. Prakash and N. Anand Venkatesh, JJ. disagreed with the majority opinion, and observed that the statutory jurisdiction under the Guardians and Wards Act, (GAWA)1890 is now exclusively vested with the Family Court and resort to the inherent jurisdiction under Clause 17 can be had only in cases where there is no statutory remedy before any court for redress.

The dissenting judges noted that the full bench in Mary Thomas v. Dr.K.E.Thomas 1989 SCC OnLine Mad 268 has not adverted to the actual conflict that was between Pamela Williams v Patrick Cyril Martin, 1969 SCC OnLine Mad 264 and Rajah of Vizianagaram v The Secretary of State for India (1936) 44 L.W. 904, and has not examined the provisions of the GAWA, nor have examined the object and purpose behind the Family Courts Act, 1984 (FC Act) or the scope and effect of Sections 7 and 8 of the FC Act. Further, there was absolutely no discussion about Clause 17 of the Letters Patent at all and the full bench has confined itself to the issue as to whether the High Court was a District Court under the FC Act, 1984, vis-à-vis, the definition of ‘District court’ contained in Section 2(4) of the Code of Civil procedure,1908 (CPC), further, it also overlooked the fact that resorting to Section 2(e) of the FC Act to telescope the definition of “District” into the Family Courts Act, 1984 was unnecessary, thus, the Court viewed that the decision in Mary Thomas requires reconsideration.

The Court noted that, one of the primary issues to be considered in this case is that whether the jurisdiction of the High Court under Clause 17 of the Letters Patent could be taken away by the FC Act, 1984, in respect of matters concerning guardianship, custody or access to a minor, and viewed that this line of argument is over-simplistic and it overlooks a vital distinction between two very different types of jurisdictions, viz., the statutory jurisdiction exercised by the High Court under the GAWA , and the jurisdiction of the High Court under Clause 17 of the Letters Patent.

Placing reliance on a decision in Navivahoo v. Turner, 1889 SCC OnLine PC 10 , the Court viewed that it has no application to a case concerning the exercise of inherent parens patriae jurisdiction by the High Court as according to the history of Clause 17, the jurisdiction of this Court as a parens patriae in respect of infants, mentally retarded persons in the State of Tamil Nadu is a facet of its inherent jurisdiction, inherited from the erstwhile Supreme Court of Madras. Further, it is evident from Section 9 of the GAWA, which states that a petition for appointment of a guardian for the person or property of minor shall be made to a “District Court” having jurisdiction in the place where the minor ordinarily resides. Moreover, Section 4(4) of GAWA, expressly defines the District Court as the meaning assigned to that expression in the Code of Civil Procedure,1882, and includes a High Court in the exercise of its ordinary original civil jurisdiction.  Thus, as per Section 4(4), it is clear that a High Court, while exercising jurisdiction in respect of a petition under the GAWA would be a District Court within the meaning of the Act, exercising its ordinary original civil jurisdiction for the City of Madras, and not under its inherent jurisdiction under Clause 17 of the Letters Patent.

The Court took note of the ruling in S.D. Joshi v High Court of Bombay (2011) 1 SCC 252 wherein the Court held that “the Family Courts are to exercise special jurisdiction which is limited to the subject-matters spelt out under Sections 7(1)(a) and (b) of the FC Act, and  is vested with all jurisdiction exercisable by any District Court or any subordinate civil court under the law”, and viewed that legislative intent envisaged the Family Court as a Court of exclusive jurisdiction in respect of certain matters concerning the family, including guardianship and custody of children It is like a Special Court constituted to hear certain types of cases following a specially devised procedure and whose orders are made subject to appeal under a special provision with a special period of limitation.

The Court noted that another primary question is whether the High Court is a “District Court” for the purpose of Sections 7 and 8 & 2(e) of the FC Act, 1984, read with Section 2(4) of the CPC, and further viewed that Section 7(1) of the FC Act, 1984, invests the Family Court with all the jurisdiction over a suit or proceeding in relation to the guardianship of the person, or the custody of, or access to, any minor which jurisdiction was being exercised by a District Court under any law for the time being in force. Thus, the guardianship and custody jurisdiction statutorily vested with the High Court under the GAWA, in its capacity as a District Court, can now be exercised only by the Family Court by virtue of Section 7 of the FC Act, 1984

The Court further observed that the High Court cannot exercise its statutory or inherent jurisdiction concurrently with the Family Court while deciding matters of custody and guardianship under the GAWA, as Section 7(1) read with Explanation (g) and Section 8(a) of the FC Act, 1984, leads to this inescapable conclusion that the jurisdiction exercised by any District Court in respect of matters of custody or guardianship under the GAWA , will be exercised by the Family Court and that no District Court  shall exercise such jurisdiction. Further, Explanation (g) to Section 7(1) of the FC Act, 1984, must be construed liberally to further the object of the legislation, that it would take within its fold, application for appointment of a guardian for the person and property of the minor as well.

Moreover, the inherent jurisdiction of the Madras High Court under Clause 17 of the Letters Patent, 1865, is not affected by the FC Act, 1984. However, resort to the inherent jurisdiction under Clause 17 can be had only in cases where there is no statutory remedy before any Court.

[S. Annapoorni v. K.Vijay, 2022 SCC OnLine Mad 4367, decided on 02.09.2022


Appearances

For Petitioner: Advocate B. Poongkhulali

For Respondent : Advocate A.R. Palanisaamy


Also Read:

Madras High Court’s 3:2 verdict upholds its original jurisdiction in child custody cases; holds Mary Thomas to be a good law

 

Madras High Court
Case BriefsHigh Courts

Madras High Court: In a case relating to the issue of concurrent jurisdiction of the High Court over matters of child custody and guardianship with the family Courts, the five-judge bench of P.N. Prakash, N. Anand Venkatesh, R. Mahadevan, M. Sundar, A.A. Nakkiran, JJ. in a 3:2 majority decision, held that jurisdiction of the High Court on its original side over matters of child custody and guardianship is not ousted in view of the provisions of Explanation (g) to Section 7(1) read with Sections 8 and 20 of the Family Courts Act, 1984 (FCA)and the decision in Mary Thomas v. Dr.K.E.Thomas 1989 SCC OnLine Mad 268 continues to be a good law.

P.N. Prakash and N. Anand Venkatesh, JJ disagreed with the majority opinion of R. Mahadevan, M. Sundar, A.A. Nakkiran, JJ and observed that the statutory jurisdiction under the Guardians and Wards Act, 1890 is now exclusively vested with the Family Court and resort to the inherent jurisdiction under Clause 17 can be had only in cases where there is no statutory remedy before any court for redress.

The Court observed that the jurisdiction vested upon this Court under Clause 17 of Letters Patent of 1865 would broadly fall within the Civil Jurisdiction, however, what has been vested is an inherent jurisdiction of the superior Court in the nature of ‘parens patriae’ (parent of the nation) jurisdiction to safeguard the interests of such category of persons, such as, infants, lunatics and idiots, who are incapable or not in a position to take care of themselves or to safeguard their own interests.

The Court further observed that, to view an inherent jurisdiction such as the ‘parens patriae’ jurisdiction as a residuary jurisdiction or a purely supervisory jurisdiction would be to discourage against the very nature of such jurisdiction. Further, while the power and jurisdiction available to this Court under Clause 17 are not only much broader and larger in its scope and extent, but also would encompass every situation that warrants the interference of the High Court as a superior Constitutional Court in order to safeguard the interests of infants; and the jurisdiction vested in the Family Court by statute on guardianship is only one facet of the jurisdiction which inheres in a superior Constitutional Court, like the High Court. Thus, the fields occupied by the High Court and the Family Court cannot be said to be one and the same in the matters of guardianship and custody and while the jurisdiction of the High Court is much larger, there may be very few areas of overlapping jurisdiction between them.

Placing reliance on the ruling in Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 , wherein the the Court held that “Letters Patent jurisdiction has to be expressly excluded and in the absence of an express repeal, the Letters Patent may be impliedly taken away only where the special enactment is a self-contained code”, the Court viewed that the FCA,1984 is only a procedural legislation and not a self-contained code because the substantive laws continue to be the statutory provisions or the personal laws relating to marriage, maintenance etc. As such, in the absence of any express repeal, the Letters Patent cannot be taken away by a legislation.

Moreover, Article 225 of the Constitution of India expressly preserves the jurisdiction of the existing High Courts, the jurisdiction of the High Court under Clause 17 is thus constitutionally preserved and in the absence of a self-contained code that deals with guardianship, the powers of the High Court cannot be ousted. Further, in view of Article 372, Clause 17 will continue to be in force until repealed or amended by a competent legislature or by an appropriate self-contained code. Thus, it is now well established that the High Court as a superior Constitutional Court can deal with matters of guardianship and custody even in its exercise of writ jurisdiction.

The Court referred to the ruling in Benedict Denis Kinny v. Tulip Brian Miranda, 2019 SCC OnLine Bom 13043, and observed that the power of the Constitutional Courts in exercise of their inherent jurisdiction are inviolable as they cannot be taken away by legislation or even by a constitutional amendment if that would hamper the basic structure of the Constitution. Thus, to say that such a broad power of a constitutional court which can be taken away only by way of a constitutional amendment and not by a statute but can be limited by statute to be used only as a residuary power, is a contradiction of sorts.

Hence, the Court observed that “since the parens patriae jurisdiction of the High Court is an inherent power stated expressly in the Letters Patent and saved by Articles 225 and 372 of the Constitution, they continue to be part of the inherent powers of the superior constitutional courts and no statute much less a procedural Legislation, can place fetters on such a power”.

Further, the Court while interpreting Section 7 (1) read with Explanation (g) of the FMA, 1984 observed that the power to appoint a guardian for the property of the minor also along with the person of a minor would not be legally permissible.

It was also observed that the Parliament in its wisdom, has used the term ‘High Court’ not in one but in eight different provisions of FCA, thus, it has consciously chosen to not to use this term in Sections 7 and 8 of FCA, hence, the Court cannot read anything into a statutory provision which is plain and unambiguous .Further, reading the FCA as a whole starting from 59th Report of the Law Commission to statement of objects and reasons and provisions, it is clear that the Parliament never intended to deprive High Court of its powers in guardianship of the person or the custody of or access to any minor matters and its intention was only to create Special Courts and move these matters out of the realm of regular District Courts.

Moreover, the Court observed that the High Court does not need an appendix of either the Guardians and Wards Act,1890(GAWA) or any other statute in order to exercise its jurisdiction under Clause 17 of the Letters Patent, and if the petition has stated the provisions under the GAWA and invoked the jurisdiction of the High Court under Clause 17 it will not make the High Court a District Court for the purposes of its exercise of jurisdiction under Clause 17 of the Letter Patent,thus, the exercise of the ordinary original jurisdiction of the High Court within the meaning of Section 4(4) of the GWA when invoked along with the meaning of Clause 17 of the Letters Patent, cannot be said to be ousted by the FCA,1984.

The Court further viewed that Section 4(4) of GAWA talks about the 1882 CPC. Therefore, the definition of ‘District Court’ under GAWA is hardly a guide to conclude the reference on hand. It further noticed that under GAWA, the term ‘the Court’ has also been explained vide section 4(5) and that inter-alia talks about District Court having jurisdiction to entertain an application under GAWA for appointment of guardian. Thus, a conjoint reading of sections 4(4), 4(5) and section 3 of GAWA makes it clear that the power of the High Court is intact.

Moreover, Section 100-A of Code of Civil Procedure ,1908 (CPC) makes it clear that the Letters Patent of any High Court cannot be swept away by section 2(4) CPC and if anything contained in the Letters Patent has to be excluded it has to be done expressly.

The Court denied any reconsideration of the decision in Mary Thomas Vs. Dr.K.E.Thomas 1989 SCC OnLine Mad 268 as the full bench in this case has appropriately dealt with the issue and the only fact that the said decision did not advert to, discuss or analyse the conflict between the decisions in Pamela Williams v Patrick Cyril Martin, 1969 SCC OnLine Mad 264 and in the Rajah of Vizianagaram v The Secretary of State for India (1936) 44 L.W. 904 alone, cannot be a reason to hold that this decision requires reconsideration as there was no apparent conflict between these two judgements. Further, these judgements have been rendered by two Division Benches at different points in time where the legal circumstances surrounding them were very different.

Further, the Court noted that the reconsideration of Mary Thomas has been sought on two grounds that the full bench did not consider Raja Soap Factory v. S.P. Shantharaj, (1965) 2 SCR 800,and Section 20 of FCA has overriding effect, and viewed that the Mysore High Court did not have original jurisdiction on the date of presentation of plaint in Raja Soap Factory. Moreover, Section 20 of FCA has no application as clause 17 of Letters Patent confers substantive power while section 20 is a procedural provision and there is nothing inconsistent.

[S. Annapoorni v. K.Vijay, 2022 SCC OnLine Mad 4367, decided on 02.09.2022]


Advocates who appeared in this case :

B. Poongkhulali, Advocate, for the Petitioner;

A.R. Palanisaamy, Advocate, for the Respondent.

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: Ram Krishna Gautam, J., held that as per Section 482 Criminal Procedure Code, 1973, while exercising the inherent jurisdiction, High Court cannot make any comment on the factual matrix as the same remains under the trial court’s domain.

The instant application was filed under Section 482 Criminal Procedure Code, 1973 against the State of U.P. and Wsima Begum for quashing the charge sheet as well as the criminal case under Sections 420, 467 and 468 of Penal Code, 1860.

Applicants Counsel, Nazrul Islam Jafri, S.A. Ansari mentioned that allegations made against the applicant made out a case of civil liability as the applicant was alleged to have gotten her name mutated after the death of her husband under Section 34 of Land Revenue Act.

Applicant was married to Sagar Ali under Muslim Rites and customs and was blessed by one female child.

Applicant was subjected to cruelty with regard to dowry hence a criminal case was filed against her husband and in-laws.

Unfortunately, the husband of the applicant and his mother were murdered by unknown assailants. Due to the enmity and litigation, Parvej lodged a criminal case against the applicant and her family members on the basis of frivolous allegations under Section 147, 148, 149, 302, 307, 115 and 120-B of IPC read with Section 7 of Criminal Law Amendment Act.

Applicant, after the death of Sagar Ali, filed an application for getting her name along with her minor daughter’s name mutated at the place of Sagar Ali over his agricultural property.

In light of the above-stated, the application was allowed and the names were mutated in the revenue records.

Further, it has been stated that OP-2 claiming to be the second wife of Sagar Ali moved an application before the Court of Nayab Tehsildar challenging the above mutation order on the ground that she was the legally wedded wife of Sagar Ali. Hence the present applicant was fully aware of those facts even then, she got her name mutated with the wrong contention.

Tehsildar on hearing both sides, in 2014 had set aside the mutation order.

Analysis 

Civil Suits regarding agricultural land of Sagar Ali and his mother Ikhlasi Begum, with regard to disputed “will”, said to be executed by Sagar Ali, is pending before the competent Civil Court.

Ummeda Begum claimed herself to be successor along with her daughter Zoya for the property of late Sagar Ali and late Ikhlasi Begum. She claimed herself to be the only successor wit no other inheritor.

Court noted that in many other previous litigations it was fully in the knowledge of Ummeda Fatima that Sagar Ali was married to Wasima Begum, who was blessed with one female child. Even after knowing this fact mutation application was moved with an incorrect affidavit and incorrect application of documents.

U.P. Revenue Code Section 114 (c) provides that “A person who commits the murder of a [Bhumidhar, asami or government lessee], or abates the commission of such murder, shall be disqualified from inheriting the interest of the deceased in any holding.”

The prima facie case was disclosed for cognizable offence and it was not a ground for quashing of the FIR.

Offence of moving application, with false and fictitious contention, claiming herself to be sole survivor along with her minor daughter over the property of late Sagar Ali and his mother Ikhlasi Begum, and thereafter, fabricating oral and documentary evidence for it and getting name mutated, knowing the legal situation of debarring of inheritance and conviction in that criminal case of murder, prima facie, makes out offences for which charge-sheet was filed.

Section 482 CrPC, provides that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

In the decision of the Supreme Court in Hamida v. Rashid, (2008) 1 SCC 474, Supreme Court propounded that “Ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under Section 482 at an interlocutory stage which after filed with some oblique motive in order to circumvent the prescribed procedure, or to delay the trial which enable to win over the witness or may disinterested in giving evidence, ultimately resulting in miscarriage of Justice.”

Abuse of Process of Court

In the Supreme Court decision of Dhanlakshmi v. R. Prasan Kumar, 1990 Supp SCC 686, it was propounded that “To prevent abuse of the process of the Court, High Court in exercise of its inherent powers under section 482 could quash the proceedings but there would be justification for interference only when the complaint did not disclose any offence or was frivolous vexatious or oppressive.”

Hence in view of the above, the exercise of inherent jurisdiction under Section 482 CrPC is within the limits, propounded as above. Therefore, this Court will not make any comment on the factual matrix because the same remains within the domain of the trial court.

Prayer for quashing the impugned order as well as the proceeding of the aforesaid complaint case was refused.[Ummeda Fatima v. State of U.P., 2020 SCC OnLine All 1358, decided on 19-11-2020]

Case BriefsHigh Courts

Gujarat High Court: Ilesh J. Vohra, J., heard a matter related to offences alleged under Sections 376 (2) (n), 377, 406, 498(A), 323, 294(b), 506(2) and 114 of the Penal Code, 1860 and under Section 4 of the Dowry Prohibition Act which was filed seeking to quash and set aside the impugned FIR and consequential proceedings.

The wife in the FIR had alleged that her husband right from day one of their marriage indulged in sexual acts with her against her wishes and raped her. It was alleged that, her sister-in-law and her three daughters as well as another sister in law though residing outside the country or in other States in India, also harassed her on domestic issues and demanded dowry, as a result, the complainant came to her parental home at Ahmedabad.

The Court prima facie was of the view that it was a matrimonial dispute between the husband and wife and ingredients for the alleged offence were not made out qua the applicants. Even the allegations of dowry and harassment are also prima facie not established against the present applicants as the applicants are residing in their respective States and country since long considering the law laid down in Ravinder Singh v. Sukhbir Singh, (2013) 9 SCC 245 where it was held,

            “the inherent power of the court in dealing with an extraordinary situation is in the larger interest of administration of justice and for preventing manifest injustice being done. Thus, it is a judicial obligation on the court to undo a wrong in course of administration of justice and to prevent continuation of unnecessary judicial process. It may be so necessary to curb the menace of criminal prosecution as an instrument of operation of needless harassment. A person cannot be permitted to unleash vendetta to harass any person needlessly. Ex debito justitiae is inbuilt in the inherent power of the court and the whole idea is to do real, complete and substantial justice for which the courts exist. Thus, it becomes the paramount duty of the court to protect an apparently innocent person, not to be subjected to prosecution on the basis of wholly untenable complaint”.

The Court further opined that at the stage of investigation, the High Court cannot exercise its inherent jurisdiction to quash the proceedings unless it is found that, allegations do not disclose the commission of cognizable offence or the power of investigation is being exercised by the police mala fidely or where noninterference would result in miscarriage of justice as held in Jehan Singh v. Delhi Administration, (1974) 4 SCC 522. The Court granted interim relief making the matter returnable on 27-11-2020.[Steffi Waring v. State of Gujarat, 2020 SCC OnLine Guj 1531, decided on 09-10-2020]


Suchita Shukla, Editorial Assistant ahs put this story together

Case BriefsHigh Courts

Karnataka High Court initiated suo motu proceedings to quash criminal complaint against a Civil Judge, Ballari District.

Absolute protection granted to Judicial Officers under Section 3 (1) of Judges (Protection) Act, 1985

Bench passed the present order for the initiation of suo-motu proceedings under Section 482 Criminal Procedure Code, 1973.

A complaint was filed under Section 200 CrPC to which Civil Judge and JMFC, Vijay Kumar S. Jetla is shown as the accused 1.

Allegation as placed in the complaint was that the said Judicial Officer and other 9 persons arraigned as accused is of commission of offences punishable under Sections 166, 205, 120-A, 211, 219 and 499 read with Section 34 of Penal Code, 1860.

The said complaint was filed to the Chief Justice of this Court. Grievances were as follows:

  • grievance with about grant of his custody for 14 days in remand proceedings.
  • dismissal of protest petition filed by complainant.

Secretary, Chief Justice responded to the complainant that the remedy available for his grievance is on judicial side.

Now at present the said complaint is said to be pending in the Court of Senior Civil Judge and JMFC .

Bench stated that in view of the absolute protection granted to the Judicial Officers under Section 3 (1) of Judges (Protection) Act, 1985, the complaint could not have been entertained and registered as against the Judicial Officer.

Court added that, if the complaint would have been allowed to proceed further, it would completely set at naught the protection granted to the Judicial Officers under Section 3(1) of the Judges (Protection) Act, 1985.

Hence, Registrar General has been directed to file a suo-motu Criminal Petition under Section 482 CrPC for quashment of private complaint on the file of Senior Civil Judge and JMFC only in so far as the first accused mentioned therein, who is the Judicial Officer.  [Suo-Motu Criminal Petition, decided on 21-07-2020]

Read the Order, here:

suomoto-criminal-petition-21072020

Case BriefsForeign Courts

Supreme Court of the United Kingdom: A Full Bench of Lord Wilson, Lord Hodge, Lady Black, Lord Kitchin and Lord Sales upheld the appeal of the mother to retain her child in London and set aside the Court of Appeal’s order.

The mother and father were Israeli nationals who moved to London after marriage, with their daughter. Their marriage broke down shortly after the said moving. The father intended to go back to Israel and he insisted that the mother along with the child should also return there. However, the mother proposed to stay back in London.

The father applied for a summary order for the return of his young daughter from England to Israel under the Hague Convention on the Civil Aspects of International Child Abduction, 1980, set out in Schedule I to the Child Abduction and Custody Act, 1985. After the High Court and the Court of Appeal both ruled against the mother, she appealed in the Supreme Court.

The issue was whether the Court of Appeal was entitled to make the summary order for the child’s return to Israel under the inherent jurisdiction and if so, whether it had exercised the said jurisdiction correctly. The Court accepted the mother’s argument that the welfare of the child is the paramount consideration in the making of such an order. The mother contested the order on several grounds claiming that the father had given a relevant consent to the retention of the child in London and there was a grave risk that a return to Israel would expose the child to physical or psychological harm, pursuant to articles 13(a) and 13(b) of the Convention respectively.

The Court found the exercise of the inherent jurisdiction by the Court of Appeal flawed. The Court of Appeal did not conduct an inquiry into whether the welfare of the child required her to be the subject of a summary order for the return to Israel.

In view of the above, the Court set aside the Court of Appeal’s order and allowed the mother to retain her child in England for the child’s welfare.[NY (A Child), In Re.; [2019] 3 WLR 962; decided on 30-10-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: Vivek Singh Thakur, J. contemplated a petition filed under Section 482 of CrPC, where the petitioner arrived at a compromise with the respondent for quashing of the FIR filed under Sections 279 and 337 of IPC along with allegations under Motor Vehicle Act, 1988.

Factual matrix of the case was that the complainant-respondent was crossing the road and he was hit by a motorcycle which was driven by the petitioner. The complainant fell unconscious and he did not know the main cause of the accident. He subsequently lodged an FIR on the basis of the information which was supplied by the people present at the site of the accident. The contention of the complainant was that it is not known to him that how the accident had occurred and as to whether petitioner was at fault or not and that after the accident petitioner along with his family had approached him in his village and had taken care of his injuries and further that petitioner was a young graduate engineer and even if had it been fault on his part, he would have forgiven him, as he was feeling guilty for hitting him with his Motor Cycle, therefore, he did not intend to continue criminal proceedings against him and had prayed for compounding the case.

The submissions of the petitioner had also been made he had stated that he was feeling guilty for hitting the complainant and therefore had repentance for the same and had apologized to the complainant, who had agreed to forgive him. He undertook to be more careful in the future. He further deposed that at the time of the accident he was not in possession of documents of the vehicle as well as driving license, but now he possesses the same. He had also stated that he has deposed in the Court out of his free will, consent and without any coercion, pressure or threat.

But the main issue in the instant petition was that the State contended that accused was not entitled to invoke inherent jurisdiction of this Court to exercise its power on the basis of compromise arrived at between the parties with respect to an offence not compoundable under Section 320 CrPC, reliance was placed on Gian Singh v. State of Punjab, (2012) 10 SCC 303, where the Supreme Court explained the power of the High Courts under Section 482 CrPC. and had held that, “these powers are to be exercised to secure the ends of justice or to prevent abuse of process of any Court and these powers can be exercised to quash criminal proceedings or complaint or FIR in appropriate cases where offender and victim have settled their dispute and for that purpose no definite category of offence can be prescribed.” However, it was also observed that Courts must have due regard to nature and gravity of the crime and criminal proceedings in heinous and serious offences or offence like murder, rape and dacoity, etc. should not be quashed despite victim or victim family have settled the dispute with the offender. Jurisdiction vested in High Court under Section 482 CrPC is held to be exercisable for quashing criminal proceedings in cases having overwhelming and predominately civil flavor particularly offences arising from commercial, financial, mercantile, civil partnership, or such like transactions, or even offences arising out of matrimony relating to dowry, etc., It was also held that no category or cases for this purpose could be prescribed and each case has to be dealt with on its own merit but it is also clarified that this power does not extend to crimes against society.

The Court observed that though Section 279 is not compoundable under Section 320 of CrPC, however the contentions in Gian Singh’s case where the power of the High Court under Section 482 CrPC was not inhibited by the provisions of Section 320. the Court further observed that the type of offence dealt in the instant petition was not expressly barred or prohibited by the general view for compounding hence, the petition was allowed. [Rohit v. State of Himachal Pradesh, 2019 SCC OnLine HP 1333, decided on 22-08-2019]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: N.S. Dhanik, J. entertained a Criminal miscellaneous application filed under Section 482 CrPC, where the petitioner had prayed for quashing for the entire proceeding of Session Trial under Sections 504 and 506 of IPC as well as Section 3(1)(X) of ST/SC Act. 

The instant application was filed on the basis of the compromise between the parties, hence, the applicant requested for quashing of the proceedings, summoning and further pending proceedings. 

The complainant through his counsel Deep Prakash Bhatt, submitted that the differences were buried and the dispute was to be amicably settled between the two parties. It was further contended that he was no more interested in prosecution. The counsel relied on the judgment in Gian Singh v. State of Punjab, (2013) 1 SCC (Cri) 160, where the Supreme Court held that “The position that emerges from the above discussion can be summarized thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code.”  

Learned counsel for the applicant, Pankaj Sharma, submitted that even if the contents of the FIR be conceded to be true, no ingredients of Section 3 (1)(X) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act were prima facie made out against the applicant, in the sense that informant nowhere said that the accused himself was not a member of SC/ST and he used those words intentionally in order to humiliate him (victim) in a place within the public view knowing it that he (victim) belonged to a community of Scheduled Castes or Scheduled Tribes.

Hence the Court observed that both the parties had prayed that since no offence under Section 3(1) (X) of the Act was made out even in the FIR, they were to be permitted to compound the offence. Hence, the Court granted compounding of offence under Sections 504 and 506 of Penal Code, 1860 It was advised to permit the complainant/victim to compound the offences alleged against the applicant in the larger interest of the society.

While dealing with the inherent jurisdiction, timings of settlement play a crucial role. Those cases where the settlement was arrived at immediately after the alleged commission of offence and the matter was still under investigation, the High Court may accept the settlement to quash the criminal proceedings. It was because of the reason that at this stage the investigation was still on and even the charge-sheet had not been filed. Likewise, those cases, where the charge was framed but the evidence was yet to start, the High Court exercised its powers, but after prima facie assessment of the circumstances/material mentioned therein. The Court was of the opinion that matter deserved to be given a quietus as the continuance of proceedings arising out of the first information report in question would be an exercise in futility.[Karnail Singh v. State of Uttarakhand, 2019 SCC OnLine Utt 691, decided on 29-07-2019]

Case BriefsHigh Courts

Gujarat High Court: The Bench of A.P. Thaker, J., allowed the petition filed under Section 482 of the Criminal Procedure Code for quashing and setting aside the FIR filed under Sections 304(A) read with Section 114 of the Penal Code, Sections 3(1)(j), 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 and Sections 5, 6, 7 and 9 of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013.

The brief facts of the case were that the complainant was a member of a scheduled caste who on the date of the incident received a message that his father died when he went to clean drainage in the society of the petitioners. He went there and found his father dead. The petitioners contended that the deceased never entered into said side drainage and he died due to heart problem and not by any negligence on the part of the petitioners. Further, they stated that the complainant had filed the complaint because he wanted compensation from the government. It was also contended that they had never called the deceased for any work nor were they present at the time of the alleged incident. Mr. Manish Patel, advocate for the petitioners, stated that the cause of death as revealed from the postmortem report was natural death due to cardiac-respiratory failure.

The Court while deciding the case emphasized on the settled law that for considering the petition under Section 482 of the Code, it was necessary to consider as to whether the allegations in the complaint prima facie make out a case or not and the Court was not to scrutinize the allegations for the purpose of deciding whether such allegations were likely to be upheld in trial. It was held that a criminal proceeding could be quashed where the allegations made in the complaint did not disclose the commission of an offence under the Penal Code. The complaint must be examined as a whole, without evaluating the merits of the allegations. Though the law does not require that the complaint reproduce the legal ingredients of the offence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code. It was further stated that a Court exercising its inherent jurisdiction must examine if, on its face, the averments made in the complaint constitute the ingredients necessary for the offence. The FIR was registered on the basis of hearsay and relying on the postmortem report the application was allowed. [Jaykarbhai Kiritbhai Agnihotri v. State Of Gujarat, 2019 SCC OnLine Guj 761, Order dated 25-04-2019]