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Magistrate

This tag is associated with 11 posts

Quash – Private complaint – Ex-employees filed criminal complaint against the company on criminal charges – Magistrate took cognizance – petition for quash dismissed by High court – again filed the again dismissed – Apex court directed to pay the amounts of complainants and set aside the orders of magistrate and quashed the complaint = J.L. Soman & Ors. … Appellants Vs. State of Bihar & Anr. … Respondents = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41100

 Quash – Private complaint – Ex-employees filed criminal complaint against the company on criminal charges – Magistrate took cognizance – petition for quash dismissed by High court – again filed the again dismissed – Apex court directed to pay the amounts of complainants and set aside the orders of magistrate and quashed the complaint =  … Continue reading

Dying declaration – if not died can be considered as sec.164 statement can be used for contradiction etc., under sec.157 ,sec.155- provided – a dying declaration – cum – sec.164 statement can not be called as full statement of witness – after regain, her full sec.161 statement was recorded – Apex court held no wrong = Veer Singh & Ors. .. Appellant(s) versus State of U.P. .. Respondent(s) = Published in / cited in / Reported in judis.nic.in/supremecourt/filename=41065

Dying declaration – if not died can be considered as sec.164 statement can be used for     contradiction etc., under sec.157 ,sec.155– provided – a dying declaration – cum – sec.164 statement can not be called as full statement of witness  – after regain, her full sec.161 statement was recorded – Apex court held no wrong … Continue reading

Sanction to prosecution is a conditional precedent = whether the Special Judge/Magistrate is justified in referring a private complaint made under Section 200 Cr.P.C. for investigation by the Deputy Superintendent of Police – Karnataka Lokayukta, in exercise of powers conferred under Section 156(3) Cr.P.C. without the production of a valid sanction order under Section 19 of the Prevention of Corruption Act, 1988.= The High Court, after hearing the parties, took the view that the Special Judge could not have taken notice of the private complaint unless the same was accompanied by a sanction order, irrespective of whether the Court was acting at a pre-cognizance stage or the post- cognizance stage, if the complaint pertains to a public servant who is alleged to have committed offences in discharge of his official duties. The High Court, therefore, quashed the order passed by the Special Judge, as well as the complaint filed against the appellant. ;Taking cognizance of an offence= “It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out.”; whether, in the above mentioned legal situation, the requirement of sanction is a pre-condition for ordering investigation under Section 156(3) Cr.P.C., even at a pre-cognizance stage. Section 2(c) of the PC Act deals with the definition of the expression “public servant” and provides under Clauses (viii) and (xii) as under: “(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty. (xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority.”= When a Special Judge refers a complaint for investigation under Section 156(3) Cr.P.C., obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post-cognizance stage. = “19. Previous sanction necessary for prosecution.—(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction— a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government; b) in the case of a person who is employed in connection with the affairs of a State and is not removeable from his office save by or with the sanction of the State Government, of that Government; c) in the case of any other person, of the authority competent to remove him from his office.”- “Section 19(3) – Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- a) no finding, sentence or order passed by a special judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of, or any error, omission or irregularity in the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby; b) xxx xxx xxx c) xxx xxx xxx”= Once it is noticed that there was no previous sanction, as already indicated in various judgments referred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C. – “Thus, in view of the above, the law on the issue of sanction can be summarized to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him….. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio.”= We are of the view that the principles laid down by this Court in the above referred judgments squarely apply to the facts of the present case. We, therefore, find no error in the order passed by the High Court. The appeals lack merit and are accordingly dismissed.

  published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40843     REPORTABLE           IN THE SUPREME COURT OF INDIA   CRIMINAL APPELLATE JURISDICTION   CRIMINAL APPEAL NOS. 1590-1591 OF 2013 (@ Special Leave Petition (Criminal) Nos.6652-6653 of 2013)   Anil Kumar & Ors. ….. Appellants   Versus   M.K. Aiyappa & Anr. ….. Respondents     … Continue reading

For Taking cognizance under sec. 504 of I.P.C.- NO VERBATIM NECESSARY = The appellant then preferred Criminal Revision Application No. 1124 of 2011 challenging the order issuing the process for offence punishable under Section 504 IPC. It was contented that the allegation that she had indulged in any action with an intention to provoke the complainant to break breach of public peace or commit any other offence, was totally unfounded. Further, it was also pointed out that no details had been furnished in that complaint to show in what manner the appellant had attempted to provoke the complainant, so as to attract Section 504 IPC .Further, it was pointed out that the complaint ought to have disclosed the actual words if, at all, used by the appellant, which would have provoked her to commit any other offence. It was also pointed out that the learned Magistrate has not properly understood the scope of Section 202 Cr.P.C. in issuing the process to the appellant. = “504. Intentional insult with intent to provoke breach of the peace.- Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”= Section 504 IPC comprises of the following ingredients, viz., (a) intentional insult, (b) the insult must be such as to give provocation to the person insulted, and (c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. = the actual words or language should figure in the complaint. One has to read the complaint as a whole and, by doing so, if the Magistrate comes to a conclusion, prima facie, that there has been an intentional insult so as to provoke any person to break the public peace or to commit any other offence, that is sufficient to bring the complaint within the ambit of Section 504 IPC. It is not the law that a complainant should verbatim reproduce each word or words capable of provoking the other person to commit any other offence. The background facts, circumstances, the occasion, the manner in which they are used, the person or persons to whom they are addressed, the time, the conduct of the person who has indulged in such actions are all relevant factors to be borne in mind while examining a complaint lodged for initiating proceedings under Section 504 IPC.

published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40683    REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1231 OF 2013 [Arising out of SLP (Crl.) No. 382 of 2013] Fiona Shrikhande .. Appellant Versus State of Maharashtra and Another .. Respondents J U D G M E N T K. S. Radhakrishnan, J. Leave … Continue reading

Section 13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988 read with Section 109 of the Indian Penal Code.- Non- filing of original complaint not fatal when not relied upon it = whether the prosecution is bound to produce the original complaint/application filed by an unknown person, based on which an inquiry was initiated by the Anti Corruption Bureau.= the prosecution has categorically taken the stand that they do not propose to rely upon the information passed on to the Anti Corruption Bureau leading to an open inquiry against the accused persons. We fail to see how the accused persons are prejudiced by non-disclosure of the name of the person who sent the complaint as well as the original copy of the complaint received by the Anti Corruption Bureau. Situations are many where certain persons do not want to disclose the identity as well as the information/complaint passed on them to the Anti Corruption Bureau. If the names of the persons, as well as the copy of the complaint sent by them are disclosed, that may cause embarrassment to them and sometimes threat to their life. This complaint only triggered an enquiry. Ultimately, the first information was lodged on the basis of an open inquiry bearing VER No.31/1987 and it is based on that inquiry the first information report dated 13.10.1992 was registered. After completion of the investigation and after getting the sanction to prosecute accused No.1, charge-sheet was filed. PW1 also did not depose anything about the receipt of complaint/application in his examination-in-chief but receipt of the complaint/application and its contents having been relied upon by the defence during cross-examination of PW1. 11. We also emphasize that in the instant case the prosecution has relied upon the material which was collected during the investigation. It is not a case where some materials/documents were collected by the investigating agency during the investigations which are in favour of the prosecution and the prosecution is suppressing those documents. We are of the opinion that non-supply of the complaint or contents thereof do not, at all, violate the principle of fair trial. The said complaint has no relevancy in the context of this prosecution and in no manner, it would prejudice the petitioner. 12. Above being the factual and legal position, we find no reason to interfere with the order of the Bombay High Court and dismiss this special leave petition.

 published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40662    REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPEALLATE JURISDICTION SPECIAL LEAVE PETITION (CRIMINAL) NO.5897 OF 2013   Manjeet Singh Khera …. Petitioner Versus State of Maharashtra ….Respondent O R D E R   K.S. Radhakrishnan, J.   1. We are, in this case, concerned with the question whether the … Continue reading

Section 193 Cr.P.C. =Constitution Bench for consideration. 4. The questions which require the consideration of the Constitution Bench are as follows: i) Does the Committing Magistrate have any other role to play after committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session? ii) If the Magistrate disagrees with the police report and is convinced that a case had also been made out for trial against the persons who had been placed in column 2 of the report, does he have the jurisdiction to issue summons against them also in order to include their names, along with Nafe Singh, to stand trial in connection with the case made out in the police report? iii) Having decided to issue summons against the Appellants, was the Magistrate required to follow the procedure of a complaint case and to take evidence before committing them to the Court of Session to stand trial or whether he was justified in issuing summons against them without following such procedure? iv) Can the Session Judge issue summons under Section 193 Cr.P.C. as a Court of original jurisdiction? v) Upon the case being committed to the Court of Session, could the Session Judge issue summons separately under Section 193 of the Code or would he have to wait till the stage under Section 319 of the Code was reached in order to take recourse thereto? vi) Was Ranjit Singh’s case (supra), which set aside the decision in Kishun Singh’s case(supra), rightly decided or not? = “193. Cognizance of offences by Courts of Session. – Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.”= whether the decision in Ranjit Singh’s case (supra) was correct or not in Kishun Singh’s case (supra), is answered by holding that the decision in Kishun Singh’s case was the correct decision and the learned Session Judge, acting as a Court of original jurisdiction, could issue summons under Section 193 on the basis of the records transmitted to him as a result of the committal order passed by the learned Magistrate. 31. Consequent upon our aforesaid decision, the view taken by the Referring Court is accepted and it is held that the decision in the case of Kishun Singh vs. State of Bihar and not the decision in Ranjit Singh Vs. State of Punjab lays down the law correctly in respect of the powers of the Session Court after committal of the case to it by the learned Magistrate under Section 209 Cr.P.C. 32. The matter is remitted to the Three-Judge Bench to dispose of the pending Criminal Appeals in accordance with the views expressed by us in this judgment.

 Reported in  http://judis.nic.in/supremecourt/imgst.aspx?filename=40579 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 148 of 2003   1 2 DHARAM PAL & ORS. … APPELLANTS VS.   2 STATE OF HARYANA & ANR. … RESPONDENTS WITH CRIMINAL APPEAL NOS. 865 of 2004, 1334 of 2005 and 537 of 2006     J … 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

whether the learned Special Judge for CBI Cases is empowered to refer the complaint under Section 156(3) Cr.P.C to the CBI for investigation?

THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.8003 of 2010 05.10.2012 Central Bureau of Investigation, rep. by Superintendent of Police, Hyderabad Dr.G.Venkateshwar Rao S/o late G.Gopal Rao Naidu, Secunderbad Counsel for the petitioner: Sri P.Keshava Rao SC for CBI Cases Counsel for respondent : Sri K.Srinivasa Kumar <Gist: >Head Note: ?Cases referred: AIR 2001 … Continue reading

rash and negligent driving of the driver.“Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the edifice of “order” should meet the challenges confronting the society. Friedman in his “Law in Changing Society” stated that, “State of criminal law continues to be – as it should be – a decisive reflection of social consciousness of society”. Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be.”In view of the aforesaid, we have to weigh whether the submission advanced by the learned counsel for the appellant as regards the mitigating factors deserves acceptance. Compassion is being sought on the ground of young age and mercy is being invoked on the foundation of solemnization of marriage. The date of occurrence is in the month of March, 2006. The scars on the collective cannot be said to have been forgotten. Weighing the individual difficulty as against the social order, collective conscience and the duty of the Court, we are disposed to think that the substantive sentence affirmed by the High Court does not warrant any interference and, accordingly, we concur with the same. 31. Consequently, the appeal, being devoid of any substance, stands dismissed.

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1325 OF 2012 (Arising out of S.L.P. (Criminal) No. 9132 of 2011 Guru Basavaraj @ Benne Settappa … Appellant Versus State of Karnataka … Respondent   J U D G M E N T Dipak Misra, J. Leave granted. 2. In this appeal … Continue reading

Delay in filing FIR=There is also no explanation for the delay in lodging the complaint. Further-more, the lower Court noticed that the evidence of the doctor clearly goes to show that on 02.09.2001 PW.1 was examined at 12-00 Noon and the age of the injuries is about 24 to 36 hours prior to the examination, consequently the lower Court has found that the injuries must have been caused, if any, prior to 12.00 Noon on 01.09.2001, and which destroy the prosecution case that the incident happened on 01.09.2001 at 9.30 P.M. Evidently, there are said to be some civil disputes and ill-feelings between both the parties. The evidence of PW.1 is not supported by any independent evidence and the medical evidence is also not corroborative and therefore, the lower Court has rightly extended the benefit of doubt to the accused and there are no compelling reasons to come to a different conclusion.

THE HON’BLE SRI JUSTICEN.R.L. NAGESWARA RAO     CRIMINAL APPEAL No.70 OF 2012     JUDGMENT:-   The appeal is filed against the acquittal of the accused in Calendar Case No.324 of 2001 on the file of the Additional Munsif Magistrate, Kandukur.   2.       The parties are referred as arrayed in the lower Court.     … Continue reading

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