Posts by Vikasnagwan

29 July 2024 Important judgement of Delhi High court

Criminal Law

You may read below a very Important judgement of Delhi High court in 498A/304B IPC case

HIGH COURT OF DELHI
SUSHILA @ MAYA DEVI & ANR
V/S
STATE N C T OF DELHI
Date of Decision: 05 July 2024
Citation: 2024 LawSuit(Del) 1856

Hon’ble Judges: Manoj Kumar Ohri
Eq. Citations: 2024 DHC 5002
Case Type: Crl A (Criminal Appeal); Crl M A (Criminal Miscellaneous Application)
Case No: 627 of 2002; 2537 of 2003, 2855 of 2003

Judgement Text:-
Manoj Kumar Ohri, J
[1] The present appeal under Section 374(3) read with Section 482 Cr.P.C. has been filed against the judgement of conviction dated 18.07.2002 and order on sentence dated 19.07.2002 passed by learned ASJ in the case arising out of FIR No.380/1993 registered under Sections 498A/304B/406/34 IPC at P.S. Nabi Karim.
Vide the impugned judgement, the appellants were convicted for the offence punishable under Sections 498A/304B/34 IPC and vide the order on sentence, each of the appellant was directed to undergo rigorous imprisonment for a period of 10 years for the offence punishable under Section 304B IPC. For the offence punishable under Section 498A IPC, each of the appellant was directed to undergo rigorous imprisonment for 3 years alongwith fine of Rs.5000/- in default whereof, each of them was directed to further undergo simple imprisonment for 3 months. The sentences were directed to run concurrently and benefit of Section 428 Cr.P.C. was also provided to them.
[2] The facts, as noted by the Trial Court, are as under:-
“Neelam (deceased) was married to Hari Om on 26.2.93. After her marriage she started living in the matrimonial home along with her husband. The other accused namely Shankarlal, Ved Prakash, Ghan Shyam, Sita Devi, Sushila and Seema were also residing there. It appears that Sushila was not having the best of the times in her matrimonial house and had lodged a complaint with the Crime Against Women Cell as early as on 7.10.93. An inquiry into the said complaint was being conducted by Insp. Ved Prakash of the Crime Against Women Cell. Insp. Ved Prakash had recorded the statement of Neelam on 8.11.93 and had fixed the next date of inquiry as 16.11.93. Neelam however expired due to burn injuries at her matrimonial home on 11.11.93. Information regarding this incident was received at P.S. Nabi Karim on 11.11.93 at 3.50 p.m. ASI Ved Prakash of PCR had informed that a woman had burnt herself after pouring kerosene oil at House No. 7575, Nabi Karim, Baraf Khana, Ram Nagar, Delhi. DD No. 22-A was recorded on this information and was entrusted to SI Dharambir Singh for investigation. SI Dharambir Singh along with SI Mahabir Singh and HC Shamsher Singh had gone to the spot. The SDM as well as the relations of the deceased had also reached there. The SDM recorded the statement of Anil Kumar Gupta, the brother of the deceased and passed an order directing the SHO, Nabi Karim to register a case against the accused and to investigate Case FIR No. 380/93 U/s 498A/304B/34 IPC was thus registered at P.S. Nabi Karim on the basis of report and statement of Anil Kumar Gupta, the brother of the deceased…

  1. The SDM had also recorded the. statements of a number of other witnesses namely Smt. Madhu W/o Nathu Lal, the sister-inlaw of the deceased, Smt. Ram Shri , the mother of the deceased, Shri Shashi Bhushan, a neighbour of the complainant, Shri Nathu Lal, the maternal uncle of the complainant and others. The SDM had conducted inquest proceedings. He had inspected the spot and had sent the dead body for postmortem. Dr. Dasari Hari from Maulana Ajad Medical College had conducted the postmortem on the dead body of the deceased and had opined that the death was due to burns and shock consequent to the burn injuries which were ante mortem in nature. The total surface area of the burns was 100% …”
    [3] Upon completion of the investigation, challan came to be filed against the appellants and certain other individuals (hereinafter “accused?) under Sections 304B/498A/406/34 IPC. Subsequently, the accused were charged under Sections 498A/304B/34 IPC. Further, two of the accused namely Sita Devi and Sushila @ Maya/appellant No.1 were additionally charged under Sections 406/34 IPC. The accused persons pleaded not guilty and claimed trial.
    [4] In trial, a total of 23 witnesses were cited by the prosecution to prove its case. The material witnesses examined were Ram Shri (mother of the deceased), Nathu Lal & Anil Kumar (brothers of the deceased), Madhu (sister-in-law of the deceased) and Shashi Bhushan (neighbour of the complainant). Though another witness namely Daya Shankar Bharti was examined but he was not offered for cross-examination. His testimony therefore, in light of the decision in Ekene Godwin v. State of Tamil Nadu,2024 SCCOnLineSC 337, is of no avail. Besides them the other examined witnesses were formal in nature, who deposed relating to various aspects of investigation. On the other hand, the accused persons, in their statements recorded under Section 313 Cr.P.C. claimed that they were innocent and had been falsely implicated in the case. They denied having harassed or tortured the deceased for or in connection with demand of dowry. In support of their contention, they also examined four defence witnesses.
    [5] On behalf of the appellants, the impugned judgment has been assailed on the ground that the testimonies of the witnesses does not inspire confidence inasmuch as the same are full of material improvements. It is contended that based upon the same material, the Trial Court acquitted the other accused persons but convicted the present appellants, who were the mother-in-law and father-in-law of the deceased. The acquittal of the other accused persons for all the offences charged and appellant No.1 and Sushila under Section 406 IPC is not under challenge. Lastly, it was submitted that the appellants are presently 80 and 73 years of age and suffering from Dementia and Cancer respectively. While referring to their Nominal Rolls, it was further submitted that each of them have undergone nearly 5 years of sentence.
    [6] Nathu Lal (brother of the deceased) was examined as PW-6. He deposed that the accused persons had demanded colour T.V., fridge and cash and that he had become aware of the demand through the deceased. He further deposed that on one occasion when he had visited the house of the deceased, he found swelling on her face and blood was also coming from her mouth. A sum of Rs.50,000/- was also given to Hari Om on 03.10.1993 to start some business. On 17.09.1993, the appellant Sushila @ Maya Devi after giving beatings to the deceased, left her at Sultan Puri bus stand and a report was also lodged in this regard. A telephonic call was received in the house of their neighbour Ram Chander Bansal on 25.09.1993 informing that unless the demand of accused persons are fulfilled, the deceased need not come to the matrimonial house. On 03.10.1993, Hari Om had come to their house and requested that the deceased be sent alongwith him. In this regard, he had also assured in writing that in future there would be no complaint from him or his family members. Though the deceased had gone alongwith Hari Om, however, on the same night Hari Om informed telephonically that the accused persons were giving beatings to the deceased and that he had reported the matter to P.S. Nabi Karim. It was further deposed that the deceased had also given a complaint in the CAW Cell on 09.11.1993. He was cross-examined by the defence. He denied the suggestion that the deceased had complained at the instance of Daya Shankar Bharti, who was running a society in the name of “Dahej Virodhi Bharishtachar Unmoolan Sangh?. He was confronted with his statement recorded before the SDM, wherein he had not stated about his coming to know of the demands through his sister. He admitted to have not stated before the SDM about the incident when he visited the house of her sister and found swelling on her face or bleeding from mouth. He was also confronted with his previous statement, wherein he had not stated about any incident of beatings given to the deceased when she was left at Sultan Puri bus stand.
    [7] The testimonies of Anil Kumar Gupta and Madhu were cumulative in nature to the testimony of Nathu Lal and they deposed largely to the same extent. The said witnesses were also cross examined and confronted with their previous statements recorded before the SDM during the inquest proceedings. A perusal of the testimony of Anil Kumar Gupta would reflect that he also made considerable material improvements in his testimony as in his earlier statements, he had not stated about the specific demand of TV and fridge or payment of Rs. 4000/- and 5000/-.
    Only Nathu Lal and Madhu had stated that they had paid Rs. 4000/- and 5000/- in cash to Maya Devi however, no specific details as regards date and time of payment were mentioned.
    [8] On the aforesaid aspect, it is noteworthy that as per the case of prosecution, the deceased during her lifetime had given a complaint to the CAW Cell, Nanakpura for offences punishable under Sections 498A/406 IPC. The same was enquired into by Insp. Ved Prakash, who was examined as PW-18 in the trial. He proved the statement of the deceased that was recorded by him during the said enquiry (Ex. PW18/B). In the said complaint/statement, the deceased did not make any allegation of demand of any TV or fridge or payment of any cash amount in lieu thereof. The allegations of demand of dowry were general and not specific. At this stage, it is also worthwhile to note that the accused had examined four witnesses in their defence. The said witnesses deposed that the accused persons had a shop in Connaught place and both Hari Om as well as the deceased were asking for Hari Om’s share in the family property. In fact, they had been given a separate kitchen. Learned counsel for the appellants also pointed out that in his cross-examination, Insp. Ved Prakash had stated that during the enquiry in the CAW Cell complaint, the deceased also stated that she was living separately from her in-laws. Also, Kapil Dev Gupta, an acquaintance of the accused persons was examined as a defence witness. He stated that the family members of the accused persons had a shop in Connaught Place and that Hari Om often used to quarrel with his mother as he wanted to have his share in the family property. The deceased also used to pick quarrels with her in-laws on the above issue. Later, the deceased was provided with a separate kitchen. He denied the suggestion that any demand of fridge or TV was made from the deceased.
    [9] Insofar as the payment of Rs. 50000/- is concerned, the same is not attributable to any of the appellants. Rather, it has come in the testimony of the witnesses that the said amount was handed over to Hari Om to start a business, as he was unemployed. There is no allegation that the deceased was harassed for this demand. Notably, Hari Om stands acquitted by the impugned judgment and the State has not challenged his acquittal.
    [10] The next allegation related to the beating given to the deceased. Although the prosecution witnesses had stated that they had noticed swelling on the face of the deceased at the time of visit on the occasion of Teej however, the same was an improvement as the said incident had not been mentioned in any of their earlier statements. Insofar as the incident dated 16.09.1993 is concerned, it is stated that the deceased was given beatings in relation to dowry whereafter she was left at the bus stand of Sultan Puri by Sushila @ Maya Devi. In the context of said incident, DD 28B came to be recorded on 18.09.2023. Pertinently, in the said DD, there is no allegation of any beating given to the deceased.
    [11] Insofar as the testimony of other public witness namely Shashi Bhushan (neighbour) is concerned, he had deposed that he had been told by the deceased from time to time that she was being harassed by her in-laws and that there had been a meeting of Biradari on 26.09.1993. In crossexamination, he was confronted with his statement recorded before the SDM, wherein he had not stated that the meeting of Biradari was in respect of dowry demand by the in-laws of the deceased.
    [12] The question that arises for consideration in the present case is whether in these facts and circumstances, the appellants’ conviction under Section 304B/498A/34 IPC can be sustained. As noted above, the allegations of demand of colour TV and fridge remained unsubstantiated. The testimony of Nathu Lal on the aspect of payment of Rs. 4000/- and 5000/- to Maya Devi also does not inspire confidence as the said aspect has not been spoken about by the other brother Anil Kumar Gupta. Further, no specific date or time for the demand or payment has been mentioned. Infact, Madhu (sister-in-law of the deceased), during her cross examination, also admitted that she did not remember any specific details as to when the aforesaid amounts were allegedly paid. More importantly, the deceased neither in her complaint filed a few days prior to her death nor in her statement recorded during CAW Cell proceedings, stated anything about any demand of colour TV/fridge or payment of Rs. 5000/- and 4000/- by her brothers to Maya Devi. The said complaint also pertained to Section 406 IPC for which not only the other accused but the appellant Sushila @ Maya Devi also stand acquitted.
    [13] Upon a careful analysis of the testimonies as well as the material placed on record, this Court is of the considered opinion that the allegations against the appellants under Section 304B/498A/34 IPC have not been conclusively proved beyond reasonable doubt. Consequently, the appeal succeeds and the appellants’ conviction under Sections 304B/498A/34 IPC is set aside. Bail bonds and surety bonds, if any, are discharged.
    [14] The appeal is disposed of in above terms alongwith pending applications.
    [15] A copy of this judgment be communicated to the concerned Trial court alongwith the records as well as to the concerned Jail Superintendent for information.

Court can grant more maintenance than what is claimed by wife – MP high court

Criminal Law

The Madhya Pradesh High Court has recently held that there is no bar for a court to award maintenance more than what is claimed in Section 125 CrPC application.

“It also appears that the non-applicant works in railway department and has sufficient source of income and thus he has legal and moral obligation to maintain the applicants. Therefore, the learned trial court has rightly held that the non-applicant has sufficient source of income and hence is liable to maintain the applicants.” The court observed.

Case Details: CRIMINAL REVISION No. 1165 of 2010

SMT. DEEPA And Anr versus HARISH RAILWANI

Date of order : 07.11.2023

Maintenance-MP-high-court-Deepa-vs-HarishDownload

Unregistered Agreement to sell is admissible in evidence

Supreme Court of India

Agreements are being executed every day in India. Whether corporate or individuals. But there are many problems faced by people while enforcing an agreement. So let us first and foremost keep in mind that on most of the agreements the provisions of The Registration Act, 1908 (Registration Act)
are applicable specially to the agreements which relates to land and immovable property.

Section 17 of the Registration Act provides for mandatory registration of
certain documents such as sale deed, gift deed etc. If the compulsarily registrable instrument is not registered then the said documet may not be taken in evidence in a court of law.

Recently supreme court in In a recent judgment of R. Hemlatha v. Kashthuri
(Hemlatha Case), through a Bench of HMJ M.R. Shah and HMJ C.T. Ravikumar in CIVIL APPEAL NO. 2535/2023 has highlighted the exception to the rule of such compulsarily registrable instruments and agreement.

The Hon’ble Supreme Court in R. Hemlatha v. Kashthuri
(Hemlatha Case), through a Bench of HMJ M.R. Shah and HMJ C.T. Ravikumar in CIVIL APPEAL NO. 2535/2023 has held that an unregistered
agreement to sell can still be admitted as evidence.

In this matter The District Court ruled that the unregistered Agreement was inadmissible as evidence due to its non-registration. This decision was challenged by Kashthuri before the Madras High Court.

In the appeal, the Madras High Court ruled that the proviso to
Section 49 of the Registration Act was aimed to ensure that the
non-registration of a document should not hinder the court from
granting equitable relief, particularly in cases of specific
performance of contracts. Consequently, the Madras High Court held
that the unregistered Agreement could be admitted as evidence,
considering the nature of the suit seeking specific performance.
Aggrieved by the judgment of the Madras High Court, Hemlatha
preferred an appeal before the Supreme Court.

Supreme Court’s Verdict

At the outset, the Supreme Court in R. Hemlatha v. Kashthuri
(Hemlatha Case), through a Bench of HMJ M.R. Shah and HMJ C.T. Ravikumar in CIVIL APPEAL NO. 2535/2023 noted that although the State
of Tamil Nadu had introduced Section 17(1)(g) to the Registration
Act, no corresponding amendment had been made to Section 49. The
Court emphasized that Section 49 was inserted in 1929 and stands
unamended. Taking this into consideration, the Supreme Court
concluded that the unregistered document at hand, namely the
unregistered Agreement, would be admissible as evidence in a suit
for specific performance. As a result, the Supreme Court dismissed
the appeal and upheld the order passed by the Madras High
Court.

Copyright violation can land you in jail – Knit pro international vs State of NCT Delhi

Criminal Law IPR

Issue – Can FIR be registered u/s 63 of Copyright act?

What is the nature of offence u/s 63 Copyright act 1957?

Held – Offence u/s 63 copyright act 1957 is cognizable and non bailable. Police can register FIR under this provision.

Introduction
In 2022 itself, the Hon’ble Supreme Court of India, in M/s Knit Pro International v. The State of NCT of Delhi, has observed that offences under Section 63 of the Copyright Act, 1957 (“Copyright Act”) are cognizable and non–bailable.

Factual Matrix

M/s Knit Pro International (“Knit Pro”) had filed an application under Section 156(3) of the Code of Criminal Procedure, 1973 (“CrPC”) seeking directions from the Chief Metropolitan Magistrate (“CMM”) for “registration of FIR against” Respondent No. 2 (“accused”) for offences relating to Sections 51, 63 and 64 of the Copyright Act along with Section 420 of the Indian Penal Code, 1860 (“IPC”). The application was allowed by the CMM by way of an order dated 23rd October 2018 and thus an FIR was registered.
Consequently, the accused filed a Writ Petition before the Delhi High Court (“High Court”), praying for quashing of the criminal proceedings. During the hearing of the case, the accused argued that “the offence under Section 63 of the Copyright Act is not a cognizable and a non-bailable offence” and thus prayed for quashing of the criminal proceedings on that ground alone.
Vide the impugned judgement, the High Court allowed the petition by observing “that the offence under Section 63 of the Copyright Act is a non-cognizable offence.” Aggrieved, Knit Pro approached the Supreme Court in the present proceedings.

Opinion
The infringement of intellectual property rights is one of the biggest problems of modern days.

India is under obligation under the TRIPS AGREEMENT hence the recent judgment of the Hon’ble Supreme Court furtehr strengthens the legal framework of the Copyright Act and CrPC.

Anticipatory Bail in murder case 2022

Criminal Law

Anticipatory Bail granted in 302 IPC(murder case)

SUPREME COURT OF INDIA (FROM CALCUTTA) (D.B.)

SK SUPIYAN @ SUFFIYAN @ SUPISAN V/S CENTRAL BUREAU OF INVESTIGATION

Hon’ble Judges: L Nageswara Rao, Abhay S Oka
Eq. Citations: 2022 (3) Scale 42, 2022 (1) Crimes(SC) 409 Case Type: Criminal Appeal
Case No: 198 of 2022
Subject: Criminal
Head Note:

Indian Penal Code, 1860 Sec 149, Sec 148, Sec 147, Sec 302, Sec 325, Sec 326, Sec 323 Code Of Criminal Procedure, 1973 Sec 161, Sec 164, Sec 438(2)(i), Sec 438(2)(iii) – held, appellant deserves to be granted pre-arrest bail. However, the appellant will have to fully cooperate with the respondent-CBI for investigation and will have to remain present for investigation as and when called upon by the investigating officer – the impugned Order is set aside. Pre-arrest bail is granted to the appellant in connection with Case No. RC 0562021S0032 of CBI arising out of Nandigram PS Case No. 224 of 2021, on the conditions incorporated in clauses (i) to (iii) of sub-section (2) of Section 438 CrPC. The appellant shall fully cooperate for investigation and shall remain present for investigation as and when called upon by the respondent-CBI. We make it clear that the pre-arrest bail granted to the appellant is liable to be cancelled if it is found that the appellant is not cooperating for the investigation. We further make it clear that we have not made any adjudication on the merits of the controversy.

Acts Referred:

Indian Penal Code, 1860 Sec 149, Sec 148, Sec 147, Sec 302, Sec 325, Sec 326, Sec 323 Code Of Criminal Procedure, 1973 Sec 161, Sec 164, Sec 438(2)(i), Sec 438(2)(iii)

Final Decision: Appeal disposed

1. The appellant is aggrieved by the impugned Order of the High Court at Calcutta by which he was denied pre-arrest bail. The appellant sought pre- arrest bail in connection with First Information Report (FIR) registered at the Nandigram police station. One Debabrata Maity sustained injuries on 3rd May 2021 in an alleged incident of mob attack. He succumbed to injuries on 13th May 2021. The FIR was registered for the offences punishable under Sections 147, 148, 149, 323, 325, 326, and 302 of the Indian Penal Code (IPC) on 13th May 2021. The appellant was not named in the FIR.

[2] The Central Bureau of Investigation (CBI) took over the investigation of the case on 30th August 2021. Though in September 2021, the appellant was called for investigation by CBI, in the first charge sheet filed on 5th October 2021, the appellant was not named as an accused. As the appellant received a notice from CBI to remain present for

investigation, on 25th October 2021, he filed a petition for seeking anticipatory bail before the High Court. On 27th October 2021, protection against arrest was granted by the High Court to the appellant. The appellant was denied anticipatory bail by the impugned Order dated 29th November 2021. A supplementary charge sheet was filed on 6th January 2022 in which the appellant was not named as an accused.

[3] This Court by Order dated 28th January 2022, while granting interim relief, directed the respondent-CBI to produce copies of statements of the witnesses recorded under Section 164 of the Code of Criminal Procedure, 1973 (for short ‘CrPC’) on which the respondent-CBI was relying upon. Accordingly, copies of the statements of 18 witnesses recorded under Section 161 of CrPC, as well as copies of 5 witnesses recorded under Section 164 CrPC have been placed on record.

[4] Shri Kapil Sibal, the learned Senior Counsel appearing for the appellant pointed out that the appellant was not even named in the two charge sheets filed by CBI on 5th October 2021 and 6th January 2022 respectively. He invited our attention to the statements of witnesses recorded by CBI under Section 164 of CrPC. He pointed out that the first statement relied upon is of one Ranjit Maity. The statement was recorded on 7th September 2021 in which the witness merely stated that he has heard that the appellant was the main leader of the incident. He pointed out that though the statement was recorded on 7th September 2021, in both the charge sheets subsequently filed by CBI, the appellant was not named as an accused. He pointed out that after the application for grant of anticipatory bail was filed by the appellant, statement of one Sulekha Bogri was recorded on 18th November 2021 in which she stated that the incident happened under the leadership of the appellant. He submitted that though witness Ranjit Maity deposed that the appellant was not present at the time of the incident, the version of Sulekha is to the contrary. He pointed out that the statement under Section 164 of CrPC of witnesses Manoj Kumar Bera was recorded on 18th November 2021. The statements of Ashish Das and Bishwajit Panda were belatedly recorded on 24th January 2022. He pointed out that the said three witnesses are not named in both the charge sheets as witnesses. He submitted that on the face of it, the statement of witness Manoj Kumar Bera cannot be believed. The reason is that for the first time in November 2021, he deposed that on 3rd May 2021, the appellant and some other persons ransacked his house and assaulted his mother and wife. He pointed out that the said witness never complained till 18th November 2021 about the incident. He also pointed out that the said witness who was at Village Tarachandbar claims that he heard loud noises from Village Chillagram which is at a distance of 5 km from village

Tarachand Bask. He pointed out that in the statements belatedly recorded on 24th January 2022, the other two witnesses Ashish Das and Bishwajit Panda have tried to ascribe a role to the appellant.

[5] Shri Sibal urged that CBI tried to implicate the appellant for political reasons as the appellant was the election agent of the Chief Minister of West Bengal in the Vidhan Sabha Elections held in 2021. He submitted that most of the witnesses are workers of the Bharatiya Janata Party and for obvious political reasons, the appellant is sought to be falsely implicated. He invited our attention to the media reports about the statements made by one Suvendu Adhikari, who is a leader of BJP who contested election against the Chief Minister. In the said statements made by him in October 2021, he stated that the appellant would be named by the investigating agency and will be arrested. He pointed out that now the respondent-CBI wants to rely upon offences registered against the appellant in the year 2007 relating to agitations at Nandigram. He pointed out that the cases of 2007 were withdrawn by the State Government by invoking Section 321 of CrPC. But, the order of withdrawal was stayed by the High Court of Calcutta. He pointed out that this Court by the Order dated 26th March 2021 has stayed the operation of the order passed by the High Court of Calcutta on the ground that the High Court did not give an opportunity of being heard to the appellant. The learned Senior Counsel by relying upon observations of this Court in the case of Shri Gurbaksh Singh Sibbia and Others v. the State of Punjab, 1980 2 SCC 565 submitted that this is a case where the process of criminal law is tried to be perverted for achieving extraneous ends and, therefore, the appellant deserves to be granted pre-arrest bail.

[6] Shri Aman Lekhi, the learned Additional Solicitor General of India urged that this is a case of a serious offence punishable under Section 302 of IPC and therefore, custodial interrogation of the appellant is necessary. Relying upon statements of the witnesses recorded under Section 164 of CrPC, he urged that looking into the seriousness of the allegations, the appellant does not deserve the protection of pre-arrest bail. He submitted that merely because there is some delay in recording the statements of the witnesses, the appellant cannot be protected considering the seriousness of the offence.

[7] Shri P.S. Patwalia, the learned Senior Counsel appearing for the complainant invited our attention to reasons recorded by the High Court for denying pre-arrest bail. He submitted that the High Court has rightly applied well-settled law governing the grant of anticipatory bail. Accordingly, by considering the gravity of the offence and material in

the form of statements of the witnesses under Section 164 of CrPC, the relief has been rightly denied to the appellant.

[8] We have considered the submissions. The incident is of 3rd May 2021. Though two charge sheets have been filed on 5th October 2021 and 9th January 2022, the appellant has not been named as an accused therein. Now, the respondent-CBI is relying upon statements of 5 witnesses recorded under Section 164 of CrPC. The statements of the first two witnesses were recorded on 7 th September 2021 and 11th November 2021 respectively. But the appellant was not named in both the charge sheets filed thereafter. Though the statement of Shri Manoj Kumar Bera was recorded on 18th November 2021, he was not cited as a witness in the first two charge sheets. The statements of the other two witnesses have been belatedly recorded on 24th January 2022.

[9] Considering the peculiar facts of the case, we are of the view that the appellant deserves to be granted pre-arrest bail. However, the appellant will have to fully cooperate with the respondent-CBI for investigation and will have to remain present for investigation as and when called upon by the investigating officer.

[10] Accordingly, the impugned Order is set aside. Pre-arrest bail is granted to the appellant in connection with Case No. RC 0562021S0032 of CBI arising out of Nandigram PS Case No. 224 of 2021, on the conditions incorporated in clauses (i) to (iii) of sub-section (2) of Section 438 CrPC. The appellant shall fully cooperate for investigation and shall remain present for investigation as and when called upon by the respondent-CBI. We make it clear that the pre-arrest bail granted to the appellant is liable to be cancelled if it is found that the appellant is not cooperating for the investigation. We further make it clear that we have not made any adjudication on the merits of the controversy.

[11] The appeal is disposed of in the above terms. All the pending applications, if any, stand disposed of.

Comments:

This judgment passed by the Hon’ble supreme court furthers the principle that bail is a rule and jail is exception.

Can 498a case be filed after seven years of marriage?

Criminal Law

Yes, there can be case of 498a even after seven years of marriage.

Section 498a IPC (Indian penal code) provides for the offence of cruelty committed against wife by the husband and his relatives.

Section 498A IPC. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—

a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

As per section 498a IPC the punishment for committing the offence of cruelty may be an imprisonment which may extend to three years and fine.

At the same time section 468 CrPC (Criminal procedure Code) provides for a limitation of three years from the last incident of commission of offence by the husband and his relative.

That does not mean that a complaint can be filed a any point of time by the wife or her family members, if there are no incidents of offence in past three years then the complaint would not be maintainable unless the delay is condoned by the court.

Magistrate has the power to monitor Investigation

Criminal Law

The High court of Allahabad reiterating the observations of the Hon’ble Supreme Court has held that the Magistrate can monitor investigation.

One of the cases is titled T.C. Thangaraj vs. V. Engammal, (2011) 12 SCC 328 : (2012) 1 SCC (Cri) 568, wherein the following obeserved by the Hon’ble supreme court of India:

“12. It should also be noted that Section 156 (3) of the Code of Criminal Procedure provides for a check by the Magistrate on the police performing their duties and where the Magistrate finds that the police have not done their duty or not investigated satisfactorily, he can direct the police to carry out the investigation properly, and can monitor the same.

the Hon’ble Supreme Court in M.Subramaniam and another Vs. S.Janaki and another, 2020 SCC online S.C. 341 affirmed the view taken by the Supreme Court in Sakiri Vasu Vs. State of Uttar Pradesh (supra) and held as under:

“17. In our opinion Section 156 (3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156 (3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.”

Now it is ample clear that in case the investigating agency is not conducting a fair and impartial investigation then the court can always monitor and supervise the investigation.

Sample format of 156(3) CrPC

Uncategorized

IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE AT _________

COMPLAINT CASE NO. __________ OF 20__

IN THE MATTER OF:

ABC                                                        Applicant

ADDRESS _________________

VS

Name of State or SHO, PS___________                                                Respondent

ADDRESS _________________


Police Station _________

APPLICATION UNDER SECTION SECTION 156(3) OF THE CODE OF CRIMINAL PROCEDURE ON BEHALF OF THE APPLICANT NAMELY________

THE APPLICANT ABOVE NAMED MOST RESPECTFULLY SHOWETH:

1. That the Applicant is a law abiding citizen of India.

2. The based on the information of the applicant the respondent has registerd the FIR bearing no ______ U/s ______ PS____________ on ______(date).

3. That in the case of the said FIR despite lapse of considerable amount of time the investigating agency is not conducting just and proper investigation hence the applicant prefer the present application on following amongst other grounds:

GROUNDS

A…………………………..

B…………………………..

C……………………………

D…………………………. etc.

That the police is duty bound to conduct the fair investigation in a timely manners however in the present case the police delaying the investigation process for reason best know to the investigating officer.

9.

P R A Y E R

In view of the aforesaid submission made here in and in the interest of the justice, it is therefore most respectfully prayed that this Hon’ble Court may graciously be pleased to:

1) Call for the status report of the investigation.
2) Direct the investigating officer to file weekly action taken report regarding the status of investigation.

3) Pass such other or further orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.

AND FOR THIS ACT OF KINDNESS, THE HUMBLE APPLICANT AS IN DUTY BOUND, SHALL EVER PRAY.

Applicant

THROUGH

______ADVOCATE

Place :

Date :

Annexures to be attached with the Application

1. Copy of FIR

2. application filed before the SHO concerned

3. Copy of the complaint filed before the senior police officials

4. Any other relevant document related to the incident.

You need to affix a supporting affidavit and affix proper court fee

Kindly Always consult a lawyer before filing anything before police or in court.

This is just a format and does not depict the actual application to be filed in concerned court.

Satyaprakash vs State Of U.P 2022

Criminal Law Supreme Court of India

Court No. – 47
Case :- CRIMINAL MISC. WRIT PETITION No. – 23 of 2022

Petitioner :- Satyaprakash
Respondent :- State Of U.P And 6 Others
Counsel for Petitioner :- Mohammad Khalid,Pawan Kumar Yadav Counsel for Respondent :- G.A.

Hon’ble Anjani Kumar Mishra,J. Hon’ble Deepak Verma,J.

Heard learned counsel for the petitioner as well as learned A.G.A. for the State- respondents.

The present petition has been filed seeking direction to the respondent authorities to conclude the fair investigation of Case Crime No. 610 of 2021, under Sections 363, 366 I.P.C., P.S. Gunnor, District Sambhal.

Contention of learned counsel for the petitioner is that the police is acting in collusion with the accused persons and as yet neither the accused persons have been arrested nor any charge sheet has been filed against the accused persons.

Admittedly, petitioner is aggrieved by the manner of investigation said to have been conducted against private respondents.

The Apex Court in the case of Sudhir Bhaskarrao Tambe Vs. Hemant Yashwant Dhage, (2016) 6 SCC 277, following its earlier decision in Sakiri Vasu Vs. State of U.P., (2008) 2 SCC 409, held as follows:

“2. This Court has held in Sakiri Vasu v. State of U.P., that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) Cr.P.C. If such an application under Section 156(3) CrPC is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.

3. We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156(3) Cr.P.C. and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.”

The power of the Magistrate to monitor investigation in exercise of his power under section 156(3) Cr.P.C. has also been recognized in the decision of the Apex Court in the case of T.C. Thangaraj vs. V. Engammal, (2011) 12 SCC 328 : (2012) 1 SCC (Cri) 568, where, in the light of the law laid down in Sakiri Vasu’s case (supra), it has been observed as follows:

“12. It should also be noted that Section 156 (3) of the Code of Criminal Procedure provides for a

check by the Magistrate on the police performing their duties and where the Magistrate finds that the police have not done their duty or not investigated satisfactorily, he can direct the police to carry out the investigation properly, and can monitor the same. (See Sakiri Vasu v. State of U.P.).”

Recently, the Hon’ble Supreme Court in M.Subramaniam and another Vs. S.Janaki and another, 2020 SCC online S.C. 341 affirmed the view taken by the Supreme Court in Sakiri Vasu Vs. State of Uttar Pradesh (supra) and held as under:

“17. In our opinion Section 156 (3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156 (3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.”

In view of the law noticed above, we dispose off this petition with liberty to the petitioner to invoke the power of the Magistrate available under the Code of Criminal Procedure in the light of the law laid down by the Apex Court as noticed above.

Order Date :- 20.1.2022

satya-prakash-Vs-state-of-UP-2022Download

SUDHIR BHASKARRAO TAMBE V/S HEMANT YASHWANT DHAGE AND OTHERS

Uncategorized

SUPREME COURT OF INDIA (FROM BOMBAY) (D.B.)

SUDHIR BHASKARRAO TAMBE V/S HEMANT YASHWANT DHAGE AND OTHERS

Date of Decision: 12 April 2010

Hon’ble Judges: Markandey Katju, A K Patnaik

Eq. Citations: 2016 (6) SCC 277, 2016 (2) SCC(Cri) 549

Case Type: Civil Appeals

Case No: 766 of 2010

Subject: Criminal

Acts Referred:

Code Of Criminal Procedure, 1973 Sec 156(3)

Final Decision: Appeal allowed

Judgement Text:-

[1] Leave granted. These two appeals have been filed against the common impugned judgment of the High Court of Bombay dated 8-9-2009[Hemant Yashwant Dhage v. S.T. Mohite, 2009 SCC OnLine Bom 2251]. The facts in detail have been set out in the

impugned judgment and hence we are not repeating the same here. By the impugned order, the Bombay High Court has, in para 9 of its order, changed the investigating officer and appointed a Special Investigating Officer to investigate into the alleged offence.

[2] This Court has held in Sakiri Vasu v. State of U.P., 2008 2 SCC 409 , that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) CrPC. If such an application under Section 156(3) CrPC is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu v. State of U.P., 2008 2 SCC 409 because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.

[3] We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156(3) CrPC and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.

[4] In view of the settled position in Sakiri Vasu v. State of U.P., 2008 2 SCC 409 , the impugned judgment[ Hemant Yashwant Dhage v. ST Mohite, 2009 SCC OnLine Bom 2251] of the High Court cannot be sustained and is hereby set aside. The Magistrate concerned is directed to ensure proper investigation into the alleged offence under Section 156(3) CrPC and if he deems it necessary, he can also recommend to the SSP/SP concerned a change of the investigating officer, so that a proper investigation is done. The Magistrate can also monitor the investigation, though he cannot himself investigate (as investigation is the job of the police). Parties may produce any material they wish before the Magistrate concerned. The learned Magistrate shall be uninfluenced by any observation in the impugned order of the High Court.

[5] The appeals are allowed in the above terms. In view of the aforesaid order, no orders need be passed on the application for intervention and it is disposed of accordingly.

Sudhir-bhaskarrao-JudgmentDownload