This action might not be possible to undo. Are you sure you want to continue?
IMPORTANT CASE LAWS
Compiled by Tamil Nadu State Judicial Academy Chennai – 28
SUPREME COURT CITATIONS
(2010) 5 Supreme Court Cases 513 V. Kishan Rao Vs Nikhil Super Speciality Hospital and Another Consumer Protection – Services – Medical practitioners/Services – Medical negligence – Expert opinion of prima facie negligence, if a precondition for Consumer Forum to proceed with a case – No rule of general application, held, can be laid down in this regard – Expert opinion is required only when a case is complicated enough warranting expert opinion, or facts of a case are such that Forum cannot resolve an issue without expert’s assistance – On facts held, where a patient who was suffering from intermittent fever and chills, was wrongly treated for typhoid instead of malaria for four days, which resulted in her death, was an apparent case of medical negligence – It was not necessary to obtain expert opinion in the first instance before District Forum could award compensation – Investigation conducted by another hospital where patient was removed in a critical condition on fifth day, showed that Widal Test for typhoid was negative whereas test for malariral parasite was positive, was sufficient for District Forum to conclude that it was a case of wrong treatment – Consumer Protection Act, 1986 – Ss. 2(o), 2(g), 13 and 14 – Evidence Act, 1872, S.45. Consumer Protection – Services – Medical Practitioners/services – Medical negligence – Requirement to obtain independent medical opinion before investigation is initiated against a doctor – Direction given in Jacob Mathew Case, (2005) 6 SCC 1, para 52- Held, is meant for criminal cases and not for civil cases filed in Consumer Fora for the purpose of determining civil liability – General directions given in Martin F.D’ Souza Case, (2009) 3 SCC 1, para 106 extending the same to civil cases, held, are per incuriam and not binding – Consumer Forum can give appropriate relief on the basis of summary trial on affidavits – Consumer Forum can also, in its discretion, permit expert evidence but it is not bound by views expressed by expert because medical negligence is a mixed question of law and fact, to be resolved finally by Forum – In complicated civil cases requiring expert evidence, parties are also free to approach civil court instead of Consumer Forum – Consumer Protection Act, 1986 – Ss, 1(o), 3, 13 and 14 – Civil Procedure Code, 1908 – S.9 – Evidence Act, 1872 - S.45 – Penal Code, 1860 – S. 304-A. Precedents – Per incuriam decision – When a judgment is rendered by ignoring provisions of a statute and earlier larger Bench decision on the point, such decision is per incuriam – Such judgment is not a binding precedent – Constitution of India – Art. 141.
509. complaints before Consumer For a are tried summarily – Evidence Act. 64. regardless of factual position of a case – Kif that is done. held. 499. inconsequential as that is not an offence – Words and Phrases – “Obscenity” – Penal Code. held.292. morality and criminality cannot be treated to be coextensive – Criminal Procedure Code . 1986 – Generally – Purpose of the Act – Held. 61. is to provide a forum for speedy and simple redressal of consumer disputes – Such legislative purpose cannot be defeated or diluted by superimposing requirement of having expert evidence in cases of civil medical negligence. Consumer Protection Act. 1986 – Ss. Evidence Act. 153-A.64. of such statement encouraging some people to engage in premarital sex. 3 . 40. 1973 – Ss. 202 and 482 – Penal Code. 1860. 1872 is not applicable – For a under Consumer Protection Act.Consumer protection – Consumer Forums . 4 and 6. must be taken into consideration – Moreover. 190. District Forum could rely upon hospital records without following provisions of Ss. 1986 – Ss. 1872 . if any. 61. Ss. if applicable – Held. 74 and 75.Practice and Procedure – Evidence Act. held.Striking caveat against lightly interfering with constitutional right to freedom of speech and expression . held. 1860 – Ss. could not be subjected to interference under criminal law – Further. 19(1)(a) & (2) – Morally provocative statement not making out any offence – Role of criminal law – Abuse of process of court – Proper course for Magistrate at cognizance stage – Where numerous complaints under provisions of IPC and Indecent Representation of Women (Prohibition ) Act for statement made by accused did not make out a prima facie case for any offence. not in the nature of obscene communications – Possibility. Constitution of India – Arts. 13 and 14 – Evidence Act.Consumer Protection Act. obscenity standards reflecting sensibilities as well as tolerance level of average reasonable person – Appellant’s statement merely referring to increasing incidence of premarital sex and calling for its acceptance but not describing sexual act or saying anything which could arouse sexual desires in the mind of a reasonable and prudent reader. 1872. held.292 – Indecent Representation of Women (Prohibition) Act. if obscene – Mode of and norms for determination of – Context and purpose for which the reference to sex was made in any given setting.42 and 497. (2010) 5 Supreme Court Cases 600 S. Ss. 1986 are to follow principles of natural justice – Hence. Magistrate ought to have directed investigation into the allegations before taking cognizance .74 and 75. Khushboo Vs Kanniammal and Another Constitution of India – Arts. there is a presumption in favour of accused in such cases – Appellant’s call for social acceptance of premarital sex. held. 500. 19(1) (a) & (2) – Obscenity – Reference to sex or calling for social acceptance of premarital sex. made in context of a survey on sexual habits of people – Publication of such statement in news magazine as part of survey. 1872. efficacy of Act would be curtailed and in many cases remedy would become illusory for common man.
held. does not make out said offence. 3(38) – Penal Code. therefore. Criminal Procedure Code.Speaking women. 509 – Offence under – Ingredients of. exaggerations or embellishments – Inconsistencies – Conviction whether sustainable – Held. 1897 – S. 1860 – S. is to discourage filing of frivolous complaints – Penal Code.S. complaints filed by them. held.499. 1973 S. held.Appreciation of evidence – Contradictions. 1973-S. 1860. Penal Code.500. 199(1) CrPC. were not “persons aggrieved” within the meaning of S. did not constitute prima facie case of defamation of Tamil –speaking women – Moreover. held mala fide . 153-A-A.Constitution of India – Arts. is not an offence. Sc 40 to 42 and 497. 1973 – S. held. 499 Expln. held. 199(1). 499. 1860 – S. Indecent Representation of Women (Prohibition) Act. 19(1) and 136 – Quashment of criminal proceedings – Proceedings – Prosecution under Ss. 499 – Defamation – Acts prima facie not amounting to defamation – Complaint of such acts if mala fide – Determination of – Accused in response to survey conducted by news magazine on subject of sexual habits of people residing in big cities. 1860 . 199 – Requirement of taking cognizance of offence of defamation only upon receiving complaint by a person aggrieved – Object of. quashed – Criminal Procedure Code.S. 1973 – Hence. restated – Grievance with publication of a statement calling for social acceptance of premarital sex made by appellant. Penal Code.2. Penal Code. Penal Code. if could be viewed as a class of persons covered by Expln. with exception of adultery as defined under S. mala fide. complainants not having suffered any specific legal injury by said statement. 199(1) CrPC. 1860.509. 1986 – Complaints not making out prima facie case for any of the offences alleged – Criminal proceedings. 1973 – S. 482. 2 – Scope – Tamil. 497 IPC – Criminal Procedure Code.S. inconsistencies. 1860 – S.292 IPC and Ss.More so when most of them were associated with a particular political party – Criminal Procedure Code. consistency is the keyword for upholding conviction of an accused – There must be a string joining evidence of all the witnesses satisfying the test of consistency – Due to inconsistency 4 . 1973 – Hence. Criminal Law – Particular offences – Sexual offences – Adults willingly engaging in sexual relations outside the marital setting. 153-A – Applicability – Held. not applicable to statement which was neither made on behalf of any group nor was directed against any particular group. Magesh and Others Vs State of Karnataka Criminal Trial . held. 2(n) – General Clauses Act. (2010) 5 Supreme Court Cases 645 C. making a statement endorsing in general premarital sex and posing a question as to whether people in Tamil Nadu were not aware of incidence of sex or premarital sex – Statement not directed at any individual or even at a company or association or collection of persons – Such statement. 4 and 6. complaints filed by them.
302. acquitted – Out of remaining seven accused appellants. 1973 – S. Even otherwise there seems to be no prejudice caused to the accused by mere rejection of these applications. Constitution of India -Art. 91 and 233 – Accused’s applications to secure certain materials. Held: In Criminal jurisprudence. cannot be given a complete go-by – Can be used to corroborate evidence of 5 . Criminal Procedure Code.427. Ss. trial court can refuse securing of defence evidence if it feels it is being done to further delay the trial – Criminal Trial – Defence. A-2. conviction and sentence awarded by trial court and confirmed by High Court for A-1. A-33. Held: In this particular matter there has been an inordinate delay. absence of specific role attributed to A-25 and A-46.in testimonies. 307. Hence. 1860 – Ss. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that “no man is guilty until proven so”. 1973 – S.307. it is not in practice to consider each and every individual piece of evidence available. improper identification and in absence of specific role being attributed to A-25 and A-46. 149 IPC. this exception has been made. evidence of the eyewitness requires a careful assessment and must be evaluated for its creditability. In a criminal trial. improper identification. 1973 – Ss. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses. legality and propriety of the two dying declarations – Four accused convicted by High Court. their conviction cannot be upheld. 143. hence utmost caution is required to be exercised in dealing with situations where there are multiple testimonies and equally large number of witnesses testifying before the court. the trial court has committed no error in rejecting the above applications. Criminal Procedure Code.46 acquitted – Penal Code. In order to impart full and substantial justice. A-32. 302.154 – FIR – Object and value of – Denial of. despite the High Court granting six months for the completion of the trial and thereafter another three months’ extension was sought by the trial court. documents and witnesses to establish their defence – Rejected by trial court – Held. 435. Consistency is the keyword for upholding the conviction of an accused.143 and 148 r/w S. Held: Normally. 136 – Interference in criminal matters – Reappreciation of evidence – When called for – Exception made and evidence reappreciated since case involved certain alleged odious deeds of few individuals. confirmed –A -25 and A. As per Section 233 CrPC. by person by whom lodged – Effect –Reiterated.435. conviction reversed. the trial court can refuse securing of defence evidence if it so feels that the same is being done to further delay the trial. 148 r/w S. Criminal Procedure Code. evidence has to be evaluated on the touchstone of consistency. to impart full and substantial justice – Penal Code. Thus. however an exception has been made in this case since it involved certain alleged odious deeds of few individuals. on account of inconsistency. 378 – Reversal of acq2uittal – Principles to be followed – Labour dispute turning hostile leading to death of two women and injury to several others – Out of 49 accused seven convicted by trial court – High Court in cryptic manner reversing acquittal of four accused and confirming conviction of the seven accused found guilty by trial court – Sustainability – Manner of disposal deprecated – High Court without properly discussing legal and factual aspects held four accused guilty – Held. FIR not a substantive piece of evidence – However. 149 IPC. Criminal jurisprudence entails that a thorough appreciation of records needs to be done in order to do complete justice. 1890. there was no occasion to have passed order of conviction without removing doubts with regard to correctness.
it is clear that the accused Nos. Ss. they have flatly denied their presence. Whether the prosecution has established its case beyond reasonable doubt against all the three accused? 2. Constitution of India – Art. present appeal is filed by the accused. cannot be interfered with in appeal – Conviction and sentence upheld. due to discrepancies in evidence and no secondary evidence led to ascertain veracity of FIR. 201 read with 120-B. Ss. Admittedly without setting up a plea of alibi to show their presence elsewhere.Interference in criminal matters – Concurrent findings of fact – General rule of no interference – Conviction of five accused by trial court. Sections 302. Whether the trial Court is justified in acquitting all the accused in respect of charges leveled against them? 3. FACTS IN BRIEF: Aggrieved by the order of the High Court by which the High Court reversed the order of acquittal passed by the trial Court and convicted the accused under Section 302. 136 . 161.person lodging it – In present case. 1973. 1-3 were present at the scene of occurrence.Murder case – Presence of accused at scene of crime proved – Prosecution established its case beyond reasonable doubt – Order of High Court reversing order of acquittal and convicting accused held to be proper. 32(1) – Recording of dying declaration – Mode of – 10 recording statements in hospital of two injured persons sustaining burn injuries – Answers not in question-answer form. the same cannot be wholly relied on – Evidence Act. It has been proved by the prosecution that the deceased was murdered for a row over the drink. doctors certifying they were in a fit state of health to have their statements recorded only at the end of recording the statements – Also statement not recorded in presence of Magistrate – Effect – Held. Whether the order of the High Court imposing punishment when the trial Court acquitted all the accused in respect of the charges leveled against them is sustainable? Held: From the evidence adduced. confirmed by High Court – Held. the testimonies of witnesses. 201 / 120-B IPC and Section 27 of the Arms Act. the evidence connecting the vehicles and cartridges to the accused – 6 . 162 and 164. great consistency in evidence with regard to different roles attributed to said five accused – Concurrent findings of fact recorded against them. 145 and 157. The evidence regarding the actual incident. 2010 2 MLJ(Crl) 1104(SC) Sidhartha Vashisht @ Manu Sharma Vs State (NCT of Delhi) Indian Penal Code (45 of 1860). questionable – Criminal Procedure Code. QUERIES: 1. Evidence Act. 1872 – S. treating the said statements as dying declarations.
Code of Criminal Procedure.Manu Sharma. A document which has been obtained bonafidely and has bearing on the case of the prosecution and in the opinion of the public prosecutor. The details of investigation conducted on each day are very clearly brought out in the evidence of the various witnesses. the identity of the appellant as a suspect in the present case was not the consequence of any delay. the delay. The High Court has analyzed all the evidence and arrived at the correct conclusion. 1973 (2 of 1974). The right of the accused with regard to disclosure of documents is a limited right but is codified and is the very foundation of a fair investigation and trial.m. the same should be disclosed to the accused in the interest of justice and fair investigation and trial should be furnished to the accused. in recording the evidence of witnesses in the present case cannot be considered as an infirmity in the prosecution case. But this duty is limited to evidence on which the prosecutor proposes to place reliance during the trial.Cryptic telephonic messages not giving particulars of offence or accused could not be treated as FIR. As far as the present case is concerned. Code of Criminal Procedure. Thee identity of all such persons took substantial amount of time to determine. Then that document should be disclosed to the accused giving him chance of fair defence. Held: It is clear that the Code & the Bar Council of India Rules provide a wide duty of disclosure. the doctrine of disclosure would have to be given somewhat expanded application. 7 . their interrogation also consequently took a substantial amount of time.Role of Public Prosecutor – Duty of disclosure to disclose certain evidence to defence – Right of accused to free and fair trial – Trial would only be vitiated if non-disclosure amounts to material irregularity and causes irreversible prejudice to accused. Cryptic telephonic messages could not be treated as FIR as their object is only to get the police to the scene of offence and not to register the FIR. there are no concomitant circumstances to suggest that the investigator was deliberately making time with a view to give a particular shape to the case. it has been noticed that no prejudice had been caused to the right of the accused to fair trial and non-furnishing of the copy of one of the ballistic reports had not hampered the ends of justice. Held: It is evident from the facts established on record in the present case that none of the three telephonic messages received by police furnished any detail about the offence or the accused. Code of Criminal Procedure. Article 21. Unlike the said decision. In view of the same.4. The concept of disclosure and duties of the prosecutor under the English System cannot be made applicable to Indian Criminal Jurisprudence Stricto Senso at this stage. Section 154 – First Information Report. as well as his conduct after the incident prove his guilt beyond reasonable doubt. there were about 100 or more persons present at the party.Constitution of India (1950). in the present case. Furthermore. Section 162 – Statements of witnesses – Delay in recording evidence of witnesses – Identity of accused as suspect in present case not consequence of any delay – Delay not fatal to prosecution case.W. particularly when nonproduction or disclosure of such a document would affect administration of criminal justice and the defence of the accused prejudicially.25 a. Held: In the present case.2 was rightly registered as the FIR. 1973 (2 of 1974). Rule 16 . the three telephonic messages received by the police around 2.1999 did not constitute the FIR under Section 154 of the Code and the statement of Shyan Munshi P. Thus. Consequent to the large number of witnesses. The said intention can also be clearly culled out from a bare reading of Section 154 of the Code of Criminal Procedure. 1973 (2 of 1974). However. Sections 207 and 208 – Bar Council of India Rules. if any. on 30.
even otherwise. Union of India and Others (1996) 6 SCC 354) 2010 -1. Presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshould through the process of media trial and that too when the investigation is pending. it is not only desirable but least that is expected of the persons at the helm of affairs in the field. Constitution of India (1950). Held: Despite the significance of the print and electronic media in the present day. The content and merit of the judgment would have remained unaffected even if such language or comments were not made against the learned trial judge. appreciation of evidence by the learned Judge and /or any other ancillary matter. is of paramount consideration. comments should be avoided. the Division Bench could have avoided making such observations which directly or impliedly indicates towards impropriety in the functioning of the Court. In that event.Test Identification Parade-No previous TIP-Court identification as being above-board and more than conclusive. the Court finds compelling reasons for making any comments in that even it will be in consonance with the basic rule of law and adherence to the principles of natural justice that view point of the concerned learned judges should also be invited. actus curiae neminem gravabit.W.L. Article 19(1)(a) – Freedom of speech and expression – Distinction between trial by media and informative media – Trial by media should be avoided particularly in view of constitutional protections given to suspect – Invasion of his rights bound to be held as impermissible. Every possible effort should be made and precaution taken which will help in preservation of public faith and individual dignity. A judicial consensus would require that the judgment should be set aside or affirmed as the case may be but preferably without offering any undesirable comments. disparaging remarks or indications which would impinge upon the dignity and respect of judicial system. Therefore even where no TIP is conducted no prejudice can be caused to the case of the Prosecution. Despite exercise of such restraint. Observations or disparaging remarks by higher Courts – Language which may imply an allegation of suspicion in performance of function of Court should be carefully examined – Unless absolutely established on record. It will amount to travesty of justice if either of this causes impediments in the accepted judicious an dfair investigation and trial. The respect of judiciary and for the judiciary.(Crl) 654 Babubhai Jamnadas Patel Vs State of Gujarat & Ors. in a given case. This view has found favor time and again by this Court. if. an adverse inference ought to be drawn against the appellants for their refusal to join the TIP. to ensure that trial by media does not hamper fair investigation by the investigating agency and more importantly does not prejudice the right of defence of the accused in any manner what-soever. may appreciate dock Held: Learned Solicitor General submitted that. it will be opposed to the very basic rule of law and would impinge upon the protection granted to an accused under Article 21 of the Constitution (Anukul Chandra Pradhan v. 8 . It is pertinent to note that it is dock identification which is a substantive piece of evidence. Held: In line with the consistent view of this Court.
Appellant.P. at the same time the High Court is vested with such powers. meaning of – See Section 106/Abetment of suicide.L. meaning of. Definition of “abetment”. Held: There is little doubt that normally investigation of offences is the function of the investigating agencies and the Courts do not ordinarily interfere with the same – But. Definition of “abetment”. 9 . In the instant case. 465.C. Section 156/Investigation by the Police Powers of the Court to give directions..P.C. necessitating such monitoring by the Courts. the Courts may monitor an investigation into an offence when it is satisfied that either the investigation is not being proceeded with or is being influenced by interested persons. 2010 -1. Ingredient. I. held. 465..C. though the same are invoked only in cases when extraordinary facts are involved. Without a positive act on the part of the accused to instigate or aid in committing suicide.P. Ingredient.(Crl) 680 Gangula Mohan Reddy Vs State of Andhra Pradesh I.Periodical status reports were required in that regard – Because of the tardy progress of the investigation the High Court had to step in at the instance of the respondents herein. There can be no doubt that in appropriate cases. Scope. Section 156/Investigation by the Police Powers of the Court to give directions.. 120-B. Section 420.B. I.Criminal P. Question is as to whether the Courts can monitor investigations in respect of offences alleged to have been committed when the investigation had already been commenced by the investigation agency. Appeal to Supreme Court against interim order passed by Gujarat High Court in Criminal Appeals. Section 420.. I. Appeal to Supreme Court against interim order passed by Gujarat High Court in Criminal Appeals – See Criminal P.P. Section 109/”Instigation”. Scope.C. cannot be sustained.. conviction cannot be sustained – In order to convict a person under section 306 IPC there has to be a clear means rea to commit the offence –It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide.C. employer of the deceased victim – agricultural labourer was stated to have harassed the deceased by levelling accusations of theft of jewels and for return of advance money paid – Conviction of appellant. the High Court had to repeatedly intervene and pass orders to ensure that the investigation was being conducted diligently .C. Courts. and in particular the High Courts and the Supreme Court.W. Section 109/”Instigation”.. 120 . Section 106/Abetment of suicide. meaning of-See Section 106/”Instigation”. are the sentinels of justice and have been vested with extraordinary powers of Judicial Review and supervision to ensure that the rights of the citizens are duly protected – Courts have to maintain a constant vigil against the inaction of the authorities in discharging their duties and obligations in the interest of the citizens for whom hey exist.
attempt to suicide is an offence under section 309 of IPC. Para 8 In our country. Criminal P.W. In the light of the provisions of law and the settled legal positions crystallized by a series of judgments of this Court. 577 10 . Scope.W. Section 320/ Compounding of offence.L. Constitution of India. however its meaning and import is well known and requires no explanation. there could be no reason as to why the same cannot be permitted even after conviction. There is no reason to reject the application under Section 147 of the aforesaid Act even in a proceeding under Article 136 of the Constitution – Since the parties have settled their disputes. while suicide in itself is not an offence. irrespective of the means employed by him in achieving his object of killing himself. conviction cannot be sustained. the conviction of the appellant cannot be sustained. 2010 -1. Mohammed & anr. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide.. Negotiable Instruments Act (1881). Without a positive act on the part of the accused to instigate or aid in committing suicide. though at one time it was a felony in England. 2010 -3. set aside the judgment of the courts below and acquit the appellant of the charges against him.The word suicide in itself is nowhere defined in the Indian Penal Code. Section 147 of the aforesaid Act does not bar the parties from compounding an offence under Section 138 even at the appellate stage of the proceedings.C. In short a person committing suicide must commit it by himself. Para 7 Suicide by itself is not an offence under either English or Indian criminal law. considering that the successful offender is beyond the reach of law. in keeping with the spirit of Section 147 of the Act. After the proceedings had been concluded before the Appellate Forum. Appeal to Supreme Court was preferred against the dismissal of Revision Petition by the High Court confirming the conviction by the appellate court and trial court – It was contended for appellant that since specific power had been given to the parties to a proceeding under the Negotiable Instruments Act under Section 147 to compound the offence. the appeal filed by the appellant is allowed and disposed of. ‘Sus’ means ‘self’ and ‘cide’ means ‘killing’.(Crl) 693 K. Ibrahim Vs K.M. thus implying an act of self-killing. Article 142 / Powers of the Supreme Court. Consequently.P. we allow the parties to compound the offence.L. Acquittal. which had been affirmed upto the High Court – Held: It is true that the application under Section 147 of the Negotiable Instruments Act was made by the parties after the proceedings had been concluded before the Appellate Forum-However. Sections 138. 147. Para 10 Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. The intention of the Legislature and the ratio of the cases decided by this court is clear that in order to convict a person under section 306 IPC there has to be a clear mean rea to commit the offence.
2-A. it is fully established that appellants had miserably failed to prove and establish their defence in the case. Proof of documents – See C. Practice and Procedure/Evidence. w.2. challenging his dismissal.C) and especially in absence of putting their own defence to the respondent during his cross examination in the Court – Appellants have not been able to show compliance of Order 12 Rule 1 and 2 of the CPC.2.3-A (as amended by Act 104 of 1976. Service / Wrongful dismissal.f 1. 3-A (as amended by Act 104 of 1976..1977) / Admissions. Order XII.I.2. Proof of document.f.f. Rules 1.P.e.L.1977)/Admissions.1977) / Admissions.2. Notice of Admissions. Notice to admit. Rules 1.P. Notice of Admissions. 1. which the appellants have miserably failed to do – Thus looking to the matter from any angle. of India & another Vs Ram Pal Singh Bisen C. Practice and Procedure/Evidence. Notice to admit. Order XII. Notice of Admissions.I. Order XII. 1.. w. Proof of document – See C. It is true that failure to prove the defence does not amount to an admission. Rules 1.C.I.e..C. even if it is assumed that said documents have been admitted by respondent and were then exhibited and marked. Evidence.P. Under the Law of Evidence also. in absence of any oral evidence having been tendered by the appellants (L. 3-A (as amended by Act 104 of 1976. meaning thereby that there has not been any compliance thereof – Records do not reveal that any such procedure was adopted either by the appellants or by the Trial Court to prove the documents filed by the appellants and mark them as Exhibits – Thus no advantage thereof could be accrued to the appellants. w. 11 .2-A.C.2-A.e. Practice and Procedure.2. Notice to admit. Suit filed by Development Officer of the L. it is necessary that contents of documents are required to be proved either by primary or by secondary evidence – Contents of the document cannot be proved by merely filing in a court.2. Question is as to the effect of documents filed by appellants nad marked as exhibits. nor does it reverse or discharge the burden of proof of the plaintiff but still the duty cast on the defendants has to be discharged by adducing oral evidence.C.C.
yet challenging the same before this Court. it may record the evidence itself.C.2. not even adhering to the provisions of the Code of Civil Procedure and the Indian Evidence Act. was allowed stating that the appellants are permitted to lead additional evidence before the trial court. 1. or it may direct the trial court to do so – In this case. the High Court could not have directed the trial court to dispose of the suit after taking evidence – Such an order of remand could be only in terms of Order 41. Suit was filed challenging order of dismissal of the plaintiff – Development Officer.. the entire case could not have been remanded to the trial court for fresh disposal after recording fresh evidence as it was not a removal as envisaged under Order XLI Rule 23 of CPC. Rules 1.I.P. Practice and Procedure.1977) / Admissions.C. The application for additional evidence. Held: Records reveal a sorry state of affairs as to the manner in which suit had been contested in the trial court by the appellants herein. 12 . Notice of Admissions. Suit was decreed by trial court and it was upheld by High Court. Notice to admit. While allowing an application for adducing additional evidence..C. before the appellate court. Suit filed by Development Officer of the L.I. application for. Rule 23 or Rule 23A or Rule 25 – Order of High Court set aside – Directions passed.2-A (as amended by Act 104 of 1976. Such an order of remand could be only in terms of Order XLI Rule 25 of the Code. in our considered opinion. abutting gross negligence and callous manner. Order XII. therefrom. C.P. even after having lost from all courts. For the aforementioned purpose. It may record the evidence itself or it may direct the trial court to do so. Vedavyasachar Vs Shivashankara & Anr. the appellate court has two options open to it.P.I. Rule 27 / Additional Evidence. 2010 -3.e. etc. Held: When an application for adducing additional evidence is allowed the appellate court has two options open to it. passed by appellant L. and confirmed on appeal.C. Order 41. in the appeal before the High Court. challenging his dismissal – See C. Proof of document..C. None of the said provisions have any application in the instant case. 602 H. Appeal to Supreme Court was preferred by the L. w. It was contended before the Supreme Court that in any event for the said purpose.f. the High Court could not have directed the trial court to dispose of the suit after taking evidence.Service / Wrongful dismissal.L. The respondent also be provided opportunity to cross-examine the appellants in regard to the additional evidence that is sought to be produced and the trial court shall thereafter dispose of the case on merits insofar as ‘B’ Schedule property is concerned. Practice and Procedure/Evidence.2. Duty and Powers of Appellate Court.W.
(ii) Such an exercise by the learned trial court must be completed within a period of four weeks from the date of communication of this order. (iii) The first appellate court must dispose of the first appeal on receipt of the said order as also the evidence as adduced as expeditiously as possible. 13 . directing as under: (i) The learned trial court upon recording the evidence as directed by the High Court shall transmit the records to the First Appellate Court with a copy of its report annexed thereto.Order of the High Court modified.
the Court may even after grant of permission. Ramachandran represented by his Power Agent M. he could not contact his previous counsel due to his ill-health were not a sufficient/good cause and this Court is not inclined to adopt a liberal.HIGH COURT CITATIONS (2010) 4 MLJ 11 56 K.9. Order 3 Rule 2 – Permission to be represented by Power of Attorney – Vests with discretion of Court. the relationship.A. 100 of 2007 endeavours to step into the shoes of his vendor/defendant by subsequent purchaser who purchased the suit property on 6. the reasons for requisitioning the services of the private person and a variety of other circumstances must be gathered before grant or refusal of permission. FACTS IN BRIEF: The restoration and delay condonation applications were filed by the Power of Attorney who is the subsequent purchaser of the property in dispute was dismissed.2005 after the passing of an exparte decree on 29. Code of Civil Procedure (5 of 1908). is clearly hit by principle of lis pendens as per Section 52 of the Transfer of Property Act and moreover. Order 3 Rule 2 – Limitation Act (36 of 1963).2003 but before the restoration. No. 14 . the reasons assigned by the power agent of the revision petitioner in I. Murugesan Vs Bagawathi Code of Civil Procedure (5 of 1908).7.A. Section 5.Dismissal of set aside ex parte application and delay condonation application filed by Power of Attorney/Subsequent purchaser – No leave obtained from Court to be represented as POA-Purchase hit by lis pendens and no sufficient reasons assigned for delay-Revision dismissed. Held: It is left open to the Court to grant or withhold the permission in its discretion. The antecedents. No. when no leave of the Court was obtained to be represented as Power of Attorney? Held: On a conspectus of the facts and circumstances of the case which float on the surface. A revision was preferred there from. these Civil Revision Petitions fail. elastic and a justice oriented approach overriding technicalities in the present case based on the facts and circumstances and viewed in that perspective. QUERY: Whether an application filed by the Power agent of the defendant for setting aside the exparte decree and to condone the delay in filing the application is maintainable. withdraw it half way through if the representative proves himself reprehensible. 2628 to 2631 of 2008 that he was suffering from henenteric fever and took treatment and therefore. As a matter of fact. this Court is of the considered view that the petitioner after dismissal of impleading application I. Order 9 Rule 9.P.
From out of half share of Sadasiva Gounder. 502 15 . 1st Plaintiff was third wife of Sadasiva Gounder and notwithstanding such marriage is void. 2 nd plaintiff is entitled to half share i. defendant preferred the present second appeal disputing the legitimacy of plaintiff for getting the share. Held: The reasons assigned by the power agent of the revision petitioner in I. 2010 3.Limitation Act 36 ofm1963). but reversed by the first appellate Court. FACTS IN BRIEF: Suit filed for partition which was dismissed by the trial Court. these Civil Revision Petitions fail. Sadasiva Gounder was entitled to half share and defendant is entitled to the remaining half share. Section 114 – Partition – Presumption of marriage – Legitimacy of children born out of void marriage. lower Appellate Court rightly held that 2nd plaintiff being born out of such marriage shall be deemed to be the legitimate son of Sadasiva Gounder. No. (2010) 4 MLJ 981 Kuppan Vs Muniammal and Another Hindu Marriage Act (25 of 1955). 1st Plaintiff is not entitled to any share in the properties of Sadasiva Gounder. Invoking Section 16 of Hindu Marriage Act. Properties being ancestral properties.L. Lower Appellate Court rightly held that 2nd plaintiff would be entitled to 1/4th share in the suit properties. elastic and justice oriented approach.A. 1/4th share.16 – Indian Evidence Act (1 of 1872). he could not contact his previous counsel due to his ill-health were not a sufficient/good cause and this Court is not inclined to adopt a liberal. elastic and a justice oriented approach overriding technicalities in the present case (based on the facts and circumstances and viewed in that perspective. Section 5 – Sufficient cause – What is . 2628 to 2631 of 2008 that he was suffering from henenteric fever and took treatment and therefore. Aggrieved over the same. QUERY: Whether the first appellate Court was right in holding that the factum of marriage was proved and therefore plaintiff was the legitimate son entitled for share in the properties? Held: Even though.W.e. shall be deemed to be their legitimate children.When to adopt liberal. Sections 11. Being third wife. children who are born who would have otherwise been legitimate if the marriage had been valid.
Builders. By means of Ex. Held: Plaintiff was maintaining a running account – By means of Ex. Chouraria Wire Netting Industries. It can be treated as an acknowledgment under Section 18 of the present Act. mere payment alone would not serve limitation – To put it differently in clear terms. Held: Section 20 of the earlier Limitation Act (9/1908) is analogous to Section 19 of the new Act in verbatim. what is..1996 admitting the debt and stated that they are in a position to clear all the debts and requested the plaintiff to wait . By its Managing Director Vs M/s. 522 A. Section 16/Ready and Willing. by its Proprietor and Others C. Chennai.P.1996 it will not save limitation. Ramadas Rao and Others Vs M/s. What section 20 of the old Act says. Transchem Limited.A-5 the defendant sent a fax message on 5. In the present case on hand. Section 128/Surety’s liability.12. Limitation Act (1908).9. There is no difference at all.It was contended that the apparent error in referring to the “decree for specific performance” without referring to the “decree for specific performance being subject to mortgage” has misled that Court to believe that the decree is a simple decree for specific performance and the Court had not 16 . rep.1996 admitting the debt and stated that they are in a position to clear all the debts and requested the plaintiff to wait for one more week or two. The legal requirement is. Limitation Act (1963). So Section 18 of the new act is Section 19 of the old Act. mere payment. the principles laid down under Section 20 of the old Act would be applicable to the debts which are governed by the present Section 19 of the new Act. Section 20. concededly the plaintiff was maintaining a running account. 2010 3. mere payment made on 24. Hence. Section 114/Review. R. Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act).2003 on the file of the Additional District Judge.A-5 the defendant sent a fax message of 5. Recovery of Debts due to Banks and Financial Institutions Act (RDB Act) (1993).W. acknowledgment. within 3 years from 24. Specific Relief Act (1963). has been reiterated in Section 19 of the new Act.M/s.12. Section 31/Contingent contract.1.18. Fast Track Court V. By its Managing Partner Prayer: Appeal filed under Section 96 of the Code of Civil Procedure against the judgment and decree passed in O. payment within the period of limitation shall be acknowledged in writing by borrower and from the date of such acknowledgment time would begin to run – In the absence of such acknowledgment. J. Sections 19.9. Review of judgment reported in 2010-2-L. 1350 of 2000.It can be treated as an acknowledgment under Section 18 of the present Act. sans acknowledgment of such payment will not save limitation. Contract Act. rep.L. (2002).1996.P.W.C. dated 16. Scope of.04. 368 dismissed .S. Worthwhile it is to say that contents in Section 19 of the old Act No 9/1908 are being produced in Section 18 of the present Act. Order 47.No.
Entire land and building was leased out by such document.12. which were not pleaded and by ignoring the statutory provisions of SARFAESI Act. cannot be said to be an error apparent on the face of the record . Held: Mere reference to the decree as “decree for specific performance” does not mean we have diluted that part of the decree-“Decree for specific performance”. which did not arise in the first appeal and by interfering with the order of trial Court and without even an appeal against the conditional decree-Grievance of the review petitioners/Defendants 1 and 2 is that directions have been issued by the Court based on facts. Facts: “JHI” took on lease certain properties belonging to estate of one “IS” in 1940 with the object of putting up cinema theatre. 2010 (3) CTC 692 F. A theatre was built on portion of leased land.1972 ending on 31.01. taking one view. “JHI” died in 1949 and his heirs succeeded his estate. The said Lease Deed recognized the Lessor as the owner of the land as well as the building and the lease executed for a period of 15 years commencing from 01. can be detected without advancing long drawn argument on either side – Where there are two possible views regarding interpretation or application of law vis-avis the particular facts of a case. The lease contained a clause for renewal for a further period of 10 years. this Court cannot sit as an appeal late Court and re-appreciate the entire evidence – Various points raised for the review petitioners are upon the merits of the matter and the Review Court. by its Trustees Others Law of Pre-emption – Ingredients of Pre-emption – Rights of Parties – Right of preemption is embedded on principle that strangers to one property should not acquire ownership of adjacent property which may render enjoyment of property already owned difficult – Right of pre-emption is right of substitution – Such right can be enforced only after thing in respect of which right of pre-emption is sought is sold and not before – Such right exists only between free holders -Pre-emptor should have vested ownership of one property to enforce right in respect of another property – Tenants of property could also obtain right of pre-emption by virtue of statues or contracts – Pre-emption is weak pre-emption by virtue of statutes or contracts . being subject to mortgage. An error apparent on the face of the record must be such a patent error.J.1986. rep. In 1972 the Lessor filed a Suit against the lessee and the said Suit was settled and by virtue of that a Lease Deed was executed in 1974. The lease was for 21 years and was to be renewed for a further period of 10 years. Contention urged on behalf of review petitioners that the Court has exceeded its jurisdiction under Section 96 of CPC by going into the questions.Pre-emption is weak right and can be defeated by owner of property by any legitimate means – Pre-emptor would loose his rights by acquiescence in sale of such property by any positive act – There are no equities in favour of pre-emptor. sitting as Appellate Court and exercising Appellate jurisdiction. which were not pleaded and which were not the subject matter of any issue by formulating questions of law. cannot go into the merits of our own findings.In a review application. Lease was to expire in 1971 after renewal and Lessor demanded possession at the time of expiry of renewed lease. Irani Others Vs Hajee Sir Ismail Wakf Estate. even if it is erroneous.noticed that the “decree for specific performance” is the “decree for specific performance” is subject to mortgage in favour of the 3rd Defendant Bank. which in one glance. In 1992 lessee’s legal heirs filed a Suit for declaration that the build- 17 .
Section 6 (2) .Information cannot be denied by authorities on ground that informant has motive in getting information.ing constructed in the land belonged to them and sought declaration that certain clauses in the Lease Deed were illegal in view of the Section 12 of Tamil Nadu City Tenants’ Protection Act. Minerals were assaulted by the employees of the IREL and consequently a Criminal Complaint was lodged with the Karungal Police Station. On Appeal the 4th Respondent passed an order directing then petitioner to disclose the information sought for by the Respondents. (iii) It is a very weak right. Hence. It is the case of the Respondent that steps were being taken to withdraw the Criminal Complaint made against the employees of IREL without notice to the defacto complainant/respondent. Facts: According to the first respondent about 400 people were in killed in Collachal Village during the Tsunami period due to the indiscriminate mining operation carried out by Indian Rare Earth Ltd. In 1995 the Lessor invited for tenders and the lessee also participated and submitted a tender. The lessee failed to make an offer despite repeated reminders. over the past 60 years. Prohibition and Excise Department & Others Vs S. Challenging the same the present Writ petition has been preferred by the Government. (ii) The right exists only as between freeholders. However. to settle private score – Bona fides of information seeker need not be looked into in view of Section 6(2) of RTI Act – Authorities bound to provide information. which was denied by the Information Officer. amounting to relinquishment.. would result in the forfeiture of the right.V. the Respondent sought for certain information regarding. Home. & Others Right to Information Act. and (v) There are no equities in favour of the pre-emptor. In 1984 the owner of the property offered to sell the property to the lessee and invited a quotation. by the owner. from Shri Audh Singh upto Kumar Gonsusab. the following principles: (i) It is a right of substitution and hence it arises only after the sale. a Central Government undertaking violating environmental and CRZ notifications. It is the case of the First respondent that the workmen belonging to V. (iv) Acquiescence in the sale by any positive act. The pre-emptor should have yested ownership of the pre-emptive tenement. by virtue of statutes or contract. 2010 (3) CTC 742 Secretary to Government. 18 . Held: A survey of the law as propounded by the Supreme Court. Suresh Babu. shows that the claim for enforcement of the right of preemption has to be tested keeping in mind. the right of pre-emption may also be available to tenants. 2005 (22 of 2005). The tenders were opened and the 2nd Defendant had quoted much higher than the lessee and the property was sold to him but even before the sale deed the lessee filed a Suit seeking enforcement of pre-emption right for the purchase of the said property. which can be defeated by all legitimate means. to be able to exercise the right of pre-emption in respect of another property.
this Court is not inclined to go into the bona fide of the information seeker in the light of Section 6(2). Rule 13. in order to prove the alleged illness of second petitioner. Held: While considering the Petition under Order 9.W. No. continuously there was nko representation for the petitioners/defendants to cross-examine P. sufficient opportunity was given to the petitioners. 2. on Petition.In view of judgment of Supreme Court reported in Ramesh v.P.000/. as a condition precedent. Order 9. to meet the ends of justice. In the light of the decisions rendered by the Hon’ble Apex Court and other Courts. I am of the view that the defence raised by the learned counsel appearing for the petitioners that the act of the petitioners is neither willful nor wanton cannot be accepted. to set aside the ex parte decree.000/.00.(Rupees Two lakhs only) to the credit of the Suit in O. an ex parte decree was passed and same was set aside and after affording several opportunities to defendants. however. accordingly. the second petitioner was ill and admitted in the hospital. 1908 (5 of 1908). Minerals to settle local scores.C. 64 of 2004 before the Court below within eight weeks from the date of receipt of a copy of this order.W. apart from paying the costs of the Suit and the respondent will be entitled to withdraw the costs of the Suit to be de- 19 . It is not in dispute that there ware two petitioners/defendants. I find it just and reasonable to pass a conditional order.along with costs of Suit within eight weeks – Plaintiff permitted to withdraw costs of Suit – Non-compliance of condition would restore ex parte decree and plaintiff can proceed with execution – Civil Revision Petition disposed of.along with costs of the Suit and the plaintiff was permitted to withdraw the costs. the Court has to consider the conduct of the party who filed the Petition.000/. ex parte decree was passed in the second time. Ratnakar Bank Ltd. In the instant case. Rule 13 – Suit for Recovery of money – Ex parte decree passed and later set aside – Ex parte decree passed for second time – Application to set aside ex parte decree dismissed – Order challenged in Appeal – Appeal also dismissed – Revision against that order – Earlier when Suit was posted for trial. Though it was stated that the second respondent was motivated in seeking information and he was set up by M/s. conduct of party has to be taken not of . that was recorded by the Court below. 2010 (3) CTC 769 Pradeep Kumar and another Vs Balasundaram Code of Civil Procedure. defendants directed to deposit a sum of Rs.1 was examined in chief. Facts: In a money Suit. no supporting document was produced by the petitioners before the Court below. the petitioners are directed to deposit a sum of Rs. When the second petition was filed under Order 9.00. 2. nothing prevented the first petitioner in appearing and giving instructions to his counsel. AIR 2001 SCW 4759. P. C.C.Held: In the Writ petition it is this order which is under challenge. Rule 13. Before passing the ex parte decree. According to the petitioners. Rule 13. V.1. the conduct of the party has also to be taken into consideration. Suit was again decreed ex parte – No evidence to show that 1st defendant was decree ex parte – No. 2. evidence to show that 1st defendant was suffering from any illness – When Second Application is filed under Order 9. so as to cross-examine the witness. subsequently.P. that was set aside by the Court below. The Application filed by the defendants to set aside the ex parte decree was dismissed and the defendants challenged the said order by way of Civil Revision that the defendants deposited a sum of Rs.00. admittedly there was an earlier ex parte decree.. C.S.V. Even if the second petitioner was bed-ridden or taking treatments as inpatient. the case was posted for trial. On the aforesaid facts and circumstances..
It must be judged on the facts of each case having regard to the surrounding circumstances. who suffered a divorce decree in a Petition filed by the husband one the ground of cruelty. completely destroying real purpose and object of matrimony. Defendant can be held liable even on preponderance of probabilities or action decided on mere consideration of burden of proof in the absence of other evidence – In Criminal Cases proof required is beyond reasonable doubt and accused also entitled to benefit of doubt – Case law discussed. Practice and Procedure – Binding nature of decision in Criminal Case in Civil in Civil action – Imposition of liability – Standard of proof required in Civil and Criminal Cases is widely different – Judgment of acquittal in a Criminal Case is irrelevant in a Civil Case based on cause of action – Findings of Criminal Court not binding in Civil action – Only in exceptional cases circumstances resulting in acquittal would assume relevance – In a Civil Suit. Whether one spouse is guilty of cruelty is essentially a question of fact and previously decided cases have little. value.posited. 2010 (3) CTC 785 Jayakumari Vs Balachander Hindu Marriage Act. the word “cruelty” cannot be put in a strait-jacket of judicial definition.P. the family background and the society in which the parties are accustomed to move because particular behaviour may amount to cruelty in one set of circumstances and may not be so in other set of circumstances. Facts: The wife. Salem Vs 20 . Section 13(1)(i-a) – cruelty –what is –Not defined in Act. the standard of living. held: Then term ‘cruelty’ consists of unwarranted and unjustifiable conduct on the part of defendant causing other spouse to endure suffering and distress thereby destroying peace of mind and making living with such spouse unbearable. If the conditional order is complied with. this Civil Revision Petition will be allowed and in case if the conditional order is not complied with. filed the Appeal attacking the various findings of the Trial Court. 1955 (25 of 1955). As pointed out. There cannot be any hard and fast rule in interpreting the same. if any. It was mainly contended by the wife that she was in fact the one who was subject to cruelty at the hands of her husband’s relatives. 2010 (3) CTC 819 Oriental Insurance Company Limited. this Civil Revision Petition shall stands dismissed without any further reference to this Court and the respondent will be at liberty to proceed with the E. The husband defended the order of divorce on he ground that the Criminal case filed by the wife ended in his favour on Appeal and the allegations of the wife cannot be believed as she did not choose to give timely Complaints.No strait –jacket formula or hard and fast rule to constitute act of cruelty – Has to be judged on facts of each case taking into account surrounding circumstances –Relevant factors are status of life. family back ground and society in which parties are accustomed – Particular behavior may amount to cruelty in one set of circumstances and may not so in other set of circumstances. It is to be judged by taking into consideration the status of life. On Appeal. The term ‘ cruelty’ is not defined in the Act. It would of course be difficult to define the expression “cruelty”. standard of living.
1996 (26 of 1996). whether contractual or not – When there is no document signed by parties nor exchange of letters. which is a summary in nature – Compensation reduced C. Others Motor Vehicles Act. telex. telex.M. 1996 was filed by the executors of the Will alleging that the deceased had made a declaration that the disputes should be referred to Arbitration. As pointed out by the learned Single Judge. Question arose whether there can be a valid adoption amongst Christians. Held: In our considered view. which is applicable to Jagadambal and 6th Respondent provides for adoption if the Civil Law of the Country permit the same.A. all or certain disputes which have arisen or may arise in respect of a defined legal relationship. In the light of Sections 40 and 41 of Juvenile Justice Act. being summary in nature. the validity or otherwise of the adoption needs no further elaboration. there is no document signed by the parties to the dispute. one alleging that their father had left behind a Will and the other contending that the Will was fabricated and that he was entitled to partition. admittedly. validity of adoption cannot be challenged in Motor Accident proceedings.Minor Jayapriya.There is no embargo for adoption amongst Christians – In any event. nor any exchange of letters. the Canon Law. telegrams referring to or recording an Arbitration Agreement there is no Arbitration Agreement as defined under Section – 7 Provision in a Will of a Testator merely constitutes his wish that disputes should be settled by Arbitration – It cannot be construed as an Arbitration Agreement within the meaning of Section 7 of Act. Held: In this case. High Court held that the Canon law is applicable and that there is no embargo for adoption amongst Christians and also held that in a motor accident proceeding. the named Arbitrator under the Will withdrew himself and an Application was filed under Section 11(6) of the Act for appointment of an independent Arbitrator. The same was allowed by the Trial Court and an Appeal was filed to the High Court. Facts: Pending dispute between brothers. the proceeding. Pending the Appeal. The same is under challenge before the Apex Court. we do not find any embargo for adoption. 1988 (59 of 1988). Section 7 – “Valid Arbitration Agreement” – What constitutes – There must be a written agreement by parties submitting to Arbitration. telegrams (or other means of telecommunication) referring to or record- 21 . partly allowed. In any event. which is a summary in nature. 2010 (3) CTC 890 Vijay Kumar Sharma @Manju Vs Raghunandan Sharma @ Baburam and others Arbitration and Conciliation Act. rep. the stand taken by the learned counsel for 6th Respondent that there cannot be valid adoption among the Christians is not in consonance with the Constitution and the various judicial pronouncements. an Application under Section 8 of the Arbitration and conciliation Act. Section 166 – Constitution of India – Appeal by Insurer against compensation awarded in a case of fatal accident – Question regarding validity of adoption – Contention that there cannot be a valid adoption among Christians is not in consonance with Constitution – Cannon Law provides for adoption . the validity of adoption cannot be investigated in detail. Facts: In a Civil Miscellaneous Appeal arising from a Motor Accident case.
It is not permissible to appoint an Arbitrator to adjudicate the disputes between the parties. Section 376 – Tamilnadu prohibition of Harassment of Women Act (44 of 1998). the procedure contemplated under Sections 200. Therefore. Section 439 – Indian penal Code (45 of 1860). Grahalakshmi Vs Narayanan Venuprasad Menon Code of Criminal Procedure. this Court held: “The existence of an Arbitration Agreement as defined under Section 7 of the Act is a condition precedent for exercise of power to appoint an Arbitrator / Arbitral Tribunal. in absence of an Arbitration Agreement of mutual consent. 1973 (2of 1974). a too technical approach cannot be adopted in case of this nature where such serious offence is alleged.C. Section 439. After all procedure is the handmaid of justice.201. When a serious offence of forgery is alleged which involves the future and modesty of a woman.D. Ramesh Chander. 2007 (5) SCC 519.Matrimonial dispute cannot be lightly viewed just like that of any other dispute –when s serious offence of forgery is alleged which involves future and modesty at its very inception on the ground that some witnesses have been omitted –procedure contemplated under Sections 200. there is no Arbitration Agreement as defined in Section 7 between the parties. statements under Section 201Cr.203 and 204 Cr. In my considered opinion. 1973 (2 of 1974) Section 203-Dismissal of private complaint -Matrimonial dispute between petitioner and her husband –Application before Family court for dissolution of marriage –Allegation of previous marriage between petitioner and respondent-private complaint filed against respondent alleging offences of forgery and cheating by impersonation –Dismissal of complaint by trial court –Revision petition against order of trial Court dismissing complaint given by petitioner.ing an Arbitration Agreement between the parties.C. the complaint cannot be foreclosed at its very inception. Puzhal Code of Criminal Procedure. In other words. under Section 11 of the Act by the Chief Justice or his designate.” 2010 2 MLJ (Crl) 1211 V. are all only means to justice and they cannot be termed as substantive provisions. Held: A matrimonial dispute cannot be lightly viewed just like that of any other dispute.Indian penal code (45of 1860). Section 4 – Juvenile Justice (Care and protection of 22 .201 203 and 204 are all only means to justice and they cannot be termed as substantive provisions – Too technical approach cannot be adopted where serious offence is allegedpetition allowed.P. P. have not been recorded and documents have not been produced. 2010 2 MLJ (Crl) 1231 Sundareswaran Vs Inspector of Police. It is also not in dispute that there is no exchange of statement of claims or defence where the allegation of existence of an Arbitration Agreement by one party is not denied by the other. on such a technical ground that some witnesses have been omitted to be cited. In Jadgish Chander v.
petition for bail – Petitioner none else than father of victim girl. the circumstances showing the existence of cruelty or harassment to the deceased. In relation to dowry death. not only physically but also emotionally. The sanctity of father and daughter relationship got stained due to the lustful acts of the petitioner causing indelible scar. who has given the complaint. the evidence clearly showed that the said demand had been made long before the death and there is no evidence to show that she was treated with cruelty or harassment with such demand during the period between the birth of the child and till her tragic end. This Court is also of the considered view that the victim as well as her mother. there were two inconstant versions of PW. Section 4-Dowry death –Cruelty-Proximate and live link between effect of cruelty based on dowry demand and consequential death should be proved by prosecution – In present case. it shall not be stretched to any period. Coimbatore Indian Penal Code (45 of 1860).2 and PW. In the resent case. Sections 498-A. no evidence to shows ill-treatment of deceased for demand of dowry soon before her death – Evidence only show some misunderstanding between accused and deceased – Same does not lead to inference that accused had committed offences under Section 304-B. Held: The petitioner.Children) Act (56 of 2000). Held: The Trial Court had proceeded on the basis that even at the time of her marriage. 306. even if it is assumed that there was a demand of motor cycle and a house property.4. In such circumstances. 2010 2 MLJ 1240 M. The custodian of the trust has betrayed the trust reposed on him.4 to bring home the charge under Section 498-A and 306 of IPC on record and even regarding the last incident. Mohan and Another Vs State of Tamil Nadu by Inspector of Police. 304-B-Dowry Prohibition Act (28 of 1961). 306 and 498-A IPC and Section 4 of Dowry Prohibition Act – Conviction and sentence imposed on accused set aside. on the victim. nothing is brought out from the evidence of PW. accused of shocking and heinous crime of raping his own daughter . there was problem regarding demand of dowry.3 and as such. this petition is hereby dismissed. though cannot be restricted to a particular instance or period of time. the uncle of the deceased and PW.2 to PW. need protection by the police. The necessary ingredients for 23 . it is not desirable to release petitioner on bail-Petition dismissed. In the present case. has been accused of shocking and heinous crime of raping his own daughter. it is not desirable to release the petitioner on bail and accordingly. Section 23 . although there was no evidence in this behalf. who is none else than the father of the of the victim girl. The heinous crime alleged to have been committed by the petitioner is to be dealt with an iron hand. The release of the petitioner would definitely hamper the investigation and the petitioner may likely to cause serious threat and fear to the victim and her mother resulting in tampering he evidence. but at the same time.Pervert and degrading act of petitioner resulted in unbearable mental torture and agony not only to victim but also to victim’s mother and other close relatives – Heinous crime alleged to have been committed by petitioner to be dealt with iron hand – Considering seriousness and gravity of offence alleged. no presumption could be raised so as to base conviction under Section 304-B of IPC. Considering the seriousness and gravity of the offence alleged against the petitioner. no credence can be attributed to their evidence.
C.2010. 4.5 lakhs out of the cheque amount of Rs. Section 147 (Amendments introduced with effect from 6.2. the learned counsel for the respondent received demand draft and acknowledged it on the advise of the learned Magistrate. 24 .P. in Crl.S. at a later stage had changed his mind after receiving a sum of Rs.. Probation of Offenders Act.L. in the absence of any request for withdrawal or for compounding of the offence by the complainant?”. Held: Receipt of the cheque amount has not been denied by the respondent herein – But still.000/.2003 making the offence as compoundable offence). Negotiable Instruments Act.2003 making the offence as compoundable offence). The complainant is not denying the receipt of the amount of Rs. though the complainant had been willing to compromise the matter. 50.C.10. Section 361/Compunding of offence – See Negotiable Instruments Act..C.C. 5 lakhs which is the total cheque amount. Criminal P. Section 3. then it is open to the learned Judicial Magistrate to take into consideration about the payment made by the accused and also take into consideration the other factors and to show leniency while sentencing the accused – Even the learned Judicial Magistrate may apply the relevant provision under Section 3 of the Probation of Offenders Act and admonish him.2. the complainant is not coming forward either to withdraw the complainant or to compound the offence against he accused. Held: As per the petition filed by the accused.C. Sethuraman Vs P. Elavazhagan Criminal revision filed under Section 397 and 401 Cr.No. Section 361/Compounding of offence. 4782 of 2009 in C.02. Probation of Offenders Act.No. The remaining amount of Rs. Secton 3-See Negotiable Instruments Act. But. Criminal P. Section 147 (Amendments introduced with effect from 6.. subject to Section 361 of Cr.C with a prayer to treat the compromise memo filed by parties dated 07.M. against the order passed by the learned Judicial Magistrate. 2010 -1. 50 lakhs.259 of 2007 dated 09. Therefore. Section 3. Question which arises for consideration is “Whether the court can terminate the proceedings acting upon the payment made in full due under the cheque during the pendency of the criminal proceeding.2. Ariyalur. the respondent has not come forward for settlement with the accused – If the trial Court comes to the conclusion that the accused is guilty.2008 as compounding petition and to stop all the proceedings of the case and to discharge the accused.holding the Appellants guilty of commission of the offence under Section 306 and 498-A of IPC are totally absent in this case and therefore.2003 making he offence as compoundable offence). Probation of Offenders Act.W.P. Section 147 (Amendments introduced with effect from 6.(Crl) 697 P.P. it is made clear. Revision was preferred against dismissal of petition filed before Magistrate by the Accused under Section 258 r/w 320 Cr. conviction even under Section 306 and 498-A of IPC is not warranted.P.also was received as demand draft.
10. Question considered.P.C.C. Scope. 468. Section 409. 13(2).P.L. the bail granted earlier shall not automatically stand cancelled and therefore. I.1995.Prayer for grant of Anticipatory Bail. Section 439/Petition (Crl.P. Sections 323.O.W. the police shall not have the power to re-arrest the accused until the bail granted earlier is cancelled by way of a positive order by the appropriate court.C.Rc.O. I.C. I.C. Section 397(1)(2)/Revision against order of Special Judge declining to discharge Revision Petitioner (6th Accused). 506 (ii).Held: simply because a penal provision is added in the case in respect of a serious non-bailable offence. Prevention of Corruption Act (1988).. by The Inspector of Police. the question of granting anticipatory bail does not arise – Criminal Original Petition dismissed with observations.C. 120-B.P.C. Since the bail granted to the petitioner earlier by the learned Magistrate has not so far been cancelled.O.O.(Crl) 703 Dhivan Vs State rep. 201. being added in the Final Report – Prayer for grant of Anticipatory Bail .. Scope.. . Sections 13(1) (c) .(Crl) 707 P. Section 302 of IPC was also added and according to the petitioner. 19(3). the apprehension of arrest at this stage when the petitioner is very much on bail is baseless and so. I.) praying for Anticipatory Bail – Rearrest of accused who is on Bail granted by Magistrate whether permissible on the ground of Section 302. Vadalur Criminal P.P. (302). being added in the Final Report..P. Guidelines issued by the Director of Rehabilitation by his proceedings in D. Scope. 506(ii) and Bail was granted by Magistrate – When final report was submitted.) – Re-arrest of accused who is on Bail. Section 439/Petition (Crl.P..P.No.L. H/7728/94 dated 04. Dharmapuri I. In respect of the procedures to be followed for the verification of the identity of the beneficiary.C.W.. 420. Objection for maintainability of revision 25 . (302). 2010 -1. whether the respondent police has got power to re-arrest the petitioner at this stage though he is enjoying he benefit of order of bail granted by the learned Magistrate?. Criminal P. he is again sought to be arrested by the respondent police not withstanding the fact that he has already been granted bail by the learned Magistrate and filed the Crl. Thangaraju Vs State Represented by its Deputy Superintendent of Police. granted by Magistrate whether permissible on the ground of Section 302. 506(ii).2010 -1.See Criminal P.. 201. Section 323. Case registered under Ss.323.
In the PCA. Nedunchezhian’s case. Objection raised for maintainability considered.P.1995.6.. H/7728/94 dated 04. H/7728/94 dated 04.P. and followed by this Court in V. In respect of the procedures to be followed for the verification of the identity of the beneficiary. Section 326.10. In this case. 120-B. 19(3)(c) of the PCA should have the same extended meaning as interpreted in Madhu Limaye’s case by the Hon’ble Supreme Court.W.C.L.C.1995 cannot be in any manner made applicable to the facts of the present case. 19(3). the non-obstante clause to the extent of such conflict may make one Act to have over-riding effect on the other. an order declining to discharge an accused under the PCA is an ‘intermediate order’ against which revision lies.Rc. Scope.(Crl) 748 Srinivasan Vs The State of Tamil Nadu. what is – Held: settled rule of interpretation is that when there is a conflict between two enactments. 452/Fracture. 2010 -1. Guidelines issued by the Director of Rehabilitation by his proceedings in D. Crl.O.10. Sections 13(1)(c) . By Sub Inspector of Police. rep. Considerations – In this case. there were no Guidelines issued by the Director of Rehabilitation in respect of the procedures to be followed for the verification of the identity of the beneficiary – Such Guidelines were issued by the Director of Rehabilitation by his proceedings in D. 19(3).10. P.11(2) of the PCA and in S.1995.See I.O. Section 397(1)(2) /Revision aganint order of Special Judge declining to discharge Revision Petitioner (6th Accused). Guidelines issued by the Director of Rehabilitation by his proceedings in D. To conclude. 120-B Criminal P.. Sahu who was examined on the prosecution side would depose before the Court that he was conversant with the handwriting and signature of the Doctor who gave 26 .W. 468. Dindivanam I.C. the Guidelines dated 04.R.1995 – Procedure contemplated in the guidelines dated 04..Rc.C. Sections 409. Sections 13(1)(c).Rc. Section 409. assuming that the petitioner was also a party to the breach of the procedures contemplated in the matter of sanction of the loan under the Scheme. 13(2).P.No. Prevention of Corruption Act (1988). Scope. In respect of the procedures to be followed for the verification of the identity of the beneficiary. there is no such total exclusion of the provisions of the Code of Criminal Procedure in respect of revision – There is no conflict between Section 19(3)(c) of the PCA and Section 397(2) of the Code – Simply because non-obstante clause is found both in S. Dr.P.considered.C. 420. Crl.O.No.03. 468. “Interlocutory order” in Section 397. Prior to 04.1995 cannot be made applicable to the facts of the present case since the 3rd instalment was sanctioned by the Revenue Divisional Officer as early as on 05. Prevention of Corruption Act (1988). Sentence. what is – See I.10..1995. that will not amount to any of the offences as stated in the final report – There is no material on record to frame charges against the petitioner .10.P. 13(2).Petitioner is entitled for discharge from the case – Revision allowed.1994 itself – Thus. 420.10.. nature of.C.No H/7728/94 dated 04. “Interlocutory order” in Section 397.
P. the wound certificate was marked – The core question arises as to what was the actual nature of the grievous injury. the petition which culminated in the impugned order was filed only to enforce the order of maintenance as provided in Section 128 of the Code and it was not filed 27 .2971 of 2008 before the learned Magistrate under Section 128 of the Code for execution.128 –Revision against order of Magistrate Imposing sentence of Rigorous Imprisonment for 12 months on the petitioner (husband). Section 125. is remitted to the learned Judicial Magistrate.per month to the respondent (wife) herein as maintenance. On the ground that the petitioner failed to pay the maintenance amount for 37 months. In the petition filed under Section 125.Hence I would like to agree with the submission made by the learned counsel for the petitioner that the sentence of one month imprisonment. It is well settled that under Section 128 of the Code while enforcing an order of maintenance.L.M.03. Fact is that for the offence under Section 326 IPC. the respondent requested the learned Magistrate to grant time to pay the amount.treatment and through him Ex. the learned Magistrate is not empowered to impose any sentence on the defaulter – The learned Magistrate is empowered only to enforce the same as provided for recovery of fine in the Code – Order impugned in this revision is set aside.2009 imposed a sentence of 12 months of Rigorous Imprisonment. and Crl. – Unless in detail the nature of the fracture is found established. it is found proved that the injured sustained fracture . P3.M. the petitioner is now before this Court with this revision. to one month simple imprisonment – Revision partly allowed. (1973).(Crl) 751 Periyasamy Vs Lakshmi Criminal P. and it all depends upon the gravity of the grievous inflicted on a person with dangerous weapon – Here. even life imprisonment is contemplated. Challenging the same. Accordingly. the petitioner did not pay the amount.000/. in the Crl. Erode District to enforce the order as provided in Section 128. Magistrate passed an order directing the petitioner (husband) herein to pay a sum of Rs. technically alone. the respondent filed Crl. It is one thing to say that there was fracture and yet it is another. Finally. compound fracture. On appearance. pursuant to an order passed in the MC filed under Section 125. the learned Magistrate by order dated 25. like simple fracture. 1. seeking maintenance – Held: the petition which culminated in the impugned order was filed only to enforce the order of maintenance as provided in Section 128 of the Code and it was not filed under Section 125(3) of the Code. this Court cannot have a clear view of it in its mind’s eye about the nature of the fracture. this revision is partly allowed by reducing the two sentences of six months rigorous imprisonment imposed under Section 452 IPC as well as under Section 326 IPC.C. if imposed. Bhavani.P filed under Section 128 for execution.W.No. 2010 -1.. to point out clearly what was the gravity of the fracture – There are various types of fractures. Held: Admittedly. etc. that would meet the ends of justice.M. Though time was granted.P.
lenient view can be taken in awarding sentence against the accused and under the said circumstances. the present criminal appeal can be allowed in part. the learned Magistrate has allowed the petition therebyput an end to the further proceedings. the order impugned in this revision is set aside. It is not as though a wrong provision has been quoted by the respondent.L. Even during the argument. it was understood by the parties that the petition was filed only under Section 128 of the Code. 149.(Crl) 753 Pooluthevar & 4 others Vs The State rep. the learned Magistrate has passed an order of sentence as though she was dealing with a petition under Section 125(3) of the code. which is evidence from the impugned order itself. Therefore. But. the limitation.P. 2971 of 2008 is remitted to the learned Judicial Magistrate. but also deprives the respondent inasmuch as she has claimed arrears of maintenance for 37 months.W. 99.C. Bhavani. by the Inspector of Police. Erode District to enforce the order a provided in Section 128 of the Code of Criminal Procedure.M.P. It is needless to say that under Section 1259(3) of the Code. Scope-Right of private defence is not available unless a particular act would cause reasonable apprehension of death or grievous hurt. 148. 28 .No. there ware various constraints like. and Crl. Thus.under Section 125(3) of the Code. 105/Private Defence. to entertain a petition. The learned Magistrate is empowered only to enforce the same as provided for recovery of fine in the Code. a petition filed under Section128 of the Code cannot be treated as a petition filed under Section 125 of the Code. Tbhoothukudi I. etc. the impugned order is not at all sustainable. whereas the order relates only to 12 months. Considering the nature of the injuries sustained by PW1. obviously.. the accused 1 & 2 can be sentenced to undergo six months rigorous imprisonment under Section 307 red with 149 of the Indian Penal Code and the accused 3 to 5 can be sentenced to undergo one year rigorous imprisonment under Section 307 – With the above modification. 2010 -1. Basic principle of doctrine of the right of private defence is that when an individual or his property is faced with danger and immediate aid from the State machinery is not readily available. then the concerned individual is entitled to protect himself and his property. The order impugned in this revision petition not only has caused prejudice to the petitioner. Now. The powers of the Magistrate under Section 125 and 128 of the Code are distinguishable. the learned Magistrate is not empowered to impose any sentence on he defaulter. Plea as to. Revision petition is allowed. there is no such limitation provided for enforcing the order. 103.. It is well settled that under Section 128 of the Code while enforcing an order of maintenance. the respondent also stands to lose the arrears of maintenance for 25 months. whereas under Section 128 of the Code. Section 307. Thus.
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue reading from where you left off, or restart the preview.