Daily Archives: August 8, 2012

கணவன் வீட்டார் தன்னை **கடித்ததாய்** ஒரு பெண் பொய் கேஸ் கொடுத்து, அதை தொடர்ந்து போலீஸாரும் அப்படியே 498அ FIR , Charge sheet போட, நீதிமன்றத்துக்கு போன சோகக் கதை !!

கணவன் வீட்டார் தன்னை அடித்தாக பொய் கேஸ்கள் பார்த்து இருக்கிறோம்… கொளுத்த வந்தார்கள் என்று கேட்டிருக்கிறோம் …

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கணவன் வீட்டார் தன்னை **கடித்ததாய்** ஒரு பெண் பொய் கேஸ் கொடுத்து, அதை தொடர்ந்து போலீஸாரும் அப்படியே 498அ FIR , Charge sheet போட, நீதிமன்றத்துக்கு போன சோகக் கதை !!

 

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ஆகா அபலைப் பெண்ணின் **பொய்** கதை !!
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“…. எனக்கும் என் கணவர் அனில் சர்மாவுக்கும் 3.3.1995 ல் திருமணம் நடந்தது. நாங்கள் சில வருடங்கள் சந்தோஷமாய் அஜ்மீரில் (கணவன் வீடு அஜ்மீரில்) குடும்பம் நடத்தினோம்.

அதன் பின் நான் பிறந்தகம் (ஆக்ரா) வந்தேன். பிறந்தகம் வந்து பின் மீண்டும்  கணவன் வீடு (அஜ்மீர்) திரும்பினேன்.

அப்போது கணவன் மற்றும் அவன் வீட்டாரர் போக்கும் மாறியது தெரிந்தது. என்னை வரதட்சணை பணம் , வரதட்சணை பொருடகள் கேட்டு கொடுமைப்படுத்தினர். என்னை கொளித்திவிட என் மீது எண்ணை ஊற்றினார்கள். நானஅஜ்மீரில் இருந்து துறத்தப்பட்டேன். பஸ்ஸில் ஆக்ரா வந்தேன்

8.3.1998 அன்று காலை என் கணாவனும் , குற்றம் சாட்டப்பட்ட இன்னும் சுமார் 10 பேரும் (எல்லோரும் கணாவனின் அண்ணன் தம்பிகள், அவரது மனைவியர் !!) ஆக்ராவில் என் பிறந்தகம் வந்தார்கள். எங்களிடம் மேலும் வரதட்சணை கேட்டார்கள் . வரதட்சணை கொடுத்தாலே என்னை மீண்டும் அழைத்து செல்வதாய் சொன்னார்கள்

… இதனால் வாக்குவாதம் எற்பட்டது. அப்போது என் கண்வனுடன் வந்திருந்த என கணாவனின் சகோதரர் மனைவிமார் எல்லோரும் என்னை கடித்தனர் !!!!
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நான் காயமுற்றேன். அங்கிருந்து நன் ஆஸ்பத்திரிக்கு சென்று, காயங்களுகு மருந்திட்டபின், அதே 8.3.1998ல் ஆக்ரா போலீஸ்ல் வரதட்சணை கொடுமை புகார் கொடுத்தேன்

இது மனைவி தரப்பில் கூறப்பட்டது !!

பின் கதை
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இதை தொடர்ந்து, கணவனும் அவனது வீட்டாரும் , “,,இந்த வழக்கு பொய்யானது,, ஜோடனை செய்யப்பட்டது …” என்று கூறி வழக்கை தள்ளுபடி செய்யக்கோறி, உத்திர பிரேதச உயர் நீதி மன்றத்தில் மனு தாக்கல் செய்தனர்

வழக்கை விசாரித்த நீதிபதி கூறியதின் சாரம்சம் :
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– இந்த புகாரில் உண்மையில்லை
– சம்பவம் நடந்தாய் கூறப்பட்ட தினத்தில் கணவன் அனில் சர்மா, வேலையில் இருந்ததாய் இரெயில்வே சாட்சியங்கள் இருக்கின்றன
– மனைவிக்கு ஏற்பட்டதாய் சொல்லபடும் காயங்கள் மிக சிறியவை. பலர் கடித்ததாய் சொல்லுவது மிகையானது
– கணவனை பணியச்செய்யவும், ஆக்ராவில் குற்றம் நடந்ததாய் ஜோடிக்கவும் இந்த சம்பவம் ஆக்ராவில் நடந்ததாய் சொல்லப்ப்பட்டுள்ளது !!
– கணவன் வீட்டார் பலர் மீதும் பொய்ப் புகார் கொடுக்கப்பட்டுள்ளது
– இப்படி பொய் புகார் கொடுப்பது வழக்கமாகி விட்டதை உச்ச நீதி மன்றமே கண்டித்துள்ளது
-ஆகவே மனைவியின் புகாரால் ஏற்பட்ட வழக்கை தள்ளுபடி செய்கிறேன் என்று கனம் நீதிபதி அவர்கள் கூறியுள்ளார்

முழு தீர்ப்பும் விபரமும் பின்வருமாறு
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https://vinayak.wordpress.com/2012/08/08/this-abla-nari-claims-the-wives-of-her-husbands-elder-brothers-bit-her-by-the-tooth-imagination-runs-wild/

Story of physical assault manifestly forged & fabricated to impute jurisdiction. 498a quashed Allhabad HC

NOTES :

This abla Nari has claimes “…The wives of her husband’s elder brothers bit her by the tooth and all the accused beat the complainant. She was rescued by Mohallawalas….” I have heard of “beating” …. but now comes “..biting…” oh my God …how creative could people be ??? Luckily in this case, the judge sees thru the entire drama !!

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Criminal Misc. Application No. 1240 of 1999

1.Anil Sharma son of late Jeevan Lal Sharma,
Resident of House No. 1016 /14 Alwargate,Ajmer.
2.Shiv Nath son of late Jeevan Lal Sharma
3.Shiv Dutt son of late Jeevan Lal Sharma
4.Rajendra son of late Jeevan Lal Sharma
5.Suresh son of late Jeevan Lal Sharma
6.Bhagwan Devi wife of late Jeevan Lal Sharma
7.Anita wife of Shiv Dutt
8.Vineeta wife Suresh
9.Sunita wife Rajendra, R/o 101/6/14, Alwar Gate, Ajmer.
10.Laxmi Narayan Sharma
11.Tulsi Devi wife Laxmi Narayan Sharma.
R/o , 211/40, Balupura Road, Vivek Vihar Colony,Adarsh Nagar, Ajmer State of Rajasthan.

….. Applicants-Accused.

Vs.

1.State of U.P.
2.The Station House Officer, Mahila Thana, Agra.
3.Smt. Mamta Sharma D/o R.C.C. Sharma
R/o 31/32/7N/3, Laxmi Puram Rajpur Chauki, Agra.
Informant-Opp. Parties

Hon’ble Barkat Ali Zaidi, J.

1.According to the prosecution version, Opp. Party No. 3 informant Smt. Mamta Sharma was married to applicant no.1 Anil Sharma of Ajmer on 3.3.1995 and she was cordially treated for about two and a half month by her husband and in-laws. Thereafter, she came to Agra to her parents from where on her return to her in laws as alleged, she found her husband and in laws quite indifferent to her, they raised demands of cash of Rs. 50,000/-, a T.V., a V.C.R. and a Scooter from her and started coercing her to fulfil their demands. Her husband his, mother Bhagwan Devi applicant no. 6, brothers applicant Nos. 3,4,5 and 2 Shiv Dutt, Suresh , Rajendra and Shiv Nath, applicant Nos. 7,8 & 9 Anita Vinita and Sunita , wives of Shiv Dutt, Suresh and Rajendra respectively and husband’s sister applicant no. 11 Tulsi Devi and her husband applicant no.10 Luxmi Narain used to beat and harass her. It is also alleged that On 8.2.1997, all the accused made an abortive bid to kill her by sprinkling oil. Thereafter, they all turned her out from their house. One Sri Mahesh Chandra Goel of Ajmer , one of the friends of the father of the complainant sent her by bus to Agra. Her parents alongwith other relatives, thereafter, went to Ajmer to her husband and in-laws to persuade them but in vain.
2.It is said that on 8.3.1998 , all the accused came to the house of the complainant at Agra at 7 O’clock in the morning and asked the father of the complainant to fulfil their demands so they could take the complainant, which led to a tussle between the accused and her father. The wives of her husband’s elder brothers bit her by the tooth and all the accused beat the complainant. She was rescued by Mohallawalas . She was taken to District Hospital,Agra where she was examined on her injuries, and thereafter she lodged a first information report of the incident on 8.3.1998at Police Station Rakabganj, Agra. The police investigated the case and in the result of investigation the police ( Criminal Case No. 17 of 1998) filed a charge-sheet under Section 498-A, 224 and 506 I.P.C. before Special Chief Judicial Magistrate, Agra who ordered issuance of summons against the applicants.
3.That is how the applicants have come to this Court under Section 482 Cr.P.C. for termination of proceedings pending against them.
4.I have heard Sri Sahab Tiwari, advocate for the applicants, Sri M.B. Singh, advocate for the Opp. Party No. 3 Smt. Mamta Sharma and Sri R.S. Maurya, Additional Government Advocate for the State.
5.The sequence of facts and circumstances as disclosed above, furnishes an inescapable impression that the incident is said to have taken place at Agra, has been introduced only with a view to sue the applicants at the complainant’ s place in Agra. If we exclude this incident of Marpit, which is said to have taken place at the house of the wife at Agra, the jurisdiction would otherwise, lie at Ajmer because the wife was subjected to cruelty and dowry demand at Ajmer, as has been clearly alleged, in the first information report.
6.It is obvious and apparent in the circumstances, that the incident at the house of wife at Agra is fictitious, because, it is not comprehensible that other members of the in-laws family will travel down from Ajmer to Agra and indulge in fisticuffs and physical assault. The obvious purpose for introducing this incident is to provide jurisdiction to the Agra Court.
7.The counsel for the complainant referred to the injury report, which furnishes prima-facie evidence about the occurrence having taken place and about the wife having given a beating. The injury report by the Medical Officer, District Hospital, Agra mentions the following injuries: (1) Traumatic swelling 4 cm x 3 cm right side head , 8 cm above right ear. (2) Right contused Traumatic swelling 4 cm x 2 cm above right shoulder. (3) Multiple red abraded contusion 3 cm x 3cm front of right forearm in middle. (4) Red contusion 3 cm x 3.5cm , left thigh upper part. (5) Complaint of pain front & back of chest.
8.It will appear that all these injuries are of simple in nature, and in these circumstances arising in the case, mere existence of such simple injuries on the person of the wife , cannot be considered sufficient evidence for furnishing an inference, that the incident of this nature alleged by the information wife , took place at her house.
9.The whole story about the aforesaid incident of physical assault having taken place at the house of wife at Agra is, in the circumstances, manifestly forged and fabricated, and, as mentioned above, has been introduced with an intention to provide jurisdiction to Agra Court.
10.There is also on record copy of the certificate of the railway authority that the applicant no.1 husband was on duty on the day when the aforesaid occurrence is said to have taken place at the house of the wife at Agra.
11.It may also be mentioned that the introduction of 10 other persons besides the husband in the first information report, is itself indicative of an intention on the part of the wife, to exert pressure on the husband, with a view to subjugate him. It is difficult to visualise so many persons being involved in harassing the wife and they seem to have been implicated with the aforesaid ulterior motive.
12.The Supreme Court has itself warned on the tendency on behalf of married lady in case of dowry demand to implicate other in-laws unnecessarily, only with a view to coerce the husband into submission. Reference may be made in this case to the case of Sushil Kumar Sharma Vs. Union of India and others, 2005 S.C.C. ( Crl.) 1473.
13.It becomes, therefore, clear that the wife has no qualms in implicating innocent persons and introducing false episode.
14.Since it has been held that no such incident of physical assault is likely to have taken place at Agra, the courts at Agra will have no jurisdiction to deal with the case and jurisdiction will lie in the court at Ajmer.
15.In the result, petition is allowed and the proceedings in Criminal Case No. 17 of 1998 under Sections 498-A,224 and 506 I.P.C., pending in the Court of Special Chief Judicial Magistrate, Agra are terminated.

Dated: 06.04.2007

source
indiankanoon.org

Y. Abraham Ajith & Ors vs Inspector Of Police, Chennai & Anr on 17 August, 2004

 

Notes : This case is a cornerstone case on Jurisdiction of crime and criminal complaints. This was a victory at the Apex court for a husband who was charged with offense(s) under sect 498a IPC….

Supreme Court of India

Y. Abraham Ajith & Ors vs Inspector Of Police, Chennai & Anr on 17 August, 2004

Author: A Pasayat
Bench: A Pasayat, C Thakker

CASE NO.:

Appeal (crl.) 904 of 2004

PETITIONER:

Y. Abraham Ajith & Ors.

RESPONDENT:

Inspector of Police, Chennai & Anr.

DATE OF JUDGMENT: 17/08/2004

BENCH:

ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT:

J U D G M E N T

(Arising out of SLP(Crl.)No. 4573/2003)

ARIJIT PASAYAT, J.

Leave granted.

Appellants call in question legality of the judgment rendered by a learned Single Judge of the Madras High Court whereby the appellants’ prayer for quashing proceedings in CC 3532 of 2001 on the file of the Court of XVIII Metropolitan Magistrate Saidapet, Chennai, by exercise of powers under Section 482 of the Code of Criminal Procedure, 1973 (in short the ‘Code’) was rejected. Background facts sans unnecessary details are as follows :

Respondent no.2 as complainant filed complaint in the Court of the concerned magistrate alleging commission of offences punishable under Sections 498A and 406 of the Indian Penal Code, 1860 (in short the ‘IPC’) and Section 4 of the Dowry Prohibition Act, 1961 ( in short the ‘Dowry Act’). The magistrate directed the police to investigate and after investigation charge-sheet was filed by the police. When the matter stood thus, the appellants filed an application under Section 482 of the Code before the High Court alleging that the concerned magistrate has no jurisdiction even to entertain the complaint even if the allegations contained therein are accepted in toto. According to them, no part of the cause of action arose within the jurisdiction of the concerned Court. The complaint itself disclosed that after 15.4.1997, the respondent left Nagercoil and came to Chennai and was staying there. All the allegations which are per se without any basis took place according to the complainant at Nagercoil, and therefore, the Courts at Chennai did not have the jurisdiction to deal with the matter. It was further submitted that earlier a complaint was lodged by the complainant before the concerned police officials having jurisdiction; but after inquiry no action was deemed necessary.

In response, learned counsel submitted that some of the offences were continuing offences. The appellant no.1 had initiated proceedings for judicial separation, the notice for which was received by her at Chennai and, therefore, the cause of action existed.

The High Court unfortunately did not consider rival stands and even did not record any finding on the question of law raised regarding lack of jurisdiction. It felt that legal parameters were to be considered after a thorough trial after due opportunity to the parties and, therefore, the factual points raised by parties were not to be adjudicated under Section 484 of the Code.

In support of the appeal Mr. T.L. Viswanatha Iyer, learned senior counsel, submitted that the approach of the High Court is clearly erroneous. A bare reading of the complaint would go to show that no part of the cause of action arose within the jurisdiction of the Court where the complaint was filed. Therefore, the entire proceedings had no foundation.

In response, learned counsel for respondent no.2-complainant submitted that the offences were continuing in terms of Section 178(c) of the Code, and therefore The Court had the jurisdiction to deal with the matter.

Section 177 of the Code deals with the ordinary place of inquiry and trial, and reads as follows:

| “Section 177 : ORDINARY PLACE OF INQUIRY AND TRIAL:
|
| Every offence shall ordinarily be inquired into and tried
| by a Court within whose local jurisdiction it was committed.”

Sections 177 to 186 deal with venue and place of trial. Section 177 reiterates the well-established common law rule referred to in Halsbury’s Laws of England (Vol. IX para 83) that the proper and ordinary venue for the trial of a crime is the area of jurisdiction in which, on the evidence, the facts occur and which alleged to constitute the crime. There are several exceptions to this general rule and some of them are, so far as the present case is concerned, indicated in Section 178 of the Code which read as follows:

| “Section 178 PLACE OF INQUIRY OR TRIAL
|
| (a) When it is uncertain in which of several local areas
| an offence was committed, or
|
| (b) where an offence is committed partly in one local area
| and partly in another, or
|
| (c) where an offence is continuing one, and continues to
| be committed in more local areas than one, or (d) where it
| consists of several acts done in different local areas, it
| may be inquired into or tried by a Court having
| jurisdiction over any of such local areas.”

“All crime is local, the jurisdiction over the crime belongs to the country where the crime is committed”, as observed by Blackstone. A significant word used in Section 177 of the Code is “ordinarily”. Use of the word indicates that the provision is a general one and must be read subject to the special provisions contained in the Code.

As observed by the Court in Purushottamdas Dalmia v. State of West Bengal (AIR 1961 SC 1589), L.N.Mukherjee V. State of Madras (AIR 1961 SC 1601), Banwarilal Jhunjhunwalla and Ors. v. Union of India and Anr. (AIR 1963 SC 1620) and Mohan Baitha and Ors. v. State of Bihar and Anr. (2001 (4) SCC 350), exception implied by the word “ordinarily” need not be limited to those specially provided for by the law and exceptions may be provided by law on consideration or may be implied from the provisions of law permitting joint trial of offences by the same Court. No such exception is applicable to the case at hand.

As observed by this Court in State of Bihar v. Deokaran Nenshi and Anr. (AIR 1973 SC 908), continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all, that it is one of those offences which arises out of the failure to obey or comply with a rule or its requirement and which involves a penalty, liability continues till compliance, that on every occasion such disobedience or non-compliance occurs or recurs, there is the offence committed.

A similar plea relating to continuance of the offence was examined by this Court in Sujata Mukherjee (Smt.) v. Prashant Kumar Mukherjee (1997 (5) SCC 30). There the allegations related to commission of alleged offences punishable under Section 498A, 506 and 323 IPC. On the factual background, it was noted that though the dowry demands were made earlier the husband of the complainant went to the place where complainant was residing and had assaulted her. This Court held in that factual background that clause (c) of Section 178 was attracted. But in the present case the factual position is different and the complainant herself left the house of the husband on 15.4.1997 on account of alleged dowry demands by the husband and his relations. There is thereafter not even a whisper of allegations about any demand of dowry or commission of any act constituting an offence much less at Chennai. That being so, the logic of Section 178 (c) of the Code relating to continuance of the offences cannot be applied.

The crucial question is whether any part of the cause of action arose within the jurisdiction of the concerned Court. In terms of Section 177 of the Code it is the place where the offence was committed. In essence it is the cause of action for initiation of the proceedings against the accused.

While in civil cases, normally the expression “cause of action” is used, in criminal cases as stated in Section 177 of the Code, reference is to the local jurisdiction where the offence is committed. These variations in etymological expression do not really make the position different. The expression “cause of action” is therefore not a stranger to criminal cases.

It is settled law that cause of action consists of bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the allegedly affected party a right to claim relief against the opponent. It must include some act done by the latter since in the absence of such an act no cause of action would possibly accrue or would arise.

The expression “cause of action” has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the proceeding including not only the alleged infraction, but also the infraction coupled with the right itself. Compendiously the expression means every fact, which it would be necessary for the complainant to prove, if traversed, in order to support his right or grievance to the judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove such fact, comprises in “cause of action”.

The expression “cause of action” has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts.

The expression “cause of action” is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases for sitting; a factual situation that entitles one person to obtain a remedy in court from another person. (Black’s Law Dictionary a “cause of action” is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the plaintiff must prove in order to obtain judgment. In “Words and Phrases” (4th Edn.) the meaning attributed to the phrase “cause of action” in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf.

In Halsbury Laws of England (Fourth Edition) it has been stated as follows:

~| “Cause of action” has been defined as meaning simply a
~| factual situation the existence of which entitles one
~| person to obtain from the Court a remedy against another
~| person. The phrase has been held from earliest time to
~| include every fact which is material to be proved to
~| entitle the plaintiff to succeed, and every fact which a
~| defendant would have a right to traverse. “Cause of action”
~| has also been taken to mean that particular act on the part
~| of the defendant which gives the plaintiff his cause of
~| complaint, or the subject matter of grievance founding the
~| action, not merely the technical cause of action”.

When the aforesaid legal principles are applied, to the factual scenario disclosed by the complainant in the complaint petition, the inevitable conclusion is that no part of cause of action arose in Chennai and, therefore, the concerned magistrate had no jurisdiction to deal with the matter. The proceedings are quashed. The complaint be returned to respondent No.2 who, if she so chooses, may file the same in the appropriate Court to be dealt with in accordance with law. The appeal is accordingly allowed.

source

indiankanoon dot org

ROLL BACK NEW “DIVORCE BILL”

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Following will happen if the MAD Bill is passed in its current form:

1)      Husband looses 50% of the property in case of Divorce without any Fault and he have to run behind the court next 20 years to fight 498A/DV/Crpc125/Child custody, as wife is not bound to come to court.

2)      Wife’s contribution, financial liabilities and duration of marriage will NOT be considered at the time of divorce. Example: Wife has 1000 crs of property and Husband has 10 lacks property, it is only husband have to pay 5lacks to wife!!

3)      The wife can object a petition filed by husband on grounds of financial hardship but husband CANNOT object a petition filed wife

4)      The wife upon quoting ‘financial hardship’ will get 50% of husband’s residential property and share in movable assets to fulfill her lavish lifestyle, let the marriage last for 1day or one month

5)      Financial position of the wife, her assets is not being considered at all, neither is her capability to earn nor her education.

6)      While the distribution of assets has been allowed, the distribution of liabilities is not at all mentioned. So the husband keeps paying the loans & mortgages and wife run away with money and property.

 

Injustice some where is direct thread of Justice every where. Stop this Husband Killer extortion Law in the name of easy Divorce.