Some Important Judgements

CIVIL
CPC S.11: Even an erroneous decision on the question of law attracts the provision of res Judicata. AIR 2015, SC 460
A suit is founded upon same cause of action which was foundation of former suit. Earlier suit for possession of entire property based on settlement deed. Later suit for partition was for plaintiff’s one half share in property based on her birth right. Cause of action is entirely different. Therefore suit for partition not hit by principle of res judicata. AIR 2016 SC 1134
Due Process of Law does not necessarily mean full fledged trial: Due process of law means that nobody ought to be condemned unheard. Due process means an opportunity to the defendant to file pleadings including written statement and documents before the Court of law. Due process of law is satisfied the moment rights of parties are adjudicated upon by a competent Court -Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, AIR 2012 SC 1727
CPC S.34: Principal Sum Adjudged includes Capitalized interest But for agriculture capitalization be annual or 6 monthly -5 Judges AIR 2001 SC 3095 Central Bank Of India vs Ravindra And Ors.
C.P.C. O. 2 R 2: Since the reliefs are different in the two suits the provision of Order 2 rule 2 is not applicable in the given case. 2014(4) JLJR 550 (SC)
C.P.C. O. 7 R 11: Civil Court only see pleadings in plaint and not anything else including written statement – rejection of plaint on institutional grounds is different from dismissal of two at pretrial stage of ground of maintainability – for dismissal on preliminary issue, Court is entitled and liable to look into entire documents including those furnish by defendant Central Provident Fund commissioner, New Delhi Vs Lala J.R. Education society. (2016) 4 JBCJ 414 SC
C.P.C. O.12 R 6: Where defendant has raised objection which go to the root of case, it would not be appropriate to exercise the discretion under Rule VI Order 12. Said rule is an enabling provision which confers the discretion on the court in delivering a quick judgement on admission and to extent of claim of admitted by one of all the parties of his opponents claim. 2015 (3) JLJR 552 SC
C.P.C. O.14: Issue of limitation can’t be decided as a preliminary issue JLJR(3)449SC
C.P.C. O.18 R 2: Bar under Order 2 Rule 2 C.P.C. needs to be specifically pleaded by the defendant in the suit and specific issue in that regard needs to be framed by the trial court. AIR 2014 SC 2301
C.P.C. O.18 R.4: Deponent need not enter witness box merely to prove affidavit of examination-in-chief -Ameer Trading Corporation Ltd. Vs. Shapoorji Data Processing Ltd, AIR 2004 SC 355
C.P.C. O. 21: The Court may dispose of it without registering miscellaneous case in the execution proceeding if the court prima facie finds no substance in the petition of the person raising objections 2014 (3) JLJR Jhr. 13.
C.P.C. O.41 R.27(1)(b): Allowing the application under sub-clause (b) prior to hearing the appeal is gross violation of statute. Test to admit additional evidence in appeal is discussed -Union of India Vs. Ibrahim Uddin and another, (2012) 8 SCC 148
MOTOR ACCIDENT CLAIM
Age of the deceased and not the dependants is to be considered- Munna Lal Jain Vs. Vipin Kumar Sharma, (2015) 6 SCC 347
GENERAL CLAUSES ACT 1897
S.6A: Repeal of Amendment Act, by virtue of Savings Clause, saves the Amendments in the amended Act -Jethanand Betab Vs. State of Delhi, AIR 1960 SC 89.
SARFAESI ACT
SARFAESI Act S.35 cannot be used to bulldoze the statutory rights vested in tenants under the Rent Control Act -Vishal N. Kalsaria Vs. Bank of India and others decided on 20 Jan 2016 by the Apex Court.
CONTRACT ACT
Section 74 of the Contract Act will apply to cases of forfeiture of earnest money under a contract where damage or loss is caused by such breach. However, where forfeiture takes place under the terms and conditions of a public auction before agreement is reached, section 74 cannot be applied. In cases where a public auction is held, forfeiture of earnest money may take place even before an agreement is reached as bid is to be accepted only after the earnest money is paid. JLJR 2015 SC 285
REGISTRATION ACT 1908
S 47: Document registered on a subsequent date, operates from the date of execution not from the date of registration Principle secretary, Govt. Of Karnataka vs Ragni Narayan (2016) 4 JBCJ 420 SC
PROBATION OF OFFENDERS ACT
Overriding Effect Over Probation of Offenders Act: P.O. Act S. 3 to 6 are not applicable to a Specific Act it that is subsequent to the Probation of Offenders Act and if that Specific Act was enacted subsequent to Probation of Offenders Act and that particular offence under that Specific Act provides minimum punishment – Superintendent , Central Excise , Bangalore Vs . Bahubali AIR 1979 SC 1271
S.4 and 6(1): Calling for a report from the probation officer under S.4(2) though not mandatory is absolutely essential, save in exceptional cases where there is sufficient material on record justifying the sue of discretion conferred by S.4 of the Act-The State of Maharashtra Vs. Bodya Ramji Patil, 1978 Cri.L.J.411 (Bom DB)
N.D.P.S. ACT
N.D.P.S. Act S.52A: Directions to Magistrates regarding inventory etc., given by the Apex Court in Union of India Vs. Mohanlal and another decided on 28 Jan 2016
OATHS ACT
Oath to Child witness: The main object of the Oaths Act is to render persons who give false evidence liable to prosecution. The provision of S.5 of the Oaths Act, makes it incumbent that any witness examined by a Court of law in a judicial proceeding may be administered oath or affirmation. But the proviso to that sectio makes an exceptin in case of a child witness under 12 years of age. The administration of oath or affirmation may be dispensed with if the Court which examines such witness is of opinion that though he understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation. Thus, under this provision, administration of an oath or affirmation may be dispensed with when the Court forms an opinion that a child witness does not understand the nature of an oath or affirmation but understands the duty of speaking the truth.-Rameshwar Vs. State of Rajasthan, 1952 Cri.L.J. 547 (Supreme Court)
CRIMINAL PROCEDURE
Constitution Art.20: An accused person has no fundamental right to be tried by any particular Court or procedure. The Protection is only against discrimination. What is prohibited under Art. 20 is only conviction or sentence under an `ex post facto’ law and not the trial thereof. Such trial under a procedure different from what obtained at the time of the commission of the offence or by a Court different from that which had competence at the time cannot `ipso facto’ be held to be unconstitutional. A person accused of the commission of an offence has no fundamental right to trial by a particular Court or by a particular procedure, except in so far as any constitutional objection by way of discrimination or the violating of any other fundamental right may be involved-Rao Shiv Bahadur Singh and another v. The State of Vindhya Pradesh, AIR 1953 SC 394 : 1953 CrLJ 1480
Cr.P.C. S.41: A Warrant of arreast and order of proclamation and process of attachment of properties cannot be passed without complying with Hon’ble Apex Court guidline as well as statutory provisions Ashok Kumar agarwal vs St of Jharkhand (2016) 2 JBCJ 212 HC
Cr.P.C. S. 45: Where there is contradiction between medical evidence or ocular can be crystallized to the effect that though the ocular testimony of the witness has greater evidenciery value vis-a-viz medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the value of the evidence. However where the medical evidence goes so far that it completely rules out all possible of ocular evidence being true, is may be disbelieved. : Umesh Singh vs State of Bihar Criminal Appeal No. 43 of 2010
Cr.P.C. S. 53 A: The rape survivor are entitled to medical procedures conducted in a manner that respects their right to consent – medical procedure should not be carried out in a manner that constitutes cruel, inhuman or degrading treatment and health should be paramount consideration while dealing with gender based valuations- two finger test and its interpretation violates the rights to rape survivors to privacy, physical and mental integrity and dignity; therefore is deprecated. Lillu @ Rajesh & Anr vs State of Haryana Criminal Appeal No. 1226 OF 2011
Cr.P.C. S. 73: In case of Rajesh Pd. Singh vs St of Jharkhand Cr. (M.P.) No. 743 of 2013 Hon’ble Court held that the court in exercise of its power u/s 73 Cr.P.C. cannot issue of warrant only for helping and assisting the prosecution/ police in investigation, rather, shall have to ensure that at least one of the three conditions, i.e. I which, escaped convict, proclaimed offender or a person who is an accused of a non bailable offence, evading arrest; is fulfilled
Cr.P.C. S.125(3): There is no bar to commit a person under S.125(3), Cr.P.C. to commit a person defaulting in payment of maintenance amount to imprisonment and also simultaneously to proceed against his properties, be it movable or immovable for realisation of the maintenance amount -Smt. Kuldip Kaur Vs. Surinder Singh, AIR 1989 SC 232.
Cr. P.C. S. 125 : Wife is herself earning more amount that husband and is herself capable to maintain herself as well as minor son. Held, wife is in position to maintain herself by getting salary of Rs. 50,000/- she is not entitled to get any amount as maintainance from husband. So far minor son is concerned, he is student studying in school. Order of maintenance passed by Lower Court to minor son held justified Nand Kishor Banra vs St of Jharkhand and ors (2016) 4 JBCJ 595 HC
Cr.P.C. Ss.154, 155, 156, 157: Investigation by the police officer who registered the FIR Is not illegal per se: State rep. by Inspector of police, Vigilance and anti-corruption, Tiruchirapalli, Tamilnadu Vs. Jayapaul, AIR 2004 SC 2684
Cr.P.C. S.156(3): Magistrate can direct registration of F.I.R., recommend to the SSP/SP to change the I.O. if necessary: In view of the aforesaid broad consensus amongst the counsel for the various parties, it is not necessary for us to go deeper into the relevant issue of law as to whether the earlier order of this Court dated April 12, 2010 warranted registering of F.I.R. by the police before commencing investigation. But we would like to only indicate in brief the law on this subject expressly stated by this Court in the case of Mohd. Yousuf versus Afaq Jahan (Smt.) and another, (2006) 1 SCC 627 : (AIR 2006 SC 705). This Court explained that registration of an F.I.R. involves only the process of recording the substance of information relating to commission of any cognizable offence in a book kept by the officer incharge of the concerned police station. In paragraph 11 of the aforementioned case, the law was further elucidated by pointing out that to enable the police to start investigation, it is open to the Magistrate to direct the police to register an F.I.R. and even where a Magistrate does not do so in explicit words but directs for investigation under Section 156(3) of the Code, the police should register an F.I.R. because Section 156 falls within Chapter XII of the Code which deals with powers of the police officers to investigate cognizable offences, the police officer concerned would always be in a better position to take further steps contemplated in Chapter XII once F.I.R. is registered in respect of the concerned cognizable offence-Hamant Yashwant Dhage Vs. State of Maharashtra and ors., AIR 2016 SC 814
Cr.P.C. S.157 and 165: When the evidence of the I.O. who recovered the material object is convincing, recovery of material object cannot be rejected on the ground that the seizure witness do not support the prosecution version.-Modan Singh Vs. State of Rajasthan, AIR 1978 SC 1511
Cr.P.C. S. 167 : Remand of an absconding accused in police custody who is arrested only after filing of the charge-sheet may be remanded in police custody and the court taking cognizance may exercise its powers to detain such accused in police custody subject to the limitations of Section 167 of Cr.P.C- 2015(4) JLJR SC 119
Cr.P.C. S.173: Cognizance can be taken on charge-sheet for S.379, IPC in Sand theft matter: Mines and Minerals Act 1957: Though cognizance of offence punishable under section 22, cannot be taken on police report, theft of sand from river bed is theft of government property and hence cognizance of offence punishable under section 379, I.P.C. can be taken on police report. – Jaysukh Bavanji Shingalia Vs. State of Gujarat, AIR 2015 SC 75.
S.3 of the Police Act, 1861 empowered the State Government with superintendence including giving directions to such a superior officer for further investigation under S.173(8), Cr.P.C. even after submission of report by the previous investigating agency under S.173(2). Power under S.173(8) is not affected by Magistrate’s power to order investigation under S.156(3). State of Bihar Vs. J.A.C. Saldhana, (1980) 1 SCC 554
Cr.P.C. S.161 and 162: It is the duty of the prosecutor and the Judge to bracket the inadmissible portion in the panchanama before giving exhibit number to it – State of Gujarat Vs. Kathi Ramku Aligbhai, 1986 Cri.L.J. 239.
Cr.P.C. S.167(2): For the purpose of counting the 15 days, 60 days and 90 days custody, the date of suo motu surrender of the accused, is not material. Because, it is not preceded by arrest without warrant. Hence, it is not equivalent to production under S.167.State of West Bengal Vs. Dinesh Dalmia, (2007) 5 SCC 773.
Cr.P.C. S.167(5) and S.12-AA(1)(f), Essential Commodities Act: Section 167(5), Cr.P.C. is applicable to a summarily triable warrant case. Hence, investigation may be directed to be stopped if not completed in 6 months from arrest of accused. But, the I.O. is not absovled from filing final report on the basis of the investigation done within 6 months and the Court is competent to accept such police report. – State of W.B. Vs. Falguni Dutta, (1993) 3 SCC 288.
Cr.P.C. S.167 and S.309: Police Custody of post-charge sheet arrested accused is permissible: It is permissible to grant police custody of an accused who is arrested subsequest to the charge-sheet when he was shown as absconding previously-Central Bureau of Investigation Vs. Rathin Dandapath and others, 2015 Cri.L.J. 4488
Cr.P.C. S.167 Magistrate has to look into facts before granting remand: The act of directing remand of an accused is fundamentally a judicial function. The Magistrate does not act in executive capacity while ordering the detention of an accused. While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, whether there exist reasonable grounds to commit the accused to custody and extend his remand. The purpose of remand as postulated Under Section 167 is that investigation cannot be completed within 24 hours. It enables the Magistrate to see that the remand is really necessary. This requires the investigating agency to send the case diary along with the remand report so that the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner. It is apt to note that in Madhu Limaye, it has been stated that once it is shown that the arrests made by the police officers were illegal, it was necessary for the State to establish that at the stage of remand, the Magistrate directed detention in jail custody after applying his mind to all relevant matters.-Manubhai Ratilal Patel Tr. Ushaben Vs. State of Gujarat and ors., AIR 2013 SC 313
Cr.P.C. S.167: The Special Judge under S.8 of the Criminal Law (Amendment) Act, 1952 is a Magistrate for the purpose of S.167. Because, Section 3 of the Code suggests that if the context otherwise required, the term “Magistrate” may include the Magistrate who are not specified in the Section. – State of T.N. Vs. V. Krishnaswami Naidu, (1979) 4 SCC 5
Cr.P.C. S.167: Private Counsel in State Case? No vested right is granted to a complainant or informant or aggrieved party to directly conduct a prosecution. So far as the Magistrate is concerned, cmoparative latitude is given to him but he must always bear in mind that while the prosecution must remain robust and comprehensive and effective it should not abandon the need to be free, fair and diligent. So far as the Sessions Court is conerned, it is the Public Prosecutor who must at all times remain in control of the prosecution and a counsel of a priavate party can only assist the public prosecutor in discharging its responsibility. The complainant or informant or aggrieved party may, however, be heard at a curcial and critical juncture of the Trial so that his interests in the prosecution are not prejudiced or jeopardized. Constant or even frequest interferance in the prosecution should not be encouraged as it will have a deleterious impact on its impartiality. If the Magistrate or Sessions Judge harbours the opinion that the prosecution is likey to fail, prudence would prompt that the complainant or informant or aggrieved party be given an informal hearing-Sundeep Kumar Bafna Vs. State of Maharashtra, AIR 2014 SC 1745.
Cr.P.C. S.167 Magistrate and Judges shall inform accused about free legal aid -Khatri And Others Vs. State of Bihar 1981 SCC (1) 627.
Cr.P.C. S 169: A Magistrate after accepting a negative final report under Cr.P.C., can take action on the basis of the protest petition filed by the complainant JLJR(4)16 SC
Cr.P.C. S. 177 & 178 : At stage of investigation, if cannot be held that SHO does not have territorial jurisdiction to investigate crime-But after the investigation is over, if officer arrives at conclusion that cause of action for lodging Fir has not arisen within his territorial jurisdiction, then he will forward case to Magistrate concerned empowered to take cognizance offence – Terrirorial jurisdictiojn of a court with regard to a criminal offence would be decided on the basis of place of occurrence of incident. Manoj Kumar Sharma and ors vs St of Chattishgarh (2016) 4 JBCJ 236 SC
Cr.P.C. S.179: Magistrate’s Jurisdiction: A Magistrate’s jurisdiction is limited to his territorial jurisdiction. He cannot permit investigation in a case he is not competent to try. A Magistrate does not exercise jurisdiction throughout the length and breadth of India for purposes of Code of Criminal Procedure or of Prevention of Corruption Act. The Code of Criminal Procedure defines the territorial jurisdiction of Magistrates. It will not be a consonance with the jurisdiction and structure of Courts of Magistrates to allow an order of investigation to be made by a Magistrate of Delhi for investigation of a case in the State of Assam. The reason is that a Magistrate orders investigation in a case which he has power to inquire into or try.-Union of India and another v. B.N. Ananthapadmanabhiah, 1971 CrLJ 1287: AIR 1971 SC 1836
Cr.P.C. S.190 Magistrate can take cognizance against other accused on subsequent date also (when the order is postponed) Vijay Kant Thakur and Anr. Vs. Stale of Bihar and Anr. 2010 Cri.L.J. 4190
When the accused is charge sheeted U/S 3,4,5,6 and 7 of Immoral Traffic under (Prevention) Act,1956 on the basis of First FIR There can be second FIR U/S 419,420 I.P.C. against the same set of accused persons for furnishing wrong names address and parentage because these are distinct offences and it cannot said to be in form of part of same transaction with alleged offences under first FIR .Even in event of any further information being received y in respect of offence of same occurrence of incident giving rise to one or more offences for which charge sheet has already been filed by investigating agency. 2016 (2) JBCJ (SC) 85
Removing sand which is a property of state is a distinct offence under I.P.C. and as such the provisions contained section 21, 22 and other sections of Mines and Minerals (Development and Regulation) Act, 1957 shall not operates as a bar against prosecution of a person who has been charged with allegation which constitutes offence under section 379, 411 and other provisions of the I.P.C and a Magistrate can take cognizance for offence in such a case JLJR(4)136 SC
Cr.P.C. S.193 and 299: After committal, Sessions Judge has jurisdiction to summon the accused named in column no.2 i.e. absconding-Constitution Bench in – Dharam Pal and ors Vs. State of Haryana and anr, AIR 2013 SC 3018
Cr.P.C. S.193 Normally Sessions Court is not entitled to take cognizance of the offence under Section 304 B and 498A of the IPC. But when proper opportunity is given to the accused then Sessions Court can take cognizance. AIR 2016 SC 2266
Cr.P.C. S.197 Dropping the proceeding for want of sanction is proper: Question to consider is that if the Court comes at any stage to the conclusion that the prosecution could not have been instituted without the sanction of the Government, what should be the procedure to be followed by it, i.e., whether the Court should discharge the accused or acquit him of the charge if framed against him or just drop the proceedings and pass no formal order of discharge or acquittal as contemplated in the case of a prosecution under the Code. The High Court has said that when the Sessions Judge be satisfied that the facts proved bring the case within the mischief of s. 132 of the Code then he is at liberty to reject the complaint holding that it is barred by that section. We consider this to be the right order to be passed in those circumstances. It is not essential that the Court must pass a formal order discharging or acquitting the accused. In fact no such order can be passed. If s. 132 applies, the complaint could not have been instituted without the sanction of the Government and the proceedings on a complaint so instituted would be void the Court having no jurisdiction to take those proceedings. When the proceedings be void, the Court is not competent to pass any order except an order that the proceedings be dropped and the complaint is rejected. Nagraj Vs. State of Mysore, AIR 1964 SC 269
Shiv Bachan Singh Vs St of Jharkhand and ors. W.P. (Cr.) No. 186 of 2010 Hon’ble Court observed that the protection is given to the public servant against institution of possibly vexatious criminal proceeding for offfences alleged to have been committed by them while they are acting are purporting to act as a public servant. The policy of the legislature is to afford adequate protection to public servant to ensure that they shall not be prosecuted for anything done by them in the discharge of their duty without reasonable cause but then such protection has to be considered within certain limits. It should be available only when the alleged at done by the public servant is reasonably connected with the discharge of these official duties and is not merely a cloak for doing the objectional act. If in doing his official duty, he acted in excess of his duty, which constitutes offence, the excess bill not be considered to protect him from criminal prosecution.
Cr.P.C. S.202: CJM/ACJM is not required to hold inquiry under section 202 Cr. P. C. before the transfer in view of the amendment in Sec. 202 of Cr. P.C. 2014(3) SC 415
Cr.P.C. S.216: Charge can be altered any time before the judgment. S.216(2) to (5) is the procedure to be followed once the Court decides to alter or add any charge. – Jasvinder Saini and ors Vs. State (Government of NCT of Delhi, (2013) 7 SCC 256.
Cr.P.C. S.220 A conviction under Section 306 IPC can be sustained if the accused is charged and tried u/s 498(A) of IPC and 304(B) of IPC. Absence of charge u/s 306 IPC is not fatal then all the materials relating to these facts is already part of charge. AIR 2016 Page 2689
Cr.P.C. S.227 and 239: At the state of framing of charge the documents produced by accused cannot be considered- State of Orissa Vs Debendra Nath Padhi, AIR 2005 SC 369 (Satish Mehra Vs. Delhi Administration (1996) 9 SCC 766 is overruled)
Purnima Kumari vs St of Jharkhand – Held that the factual aspect as to whether since inception of making promise of marriage to the informant/victim by the accused, he was having deceptive intent or he developed its subsequently; is a question of fact, which can be adjudged only in course of trial and, therefore, the discharge of the accused u/s 376 IPC at the stage of framing of charge itself is bad in law
Cr.P.C. S.226 and 231: Prosecutor can skip witness: If the public prosecutor got reliable information that any of his witnesses would not support the prosecution version, he can interview that witness beforehand and state to the Court and skip that witness – Banti @ Guddu Vs. State of Madhya Pradesh, AIR 2004 SC 261
Cr.P.C. S.231 Additional witness for prosecution can be allowed State of Bombay Vs. Mohamadh Khan AIR 1960 Bom 150
Cr.P.C. S.235(2) Accused upon conviction can be sent to jail until hearing on sentence Ram Deo Chauhan Vs. State of Assam (2001) 5 SCC 714
Cr.P.C. S.244(1): Accused has a statutory right of cross-examination at the stage of EBC.-Ajoy Kumar Ghose Vs. State of Jharkhand and another, (2009) 14 SCC 115.
Cr.P.C. S.245(2): “Discharge at any previous stage of the case” occuring in S.245(2) is before the prosecution’s evidence under S.244(1) is completed, or at any stage prior to that, namely, the stages prescribed in Ss.200 to 204, Cr.P.C. Magistrate can therefore discharge accused after recording reasons, even at stage when accused appears in response to summons or warrant but no prosecution evidence has been led. Application for discharge is therefore maintainable at that stage.-Ajoy Kumar Ghose Vs. State of Jharkhand and another, (2009) 14 SCC 115.
Cr.P.C. S.251: It is inherent in Section 251 of the Code that when an accused appears before the trial Court pursuant to summons issued Under Section 204 of the Code in a summons trial case, it is the bounden duty of the trial Court to carefully go through the allegations made in the charge sheet or complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Code.-Bhushan Kumar and Anr. Vs. State (NCT of Delhi) and Anr., AIR 2012 SC 1747.
Cr.P.C. S.255(2) and S.66(1)(b) Magistrate has to hear the accused on sentence Jethalal Girdharlal Vs. State of Gujarat MANU-GJ-0206-1984.
Cr.P.C. S.256 and 249: Magistrate has no jurisdiction to restore a complaint dismissed vide S.256, Cr.P.C. Filing of a 2nd complaint is not the same thing as reviving a dismissed complaint. A second complaint is permissible in law if it could be brought within the limitation -Maj. Genl. A.S. Gauraya and anr. Vs. S.N. Thakur and anr.AIR 1986 SC 1440.(Bindeshwari Prasad Singh versus Kali Singh, (1977) 1 SCR 125 referred to); Narayandas Narayandas Gulabchand Agrawal Vs. Rakesh Kumar Nem Kumar Porwal 1996 (2) Mh.L.J. 463.
Cr.P.C. S.265-A to 265-L: When accused pleads guilty, complainant or victim must be heard before deciding on guilty plea of accused.- Giriraj Prasad Meena Vs. State of Rajasthan, (2014) 13 SCC 674.
Cr.P.C. S.299: Section 299 empowers only the trial court to record evidence in the case of an accused who is absconding. But the above changes do not enable the Magistrate to commit the case against any of the accused before the accused actually appears or is brought before the Court. The Judicial Magistrate was directed to give a new number to the case against the absconding accused and take steps to apprehend them.-State of Kerala Vs. John and Ors., MANU/KE/0204/1977
Sanjay Kumar Singh vs St of Jharkhand W.P.(Cr.) No. 46 of 2010 Hon’bel Court setting aside the order declaring the accused and absconder at proceeding u/s 299, where the execution reports of warrant and process u/s 82 & 83 Cr.P.C. were not received before making such a declaration
Cr.P.C. S.300 The dismissal of a complaint or discharge of an accused would not be construed as acquittal for the purpose of section 300. Therefore it was held that the proceeding in second complaint filed by wife under section 493 to 494, 420, 506 IPC against her husband is not barred under section 300 Cr. P.C. JLJR 2015 (2) SC 399
Cr.P.C. S.309: Day-to-day Trials: In some states a system is evolved for framing a schedule of consecutive working days for examination of witnesses in each sessions trial to be followed. Such schedule is fixed by the Court well in advance after ascertaining the convenience of the counsel on both sides. Summons or process would then be handed over to the Public Prosecutor incharge of the case to cause them to be served on the witnesses. Once the schedule is so fixed and witnesses are summoned the trial invariably proceeds from day today. This is one method of complying with the mandates of the law. It is for the presiding officer of each court to chalk out any other methods, if any found better, for complying with the legal provisions contained in Section 309 of the Code -State of U.P. Vs. Shambhu Nath Singh & Ors. AIR 2001 SC 1403
Cr.P.C. S.311: Lacuna Means inherent weakness or a latent wedge: After the defence and prosecution closed their evidence, the prosecution applied to resummon two of it’s already exmined witnessess, for proving it’s certain documents. Thus, a question arose, whether a trial court can permit a lacuna in prosecution evidence to be filled up? Upholding allowing the application, held that the conventional concept is that the court should not do so. But, then, what is meant by lacuna in a prosecution case, has to be understood before deciding the said question one way or the other. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. No party in a trial can be foreclosed from correcting errors. – Rajendra Prasad Vs. The Narcotic Cell, AIR 1999 SC 2292.
Cr.P.C. S.311: Mere change of counsel is not a valid ground for recalling witness -AG Vs Shiv Kumar Yadav, 2015 Cri.L.J. 4640 (SC)
Cr.P.C. S.319: A person who has been discharged can also be arraigned as accused under S.319, but only after an inquiry as contemplated by Section 300(5) and 398, Cr.P.C., if during such enquiry there appears to be evidence against such person-(Constitution Bench) held in – Hardeep Singh etc. Vs. State of Panjub and ors. etc. (2014) 3 SSC 92
Cr.P.C. S.319: Summoning of additional accused and discharge of accused are opposite to each other in effect and the person summoned as an additional accused U/s 319 of Cr.P.C cannot avail remedy of discharge on ground that there is no sufficient material against him. AIR 2015 SC.
Cr.P.C. S. 319 (2) : Sessions Court issuing non bailable warrant of arrest to ensure the appearance of newly added accused in exercise of power u/s 319 Cr.P.C., it was held that as the purpose is to secure the attendance of the accused in the court only, after discussing the law on this point, the order of trial court was modified by setting aside the non bailable warrant of arrest and summon was order to be issued
Cr.P.C. S.344: Object of enactment of S.344 is that evil of perjury and fabrication of evidence has to be eradicated. At the time of delivery of judgment or final order, the Court must at the first instance express an opinion to the effect that the witness before it has either intentionally given false evidence or fabricated such evidence. Court must come to the conclusion that in the interests of justice the witness concerned should be punished summarily by it for the offence which appears to have been committed by the witness – Mahila Vinod Kumari Vs. State of Madhya Pradesh AIR 2008 SC 2965
Cr.P.C. S.354: Acquittal Judgment shall point out lapses if any: On the culmination of a criminal case in acquittal, the concerned investigating/prosecuting official(s) responsible for such acquittal must necessaril be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. – State of Gujarat Vs. Kishanbhai etc., (2014) 5 SCC 108.
Cr.P.C. S.357(3): Order under this section must have potentiality to secure its observance. If merely an order directing compnesation is passed, it would be totally ineffective. Deterrence can only be infused into the order by providing for a default sentence. Hence, the order to pay compensation to be paid by the convict may be enforeced by awarding sentence of imprisonment in default. -R. Mohan Vs. A.K. Vijaya Kumar, 2012(8) SCC 721.
In. R. Vijayan v. Baby, 2000 (1) SCC 260 the court observed that: “it is evident from the sub-section (3) of section 357 of the Code, that where the sentence imposed does not include a fine, that is, where the sentence relates to only imprisonment, the court, when passing judgment, can direct the accused to pay by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused has been so sentenced. The reason for this is obvious. Sub-section (1) of section 357 provides that court imposes a sentence of fine or a sentence of which fine forms a part, the court may direct the fine amount to be applied in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the court, recoverable by such person in a Civil Court. Thus, if compensation could be paid from out of the fine, there is no need to award separate compensation. Only where the sentence does not include fine but only imprisonment and court finds that the person who has suffered any loss or injury by reason of the act of the accused person, requires to be compensated, it is permitted to award compensation under section 357 (3).”
Dhanu Ram Soren @ Bali Ram Soren Vs. State of Jharkhand Cr. Appeal (D.B.) No. 173 of 2013 Hon’ble Court observed that step must pay compensation initially and thereafter, amount may be recovered as per the methodology developed for the purpose by deducting a part of the remuneration from the convict while at work in jail
Gopi Nath Ghosh vs. The State of Jharkhand & Anr. W.P (PIL) No. 2584 of 2011 Hon’ble Court directed the state of Jharkhand to settle the compensation claims in respect of the pending applications in various districts and dispose of the same within a period of six months and not later than one year.
In future, as and when application is received claiming compensation/benefits of the Scheme, the State is directed to ensure that the application be considered and disposed of within a period of six months from the date of its receipt by the respective District Magistrate/Deputy Commissioner/District Committee.
Cr.P.C. S.357 & 357A: Just compensation to the victim has to be fixed having regard to medical and other expenses, pain and suffering, loss of earning and other relevant factors.While punishment to accused is one aspect, determination of just compensation to the victim is the other. At times, evidence is not available in this regard. Some guess work in such a situation is inevitable. Compensation under S.357, Cr.P.C. is payable by convict. Section 357A, Cr.P.C. has to be invoked to make up the requirement of just compensation.-Monohar Singh Vs. State of Rajasthan, AIR 2015 SC 1124
Cr.P.C. S.357 & 357A: It is the duty of the court to award just sentence. Mechanical reduction of sentence to the period already undergone cannot be appreciated. Sentence has to be fair not only to the accused but also to the victim and the society. Accused was ordered to pay compensation of Rs.2 Lakhs under S.357(3) and the State to pay compensation of Rs.3 Lakhs and if the accused does not pay, the State was directed to pay the entire amount of Rs.5 Lakhs.-State of M.P. Vs. Mehtab, 2015(5) SCC 197
Cr.P.C. S. 357 : Mojib Ansari & Ors. Vs State of Jharkhand Cr. Appeal No. 1089 of 2004 The victim who was 19 years old girl was gang-raped by persons belonging to different age groups. Victim subsequently died due to mental insanity and shock. The Hon’ble Court highlighting certain procedure irregularities committed by the trial Court partly affirmed the sentence imposed by it. It was ruled that the victim of crime or his kith and kin have legitimate expectation that the state will punish the guilty and compensate the victim. Hon’ble Court invoking section 357 A of the Cr.P.C. directed the State Government to pay compensation to the Mother of the deceased to the tune of Rs. 5,00,000/-. Jharkhand State legal Service Authority was asked to look into this matter and provide timely assistance to the mother of the deceased.
Cr.P.C. S. 372 & 378 : In Case of Vivekan & Pathak and ors vs St of Jharkhand and ors reported in 2013 (1) JLJR I while considering the application of the petitioners Hon’ble Court held that when the victim & complainant are the same person then the complaint have a right to people statutory appeal u/s 372 of Cr.P.C. whenever the statutory appeal is provided, the parties have to avail the statutory right prefer an appeal. But when the victim is somebody else in those cases, application u/s 378 (2) of Cr.P.C. is tenable at law.
Cr.P.C. S.384 TO 386: Appeal once admitted has to be decided on merits even in absence of acused -K.S. Panduranga Vs. State of Karnataka AIR 2013 SC 2164 (Dictum in Mohd. Sukur Ali (2011) 4 SCC 729 to the effect that the Court cannot decide a criminal appeal in absence of counsel for the accused and that too if the cousel does not appear deliberately or shows negligence in appearing, being contrary to the ratio laid down by Larger Bench in Bani Singh, AIR 1996 SC 2439, is per incuriam.)
Cr.P.C. S.389: In case of post conviction bail under Section 389, Cr.P.C, it is mandatory that appellate Court gives an opportunity to public prosecutor for showing cause in writing against such release. Suspension of sentence and release on bail. Appellate Court may even without hearing public prosecutor, decline to grant bail. However, in case appellate Court is inclined to consider release of convict on bail, public prosecutor shall be granted opportunity to show cause in writing as to why appellant be not released on bail. Despite such opportunity being granted to public prosecutor, in case no cause is shown in writing, appellate Court shall record that State has not filed any objection in writing. This procedure is intended to ensure transparency, to ensure that there is no allegation of collusion and to ensure that Court is properly assisted by State with true and correct facts with regard to relevant considerations for grant of bail in respect of serious offences, at post conviction stage -Atul Tripathi Vs. State Of U.P., (2014) 9 SCC 177: 2014 AIR SCW 4326
Cr.P.C. S.427:Totality of the Sentence has to be considered: The basic rule of thumb over the years has been the so called single transaction rule for concurrent sentences. If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. It is proper and legitimate to have concurrent sentences. But. this rule has no application if the transaction relating to offences Is not the same or the facts constituting the two offences are quite different.-Mohd. Akhtar Hussain aliasIbrahlm Ahmed Bhatti v. Assistant Collector of Customs (Prevention) Ahmedabad and others, (1988) 4 SCC 183
Cr.P.C. S.427: If a given transaction constitutes two offences under the enactments, generally it would be wrong to impose consecutive sentences. It would be proper and legitimate to have concurrent sentences, but the said rule would have no application if the facts constituting the same offences are quite different -Mohd. Akhtar Hussain Alias AIR 1988 SC 2143.
Cr.P.C. 427 and 31: Aggregate sentence not to exceed 14 years when consecutive.-Chatar Singh vs State Of M.P. AIR 2007 SC 319
Cr.P.C. S.438 and 437: There is no justification for reading into Section 438, Cr.P.C. the limitations mentioned in Section 437, Cr.P.C.- Bhadresh Bipinbhai Sheth Vs. State of Gujarat and another,(2016) 1 SCC 152
Cr.P.C. S.437A is not mandatory. It is required for appearance of accused in an appeal which may be filed against the accused. Sareena, O.P. Vs. State of KeralaIL R 2013 (1) Kerala 537=MANU/KE/2226/2012
Cr.P.C. S.438 Jurisdiction to grant anticipatory bail lies with the Court where offence took place (A) Dr. Pradeep Kumar Soni Vs. State of Madhya Pradesh, 1990 Cri.L.J. 2055 (M.P.) (B) Harjit Singh Vs. Union of India and ors, 1994 Cri.L.J. 3134
Cr.P.C. S.438 The anticipatory bail cannot be granted against whom processes u/s 82 Cr PC has been issued. It is implicit in sec 438 itself. JLJR 2014(4)128
Cr.P.C. S.438: Successive anticipatory bail applications are tenable.-Kalyan Chandra Sarkar Vs. Rajesh Ranjan, 2005 Cri.L.J.944 (SC)
Cr.P.C. S.439 Parity ground is not absolute Antecedents of applicant may warrant rejection of bail Neeru Yadav Vs. State of U.P. 2014 (14) SCALE 59
Cr.P.C. S.451: Party adversely affected should be heard before the Court makes order for return of the seized property – State Bank of India Vs. Rajendra Kumar Singh and ors., AIR 1969 SC 401
Cr.P.C. S.457 and Wild Life (Protection) Act S.50(1): Limited/No Jurisdiction of Magistrate: Forest Authorities or police officer can seize vehicle used for committing offence under the Wild Life Act. An Assistant Director of the Wild Life Preservation or Wild Life Warden may give the same for custody on bond for the production before the Magistrate. They have to give intimation to the Chief Wildlife Officer, who can place the relevant materials before the Magistrate. The Magistrate can, in appropriate cases reject the prayer for release or custody of the seized vehicle.-State of U.P. and another Vs. Lalloo Singh, (2007) 7 SCC 334
Cr.P.C. S. 482 : While dealing with a case of medical negligence held that the act complained against The Doctor must show negligence or rashness of such a highest degree so as to indicate a mental state which can be described as totally apathetic towards to patient and only such gross negligence is punishable – Dr. S.R. Malusare vs St of Jharkhand and ors (2012)3 JLJR 366
At the time of exercising revisional jurisdiction, the concerned court should always reframe from giving such observations that particular has been made out or not, else it may prejudice the party before the court below Nasim Ansari vs St of Jharkhand and ors (2013) 1 JCR 357 Jhr
JHARKHAND BOVINE ANIMALS PROHIBITION OF SLAUGHTER ACT, 2005
While hearing a quashing matter find on the ground that the complainant effecting search & seizure and launching prosecution not being an inspector of Police rather, being an Inspector of NGO known as SPCA , Jharkhand was never authorised to do so, held that since there was violation under the prevention cruelty to animal Act the search & seizure effected can we shall to be in connection with the offence under the Prevention of Cruelty to Animal Act, 1960 and therefore launching prosecution under Jharkhand Bovine Animals Prohibition of Slaughter Act, 2005 also is not illegal as the offences there under are cognizable and anyone can set the law in motion
APPRECIATION OF ELECTRONIC EVIDENCE
Anwar P.V. vs P.K. Basheer & Ors Hon’ble court held that Section 63 & Section 65 of Evidence Act have no application in the case of secondary evidence by way of Electronic Evidence, the same is wholly governed by section 65 A & 65 B. In case of CD, VCD, Chips etc, the same shall be accompanied by the certificate in terms of section 65 B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record is inadmissible.
State of Maharashtra vs Dr. Praphul B. Desai AIR 2003 SC 2053 Hon’ble Supreme Court observed that the legal requirement for the presence of the witness does not mean actual physical presence. And also observed that there is no reason why the examination of a witness by video conferencing should not be essential part of electronic evidence.
Twentieth Century Fox Film Corporation vs. NRI Film Production Associates (P) Ltd. (AIR 2003 KANT 148), certain condition for video-recording of evidence has been laid down:
a) Before a witness is examined in terms of the Audio-Video Link, witness is to file an affidavit or an undertaking duly verified before a notary or a judge that the person who is shown as the witness is the same person as who is going to depose on the screen. A copy is to be made available to the other side.
b) The person who examines the witness on the screen is also supposed to file an affidavit/undertaking before examining the witness with a copy to the other side with regard to identification.
c) The witness has to be examined during working hours of Indian Courts. Oath is to be administered through the media.
d) The witness should not plead any inconvenience on account of time difference between India and USA.
e) Before examination of the witness, a set of plaint, written statement and other documents must be sent to the witness so that the witness has acquaintance with the documents and an acknowledgement is to be filed before the Court in this regard.
f) The learned judge is to record such remarks as is material regarding the demeanour of the witness while on the screen.
g) The learned judge must note the objections raised during recording of witness and to decide the same at the time of arguments.
h) After recording the evidence, the same is to be sent to the witness and his signature is to be obtained in the presence of a Notary Public and thereafter it forms part of the record of the suit proceedings.
i) The visual is to be recorded and the record would be at both ends. The witness also is to be alone at the time of visual conference and notary is to certificate to this effect.
j) The learned judge may also impose such other conditions as are necessary in a given set of facts.
k) The expenses and the arrangements are to be borne by the applicant who wants this facility.
In Kishan Tripathi @Kishan Painter vs State 2016 SCC online Delhi 1136 Delhi High Court discussed the law relating to admissibility of CCTV. Footage and observed that the CCTV footage is captured by the Camera and can be stored in the computer where the files are created with serial no., date, time and identification marks these identification marks/details are self generated and recorded as a result of pre exiting software commands the capture of visual images on the hard disk is automatic in the sense that the video images get stored and recorded suo-moto when the CCTV camera is on and is properly connected with the Hard Disc installed in the computer therefore the original hard disc could be the primary and direct evidence when we see the CCTV footage we are in the same position as that of the witness, who had seen the occurrence though crime had not occurred at that time when the recording, but earlier this Video recording which capture the occurrence would be per se and mostly discernringly reliable and compellingly conclusive evidence, unless its authenticity is in question.
In R.M. Malkani v State of Maharashtra (1973) 1 SCC 471 Hon’ble Supreme Court observed that a contemporaneous tap record of a relevant conversation is a relevant fact and is admissible u/s 8 of the evidence Act
In Ziyauddin Barhanuddin Bukhari vs. Brajmohan Ramdas Mehra (1976) 2 SCC 17 Hon’ble Court held that tap records of speeches were documents as defined by section 3 of the evidence Act which stood on no different footing than photographs and are admissible in evidence on satisfying relevant conditions.
JUVENILE JUSTICE ACT
Om Prakash vs State of Rajasthan and ors. (2012) 5 SCC 201 Hon’ble Court held that the court must be sensitive in dealing with the Juvenile who is involved in cases of serious nature like Sexual Molestation Rape, Gang rape , Murder and host of other offences, that is cannot be allowed to abuse the statutory protection by attempting to prove himself as a minor when the documentary evidence to prove his minority gives rise to a reasonable doubt about his assertion of minority. Under such circumstance, the medical evidence based on scientific investigation will have to be given due with and precedence over the evidence based on school administration records which give rise to hypothesis and speculation about the age of the accused the matter however would stand on a different footing in the academic certificates and school records are alleged to have been with held deliberately with ulterior motive and authenticity of the medical evidence is under challenge by the prosecution.
The plea of juvinility can be taken even at the appellate stage being the benivolent provision of law, so, after amendment benefit can be extended to the juvenile. 2015(2)JLJR SC 367
APPRECIATION OF EVIDENCE
S. 302/34 IPC: In a case where eye witnesses are available and they have described place of occurrence and evidence of those eye witnesses is reliable and trustworthy. Non examination of IO is not sufficient to disbelieve place of occurrence there is consistent evidence of P.Ws. that the opened fire on deceased conviction and sentence affirmed. Papu Mandal @ Hira Lal Mandal vs St of Jharkhand Cr. Appeal (D.B.)No. 587 of 2007
S. 354 IPC: Intention is not sole criteria of the offence punishable u/s 354 IPC and it can be committed by a person assaulting are using criminal force to any women, if he knows that by such act the modesty of the human is likely to be affected. Knowledge and Intention are essentially things of the mind and cannot be demonstrated like physical objects. The existence of intention or knowledge has to be culled out from various circumstances in which and upon whom the alleged offece is alleged to have been committed. A victim of molestation an indignation is in the same position as an injured witness and her testimony should receive the same weight. Vidya Dharan vs St of Kerala (2004) 1 SCC 2015
Belal Alias Billo Alias Md. Belal vs State of Jharkhand Cr.Appeal (D.B.) No.465 of 2013
The Secretary Home Department has been asked for taking action against investigating officer and responsibility of the investigating officer has been reiterated as follows.
(1) It is the duty of the IO to remain present before the Trial Court
(2) To Bring Prosecution witness to the Court
(3) In case the witness including IO, Doctors or other government Officers fail to attend the Court and give evidence despite issuance of summons, the Trial court can pass an order to stop the payment of their salary or pension.
A witness is normally considered to be independent unless he springs from sources are likely to be tainted and this usually means that the said witness has caused to bear enmity against the accused so as to implicate him falsely. In view of above there can provision to the effect that a police man can not a witness or that his deposition can relied upon if inspires confidence.The evidence of Police personnel who were made recovery witnesses are reliable and cannot be discarded -AIR 2014 S.C. 394.
The date from which the antiquity of a document is to be calculated is the date on which the document has been tendered in evidence or subjected to being proved/exhibited. Om Prakash Vs Shati Devi, 2015(1)JLJR (SC)276
Objection raised by the defence that FIR has been lodged by the Court duty constable instead of the Presiding Officer of the Court and even before registration of the FIR, inquest was undertaken and post mortem was conducted is not tenable and is of no help. AIR 2016 SC 2376
If evidence adduced by prosecution is found sufficient to warrant conviction then it is not necessary for prosecution to examine all witnesses cited by them- it is for prosecution to decide as to how many witnesses they consider it proper to examine to prove their case against accused and whether their evidence would be sufficient to warrant conviction of accused Thereafter it is for Court to assess and appreciate evidence adduced to see as to whether it is sufficient to sustain conviction with aid of such evidence or not. Mahiman Singh vs St of Uttrakhand (2016) 4 JBCJ 140 SC
Examination of Dist. Magistrate is not required as the same has been proved by the competent person. Abdul Matin V/s. state of Rajasthan 2014 (3) JLJR (S.C.) 224- 225
LIMITATION ACT
Reasonable explanation for delay must be given to condone delay and condonation of delay must receive liberal construction and the court should not take a pedantic approach rather they should adopt a rational and pragmatic approach and the said power to condone the delay and the discretion is vested in the court to advance the cause of substantial justice and not to scuttle the same on the ground of technical approach and the period of delay is not relevant rather acceptability of the explanation for the delay is the only criteria for condonation 2015(4) JLJR 708
PREVENTION OF CORRUPTION ACT
P.C. Act S.2(c) Chairman of Co-op Bank is a public servant. Decision in Laljit Rajshi Shah is no longer applicable in view of the amended provisions of Section 2(c) of PC Act -State of Madhya Pradesh Vs. Rameshwar and Ors.(2009) 11 SCC 424
P.C. Act S.3 and 4(3): Special Judge’s Jurisdiction: Special Judge can not try other than P.C. Act offences by non-public servant unless it is a joint trial with P.C. Act offences by public servant or P.C. Act offfences by non-public servant. But, after framing such charges of P.C. Act offences, even if the lone public servant accused dies, special judge has to continue the trial. – State through C.B.I. New Delhi Vs Jitender Kumar Singh, AIR 2014 SC 1169
P.C. Act Ss.7 and 13(1)(d): Every acceptance of illegal gratification whether preceded by a demand or not, would be covered by S.7. But, if the acceptance of an illegal gratisfication is in pursuance of a demand by the public servant, then it would also fall under S.13(1)(d). The act of demanding and receiving illegal gratification constitutes an offence both under S.7 and S.13(1)(d) and hence the offender cannot be liable for double penalty.-The State Rep. by Inspector of Police, Pudukottai, Tamil Nadu Vs. A Partiban, AIR 2007 SC 51.
P.C. Act S.7 and 13 When one act is falling under both section, the punishment would be concurrent- The State rep. by Inspector of Police Vs. A. Parthiban AIR 2007 SC 51
P.C. Act S.7 Informant could not be examined due to death. Still accused was convicted on the basis of other evidence Kishan Chand Mangal Vs State of Rajasthan AIR 1982 SC 1511
P.C. Act S.19: Whether the appellate court could reverse the conviction and sentece merely on the ground of want of a valid sanction? S.465(2) enjoins on the court a duty to consider whether the accused had raised any objection on that score at the trial stage. If case the accused failed to raise, the trial would normally proceed to its logical end by making a judicial scrutiy of the entire materials.-CBI Vs. V.K. Sehgal, (1999) 8 SCC 501.
P.C. Act S.13(1)(d) Maximum Disproportion Assets of 10 percent is permissible Krishnanand Vs.The State of Madhya Pradesh AIR1977SC796 (3Judges)
P.C. Act S.13(2) Due to minimum sentence no probation benefit – Shyam Lal Verma Vs. Central Bureau of Investigation 2013 (1) Crimes 317 (SC)
P.C. Act S.19 Sanction u/s S.19 PC Act to prosecute a public servant is not required if the public servant has retired on the date of cognizance by the court. State of Punjab Vs Labh Singh, 2015 (1) JLJR (SC)263
DOMESTIC VIOLENCE ACT
The live in relationship does not fall within the definition of the domestic relationship as defined in S. 2 (f) of the Protection of Women from Domestic Violence Act. Such a relationship can either be of the party being a concubine or one practicing polygamy or person having an adulterous relationship. AIR 2014 SC 309 Indra Sharma Vs. V.K.V. Sharma
A woman living in judicial separation can file an application u/s 12 of domestic violence act 2005 as it is a beneficial legislation for upholding and realisation of constitutional right of woman as enshrined in Constitution of India. JBCJ (1) 2016 (29) SC,
Merely because complainant has been residing in her matrimonial home where no torture was inflicted upon her, torture allegedly inflicted upon her at another place cannot be termed as a continuing offence. JBCJ 2016(1) 143(HC)
Unsuccessful divorce proceeding cannot adversely affect the maintainability of application filed by the contesting respondents under sec 20 and 2 of the DV act for maintenance 2016(3) JBCJ 151 SC
The magistrate issuing N.B.W. following special procedure for the arrest of the husband for non payment of the maintenance ordered to be paid, held valid and also observed that such procedural order is within the framework of section 28 (2) of the D.V. Act. Sagar Sudhakar Shendge Vs. Mrs. Naina Sagar Shendge & ors Cr. W.P. No. 236 of 2013 (Bom. H.C.)
Stridhan Property is the exclusive property of the wife on proof that she interested the property or dominion over the Stridhan property to her husband are anyother member of the family, there is no need to establish any further special aggrement to establish that the property was given to the husband are other member of the family. As long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim u/s 12 of the Act. The concept of the continuing offence gets attracted from the date of deprivation of Stridhan property. Krishna Bhattacharjee v. Sarathi Choudhaury, 2015 SCC 1229, 2015
If amendment become necessary in view of subsequent events or to avoid of multiplicity of litigation, court will have power to permit such an amendment – even in criminal cases governed by Cr.P.C. court is not powerless and may along amendment in appropriate cases Kunapareddy @ Nookala Shanka vs Kunapareddy Swarna Kumari (2016) 4 JBCJ 151 SC
EVIDENCE ACT – CRIMINAL
Evi Act S.3: Interested Witness: A witness may be called “Interested” only when he or she derives some benefit from the result of litigation in the decree in a civil case, or in seeing an accused person punished. A witness is a natural and is the only possible eye witness in the circumstances of a case cannot be said to be interested. A relation of a victim may be a natural witness – State of Rajastan Vs. Smt. Kalki and another, AIR 1981 SC 1390
Evi Act S.3 Enmity: The witnesses were inimical to the accused, but that by itself was not a sufficient ground for rejecting their testimony – Raman Kalia Vs. State of Gujarat, AIR 1979 SC 1261.
Evi Act S.3 -Discrepancies in oral evidence: Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses cannot be annexed with undue importance. More so when the all important “probabilities-factor” echoes in favour of the version narrated by the witnesses. The reasons are given in – Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, AIR 1983 SC 753
Evi Act S.27: Accused need not be in formal arrest when he gave the information- Vikram Singh and others Vs. State of Punjab, (2010) 3 SCC 56.
Evi Act S.27 and S.162(2), Cr.P.C. (A) It is fallacious impression that when recovery is effected under S.27, Evidence Act, the document prepared by the I.O., contemporaneous with such recovery, must be attested by independent witness. Of course, if any such statement leads to recovery of any article, it is open to the investigating officer to take the signature of any person present at that time, on the recovery document. (B) It is not a legally approvable procedure to presume the police action as unreliable to start with, or to jettison such action merely for the reason that police did not collect signature of independent persons in the documents made contemporaneous with such actions – State, Govt. of NCT of Delhi Vs. Sunil and another, (2001) 1 SCC 652
Evi. Act S.3: Police credibility: The presumption that a person acts honestly applies as much in favour of a police officer as in other persons and it is not a judicial approach to distrust or suspect him without good ground thereof. Such an attitude could do neither credit to Magistrate not to the public. It can only run down prestige of public administration -Ahir Raja khima Vs. State of Saurashtra, AIR 1956 SC 217.
Evi. Act S.3 and 114: Non-examination of the I.O. per se is not fatal: Investigating officer was not examined. A case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal straitjacket formula should be laid down that non-examination of the investigating officer per se vitiates a criminal trial – Behari Prasad VS. State of Bihar, AIR 1996 SC 2911
Evi Act S.3: Non-examination of independent witness was not fatal. Civilized people are generally insensitive-Appabhai and anr Vs. State of Gujarat, AIR 1988 SC 696
Evi. Act S.3: Evidence of Hostile witness: Law is well settled that mere fact that witness is declared hostile by the party calling him and was allowed to be cross-examine, does not make him an unreliable witness so as to exclude his evidence all together-Bhagwan Vs State, AIR 1976 SC 202.
Evi. Act S.3: Independent witness turned hostile, that itself is not a ground for acquittal-Bholaram Kushwaha Vs. State of MP, 2001 Cr.L.J. 116 SC.
Evi. Act S.3: F I R details unnecessary: The F I R given by a rustic lay woman is not to be treated as or equated to the summary of the entire prosecution’s case and a mere omission to mention an incidental fact cannot have the effect of nullifying an otherwise proper and impeccable report -Gurnam Kaur Vs. Bashib Singh, AIR 1981 SC 631.
Evi Act S.3 Seizure can be believed if the evidence of IO is convincing though witnesses did not support Modan Singh Vs State of Rajasthan AIR 1978 SC 1511
Evi. Act S.27 Discovery need not be a thing but a fact Mehboob Ali and Ors. Vs. State of Rajasthan 2015 (12) SCALE 67
Evi Act S.27: Investigating Officer need not take signature of accused on seizure memo: The investigating officer has no obligation to obtain signatures of accused but obtaining such signatures is also not illegal. The resultant position is that the Investigating Officer is not obliged to obtain the signature of an accused in any statement attributed to him while preparing seizure memo for the recovery of any article covered by Section 27 of the Evidence Act. But, if any signature has been obtained by an Investigating Officer, there is nothing wrong or illegal about it. -State of Rajasthan v. Teja Ram and others, 1999 CrLJ 2588
Evi Act S. 45: Rabi Kumar vs Duryodhan Gope Cr. Appeal (D.B.) No. 88 of 2015 In a case of Gangrape , solitary evidence of the prosecutrix cannot result in conviction of the accused persons unless the same is corroborated with medical evidence. There was no evidence available on record with regard the medical examination of the accused person far ascertaining whether they were capable of performing sexual intercourse. The Doctor who examined the accused for that purpose did not step in the witness box and his name did not feature in the list of witnesses. This aspect cannot be ignored well the accused persons are facing such a serious charge.
Evi Act S.112 DNA test allowed by holding that it is most legitimate and scientifically perfect means Dipanwita Roy Vs. Ronobroto Roy (2015) 1 SCC 365
Evi. Act S.157 Non examination of independent witness is not sufficient to discard reliable evidence The State of Karnataka Vs. Moin Patel and Others AIR 1996 SC 3041
Evi. Act S.159: Refreshing Memory: It is always advisable that the investigating officer looks into records before answering any question -State of Karnataka Vs. K. Yarappa Reddy, (1999) 8 SCC 715
Evi. Act S.165 and 137: Witness in a bit of confusion during his cross-examination – Not improper for trial Court to put questions during his cross-examination to elicit truth: A judge is expected to actively participate in the trial, elicit necessary materials from witnesses at the appropriate context which he feels necessary for reaching the correct conclusion. There is nothing which inhibits his power to put questions to the witnesses, either during Chief examination or cross-examination or even during re-examination to elicit truth. The corollary of it is that if a judge felt that a witness has committed an error or a slip it is the duty of the judge to ascertain whether it was so for to err is human and the chances of erring may accelerate under stress of nervousness during cross-examination. Criminal justice is not to be founded on erroneous answers spelled out by witnesses during evidence collecting process. It is a useful exercise for trial judge to remain active and alert so that errors can be minimised.- State of Rajasthan Vs. Ani alias Hanif and Ors, AIR 1997 SC 1023
MONEY LENDING
Assam Money Lenders Act, 1934 section 2 (1): A few disconnected and isolated transactions would not make one a person engaged regularly in money lending business – Ka Icilda Wallang Vs. U.Lokendra Suiam, AIR 1987 SC 2047
C.P.and Berar Money Lenders Act, section 11 F and section 11 H: “Moneylender” under the Act means a person who in the regular course of business advances a loan and excludes isolated transactions of money lending. – Gajanan and others Vs. Seth Brindaban, AIR 1970 SC 2007. (AIR 1954 Nagpur 44, (1965) 67 Bom LR 816 and AIR 1962 Madh Pra 117 (FB) Approved.)
SPECIFIC RELIEF
Specific Relief Act S.21: Compensation: In Shamsu Suhara Beevi Vs G. Alex and Another [(2004) 8 SCC 569], this Court, while dealing with a matter relating to grant of compensation by the High Court under Section 21 of the Specific Relief Act in addition to the relief of specfic performance in the absence of prayer made to that effect either in the plaint or amending the same at any legal stage of the proceedings to include the relief of compensation in addition to the relief of specific performance, observed: “Grant of such a relief in the teeth of express provisions of the statue to the contrary is not permissible. On equitable consideration court cannot ignore or overlook the provisions of the statute. Equity must yield to law”. – Shiv Kumar Sharma vs Santosh Kumari on 18 September, 2007.
When granting probate the court has given finding that the parties are not governed by customary law and said finding has attained finality, in such circumstances Title partition suit by the objector on the plea of “being governed by tribal customary law” is not maintainable and is hit by principle of res-judicata. Marium Tiggal &Ors- Vs Michel &Ors 2015 (4) JLJR 658.
The plaintiff is not to be denied the specific performance of contract on account of phenomenal increase of price during pendency of litigation . 2014(4) JLJR (SC) 578
SUCCESSION
Hindu widow is not a coparcener in HUF of her husband and cannot act as a karta of HUF after death of her husband. When shows male coparcener is a minor HUF does not come to an end. Mother of male coparcener can act as legal guardian of minor and also look after his role as karta is her capacity as his legal guardian. A Hindu widow acting as Manger of HUF in her capacity as guardian of sole surviving minor male coparcener, such a role necessarily has to be distinguished from that of a karta which position Hindu widow cannot assume by virtue of her disentitlement to be a coparcener of HUF of her husband. 2016 (2) JBCJ (SC) 141
Under Mohammedan law a gift of corpus has to be unconditional. The condition expressed in gift is treated as void. the conditional gift is valid but the conditions are void2014(4)JLJR 117(SC)
A daughter can not claim partition where the disposition of property has taken place before 20th 12. 2004. JBCJ(1) 2016 (1) SC
Factors to be considered necessary by a trial court in partition suit filed by a co-sharer, coparcrener, co-owner, joint owner for partition are- nature and character of property in suit such as who was the original owner of the suit property, how and by which source he/she acquired such properties, whether it was his/her self acquired property or ancestral property, or joint property or co-parcenary property in his/her hand and, if so, who are the co-pacenars or joint owner with him. Secondly how the devolution of his interest in the property took place consequent upon his death on surviving members and in what proportion, whether he died intestate or left behind any testamentary succession in favour of any family members or out side to inherit his share in the properties and if so, its effects. Thirdly whether the property in suit are capable of being partitioned effectively and lastly whether all properties included in the suit and all co-sharer, coparcener, co-owner are made party. JLJR 2015 SC 457
Suit is not maintainable as on death of grandfather of plaintiff the joint family property which was ancestral property in hands of grandfather and other co-parceners devolved by succession u/s 8 and therefore ancestral property ceased to be joint family property on death of the grand father2016(2) JBCJ 442 SC
ELECTRONIC EVIDENCE & CYBER LAW
Recording Evidence through Electronic Media: CPC O.18 R.4(3): Evidence can be recorded though electronic media alsoSalem Advocate Bar Association Vs. Union of India (UOI), AIR 2003 SC 189
Evi Act S.3: Tape Record is admissible as evidence on proof of identification of voice proof of absence of tampering. Secondary Evidence is not admissible until non-production of primary evidence is satisfactorily proved. Exception is to public document in view of S.65(e), Evidence Act.-Tukaram S. Dighole Vs Manikrao Shivaji Kok
ate (2010) 4 SCC 329 =AIR 2010 SC 965 dd on 5 February, 2010.
Evi Act S. 27 The confession made by accused to the police can be treated as F.I.R. in a case and it will have no evidentiary value. JLJR 2015 Supreme Court page 483
Information Technology Act S.69A: Magistrate has no jurisdiction without the matter before him to order blocking website -Sreekanth C. Nair Vs. Licensee Developer decided on 29.08.2008 by Kerala High Court.
Evi Act S.65: The pre-conditions to lead secondary evidence are as follows that original documents could not be produced by the party relying upon such document in spite of his best effort and is unable to produce the same, which was beyond his control and the party sought to produce secondary evidence should establish for non production of primary evidence and unless it is established that the original document has been lost or destroyed or was being deliberately withheld by the party, then only the secondary evidence with respect to such document can be accepted. 2015(4) JLJR SC 437
Stage for S.65B: Evidence Act Certificate: Certificate can be filed at the time the electronic record is tendered in evidence.-Avadut Waman Kushe Vs. State of Maharashtra, 2016 SCC Online Bom 3256 (Hon. Smt. Justice R.P. SondurBaldota) dd on 03.03.2016.[Observed that this point did not arise in Anvar P.V. and Faim @ Lala Ibrahim Khan distinguished]. Trial Court ought not to have rejected production of CD by accused as the accused
Fresh Certificate S.65B: Evidence Act: If the certificate under S.65B, Evidence Act which was produced was rejected as not compliance with the Section, fresh certificate may be produced.-Ignatius Topy Pereira Vs. Travel Corporation (India) Pvt. Ltd and another, 2016 SCC Online Bom 97 (Hon. Shri Justice S.B. Shukre).
Evi Act S.65B: Late production of Certificate: Certificate produced after charge-sheet i.e. separate from the C.D. can be considered by the Court -Paras Jain and ors Vs. State of Rajasthan decided by Rajasthan High Court on 04.07.2015
Tape Recorded Conversation, Admissibility, Nature and Value – To what extent a Tape Record Evidence is admissible. Read the article at http://www.legalservicesindia.com/articles/trc1.htm
Evi Act S 106 : Whenever the attaint of rape is committed inside the house and upon the resistance of the prosecutrix, the accused committed murder in the house, mostly the witnesses will be close relatives. Merely they are close relatives, that does not mean that the deposition given by brother, father and mother should be discarded by the court or should be brushed aside straightly. Whenever close relatives are giving their depositions before the Court, their deposition should be viewed circumspection and closely Dabloo Linda vs. The St of Jharkhand, 2013 (1) JLJR 511
When an offence like murder is committed in secrecy inside a house, initial burden to establish case would be upon prosecution In view of section 106 of Evidence Act there will be corresponding burden on inmates of house to give cogent explanation as to how crime was committed. Inmates of house cannot get away by simply keeping quiet and offering no explanation on supposed premise that burden to establish its case lies entirely upon prosecution and there is no duty at an accused to all. 2016(2) JBCJ (SC) 334
Evi Act S 113A Mere fact that a married woman commits suicide within a period of seven years of her marriage the presumption u/s. 113A of the Evidence Act would not automatically apply. the Legislative mandate is that where a woman commit suicide within seven years of her marriage and it is shown that her husband or any relative of her husband has subjected her to cruelty, the presumption as defined u/s. 498A IPC may attract. Mangat Ram V/s. state of Hariyana AIR 2014 S.C. 1782,
The brother of aunt of husband of deceased cannot be said to be relative of deceased husband as he is not related to the husband of deceased either by blood or marriage or adoption in the aforesaid case. It does not mean that such person cannot be prosecuted for any other offence. AIR 2014 SC 2561
Evi Act S 113B: If prosecution fails to establish that soon before death deceased was subjected to cruelty or harassment by accused or their family members and also independent witnesses does not support prosecution case and contradictory statement is supported by objective evidence of I.O. conviction u/s 304 B cannot sustained. NAGESHWAR RAJWAR & ORS VS ST OF JHARKHAND (2016) 4 JBCJ 71 HC
Evi Act S 115: It has been held that when a person by fraudulent representation or erroneous representation transfers certain immovable property claiming himself to be the owner then such transfer will subsequently operate on any interest which the transferor may acquire in such property during the subsistence of the contract. Agricultural Produce Marketing Committee Vs Bananamma AIR 2014(SC)3000
According to section 115 of Evidence Act for estoppel there is four pre condition for invoking the rule of estoppal firstly, one party should make a factual representation to the other party secondly, the other party should accept and rely upon the aforesaid factual transaction thirdly, having relied on the aforesaid factual transaction the second party should alter his position fourthly, the instant altering a position should be such that it would be iniquitous to require him to revert back to original position. Pratima Choudhary V/s. Kalpana Mukharjee and others AIR 2014 S. C. 1304
Evi Act S 134: Conviction can well be founded upon the testimony of a sole witness .However the testimony of a sole witness must be confidence inspiring and beyond suspicion leaving no doubt in the mind of the court and has to be corroborated by other evidence 2015 (4) JLJR 312 SC
INDIAN FOREST ACT
S. 33 (C) : Notification declaring the forest land as protected forest u/s 30 of Indian Forest Act shall remain effective for period of 30 years only from the date of notification therefore the petitioner cannot be prosecuted u/s 33 (c) of Indian Forest Act, after laps of 30 years period since notification i.e. after the period of validity of said notification unless renewed. Tulshi Singh and Ors vs St of Jharkhand Cr. M.P. No. 612 of 2009 St of Gujrat vs Kishan Bhai (2014) 5 SCC 108 the Apex Court opined that ‘On the culmination of a criminal case in acquittal, the4 concerned investigating/prosecuting official(s) responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the concerned official may be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability. We also feel compelled to require the adoption of some indispensable measures, which may reduce the malady suffered by parties on both sides of criminal litigation. Accordingly we direct the Home Department of every State to formulate a procedure for taking action against all erring investigating/prosecuting officials/officers. All such erring officials/officers identified, as responsible for failure of a prosecution case, on account of sheer negligence or because of culpable lapses, must suffer departmental action. The above mechanism formulated would infuse seriousness in the performance of investigating and prosecuting duties, and would ensure that investigation and prosecution are purposeful and decisive.
NEGOTIABLE INSTRUMENT ACT
N.I. Act S. 138: A complaint filed before expiry of 15 days from the date on which notice has been served on he drawer is no complaint in the eye of law and therefore cognizance cannot be taken of the offence on the basis of such complaint. AIR 2015 SC 157
The date of computation of limitation will be the date of the filing of the complaint or the date of institution of the prosecution and not the date of cognizance. 2014(1) JLJR (SC) 617
In absence of pleading no evidence can be looked into. For criminal liability to be made out under section 138, there should be legally enforceable debt or liability 2016(2)JBCJ,278 (HC) RAVINDRA PRASAD SINGH VS. STATE OF JHARKHAND &ANR.
Under Section 142 of the N.I. act the court has been empowered to take cognizance even after the prescribed period but only if the complainant satisfies the court that he had sufficient cause for not making complaint within the prescribed period. AIR (6) SC 2149 U/S 142
TRANSFER OF PROPERTY ACT
Delivery of possession is not an essential prerequisite for validity of gift of immovable property 2014 AIR(SC) 2906
CNT ACT
Authorities under the CNT Act does not have statutory power to declare title and possession of parties. 2016(2)JBCJ,208(HC)