Agreement by wife for relinquishment of her right to claim maintenance is not enforceable even if voluntarily entered by her

Divorce by mutual consent - Wife agreed not to claim any maintenance including Streedhan, husband assured to continued marrital relationship and maintain her- Husband and wife continued their marrital relationship inspite of paper decree of divorce - After some years husband discontinued this relationship and not made any arrangement for maintenance of wife who has been divorced by him - Wife claimed maintenance u/s.125 of CrPC - Husband's defence that she had given up her claim for maintenance, when the decree for divorce by mutual consent was passed; and she has income source as she is running a beauty parlour.

Held:

   A woman after divorce becomes destitute. If she cannot maintain herself and remains unmarried, the man who was once her husband continues to be under a duty and obligation to provide maintenance to her.[Para No.20]

Discharge of accussed: if no grave suspicion exist

• When discharge of accused can be granted ?

• What has to be considered while deciding framing of charge against accessed?

   It is a settled principle of law that at the stage of framing of charge, Magistrate can sift the evidence for limited purpose. Detailed scrutiny is not to be done. Prosecution story need not be accepted as gospel truth. If the charge is found to be groundless, then the Magistrate on consideration of the police report and the documents and making such examination as deemed appropriate, may discharge the accused, but if there is ground to presume that accused has committed an offence, the charge can be framed. The basic concept is that the Court has to see the prima facie nature of the case at the time of framing of charge. Broad probability of the case can be considered. Following principles are to be kept in mind at the time of framing of charge:-

Examination of investigating officer; before injured or eye witness is examined, does not cause prejudice to accused in his defence

Fair trial - order of examination of witnesses by prosecution - Sec.135 of Evidence Act - Sec.230, 231, 311 of CrPC

   Does examination of investigating officer before injured or eye witness is examined, cause prejudice to accused in his defence?

Held: No

Order of process issue is not interlocutory order still can not be challenge u/s.482 of CrPC

So far as the order dated 04.02.2016 is concerned, cognizance of the offence was taken and the accused were directed to face trial by way of issuing summons. 

   It is settled law that such orders are revisable orders as they adversely affect the right of the accused. Revision would lie against such order.[Para No.5 and 6]

Defence story has to be suggested in cross examination

Importance of putting defence story in cross examination of witness - No suggestion is given to witness in the cross examination about the story put forwarded by accused  in his statement u/s.313 of Cr.P.C.

Held:

   
   When the defence did not put any question to the witness in the cross-examination on a material point, it cannot subsequently raise any grievance on such point. When it is intended to suggest that a witness is not speaking the truth on a point, it is absolutely essential to direct his attention to the disputed facts and grant him opportunity to offer his explanation on that point. It is a settled legal proposition that in case the question is not put to the witness in cross-examination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised. [Para No.19]

F.I.R. can not be doubted if name of accused is not mentioned in F.I.R

It is settled law that FIR is not an encyclopedia of facts and it is not expected from a victim to give details of the incident either in the FIR or in the brief history given to the doctors. FIR is not an encyclopedia which is expected to contain all the details of the prosecution case; it may be sufficient if the broad facts of the prosecution case alone appear.[Para No.15]

What factor's has to be considered while awarding sentence for an offense?

A proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances extenuating or aggravating of the offence, the prior criminal record, if any, of the offender, the age of the offender, the record of the offender as to employment, the background of the offender with reference to education, home life, sobriety and social adjustment, the emotional and mental condition of the offender, prospect for rehabilitation of the offender, the possibility of return of the offender to normal life and the community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such a deterrent in respect of the particular type of the offence. 

These factors have to be taken into account by the Court in deciding upon the appropriate sentence.

{Relied on Mohd. Giasuddin v. State of A.P.: (1977) 3 SCC 387}

Qualification of wife and capacity to earn cannot be a ground to deny maintenance to wife who is dependent and does not have any source of income

Factors be considered in fixing the quantum of maintainable.

   It is also well settled principal of law that while granting the maintenance, following factors should be taken into consideration :

• (I) Income, property and capability of earning of both the parties.

• (ii) Living standard and need of the parties keeping in mind the principle that wife is entitled to get an amount of maintenance which will enable her to maintain almost the same standard of living to which she was entitled if she would have lived in the house of her husband. 

• (iii) Qualification of the wife and capacity to earn cannot be a ground to deny maintenance to a wife who is dependent and does not have any source of income. Whether Appellant is capable of earning or whether she is actually earning are two different requirements. Merely because Appellant is capable of earning is not sufficient reason to reduce the maintenance awarded by the Family Court.[Para No.12] 

When sanction u/s.197 of Cr.P.C. is not needed to prosecute a public servant?

 If the act or omission for which the accused is charged, had prima-facie reasonable connection with discharge of his duty, then it must be held to be official attracting applicability of Section 197 of Cr.P.C.

In the case of Baijnath vs. State of M.P., reported in AIR 1966 S.C. 220, it was held that it is the quality of the act that is important, and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Code of Criminal Procedure will be attracted. In the case at hand, the alleged act of the accused-public servant of forging and fabricating documents, creating fake notifications to defraud the State Government and different public authorities for wrongful gain of his official duties cannot be said to have any nexus with discharge of his official duties. Hence, sanction under Section 197 of Cr.P.C. for launching the prosecution against him is held to be immaterial.

Only allegations disclosing ingredients of offence and not the correctness of allegations is to be considered while issuing process u/s.204 of Cr.P.C.

What has to be considered at the time of issuing process u/s.204 of Cr.P.C.

• Allegations disclosing ingredients of offence? or
• the correctness of allegations? or
• sufficiency of material for conviction?

Submission of the charge-sheet is not a lock gate to seek anticipatory bail

F.I.R. alleging non bailable offence registere - During the course of investigation notices under Section 41(A) of Cr.P.C. have been served upon the accused upon which he has given reply through Email - After completion of the investigation, a charge-sheet against the accused filed in the Court - Court took cognizance and issued summons to accused.

Is application seeking anticipatory bail after filling of chargesheet tenable?

   Submission of the charge-sheet is not a lock gate for the applicant to be enlarged on anticipatory bail.

The burden of proof; of non compliance of order of consumer forum, is not on the accused.

Sec.27 of The Consumer Protection Act - Non compliance of judgment of forum - execution petition - only one respondent/accused appeared - No steps taken against other accused - Forum recorded plea without separating trial - Adjournment sought by accused is rejected - No evidence of either applicant or accused is recorded, Still forum ordered the accused to comply with the judgment on the same day till 4 pm only - Accused failed to comply with - Forum cancelled his bail and taken in custody.

Held:

   The burden of proof; of non compliance of order of consumer forum, can not be on the accused. [Para No.9]

Denial of default bail u/s.167(2) of Cr.P.C. amounts to violation of his fundamental right under Article 21 of the Constitution of India

Does denial of default bail available u/s.167(2) of Cr.P.C. amounts violation of fundamental rights if accused?


Article 21 states that no person shall be deprived of his personal liberty except according to procedure established by law. So long as the language of Section 167(2) of Cr.Pc remains as it is, I have to necessarily hold that denial of compulsive bail to the petitioner herein will definitely amount to violation of his fundamental right under Article 21 of the Constitution of India.[Para No.14]

How to prove plea of Private Defence in criminal trial?

Two young men quarrelled suddenly and threw stones at each other. The stone pelted by the deceased missed; while the stone pelted by the appellant accidentally hit the head of the deceased. The deceased being the aggressor, the accused unintentionally assaulted him to defend himself. He threw a single stone. Weight, shape or size of which is not clear from the record. Neither the appellant acted in cruel manner nor had he taken any undue advantage of the situation. He simply ran away from the scene. It does not appear that the appellant had exceeded his Right of private defence. Therefore, he is entitled to acquittal as no action can be considered as offence, if it is done in exercise of right of private defence.[Para.25]

   At the time of the incident, the deceased was 18 year old and the appellant was 22 year old. There is no evidence of any previous enmity between both of them. There is also no evidence of "motive", "preparation", "premeditation" or "intention" of causing death or more harm than necessary for the purpose of defending himself. It was a sudden fight in the heat of passion upon a sudden quarrel and without taking any undue advantage or acting in any cruel or unusual manner, as a natural reflex, the appellant also picked a stone lying there and threw it towards the deceased. His action was a reflex action to save himself from the attack by the deceased. It was not the case of the prosecution itself that the accused targeted any particular body part or more precisely the head of the deceased and evidence also does not show any such intention of the appellant. There is no evidence to show the weight, size or shape of the stone used by the appellant to assess the intention or impact of blow to arrive at a conclusion favourable to the prosecution. There is also no evidence to show that the stone was unusual in size or shape or whether it was sufficient to cause death in the normal course. The injury found on the head of the deceased cannot be said that it was of an unusually severe nature or that it was intended to be so.[Para No.20]

Directions u/s.156 of Cr.P.C. to investigate not to be issued if allegations do not prima facie make out offence

Application filed by the petitioner under Section 156 (3) of the Code has been rejected and the petitioner has been directed to examine his witnesses as per the provision of Section 200 and 202 of the Code.

   It is settled legal position that once the Magistrate has come to the conclusion that allegations made in the complaint do not prima facie make out offence then the Magistrate was right in rejecting the application under Section 156 (3) of the Code and he is also right in fixing the case for recording the statement of the complainant and his witnesses under Sections 200 and 202 of the Code. It is also well established principle of law that order under Section 156 (3) of the Code could not be passed in a mechanical manner. There has to be due application of mind. Once the Magistrate has applied his mind and if he comes to the conclusion that prima facie the applicant has failed to make out a case for cognizable offence warranting issuance of an order under Section 156 (3) of the Code then the Magistrate is right in rejecting the application, if otherwise does not obligatory on the Magistrate to issue an order under Section 156 (3) of the Code only on the basis of averments made in the complaint.

Offence of atrocity can not be registered against a member of SC & ST

Can an offence of atrocity under SC ST (Prevention of atrocity) Act be registered against another person belonging to SC ST ? 

  

  The person which is making such allegations or utterances should not be a member of either Scheduled Caste or a Scheduled Tribe, as per T. Toranath & Anr. v. State of A.P. & Ors., reported in 1999 (1) Crimes 188 That means, the offence under these can be lodged against those persons only who are not being a member of a Scheduled Caste or a Scheduled Tribes.[Para No.12]

Proper procedure to exercise revisional powers

What is the proper procedure to exercise Revisional powers u/s. 397 & 399 of Cr.P.C.? 

    Revisional Court even after having knowledge that the scope of the revision is limited to see either the correctness, legality or propriety of any finding, sentence or order exceeded in his jurisdiction in issuing process against the accused, has unnecessarily over-reached itself. The proper course could have been after passing a detailed order, to remit the case back to the Magistrate to pass an appropriate order, in pursuant to the observations in the revision.[Para No.12] 

Instigation to commit suicide must be intended to push the deceased into such a position that he commit suicide

Dispute regarding land - Quarrel took place between accused and deceased - Deceased had been beaten by the accused - Deceased committed suicide - offence u/s. 306 of IPC registered - During investigation, no intention of the accused is found which intended to push the deceased into such a position that he committed suicide specially when the deceased was well aware with the legal remedy and he called the police by dialing 100 prior to the incident.

Held:

   A person can be said to have instigated another person, when he actively suggests or stimulates him by means of language, direct or indirect. Instigation requires an active act or direct act which led the deceased to commit suicide seeing no other option and that act must be done with an intention to push the deceased into such a position that he commit suicide. The offence of abetment by instigation depends upon the intention of the person who abets the deceased. Instigation has to be gathered from the circumstances of a particular case and it is to be determined whether circumstances had been such, which in fact, had created the situation that a person felt totally frustrated and committed suicide.Para No.18]

Accused can challenge the sentence in an appeal filed by State for inadequacy of sentence

Can a convicted person; without filing an appeal, challenge his conviction, in an appeal filed by the State on the ground of inadequacy of sentence?

 Held: Yes

It is open to accused to challenge the finding and order of conviction recorded against him in the appeal filed by the State?

    In an appeal filed by the State; against the sentence, on the ground of its inadequacy, the accused can plead for his acquittal or for reduction of the sentence. [Para No.6]

What has to be considered while deciding an application seeking action for perjury?

All that is required to be assessed is whether a prima facie case is made out that there is a reasonable likelihood that the offence specified in Section 340 read with Section 195(1)(b) of the CrPC has been committed, and it is expedient in the interest of justice to take action. [Para No.5]