advocatemmmohan
judicial magistrate
Habeas corpus petition – Judicial Custody – Not maintainable – petitioner is an accused in a criminal case and therefore he is in judicial custody by virtue of an order passed by the Judicial Magistrate -no illegal detention as alleged by the petitioner – Instead of applying for bail – came with this Habeas corpus petition – Apex court dismissed the same and directed to petitioner to file bail application before the concerned court = WRIT PETITION (CRL.) NO. 147 OF 2013 SAURABH KUMAR THROUGH HIS FATHER … PETITIONER VERSUS JAILOR, KONEILA JAIL & ANR. … RESPONDENTS = 2014 July. Part – http://judis.nic.in/supremecourt/filename=41780
Habeas corpus petition – Judicial Custody – Not maintainable – petitioner is an accused in a criminal case and therefore he is in judicial custody by virtue of an order passed by the Judicial Magistrate –no illegal detention as alleged by the petitioner – Instead of applying for bail – came with this Habeas corpus petition … Continue reading
Sec.482 Quashing of summons issued and criminal proceedings – sec.192,200,201 and 202 Cr.P.C.-Accused out of jurisdiction does not contemplate any separate recording system of evidence before taking cognizance under sec.202 – Additional Chief Judicial Magistrate, after receiving complaint under sec.200 transferred the same to another magistrate who examined the complainant and witness and after taking cognizance issued summons to accused – Challenged on the ground that the accused are out of jurisdiction and the magistrate has to give finding whether there is a prima faice case to proceed against the accused – High court dismissed the application – Apex court held that there is no separate mode or procedure except to examine the complainant and witness under sec.200 and after taking cognizance issued summons to the accused and confirmed the order of high court and dismissed the special leave petition =
Sec.482 Quashing of summons issued and criminal proceedings – sec.192,200,201 and 202 Cr.P.C.-Accused out of jurisdiction does not contemplate any separate recording system of evidence before taking cognizance under sec.202 – Additional Chief Judicial Magistrate, after receiving complaint under sec.200 transferred the same to another magistrate who examined the complainant and witness and after taking cognizance issued summons … Continue reading
Sec.406 I.P.C.- Criminal breach of Trust – police reported the case as false – protest petition and it’s appeal were dismissed by lower courts – High court in revision set aside the lower courts order and remanded the case finding prima faice offence for next step allowing protest petition – Apex court confirmed the High court order – Complainant clearly deposed that he had handed over gold while purchasing cloth in accused shop and were not returned – accused admitted the same – enough to hold prima faice case against the accused – accused admitted it – burden lies on him to prove non-guilty = Ghanshyam …. Appellant Vs. State of Rajasthan …. Respondent = Published in/Cited in / Reported in judis.nic.in/supremecourt/filename=41078
Sec.406 I.P.C.- Criminal breach of Trust – police reported the case as false – protest petition and it’s appeal were dismissed by lower courts – High court in revision set aside the lower courts order and remanded the case finding prima faice offence for next step allowing protest petition – Apex court confirmed the High … Continue reading
Retrial – the trial court acquitted the case after full trial on benefit of doubt without considering the medical evidence, and due to non speaking of evidence clearly , due to hostile witnesses and due to improvements- Appellant court set aside the acquittal and remanded the case for fresh trail on petition – High court in revision set aside the retrial order and also set aside the main order of appeal which found prima faice case, with out considering and assessing the medical evidence – Apex court on petition for retrial held that no retrial can be order and confirmed the view of high court – Apex court on SLP against revision held that High court committed wrong in allowing the revision with out considering material as to why the lower appellant court set aside the acquittal order – Apex court remanded the case to high court for fresh disposal on this point = MARY PAPPA JEBAMANI ..Appellant Versus GANESAN & ORS. ..Respondents = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41055
Retrial – the trial court acquitted the case after full trial on benefit of doubt without considering the medical evidence, and due to non speaking of evidence clearly , due to hostile witnesses and due to improvements- Appellant court set aside the acquittal and remanded the case for fresh trail on petition … Continue reading
Sec.138 ,139 and sec. 118 of N.I.Act – Burden of proof – when the complainant not able to say the date when the amount was given – when failed to produce source of income – when gave contradictory statement about filling of cheque whether by accused or by himself – when there is no pleading that cheque was filled with the consent of accused – mere lack of issuing a reply notice and mere non putting a suggestion that the cheque was a blank cheque are not countable points to over throw the positive admissions made by the complainant – Lower court rightly dismissed the complaint – High court wrongly with out assigning valid reasons convict the accused – Apex court set aside the high court orders = John K. Abraham …. Appellant VERSUS Simon C. Abraham & Another …. Respondents = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41045
Sec.138 ,139 and sec. 118 of N.I.Act – Burden of proof – when the complainant not able to say the date when the amount was given – when failed to produce source of income – when gave contradictory statement about filling of cheque whether by accused or by himself – when there is … Continue reading
When the Magistrate can add additional sections himself on the a petition of Complainant /informant after filing a charge sheet by police ? = If F.I.R. was registered on a private complaint – a Magistrate can add additional sections after filing charge sheet by police : If F.I.R. was registered directly by police through information, a Magistrate can not add additional sections after filing charge sheet , only trial court under sec.211 at the time of trial add the same : STATE OF GUJARAT ..Appellant Versus GIRISH RADHAKRISHNAN VARDE ..Respondent = http://courtnic.nic.in/supremecourt/qrydisp.asp
When the Magistrate can add additional sections himself on the a petition of Complainant /informant after filing a charge sheet by police ? = If F.I.R. was registered on a private complaint – a Magistrate can add additional sections after filing charge sheet by police : If F.I.R. was registered directly by police through information, … Continue reading
Sec.302 , 498 A I.P.C = F.I.R. to sub inspector that accidentally sari caught with fire of stove = Dying declaration recorded by Magistrate revealed that husband burnt her alive by pouring kerosin = Explanation by parents that F.I.R. statement was given at the instance of accused sister = Conviction is proper = NANDEPU ABRAHAM Appellant (s) VERSUS STATE OF A.P. Respondent(s) = published in http://courtnic.nic.in/supremecourt/qrydisp.asp
F.I.R. to sub inspector that accidentally sari caught with fire of stove = Dying declaration recorded by Magistrate revealed that husband burnt her alive by pouring kerosin = Explanation by parents that F.I.R. statement was given at the instance of accused sister = Conviction is proper = ‘ PW-8 N. Victor Immanuel, at … Continue reading
SEC. 304 B , 306 AND 498 A I.P.C. – When wife stated that she committed suicide as she was fed up with the acts of husband with out disclosing the activities – it can not be considered as an offence under sec. 304 B as there is no allegation that soon before her committing suicide the husband harassed her dowry etc., Apex court punished the husband under sec.306 and 498 A I.P.C. = Rajeev Kumar …… Appellant Versus State of Haryana ….. Respondent – http://judis.nic.in/supremecourt/filename=40946
SEC. 304 B , 306 AND 498 A I.P.C. – When wife stated that she committed suicide as she was fed up with the acts of husband with out disclosing the activities – it can not be considered as an offence under sec. 304 B as there is no allegation that soon before her committing suicide the … Continue reading
Divorced Muslim wife petition for maintenance under sec.125 Cr.P.C. is directed to be converted suo-moto by Magistrate and directed to decided the same under MWP ACT = i. That divorced muslim wife would be entitled to maintenance from her husband under section 125 of Criminal Procedure Code subject to provisions of MWP Act. ii. That law laid down by the Apex Court in Saha Bano’s case (Supra) [Mohammad Ahamad Khan Vs. Saha Bano Begam AIR1985 SC 945: (1985)2 SCC 556] has been analyzed and codified the same in Muslim Women (Protection of Rights on Divorce) Act 1986. iii. In Dainial Latifi’s case (Supra) The validity of Muslim Women (Protection of Rights on Divorce) Act, 1986 has been upheld. iv. In view of provisions contained in section of 5 of MWP Act if the parties have exercised their option, the parties to be governed by provisions of Section 125 to 128 of Criminal Procedure Code, and not in accordance with the provisions contained in MWP Act. The application so given under MWP Act shall be disposed of in view of the provisions contained in Section 125-128 Cr.P.C. v. In section 125 the word ‘ Divorced women’ include muslim women, who has been married accord to Muslim Law and has been divorced by or has obtained divorce from her husband in accordance with Muslim Law. vi. That MWP Act will not apply to a muslim women whose marriage has been solemnized either under the Indian Special Marriage Act 1954 or a Muslim women whose marriage was dissolved either under Indian Divorce Act, 1969 or Indian Special Marriage Act, 1954. vii. When a petition is filed by divorced muslim women for her maintenance before a family court, section 7 of the Family Court Act, 1987 would be applied. In view of of section 20 of Family Courts Act 1984, the provisions of Family Courts Act shall have overriding effect over all other law for the time being in force including the provisions of MWP Act . Any suit or proceeding for maintenance filed before family Court by any women including muslim women be governed by provisions of Section 125 Cr.P.C, which is a common law applicable to all the women and thus Family Courts are competent to decide the application of muslim divorced women under section 125 Cr.P.C. viii. The court proceeding under section 125 Cr.P.C. if is of the opinion that the matter relates to reasonable and fair provision and maintenance to divorced muslim women it would be open to him to treat the application under MWP Act instead of rejecting the same because the proceeding under section 125 Cr.P.C. and claim made under MWP Act could be tried by one and the same court.
reported/published in http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved AFR High Court of judicature at Allahabad, Lucknow Bench, Lucknow District- Lucknow Writ Petition No. – 4909 (M/S) of 2008 Rafiquddin son of Raisul Zama, resident of Village and post Vaishpur, P.S.-Mandhata, District Pratapgarh. ………………… Petitioner Vs. 1. Kishwar Jehan, daughter of Sri Habibur … Continue reading
FRAUDULENTLY OBTAINED DISCHARE FROM CRIMINAL CASE = “court is not a laboratory where children come to play”. The action of the accused-respondent depicts the attitude where one calculatedly conceives Page 2 the concept that he is entitled to play a game of chess in a court of law and the propriety, expected norms from a litigant and the abhorrence of courts to the issues of suppression of facts can comfortably be kept at bay. Such a proclivity appears to have weighed uppermost in his mind on the base that he can play in aid of technicalities to his own advantage and the law, in its essential substance, and justice, with its divine attributes, can unceremoniously be buried in the grave. = The fraudulent intention is writ large. In fact, he has shown his courage of ignorance and tried to play possum. The High Court, as we have seen, applied the principle “when infrastructure collapses, the superstructure is bound to collapse”. However, as the order has been obtained by practising fraud and suppressing material fact before a court of law to gain advantage, the said order cannot be allowed to stand. That apart, we have dealt with regard to the legal sustainability of the order in detail. Under these circumstances, we are disposed to think that the power under Article 142 of the Constitution is required to be invoked to do complete justice between the parties. Cognizance of the offences had been rightly taken by the learned Magistrate and charges, as we find, have been correctly framed by the learned trial Judge. A victim of a crime has as much right to get justice from the court as an accused who enjoys the benefit of innocence till the allegations are proven against him. when an order of quashment of summons has been obtained by suppression, this Court has an obligation to set aside the said order and restore the order framing charges and direct the trial to go on. And we so direct.= Consequently, the appeal is allowed, the order passed by the High Court in Criminal Revision No. 327 of 2011 and the order passed by the learned Additional District and Sessions Judge, No.1, Jodhpur, in Criminal Revision No. 7 of 2009 are set aside and it is directed that the trial which is pending before the learned Additional District and Sessions Judge, No. 3, Jodhpur, shall proceed in accordance with law.
Page 1 Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 785 OF 2013 (Arising out of SLP (Crl. ) No. 294 of 2013) Moti Lal Songara …Appellant Versus Prem Prakash @ Pappu and Anr. …Respondents J U D G M E N T Dipak Misra, J. Leave granted. 2. … Continue reading
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