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Honourable Judicial Officers may send self narrative short notes containing the ratio of case-laws (in text format) with their full name and designation, to the Academy by email at : mjauttsc@indianjudiciary.gov.in
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| CIVIL |
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| Guardians and Wards Act, 1890: Notice of the application for guardianship should also not be published in any newspaper. "We come to the procedure to be followed by the court when an application for guardianship of a child is made to it. Section 11 of the Guardians and Wards Act, 1890 provides for notice of the application to be issued to various persons including the parents of the child if they are residing in any State to which the Act extends. But, we are definitely of the view that no notice under this section should be issued to the biological parents of the child, since it would create considerable amount of embarrassment and hard ship if the biological parents were then to come forward and oppose the application of the prospective adoptive parent for guardianship of the child. Moreover, the biological parents would then come to know who is the person taking the child in adoption and with this knowledge they would at any time be able to trace the whereabouts of the child and they may try to contact the child resulting in emotional and psychological disturbance for the child which might affect his future happiness. The possibility also cannot be ruled out that if the biological parents know who are the adoptive parents they may try to extort money from the adoptive parents. It is therefore absolutely essential that the biological parents should not have any opportunity of knowing who are the adoptive parents taking the child in adoption and therefore notice of the application for guardianship should not be given to the biological parents. We would direct that for the same reasons notice of the application for guardianship should also not be published in any newspaper.Lakshmi Kant Pandey v. Union of India (1984) 2 SCC 244 |
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| Due Process of Law does not necessarily mean full fledged trial: Due process of law means that nobody ought to be condemned unheard. Due process means an opportunity to the defendant to file pleadings including written statement and documents before the Court of law. Due process of law is satisfied the moment rights of parties are adjudicated upon by a competent Court -Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, AIR 2012 SC 1727 |
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| C.P.C. O.21 R.97: The Adjudication mentioned under this Rule need not necessarily involve a detailed enquiry or collection of evidence: The executing court can decide whether the resister or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. The court can make the adjudication on admitted facts or even on the averments made by the resister. Of course the court can direct the parties to adduce evidence for such determination if the court deems it necessary. Silverline Forum (P) Ltd. v. Rajiv Trust, (1998) 3 SCC 723 |
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| C.P.C. O.21 R.97: It is a settled principle of law that it is not incumbent upon the executing Court that it must put to trial every objections which are filed in any execution proceeding, even if prima-faice they appear to be frivolous, vexatious and are only intended to delay the execution and frustrate the procedure of law or where it amounts to an abuse of the process of the Court. Rocky Tyres v. Ajit Jain, AIR 1998 P&H 202 |
| CPC S.34 Principal Sum Adjudged includes Capitalized interest But for agriculture capitalization be annual or 6 monthly -5 Judges AIR 2001 SC 3095 Central Bank Of India vs Ravindra And Ors. |
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| C.P.C. Order 5 Rule 15: Service can be effected either on male or female member of the defendant’s family -Rajkumar Sampatraoji Kuthe Vs. State of Maharashtra 2012(1) Bom CR 804(DB) |
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| CPC O.8 R.6A Counter claim after W.S. is tenable if cause of action arose before W.S. Vijay Prakash JarathVs.Tej Prakash Jarath MANU-SC-0300-2016 |
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| C.P.C. O.18 R.4: Deponent need not enter witness box merely to prove affidavit of examination-in-chief -Ameer Trading Corporation Ltd. Vs. Shapoorji Data Processing Ltd, AIR 2004 SC 355 |
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| C.P.C. O.39 R.1 Temporary injunction even if amounting to final relief may be granted -Deoraj Vs. State of Maharashtra and Ors. AIR 2004 SC 1975 |
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| CPC O.9 R.13 and O.43 R.1(d): Appeal against order allowing application for setting aside exparte decree is not maintainable. It is tenable against an order rejecting the application -Bhulan Raut and anr Vs. Lal Bahadur Yadav, 2004 (13) SCC 679 |
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| C.P.C. O.41 R.27(1)(b): Allowing the application under sub-clause (b) prior to hearing the appeal is gross violation of statute. Test to admit additional evidence in appeal is discussed -Union of India Vs. Ibrahim Uddin and another, (2012) 8 SCC 148 |
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C.P.C. O. 41, R. 31: Mere formulation of a point by the first Appellate Court as to "Whether the judgment of the trial court is correct, legal or valid" is hopeless method: The judgment of Appellate Court shall state the points for determination. Merely asking the question as to whether the judgment of the Court below is correct, legal or valid is hopelessly an inadequate method of meeting the requirement of this legal provision. The judgments of the Appeal Courts below the points for determination being formulated in the following manner :
(1) Is the judgment of the Court below liable to be set aside?
(2) Is the decree of the Court below liable to be interfered with?
(3) Is the decree of the Court below valid?
(4) Is the decree of the Court below proper and legal?
These are some of the ways in which the Courts of first appeal have tended to formulate the points for determination.
This manner ignores that O. 41, R. 31(a) requires the appellate Court to state in its judgment the points that arise for determination after the arguments are advanced. Asking such vague questions as mentioned above will not lead to the pronouncement of a well considered and reasoned judgment. Imagine a Court of first appeal being confronted with the judgment where an issued is framed as to whether the suit of the plaintiff should be decreed. All concerned will be at sea if a suit is decided on an issue framed in that manner. As early as in Mhasu v. Davalat, (1905) 7 Bom LR 174, dealing with a similar provision in the earlier Civil Procedure Code, it has been pointed out that the object of the Legislature in making it incumbent on an appellate Court to raise points for determination was to clear up the pleadings and focus the attention of the Court and of the parties on the specific and rival contentions of the latter. The points which must arise for determination by a court of first appeal must cover all important questions involved in the case and they should not be general and vague. It is a matter of almost textbook knowledge that the exact questions which arise in the appeal and require determination must be stated in the judgment. "It is not sufficient to state the point to be determined in appeal whether or not the decision is consistent with the merits of the case." The point so stated is hardly a point for determination as contemplated in Order 41 Rule 31 of the Code. The learned Judges of the Courts of first appeal should not approach the appeals merely from the point of speedily disposing of the same.-Anita M. Harretto Vs. Abdul Wahid Sanaullah, AIR 1985 Bom 98 |
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| MOTOR ACCIDENT CLAIM |
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| Age of the deceased and not the dependants is to be considered- Munna Lal Jain Vs. Vipin Kumar Sharma, (2015) 6 SCC 347 |
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| GENERAL CLAUSES ACT 1897 |
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S.6A: Repeal of Amendment Act, by virtue of Savings Clause, saves the Amendments in the amended Act -Jethanand Betab Vs. State of Delhi, AIR 1960 SC 89.
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SARFAESI ACT
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| SARFAESI Act S.35 cannot be used to bulldoze the statutory rights vested in tenants under the Rent Control Act -Vishal N. Kalsaria Vs. Bank of India and others decided on 20 Jan 2016 by the Apex Court |
| ARBITRATION AND CONCILIATION ACT 1996 |
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Arbitration and Conciliation Act S.34(1) remedy lies before the District Court and not the Civil Judge Senior Division. S.16, Bombay Civil Courts Act empowers a District Judge to refer to any Additional District Judge subordinate to him any original suits and proceedings of a civil nature, applications or reference under the special Acts and miscellaneous application. The Additional District Judge shall have jurisdiction to try such suits and to dispose of such applications or references.Fountain Head Developers and others Vs. Maria Arcangela Sequeira, 2007(3) BCR 393, AIR 2007 Bom 149, 2007 Law Suit (Bom) 221 (F.B.)
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| Arbitration Act S.34: Additional District Judge has jurisdiction? Navelcar Hotels Vs. Encore Hotels, (2010) 2 Mh.L.J. 220 was not cited while deciding Sanjay Suryakant Mhaske Vs. Zilla Parishad, Jalna in W.P. No.2218 of 2015 decided on 11.06.2015. Hence, Registry has been directed to place the papers before the Hon. the Chief Justice for referring the matter to the larger Bench of two or more Judges.-Maharashtra Krishna Valley Development Corporation Vs. B.T. Patil & Sons, 2016 SCC online Bom 2014 in W.P. No.1399 of 2016 decided on 17.02.2016 |
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| PROHIBITION ACT |
| Prohibition Act S.116 and 65F JMFC can try summarily though not vested with summary powers and can award more than 3 months punishment State of Bombay Vs. Narji Bhalji Bhil AIR 1950 Bom 273 DB |
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| JUVENILE |
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Juvenile Justice Act S.41: Muslims can adopt a child -Shabnam Hashmi Vs. Union of India, AIR 2014 SC 1281.
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| J.J. Act 1986 S.2(k): Juvenile Age calculation: Person attains particular age at midnight (12 'O' Clock night) of date preceding anniversary of his birthday -Eerati Laxman Vs. State of A.P., AIR 2009 SC 1816 |
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PROBATION OF OFFENDERS ACT
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| Cr.P.C. S.361 and Section 360 of the Code on being read together would indicate that in any case where the court could have dealt with an accused under Section 360 of the Code, and yet does not want to grant the benefit of the said provision then it shall record in its judgment specific reasons for not having done so. Chandreshwar Sharma v. State of Bihar (2000)9SCC245 |
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| Overriding Effect Over Probation of Offenders Act: P.O. Act S. 3 to 6 are not applicable to a Specific Act it that is subsequent to the Probation of Offenders Act and if that Specific Act was enacted subsequent to Probation of Offenders Act and that particular offence under that Specific Act provides minimum punishment - Superintendent , Central Excise , Bangalore Vs . Bahubali AIR 1979 SC 1271 |
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S.4 and 6(1): Calling for a report from the probation officer under S.4(2) though not mandatory is absolutely essential, save in exceptional cases where there is sufficient material on record justifying the sue of discretion conferred by S.4 of the Act-The State of Maharashtra Vs. Bodya Ramji Patil, 1978 Cri.L.J.411 (Bom DB)
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| N.D.P.S. ACT |
| N.D.P.S. Act S.52A: Directions to Magistrates regarding inventory etc., given by the Apex Court in Union of India Vs. Mohanlal and another decided on 28 Jan 2016 |
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| OATHS ACT |
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| Oath to Child witness: The main object of the Oaths Act is to render persons who give false evidence liable to prosecution. The provision of S.5 of the Oaths Act, makes it incumbent that any witness examined by a Court of law in a judicial proceeding may be administered oath or affirmation. But the proviso to that sectio makes an exceptin in case of a child witness under 12 years of age. The administration of oath or affirmation may be dispensed with if the Court which examines such witness is of opinion that though he understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation. Thus, under this provision, administration of an oath or affirmation may be dispensed with when the Court forms an opinion that a child witness does not understand the nature of an oath or affirmation but understands the duty of speaking the truth.-Rameshwar Vs. State of Rajasthan, 1952 Cri.L.J. 547 (Supreme Court) |
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| CRIMINAL PROCEDURE |
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Constitution Art.20: An accused person has no fundamental right to be tried by any particular Court or procedure. The Protection is only against discrimination. What is prohibited under Art. 20 is only conviction or sentence under an `ex post facto' law and not the trial thereof. Such trial under a procedure different from what obtained at the time of the commission of the offence or by a Court different from that which had competence at the time cannot `ipso facto' be held to be unconstitutional. A person accused of the commission of an offence has no fundamental right to trial by a particular Court or by a particular procedure, except in so far as any constitutional objection by way of discrimination or the violating of any other fundamental right may be involved-Rao Shiv Bahadur Singh and another v. The State of Vindhya Pradesh, AIR 1953 SC 394 : 1953 CrLJ 1480
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| Cr.P.C. S.28: Sessions Judge is not authorized to assign to Assistant Sessions Judges the cases where the sentence has to be awarded is more than 10 years -Prabhakar L. Pawar Vs. State of Maharashtra and another, 2012 Cri.L.J. 4726 (Bombay HC DB) |
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| Cr.P.C. S.79 and 94: 1. Magistrate is competent to isue search warrant to police even if no criminal case is pending 2. Magistrate is competent to issue search warrant regarding premises outside his jurisdiction. Such warrant can be executed in the manner provided in S.79, Cr.P.C.- Shaikh Raheman S/o Sk. Ibrahim Vs. State of Maharashtra, 1991 (1) Bom. C.R. 263. |
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| Cr.P.C. S.97 Search can be conducted in a place other than mentioned in warrant -Pravinsingh and another Vs. Biharilal Singh and another 1989 Cri LJ 1386 (Bom) |
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| Cr.P.C. S.125(3): There is no bar to commit a person under S.125(3), Cr.P.C. to commit a person defaulting in payment of maintenance amount to imprisonment and also simultaneously to proceed against his properties, be it movable or immovable for realisation of the maintenance amount -Smt. Kuldip Kaur Vs. Surinder Singh, AIR 1989 SC 232. |
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| Cr.P.C. S.126(1) and 125 – Application for maintenance by father under S. 125 tenable at place where he is residing – Residence of son (Non-applicant) at different place is inconsequential - Vishnupant Narharrao Baraskar Vs. Pandit Vishnupant Baraskar, 1987 Mah LJ 325 |
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| Cr.P.C. S.156(3): Proceeding before Magistrate terminates after S.156(3) order and revision lies under S.397 against such order: After making of order u/s 156(3) of the Code, the Magistrate has further nothing to do and the proceeding u/s 156(3) of the Code gets terminated. Nothing remains pending before the Magistrate after such order is made. -Avinash S/o Trimbakrao Dhondage Vs. The State of Maharashtra 2015 SCC Online Bom 5197 (Division Bench). (B.S. Khatri v. State of Maharashtra (2004 (1) Mh.L.J., 747 followed in holding that revision order is maintainable). |
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| Cr.P.C. Ss.154, 155, 156, 157: Investigation by the police officer who registered the FIR Is not illegal per se: State rep. by Inspector of police, Vigilance and anti-corruption, Tiruchirapalli, Tamilnadu Vs. Jayapaul, AIR 2004 SC 2684 |
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| Cr.P.C. S.156(3): Magistrate can direct registration of F.I.R., recommend to the SSP/SP to change the I.O. if necessary: In view of the aforesaid broad consensus amongst the counsel for the various parties, it is not necessary for us to go deeper into the relevant issue of law as to whether the earlier order of this Court dated April 12, 2010 warranted registering of F.I.R. by the police before commencing investigation. But we would like to only indicate in brief the law on this subject expressly stated by this Court in the case of Mohd. Yousuf versus Afaq Jahan (Smt.) and another, (2006) 1 SCC 627 : (AIR 2006 SC 705). This Court explained that registration of an F.I.R. involves only the process of recording the substance of information relating to commission of any cognizable offence in a book kept by the officer incharge of the concerned police station. In paragraph 11 of the aforementioned case, the law was further elucidated by pointing out that to enable the police to start investigation, it is open to the Magistrate to direct the police to register an F.I.R. and even where a Magistrate does not do so in explicit words but directs for investigation under Section 156(3) of the Code, the police should register an F.I.R. because Section 156 falls within Chapter XII of the Code which deals with powers of the police officers to investigate cognizable offences, the police officer concerned would always be in a better position to take further steps contemplated in Chapter XII once F.I.R. is registered in respect of the concerned cognizable offence-Hamant Yashwant Dhage Vs. State of Maharashtra and ors., AIR 2016 SC 814 |
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| Cr.P.C. S.157 and 165: When the evidence of the I.O. who recovered the material object is convincing, recovery of material object cannot be rejected on the ground that the seizure witness do not support the prosecution version.-Modan Singh Vs. State of Rajasthan, AIR 1978 SC 1511 |
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| Cr.P.C. S.173: Cognizance can be taken on charge-sheet for S.379, IPC in Sand theft matter: Mines and Minerals Act 1957: Though cognizance of offence punishable under section 22, cannot be taken on police report, theft of sand from river bed is theft of government property and hence cognizance of offence punishable under section 379, I.P.C. can be taken on police report. - Jaysukh Bavanji Shingalia Vs. State of Gujarat, AIR 2015 SC 75. |
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Cr.P.C. S.161 and 162: It is the duty of the prosecutor and the Judge to bracket the inadmissible portion in the panchanama before giving exhibit number to it - State of Gujarat Vs. Kathi Ramku Aligbhai, 1986 Cri.L.J. 239.
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| Cr.P.C. S.164 and S.80 Evidence Act SC says Magistrate need not be examined to prove the confession Madi Ganga AIR 1981 SC 1165 |
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| Cr.P.C. S.164 and IPC S.409 Voluntary confession before becoming accused accepted R.K. Dalmia Vs. Delhi Administration AIR 1962 SC 1821 |
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Cr.P.C. S.167(2): For the purpose of counting the 15 days, 60 days and 90 days custody, the date of suo motu surrender of the accused, is not material. Because, it is not preceded by arrest without warrant. Hence, it is not equivalent to production under S.167.State of West Bengal Vs. Dinesh Dalmia, (2007) 5 SCC 773.
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| Cr.P.C. S.167(5) and S.12-AA(1)(f), Essential Commodities Act: Section 167(5), Cr.P.C. is applicable to a summarily triable warrant case. Hence, investigation may be directed to be stopped if not completed in 6 months from arrest of accused. But, the I.O. is not absovled from filing final report on the basis of the investigation done within 6 months and the Court is competent to accept such police report. - State of W.B. Vs. Falguni Dutta, (1993) 3 SCC 288. |
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Cr.P.C. S.167 and S.309: Police Custody of post-charge sheet arrested accused is permissible: It is permissible to grant police custody of an accused who is arrested subsequest to the charge-sheet when he was shown as absconding previously-Central Bureau of Investigation Vs. Rathin Dandapath and others, 2015 Cri.L.J. 4488
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| Cr.P.C. S.167 Magistrate has to look into facts before granting remand: The act of directing remand of an accused is fundamentally a judicial function. The Magistrate does not act in executive capacity while ordering the detention of an accused. While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, whether there exist reasonable grounds to commit the accused to custody and extend his remand. The purpose of remand as postulated Under Section 167 is that investigation cannot be completed within 24 hours. It enables the Magistrate to see that the remand is really necessary. This requires the investigating agency to send the case diary along with the remand report so that the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner. It is apt to note that in Madhu Limaye, it has been stated that once it is shown that the arrests made by the police officers were illegal, it was necessary for the State to establish that at the stage of remand, the Magistrate directed detention in jail custody after applying his mind to all relevant matters.-Manubhai Ratilal Patel Tr. Ushaben Vs. State of Gujarat and ors., AIR 2013 SC 313 |
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Cr.P.C. S.167: The Special Judge under S.8 of the Criminal Law (Amendment) Act, 1952 is a Magistrate for the purpose of S.167. Because, Section 3 of the Code suggests that if the context otherwise required, the term "Magistrate" may include the Magistrate who are not specified in the Section. - State of T.N. Vs. V. Krishnaswami Naidu, (1979) 4 SCC 5
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| Cr.P.C. S.167(2) Proper Order: An order for release on bail under proviso (a) to Section 167(2) may appropriately be termed as an order-on-default. Indeed, it is a release on bail on the default of the prosecution in filing charge-sheet within the prescribed period. The right to bail under Section 167(2) proviso (a) thereto is absolute. It is a legislative command and not court's discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be the accused in custody should be released on bail. But at that stage, merits of the case are not to be examined. Not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds.”-Rajnikant Jivanlal v. Intelligence Officer, Narcotic Control Bureau, (1989) 3 SCC 532 |
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| S.167 and 309: Police Custody of Absconded Accused: If the accused was not arrested by the time of taking cognizance by the Court, during the further investigation, remand of such accused can be granted under section 167 after his arrest and production.-State through C.B.I. Vs. Dawood Ibrahim Kaskar and others AIR 1997 SC 2494 |
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| Cr.P.C. S.167: Private Counsel in State Case? No vested right is granted to a complainant or informant or aggrieved party to directly conduct a prosecution. So far as the Magistrate is concerned, cmoparative latitude is given to him but he must always bear in mind that while the prosecution must remain robust and comprehensive and effective it should not abandon the need to be free, fair and diligent. So far as the Sessions Court is conerned, it is the Public Prosecutor who must at all times remain in control of the prosecution and a counsel of a priavate party can only assist the public prosecutor in discharging its responsibility. The complainant or informant or aggrieved party may, however, be heard at a curcial and critical juncture of the Trial so that his interests in the prosecution are not prejudiced or jeopardized. Constant or even frequest interferance in the prosecution should not be encouraged as it will have a deleterious impact on its impartiality. If the Magistrate or Sessions Judge harbours the opinion that the prosecution is likey to fail, prudence would prompt that the complainant or informant or aggrieved party be given an informal hearing-Sundeep Kumar Bafna Vs. State of Maharashtra, AIR 2014 SC 1745. |
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| Cr.P.C. S.169 Mere report under S.169 without final report under S.173 is not tenable Maroti Vs. The State of Maharashtra and Ors. 2015 (4) Bom.C.R. (Cri) 504 |
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| Cr.P.C. S.167: Allowing Home Food is in discretion of Magistrate -Asgar Yusuf Mukadam And ors. Vs. State of Maharashtra and another, 2004(2) Bom.C.R. (Cri) 515. |
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| Cr.P.C. S.167 Magistrate and Judges shall inform accused about free legal aid -Khatri And Others Vs. State of Bihar 1981 SCC (1) 627. |
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| Cr.P.C. S.173 Law does not contemplate waiting arrest of absconding accused till charge sheet Dinesh Dalmia Vs. C.B.I. 2007 (8) SCC 770 |
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| Cr.P.C. S.179: Magistrate's Jurisdiction: A Magistrate's jurisdiction is limited to his territorial jurisdiction. He cannot permit investigation in a case he is not competent to try. A Magistrate does not exercise jurisdiction throughout the length and breadth of India for purposes of Code of Criminal Procedure or of Prevention of Corruption Act. The Code of Criminal Procedure defines the territorial jurisdiction of Magistrates. It will not be a consonance with the jurisdiction and structure of Courts of Magistrates to allow an order of investigation to be made by a Magistrate of Delhi for investigation of a case in the State of Assam. The reason is that a Magistrate orders investigation in a case which he has power to inquire into or try.-Union of India and another v. B.N. Ananthapadmanabhiah, 1971 CrLJ 1287: AIR 1971 SC 1836 |
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| Cr.P.C. S.190 Magistrate can take cognizance against other accused on subsequent date also (when the order is postponed) Vijay Kant Thakur and Anr. Vs. Stale of Bihar and Anr. 2010 Cri.L.J. 4190 |
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| Cr.P.C. 190(1)(b): When a Magistrate takes Congnizance under S.190(1)(b), he takes cognizance of all offences constituted by the facts reported by police and not only of some of such offences. Hence after discharging from S.332 IPC when the Magistrate tried the minor offence of S.323 IPC he could proceed to try the offence under chapter XX (summons case procedure) and a fresh complaint was not necessary.-Pramatha Nath Vs. State of W.B., AIR 1960 SC 810 |
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| Cr.P.C. S.193 and 299: After committal, Sessions Judge has jurisdiction to summon the accused named in column no.2 i.e. absconding-Constitution Bench in - Dharam Pal and ors Vs. State of Haryana and anr, AIR 2013 SC 3018 |
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| Cr.P.C. S.299 is applicable when the accused intentionally makes inaccessable and not merely when it is shown that it is not possible to trace him Jayendra Vishnu ThakurVs.State of Maharahstra and Anr.(2009)7SCC104 |
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| Cr.P.C. S.299 Evidence recorded in earlier trial cannot be read against absconded accused C.B.I. Vs. Abu Salem Ansari (2011)4SCC426 |
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| Cr.P.C.S 299 Evidece recorded earler was read as evidence on the basis of pursis for joint trial of absconding accused, has been upheld by Bombay High Court (DB) Mohd. Hanif and Ors. vs. The State of Maharashtra -2016 (4) Bom.C.R. (Cri) 538 |
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| Cr.P.C. S.299 and 190 and 173 Law does not contemplate waiting arrest of absconding accused till charge sheet Dinesh Dalmia Vs. C.B.I. 2007 (8) SCC 770 |
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| Cr.P.C. S.299 No discharge of absconding accused unless evidence was recorded as common. This section does not empower Court to delete absconding accused name Smt. Urmila Sahu Vs. State of Orissa 1998 Cri.L.J. 1372 (Orissa) |
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| Cr.P.C. S.299 Court can record common evidence on prosecutions application State of Hyderabad Vs. Bhimaraya AIR 1953 AP 63 |
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Cr.P.C. S.197 Dropping the proceeding for want of sanction is proper: Question to consider is that if the Court comes at any stage to the conclusion that the prosecution could not have been instituted without the sanction of the Government, what should be the procedure to be followed by it, i.e., whether the Court should discharge the accused or acquit him of the charge if framed against him or just drop the proceedings and pass no formal order of discharge or acquittal as contemplated in the case of a prosecution under the Code. The High Court has said that when the Sessions Judge be satisfied that the facts proved bring the case within the mischief of s. 132 of the Code then he is at liberty to reject the complaint holding that it is barred by that section. We consider this to be the right order to be passed in those circumstances. It is not essential that the Court must pass a formal order discharging or acquitting the accused. In fact no such order can be passed. If s. 132 applies, the complaint could not have been instituted without the sanction of the Government and the proceedings on a complaint so instituted would be void the Court having no jurisdiction to take those proceedings. When the proceedings be void, the Court is not competent to pass any order except an order that the proceedings be dropped and the complaint is rejected. Nagraj Vs. State of Mysore, AIR 1964 SC 269
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| Cr.P.C. S.216: Charge can be altered any time before the judgment. S.216(2) to (5) is the procedure to be followed once the Court decides to alter or add any charge. - Jasvinder Saini and ors Vs. State (Government of NCT of Delhi, (2013) 7 SCC 256. |
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Cr.P.C. S.227 and 239: At the state of framing of charge the documents produced by accused cannot be considered- State of Orissa Vs Debendra Nath Padhi, AIR 2005 SC 369 (Satish Mehra Vs. Delhi Administration (1996) 9 SCC 766 is overruled)
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Cr.P.C. S.226 and 231: Prosecutor can skip witness: If the public prosecutor got reliable information that any of his witnesses would not support the prosecution version, he can interview that witness beforehand and state to the Court and skip that witness - Banti @ Guddu Vs. State of Madhya Pradesh, AIR 2004 SC 261
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| Cr.P.C. S.231 Additional witness for prosecution can be allowed State of Bombay Vs. Mohamadh Khan AIR 1960 Bom 150 |
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| Cr.P.C. S.235(2) Accused upon conviction can be sent to jail until hearing on sentence Ram Deo Chauhan Vs. State of Assam (2001) 5 SCC 714 |
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| Cr.P.C. S.244(1): Accused has a statutory right of cross-examination at the stage of EBC.-Ajoy Kumar Ghose Vs. State of Jharkhand and another, (2009) 14 SCC 115. |
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| Cr.P.C. S.245(2): “Discharge at any previous stage of the case” occuring in S.245(2) is before the prosecution's evidence under S.244(1) is completed, or at any stage prior to that, namely, the stages prescribed in Ss.200 to 204, Cr.P.C. Magistrate can therefore discharge accused after recording reasons, even at stage when accused appears in response to summons or warrant but no prosecution evidence has been led. Application for discharge is therefore maintainable at that stage.-Ajoy Kumar Ghose Vs. State of Jharkhand and another, (2009) 14 SCC 115. |
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| Cr.P.C. S.251: It is inherent in Section 251 of the Code that when an accused appears before the trial Court pursuant to summons issued Under Section 204 of the Code in a summons trial case, it is the bounden duty of the trial Court to carefully go through the allegations made in the charge sheet or complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Code.-Bhushan Kumar and Anr. Vs. State (NCT of Delhi) and Anr., AIR 2012 SC 1747. |
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| Cr.P.C. S.255(2) and S.66(1)(b) Magistrate has to hear the accused on sentence Jethalal Girdharlal Vs. State of Gujarat MANU-GJ-0206-1984. |
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Cr.P.C. S.256 and 249: Magistrate has no jurisdiction to restore a complaint dismissed vide S.256, Cr.P.C. Filing of a 2nd complaint is not the same thing as reviving a dismissed complaint. A second complaint is permissible in law if it could be brought within the limitation -Maj. Genl. A.S. Gauraya and anr. Vs. S.N. Thakur and anr.AIR 1986 SC 1440.(Bindeshwari Prasad Singh versus Kali Singh, (1977) 1 SCR 125 referred to); Narayandas Narayandas Gulabchand Agrawal Vs. Rakesh Kumar Nem Kumar Porwal 1996 (2) Mh.L.J. 463.
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| Cr.P.C. S.258 When the case is for evidence, after summons only Magistrate can close case State of Maharashtra Vs. Maruti Dadu Kamble, 1988 Mh.L.J. 49. |
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| Cr.P.C. S.265E Court has no discretion to award sentence less than one-fourth of the punishment Guerrero Lugo Elvia Grissel Vs. The State Of Maharashtra, 2012 Cri.L.J.1136 (Bombay) |
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| Cr.P.C. S.265-A to 265-L: When accused pleads guilty, complainant or victim must be heard before deciding on guilty plea of accused.- Giriraj Prasad Meena Vs. State of Rajasthan, (2014) 13 SCC 674. |
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| Cr.P.C. S.267 Accused should be produced before Magistate before being given into police custody: Production warrant has to be issued by the court which requires his production. He should be produced before that Magistrate who shall hear him before granting police custody. Directions given in State of Maharashtra Vs. Yadav Kohachade, 1999(3) Mah.L.J. 562 should be followed.-Susan Abraham Vs. State of Maharashtra and others, 2010(2) Mah. L.J. 560 (Bombay D.B.) |
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| Cr.P.C. S.299: Section 299 empowers only the trial court to record evidence in the case of an accused who is absconding. But the above changes do not enable the Magistrate to commit the case against any of the accused before the accused actually appears or is brought before the Court. The Judicial Magistrate was directed to give a new number to the case against the absconding accused and take steps to apprehend them.-State of Kerala Vs. John and Ors., MANU/KE/0204/1977 |
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| Cr.P.C.S 299 Absconded accused later on applied for joinder of their trial with the accused who were being tried. Evidece read on the basis of pursis. Their conviction was upheld by Bombay High Court DBMohd. Hanif and Ors. vs. The State of Maharashtra (04.10.2016 - BOMHC) |
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| Cr.P.C. S.307: Pardon under S.307 is invocable at post-commitment, while S.306 is invocable at pre-commitment -Narayan Chetanram Choudhary and anr Vs. State of Maharashtra, AIR 2000 SC 3352 |
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| Cr.P.C. S.309: Day-to-day Trials: In some states a system is evolved for framing a schedule of consecutive working days for examination of witnesses in each sessions trial to be followed. Such schedule is fixed by the Court well in advance after ascertaining the convenience of the counsel on both sides. Summons or process would then be handed over to the Public Prosecutor incharge of the case to cause them to be served on the witnesses. Once the schedule is so fixed and witnesses are summoned the trial invariably proceeds from day today. This is one method of complying with the mandates of the law. It is for the presiding officer of each court to chalk out any other methods, if any found better, for complying with the legal provisions contained in Section 309 of the Code -State of U.P. Vs. Shambhu Nath Singh & Ors. AIR 2001 SC 1403 |
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| Cr.P.C. S.309(2): Restriction of "not to exceed 15 days", to extend the judicial custody of the accused is not applicable to the Court of Session or Special Court like under the M.P.I.D. Act 1999.-Diviision Bench of Hon. Bombay High Court held in Harshad Dinanath Bari Vs. State of Maharashtra, Writ Petition No.2639 of 2019 decided on 18.12.2019. |
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| Cr.P.C. S.311: Lacuna Means inherent weakness or a latent wedge: After the defence and prosecution closed their evidence, the prosecution applied to resummon two of it's already exmined witnessess, for proving it's certain documents. Thus, a question arose, whether a trial court can permit a lacuna in prosecution evidence to be filled up? Upholding allowing the application, held that the conventional concept is that the court should not do so. But, then, what is meant by lacuna in a prosecution case, has to be understood before deciding the said question one way or the other. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. No party in a trial can be foreclosed from correcting errors. - Rajendra Prasad Vs. The Narcotic Cell, AIR 1999 SC 2292. |
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| Cr.P.C. S.311: Mere change of counsel is not a valid ground for recalling witness -AG Vs Shiv Kumar Yadav, 2015 Cri.L.J. 4640 (SC) |
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Cr.P.C. S.313(1)(b): The Court shall caution the accused that he can decline to give answers and his inculpatary statements may be taken into consideration - Laxman @ Laxmayya vs. The State of Maharshtra, 2012 Cri.L.J.2826 (Bom)
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Cr.P.C. S.319: A person who has been discharged can also be arraigned as accused under S.319, but only after an inquiry as contemplated by Section 300(5) and 398, Cr.P.C., if during such enquiry there appears to be evidence against such person-(Constitution Bench) held in - Hardeep Singh etc. Vs. State of Panjub and ors. etc. (2014) 3 SSC 92
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| Cr. P.C. S.325: Magistrate to submit the case without convicting the accused: S.325 applies when the Magistrate on finding an accused guilty is of opinion that the punishment should be different from that which he can inflict or should be more severe than he can inflict, he should without convicting the accused submit the case to the C.J.M.-Shankar Malharrao Deshmukh Vs. State of Maharashtra, 1997 (2) Mah.L.J. 163. |
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| Cr.P.C. S.232 Order: Small order indicating decision to continue trial is sufficient. Elaborate order is not necessary. -Arun Jijotia Vs. State of Maharashtra, 1977 Mah.L.J. 315. |
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Cr.P.C. S.344: Object of enactment of S.344 is that evil of perjury and fabrication of evidence has to be eradicated. At the time of delivery of judgment or final order, the Court must at the first instance express an opinion to the effect that the witness before it has either intentionally given false evidence or fabricated such evidence. Court must come to the conclusion that in the interests of justice the witness concerned should be punished summarily by it for the offence which appears to have been committed by the witness - Mahila Vinod Kumari Vs. State of Madhya Pradesh AIR 2008 SC 2965
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| Cr.P.C. S.354: Acquittal Judgment shall point out lapses if any: On the culmination of a criminal case in acquittal, the concerned investigating/prosecuting official(s) responsible for such acquittal must necessaril be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. - State of Gujarat Vs. Kishanbhai etc., (2014) 5 SCC 108. |
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| Cr.P.C. 357 Court to locate victim and pay compensation Siyasaran Vs. State 1995 Cri.L.J. 2126 |
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| Cr.P.C. S.357(3): Order under this section must have potentiality to secure its observance. If merely an order directing compnesation is passed, it would be totally ineffective. Deterrence can only be infused into the order by providing for a default sentence. Hence, the order to pay compensation to be paid by the convict may be enforeced by awarding sentence of imprisonment in default. -R. Mohan Vs. A.K. Vijaya Kumar, 2012(8) SCC 721. |
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| Cr.P.C. S.357 & 357A: Just compensation to the victim has to be fixed having regard to medical and other expenses, pain and suffering, loss of earning and other relevant factors.While punishment to accused is one aspect, determination of just compensation to the victim is the other. At times, evidence is not available in this regard. Some guess work in such a situation is inevitable. Compensation under S.357, Cr.P.C. is payable by convict. Section 357A, Cr.P.C. has to be invoked to make up the requirement of just compensation.-Monohar Singh Vs. State of Rajasthan, AIR 2015 SC 1124 |
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| Cr.P.C. S.357 & 357A: It is the duty of the court to award just sentence. Mechanical reduction of sentence to the period already undergone cannot be appreciated. Sentence has to be fair not only to the accused but also to the victim and the society. Accused was ordered to pay compensation of Rs.2 Lakhs under S.357(3) and the State to pay compensation of Rs.3 Lakhs and if the accused does not pay, the State was directed to pay the entire amount of Rs.5 Lakhs.-State of M.P. Vs. Mehtab, 2015(5) SCC 197 |
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Cr.P.C. S.384 to 386: Appeal once admitted has to be decided on merits even in absence of acused -K.S. Panduranga Vs. State of Karnataka AIR 2013 SC 2164 (Dictum in Mohd. Sukur Ali (2011) 4 SCC 729 to the effect that the Court cannot decide a criminal appeal in absence of counsel for the accused and that too if the cousel does not appear deliberately or shows negligence in appearing, being contrary to the ratio laid down by Larger Bench in Bani Singh, AIR 1996 SC 2439, is per incuriam.)
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| Cr.P.C. S.389: In case of post conviction bail under Section 389, Cr.P.C, it is mandatory that appellate Court gives an opportunity to public prosecutor for showing cause in writing against such release. Suspension of sentence and release on bail. Appellate Court may even without hearing public prosecutor, decline to grant bail. However, in case appellate Court is inclined to consider release of convict on bail, public prosecutor shall be granted opportunity to show cause in writing as to why appellant be not released on bail. Despite such opportunity being granted to public prosecutor, in case no cause is shown in writing, appellate Court shall record that State has not filed any objection in writing. This procedure is intended to ensure transparency, to ensure that there is no allegation of collusion and to ensure that Court is properly assisted by State with true and correct facts with regard to relevant considerations for grant of bail in respect of serious offences, at post conviction stage -Atul Tripathi Vs. State Of U.P., (2014) 9 SCC 177: 2014 AIR SCW 4326 |
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| Cr.P.C. S.418: Conviction Warrant: Upon receiving order of dismissal of appeal or revision trial court to issue warrant Lallan Singh Vs. State of U.P. 2015 (13) SCC 362 |
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| Cr.P.C. S.423(1) High Court set aside acquittal by sessions. It can exceed original sentence Appellate Courts Power of punishment-Shankar Kerba Jadhav and ors. Vs. The State of Maharashtra, AIR 1971 SC 840. |
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| Cases: Cr.P.C. S.427 Undergoing sentence does not mean that the accused shall actually be in prison instead of on bail pending the appeal in the prior case -Sadashiv Chhokha Sable Vs. State of Maharashtra, 1993 CriLJ 1469. |
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| Cr.P.C. S.427:Totality of the Sentence has to be considered: The basic rule of thumb over the years has been the so called single transaction rule for concurrent sentences. If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. It is proper and legitimate to have concurrent sentences. But. this rule has no application if the transaction relating to offences Is not the same or the facts constituting the two offences are quite different.-Mohd. Akhtar Hussain aliasIbrahlm Ahmed Bhatti v. Assistant Collector of Customs (Prevention) Ahmedabad and others, (1988) 4 SCC 183 |
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| Cr.P.C. S.427: If a given transaction constitutes two offences under the enactments, generally it would be wrong to impose consecutive sentences. It would be proper and legitimate to have concurrent sentences, but the said rule would have no application if the facts constituting the same offences are quite different -Mohd. Akhtar Hussain Alias AIR 1988 SC 2143. |
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| Cr.P.C. 427 and 31: Aggregate sentence not to exceed 14 years when consecutive.-Chatar Singh vs State Of M.P. AIR 2007 SC 319 |
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| Cr.P.C. S.437: While granting the bail, the penal section of the offence for which the bail is granted should be quoted -Adri Dharan Das Vs. State of West Bengal, 2005(4) SCC 303. |
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Cr.P.C. S.438 and 437: There is no justification for reading into Section 438, Cr.P.C. the limitations mentioned in Section 437, Cr.P.C.- Bhadresh Bipinbhai Sheth Vs. State of Gujarat and another,(2016) 1 SCC 152
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Cr.P.C. S.437 and 439: Magistrate may ask for fresh bonds for the newly added section: Once an accused was enlarged on bail for certain offence and during the invstigation new section is added for which minimum punishment is not life imprisonement or death penalty, then Magistrate will be within his jurisdiction to ask the applicant to furnish fresh bonds for newly added section. If newly added section is punishable with minimum life imprisonment or death penalty, then the Magistrate shall not be within his jurisdiction to ask the accused to furnish fresh bail bonds for the newly added section unless case is covered under the proviso of Section 437. -Uttamkumar Vs. The State of Maharashtra, 2012 Bom. C.R. (Cri) 697.
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| Cr.P.C. S.437A: In conviction cases, S.437A is not applicable: Farooq Abdul Gani Surve Vs. State of Maharashtra, decided on 17 Oct 2011 (Bombay High Court DB) |
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| Cr.P.C. S.437: Directions given to decide bail application in a week -Hussain & anr Vs. Union of India 2017(5) SCC 702 |
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| Cr.P.C. S.438 Jurisdiction to grant anticipatory bail lies with the Court where offence took place (A) Dr. Pradeep Kumar Soni Vs. State of Madhya Pradesh, 1990 Cri.L.J. 2055 (M.P.) (B) Harjit Singh Vs. Union of India and ors, 1994 Cri.L.J. 3134 |
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Cr.P.C. S.438: Successive anticipatory bail applications are tenable.-Kalyan Chandra Sarkar Vs. Rajesh Ranjan, 2005 Cri.L.J.944 (SC)
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| Cr.P.C. S.439 Parity ground is not absolute Antecedents of applicant may warrant rejection of bail Neeru Yadav Vs. State of U.P. 2014 (14) SCALE 59 |
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Cr.P.C. S.439, I.P.C. S.376, 363, 363A and POCSO Act S.3, 4, 5, and 6: Bail in love affair related cases: Overall consideration while deciding bail application are: (i) Age of the minor prosecutrix, (ii) Whether the act is violent or not, (iii) antecedents, (iv) Whether the offender is capable of repeating the act or not, (v) Likelihood of threats or intimidation, (vi) Chance of tampering with material witnesses and Ivii) the accused-boy's prospects of getting employment and to plan, stabilize and secure his future - Sunil Mahadeo Patil Vs. The State of Maharashtra decided on 03.08.2015
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| Cr.P.C. S.457 In Motor Vehicle Accident involving death no release of uninsured vehicle without obtaining security: Where there is no insurance cover for a vehicle, the owner should be directed to offer security or deposit an amount, adequate to satisfy the award that may be ultimately passed, as a condition precedent for release of the seized vehicle involved in the accident. If such security or cash deposit is not made, within a period of three months, appropriate steps may be taken for disposal of the vehicle and hold the sale proceeds in deposit until the claim case is disposed of. -Jai Prakash Vs. National Insurance Company, (2010) 2 SCC 607. |
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| Cr.P.C. S.451: Party adversely affected should be heard before the Court makes order for return of the seized property - State Bank of India Vs. Rajendra Kumar Singh and ors., AIR 1969 SC 401 |
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Cr.P.C. S.457 and Wild Life (Protection) Act S.50(1): Limited/No Jurisdiction of Magistrate: Forest Authorities or police officer can seize vehicle used for committing offence under the Wild Life Act. An Assistant Director of the Wild Life Preservation or Wild Life Warden may give the same for custody on bond for the production before the Magistrate. They have to give intimation to the Chief Wildlife Officer, who can place the relevant materials before the Magistrate. The Magistrate can, in appropriate cases reject the prayer for release or custody of the seized vehicle.-State of U.P. and another Vs. Lalloo Singh, (2007) 7 SCC 334
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| Rule 27 of the MCS (Pension) Rules did not affect criminal trial. Rules 26 and 27 do not lay down any period of limitation for proseuction for prosecution or cannot supersede the period of limitation presecribed under Cr.P.C. R.27 is meant for granting or withholding the pension and hence its operation would be in the limited field of granting or withholding pension to the government employee.-State of Maharashtra Vs. Keshav Ramchandra Pangare, (1999) 9 SCC 479. |
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| INDIAN PENAL CODE |
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| I.P.C. S.361: Kidnapping -"Takes or entices" : The expression used in Section 361 IPC is "whoever takes or entices any minor". The word "takes" does not necessarily connote taking by force and it is not confined only to use of force, actual or constructive. This word merely means, "to cause to go", "to escort" or "to get into possession". No doubt it does mean physical taking, but not necessarily by use of force or fraud. The word "entice" seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success on the mental state of the person at the time when the inducement is intended to operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time, in achieving its ultimate purposes of successful inducement. The two words "takes" and "entices", as used in Section 361 IPC are in our opinion, intended to be read together so that each takes to some extent its colour and content from the other. The statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in Section 361 IPC.-Thakorlal D Vadgama v. State of Gujarat (1973) 2 SCC 413 |
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| IPC S.361 Consent of minor is immaterial Guardian is material ParkashVs.State of Haryana AIR 2004 SC 227 |
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| PREVENTION OF CORRUPTION ACT |
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| P.C. Act S.2(c) Chairman of Co-op Bank is a public servant. Decision in Laljit Rajshi Shah is no longer applicable in view of the amended provisions of Section 2(c) of PC Act -State of Madhya Pradesh Vs. Rameshwar and Ors.(2009) 11 SCC 424 |
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| P.C. Act S.3 and 4(3): Special Judge's Jurisdiction: Special Judge can not try other than P.C. Act offences by non-public servant unless it is a joint trial with P.C. Act offences by public servant or P.C. Act offfences by non-public servant. But, after framing such charges of P.C. Act offences, even if the lone public servant accused dies, special judge has to continue the trial. - State through C.B.I. New Delhi Vs Jitender Kumar Singh, AIR 2014 SC 1169 |
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| P.C. Act Ss.7 and 13(1)(d): Every acceptance of illegal gratification whether preceded by a demand or not, would be covered by S.7. But, if the acceptance of an illegal gratisfication is in pursuance of a demand by the public servant, then it would also fall under S.13(1)(d). The act of demanding and receiving illegal gratification constitutes an offence both under S.7 and S.13(1)(d) and hence the offender cannot be liable for double penalty.-The State Rep. by Inspector of Police, Pudukottai, Tamil Nadu Vs. A Partiban, AIR 2007 SC 51. |
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| P.C. Act S.7 and 13 When one act is falling under both section, the punishment would be concurrent- The State rep. by Inspector of Police Vs. A. Parthiban AIR 2007 SC 51 |
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| P.C. Act S.7 Informant could not be examined due to death. Still accused was convicted on the basis of other evidence Kishan Chand Mangal Vs State of Rajasthan AIR 1982 SC 1511 |
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| P.C. Act S.7 and 13(2) Delay is not a ground for lessor punishment. Court cannot go below minimum punishment - Madhukar Bhaskarrao Joshi Vs State of Maharashtra AIR 2001 SC 147 |
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| P.C. Act S.19: Whether the appellate court could reverse the conviction and sentece merely on the ground of want of a valid sanction? S.465(2) enjoins on the court a duty to consider whether the accused had raised any objection on that score at the trial stage. If case the accused failed to raise, the trial would normally proceed to its logical end by making a judicial scrutiy of the entire materials.-CBI Vs. V.K. Sehgal, (1999) 8 SCC 501. |
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| P.C. Act S.13(1)(d) Maximum Disproportion Assets of 10 percent is permissible Krishnanand Vs.The State of Madhya Pradesh AIR1977SC796 (3Judges) |
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| S.3 of the Police Act, 1861 empowered the State Government with superintendence including giving directions to such a superior officer for further investigation under S.173(8), Cr.P.C. even after submission of report by the previous investigating agency under S.173(2). Power under S.173(8) is not affected by Magistrate's power to order investigation under S.156(3). State of Bihar Vs. J.A.C. Saldhana, (1980) 1 SCC 554 |
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| PROHIBITION ACT |
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| Prohibition Act S.116 and 65F: JMFC can try summarily the offences under the Prohibition Act, though not vested with summary powers under Cr.P.C. and can award more than 3 months punishment State of Bombay Vs. Narji Bhalji Bhil AIR 1950 Bom 273 DB |
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| EVIDENCE ACT - CRIMINAL |
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| Evi Act S.3 One may hardly come across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment -Sohrab Beli Nayata and another v. The State of Madhya Pradesh (1972) 3 SCC 751 4. |
| Evi Act S.3 Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so under the Indian Evidence Act; trustworthy evidence given by even a single witness would be enough to convict an accused person, whereas evidence given by multiple numbers of witnesses which is not trustworthy would not be enough to sustain the conviction.-Kailash vs State Of Maharashtra 25 September, 2012 (Bom HC DB) |
| Evi Act S.3 I.O. was relied inspite of seizure witnesses not supporting Rameshbhai Mohanbhai Koli and Ors.Vs. State of Gujarat (2011) 11 SCC 111 |
| Evi Act S.3 Pancha Witness turned hostile still circumstantial evidence relied Rameshbhai Mohanbhai Koli and Ors. Vs. State of Gujarat (2011) 11 SCC 111 |
| Evi Act S.3 Testimony of injured witness must be given due weightage -State of U.P. Vs. Naresh 2011 (4) SCC 324 |
| Evi Act S.3The terms ‘hostile’ or ‘adverse’ witnesses are unknown to IEA. Under the common law, a hostile witness is one who is not desirous of telling the truth at the instance of the party that called him -Bakshi Vs. State AIR 1979 SC 569 |
| Evi Act S.3 When a witness lets down the party calling him as a witness, his evidence cannot be as a matter of law be treated as wiped off completely from the record. It is for the court to decide whether the witness stands discredited or part of his testimony may be true.-Sat Pal Vs Delhi Administration 1976 1 SCC 727 |
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Evi Act S.3: Interested Witness: A witness may be called "Interested" only when he or she derives some benefit from the result of litigation in the decree in a civil case, or in seeing an accused person punished. A witness is a natural and is the only possible eye witness in the circumstances of a case cannot be said to be interested. A relation of a victim may be a natural witness - State of Rajastan Vs. Smt. Kalki and another, AIR 1981 SC 1390
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Evi Act S.3 Enmity: The witnesses were inimical to the accused, but that by itself was not a sufficient ground for rejecting their testimony - Raman Kalia Vs. State of Gujarat, AIR 1979 SC 1261.
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| Evi Act S.3 -Discrepancies in oral evidence: Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses. The reasons are given in - Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, AIR 1983 SC 753 |
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| EvI Act S.3 T.I. Parade and purpose No provision in Cr.P.C. which obliges investigation agency to hold identification parade-The State Of Maharashtra vs Manik Mohan Gaikwad on 26 November, 2008 |
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Evi Act S.3 Inconsistencies who do not go to the root of the matter are insignificant Krishna Pillai Sree Kumar and Anr. Vs. State of Kerala AIR 1981 SC 1237
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| Evi. Act S.3: Police credibility: The presumption that a person acts honestly applies as much in favour of a police officer as in other persons and it is not a judicial approach to distrust or suspect him without good ground thereof. Such an attitude could do neither credit to Magistrate not to the public. It can only run down prestige of public administration -Ahir Raja khima Vs. State of Saurashtra, AIR 1956 SC 217. |
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| Evi. Act S.3 and 114: Non-examination of the I.O. per se is not fatal: Investigating officer was not examined. A case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal straitjacket formula should be laid down that non-examination of the investigating officer per se vitiates a criminal trial – Behari Prasad VS. State of Bihar, AIR 1996 SC 2911 |
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Evi Act S.3: Non-examination of independent witness was not fatal. Civilized people are generally insensitive-Appabhai and anr Vs. State of Gujarat, AIR 1988 SC 696
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| Evi. Act S.3: Evidence of Hostile witness: Law is well settled that mere fact that witness is declared hostile by the party calling him and was allowed to be cross-examine, does not make him an unreliable witness so as to exclude his evidence all together-Bhagwan Vs State, AIR 1976 SC 202. |
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| Evi. Act S.3: Independent witness turned hostile, that itself is not a ground for acquittal-Bholaram Kushwaha Vs. State of MP, 2001 Cr.L.J. 116 SC. |
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| Evi. Act S.3: Eyewitness not intervened: Evidence of eyewitnesses cannot be rejected merely on the ground that they did not intervene to save the deceased -Anga Vs. State of Maharashtra, AIR 1981 SC 1227. |
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| Evi. Act S.3: F I R details unnecessary: The F I R given by a rustic lay woman is not to be treated as or equated to the summary of the entire prosecution’s case and a mere omission to mention an incidental fact cannot have the effect of nullifying an otherwise proper and impeccable report -Gurnam Kaur Vs. Bashib Singh, AIR 1981 SC 631. |
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| Evi. Act S.3: No cross on delay in FIR: Where there was no cross-examination of the reasons explained for lodging the delayed FIR, the defence cannot urge that no reliance should be placed-Babu Krishna Kamble versus state of Maharashtra, AIR 1980 SC 1269. |
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| Evi Act S.3 Seizure can be believed if the evidence of IO is convincing though witnesses did not support Modan Singh Vs State of Rajasthan AIR 1978 SC 1511 |
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| Evi Act S.27: Accused need not be in formal arrest when he gave the information- Vikram Singh and others Vs. State of Punjab, (2010) 3 SCC 56. |
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Evi Act S.27 and S.162(2), Cr.P.C. (A) It is fallacious impression that when recovery is effected under S.27, Evidence Act, the document prepared by the I.O., contemporaneous with such recovery, must be attested by independent witness. Of course, if any such statement leads to recovery of any article, it is open to the investigating officer to take the signature of any person present at that time, on the recovery document. (B) It is not a legally approvable procedure to presume the police action as unreliable to start with, or to jettison such action merely for the reason that police did not collect signature of independent persons in the documents made contemporaneous with such actions: There is no requirement either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain signature of independent witnesses on the record in which statement of an accused is written. The legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code. Section 100(5) of the Code requires that such search shall be made in their presence and a list of all things seized in the course of such search and of the places in which they are respectively found, shall be prepared by such officer or other person “and signed by such witnesses”. It must be remembered that a search is made to find out a thing or document about which the searching officer has no prior idea as to where the thing or document is kept. He prowls for it either on reasonable suspicion or on some guesswork that it could possibly be ferreted out in such prowling. It is a stark reality that during searches the team which conducts the search would have to meddle with lots of other articles and documents also and in such process many such articles or documents are likely to be displaced or even strewn helter-skelter. The legislative idea in insisting on such searches to be made in the presence of two independent inhabitants of the locality is to ensure the safety of all such articles meddled with and to protect the rights of the persons entitled thereto. But recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code. This Court has indicated the difference between the two processes in the Transport Commr., A.P., Hyderabad v. S. Sardar Ali [(1983) 4 SCC 245 : 1983 SCC (Cri) 827 : AIR 1983 SC 1225] . Following observations of Chinnappa Reddy, J. can be used to support the said legal proposition: (SCC p. 254, para 8) “Section 100 of the Criminal Procedure Code to which reference was made by the counsel deals with searches and not seizures. In the very nature of things when property is seized and not recovered during a search, it is not possible to comply with the provisions of sub-sections (4) and (5) of Section 100 of the Criminal Procedure Code. In the case of a seizure under the Motor Vehicles Act, there is no provision for preparing a list of the things seized in the course of the seizure for the obvious reason that all those things are seized not separately but as part of the vehicle itself.-State, Govt. of NCT of Delhi v. Sunil, (2001) 1 SCC 652
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| Evi Act S.27: Where the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version. Modan Singh Vs. State of Rajasthan [(1978) 4 SCC 435 ( Similar view was expressed in Mohd. Aslam v. State of Maharashtra [(2001) 9 SCC 362 : 2002 SCC (Cri) 1024) |
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| Evi. Act S.27 Discovery need not be a thing but a fact Mehboob Ali and Ors. Vs. State of Rajasthan 2015 (12) SCALE 67 |
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| Evi Act S.27: Investigating Officer need not take signature of accused on seizure memo: The investigating officer has no obligation to obtain signatures of accused but obtaining such signatures is also not illegal. The resultant position is that the Investigating Officer is not obliged to obtain the signature of an accused in any statement attributed to him while preparing seizure memo for the recovery of any article covered by Section 27 of the Evidence Act. But, if any signature has been obtained by an Investigating Officer, there is nothing wrong or illegal about it. -State of Rajasthan v. Teja Ram and others, 1999 CrLJ 2588 |
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| Evi Act S.112 DNA test allowed by holding that it is most legitimate and scientifically perfect means Dipanwita Roy Vs. Ronobroto Roy (2015) 1 SCC 365 |
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| Evi Act S.118 and Oaths Act S.4(1) Child witness Competency and capacity to understand oath are different Sadashiv Tukaram Dipake Vs. State of Maharashtra 2000 (1) Mh.L.j. 339 |
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| Evi Act S.138 Prosecution is not bound to examine its witness when it knows that he will not speak truth Emperor Vs. Kasamalli Mirzalli AIR 1942 Bom 71 |
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| Evi Act S.146 Questions which are not necessary to shake the credibility of that witness are not permissible -Dr.Baburao Patel Vs. Bal Thackeray and anr 1977 Cri.L.J.1637 (Bom-DB) |
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| Evi. Act S.157 Non examination of independent witness is not sufficient to discard reliable evidence The State of Karnataka Vs. Moin Patel and Others AIR 1996 SC 3041 |
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| Evi. Act S.159: Refreshing Memory: It is always advisable that the investigating officer looks into records before answering any question -State of Karnataka Vs. K. Yarappa Reddy, (1999) 8 SCC 715 |
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| Evi Act S.159 does not require that the writing used by a witness to refresh his memory should itself be admissible in evidence. Pancha witness can refresh his memory from panchanama- EmperorVs.Mahadeo Dewoo AIR 1946 Bom 189 |
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| Evi. Act S.165 and 137: Witness in a bit of confusion during his cross-examination - Not improper for trial Court to put questions during his cross-examination to elicit truth: A judge is expected to actively participate in the trial, elicit necessary materials from witnesses at the appropriate context which he feels necessary for reaching the correct conclusion. There is nothing which inhibits his power to put questions to the witnesses, either during Chief examination or cross-examination or even during re-examination to elicit truth. The corollary of it is that if a judge felt that a witness has committed an error or a slip it is the duty of the judge to ascertain whether it was so for to err is human and the chances of erring may accelerate under stress of nervousness during cross-examination. Criminal justice is not to be founded on erroneous answers spelled out by witnesses during evidence collecting process. It is a useful exercise for trial judge to remain active and alert so that errors can be minimised.- State of Rajasthan Vs. Ani alias Hanif and Ors, AIR 1997 SC 1023 |
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| MONEY LENDING |
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| Assam Money Lenders Act, 1934 section 2 (1): A few disconnected and isolated transactions would not make one a person engaged regularly in money lending business – Ka Icilda Wallang Vs. U.Lokendra Suiam, AIR 1987 SC 2047 |
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| C.P.and Berar Money Lenders Act, section 11 F and section 11 H: “Moneylender” under the Act means a person who in the regular course of business advances a loan and excludes isolated transactions of money lending. – Gajanan and others Vs. Seth Brindaban, AIR 1970 SC 2007. (AIR 1954 Nagpur 44, (1965) 67 Bom LR 816 and AIR 1962 Madh Pra 117 (FB) Approved.) |
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| SPECIFIC RELIEF |
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| Specific Relief Act S.21: Compensation: In Shamsu Suhara Beevi Vs G. Alex and Another [(2004) 8 SCC 569], this Court, while dealing with a matter relating to grant of compensation by the High Court under Section 21 of the Specific Relief Act in addition to the relief of specfic performance in the absence of prayer made to that effect either in the plaint or amending the same at any legal stage of the proceedings to include the relief of compensation in addition to the relief of specific performance, observed: "Grant of such a relief in the teeth of express provisions of the statue to the contrary is not permissible. On equitable consideration court cannot ignore or overlook the provisions of the statute. Equity must yield to law". - Shiv Kumar Sharma vs Santosh Kumari on 18 September, 2007. |
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SUCCESSION
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| Bombay Civil Courts Act S.28A: Appeal in Succession Case lies to High Court and not to District Court -Smt Nola Jonathan Ranbhise Vs. The union of India, the Law & Judiciary Department, 2014 (3) Bom.C.R. 641 |
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| ELECTRONIC EVIDENCE & CYBER LAW |
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| Recording Evidence through Electronic Media: CPC O.18 R.4(3): Evidence can be recorded though electronic media alsoSalem Advocate Bar Association Vs. Union of India (UOI), AIR 2003 SC 189 |
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| Evi Act S.3: Tape Record is admissible as evidence on proof of identification of voice proof of absence of tampering. Secondary Evidence is not admissible until non-production of primary evidence is satisfactorily proved. Exception is to public document in view of S.65(e), Evidence Act.-Tukaram S. Dighole Vs Manikrao Shivaji Kokate (2010) 4 SCC 329 =AIR 2010 SC 965 dd on 5 February, 2010. |
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| Information Technology Act S.69A: Magistrate has no jurisdiction without the matter before him to order blocking website -Sreekanth C. Nair Vs. Licensee Developer decided on 29.08.2008 by Kerala High Court. |
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| An objection that CDRs were unreliable due to violation of the procedure prescribed in Section 65B(4) of Act could not be permitted to be raised in appeal as the objection relates to the mode or method of proof. All the criminal Courts in this country are bound to follow the law as interpreted by present Court. Because of the interpretation of Section 65B of Act in Navjot Sandhu case, there was no necessity of a certificate for proving electronic records. Electronic records without a certificate might have been adduced in evidence. There was no doubt that the judgment of present Court in Anvar's case has to be retrospective in operation unless the judicial tool of prospective overruling was applied. However, retrospective application of the judgment was not in the interests of administration of justice as it would necessitate the reopening of a large number of criminal cases. Criminal cases decided on the basis of electronic records adduced in evidence without certification have to be revisited as and when objections were taken by the Accused at the appellate stage. Attempts would be made to reopen cases which have become final.-Sonu Vs. Respondent: State of Haryana,2017(8)SCALE45=MANU/SC/0835/2017 |
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| Stage for S.65B, Evidence Act Certificate: Certificate can be filed at the time the electronic record is tendered in evidence.-Avadut Waman Kushe Vs. State of Maharashtra, 2016 SCC Online Bom 3256 (Hon. Smt. Justice R.P. SondurBaldota) dd on 03.03.2016.[Observed that this point did not arise in Anvar P.V. and Faim @ Lala Ibrahim Khan distinguished]. Trial Court ought not to have rejected production of CD by accused as the accused |
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| Fresh Certificate S.65B, Evidence Act: If the certificate under S.65B, Evidence Act which was produced was rejected as not compliance with the Section, fresh certificate may be produced.-Ignatius Topy Pereira Vs. Travel Corporation (India) Pvt. Ltd and another, 2016 SCC Online Bom 97 (Hon. Shri Justice S.B. Shukre). |
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| Evi Act S.65B: Late production of Certificate: Certificate produced after charge-sheet i.e. separate from the C.D. can be considered by the Court -Paras Jain and ors Vs. State of Rajasthan decided by Rajasthan High Court on 04.07.2015 |
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Tape Recorded Conversation, Admissibility, Nature and Value - To what extent a Tape Record Evidence is admissible. Read the article at http://www.legalservicesindia.com/articles/trc1.htm
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