First schedule to criminal procedure code… Classification of offenses , length of punishment , and courts that can try offenses
( if you any of your face problems and reading this link, please let me know)
First schedule to criminal procedure code… Classification of offenses , length of punishment , and courts that can try offenses
( if you any of your face problems and reading this link, please let me know)
An abla nAri, embodiment of low, epitome of culture, bearer of values, a.k.a. Indian wife files a S498A/323/354/406 IPC & S 3/4 DP act cocktail on multiple accused in husband’s family on 14th Feb 2016 … They all run around courts and get anticipatory bail ! Now wife is crying of POLICE inaction because she can’t see husband behind …… ! She goes crying to HC. Hon Calcutta HC tells her to go ….p !!
W. P. 3625 ( W) of 2016
Calcutta High Court (Appellete Side)
Nilanjan Rudra Vs. The State of West Bengal & Ors.
Mr. Aniruddha Sarkar Mr. Goutam Dey Mr. Soumyojyoti Nandy Ms. Tandra Dutta …….For the petitioner
Mr. Sanatan Panja …….For the State
The allegation of ‘police inaction’ levelled by the petitioner is countered by the Officer-in-Charge, Dum Dum Police Station by furnishing instructions to Panja, learned advocate for the State.
It appears from the instructions placed before this Bench that on the petitioner’s complaint, Dum Dum PS F.I.R. No. 130/16 dated 14th February, 2016 under Sections 498A/323/354/406, Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act has been registered; four witnesses have been examined and a notice under Section 91 of the Code of Criminal Procedure has been issued to the petitioner to contact ASI Shib Sankar Banerjee of the said police station, the investigating officer in this case, for recovery of stridhan articles. It also appears that notices under Section 41A of the Code of Criminal Procedure were issued to the accused persons for their appearance before the investigating officer on 14th February, 2016; however, fearing arrest the accused approached the Additional Chief Judicial Magistrate, Barrackpore prayer for bail and have since been enlarged on bail.
In view of the above, the allegation of ‘police inaction’ is not well substantiated. The petitioner shall be at liberty to contact ASI Shib Sankar Banerjee for the purpose of recovery of stridhan articles. The said investigating officer shall proceed to conduct and complete investigation in accordance with law and file appropriate police report under Section 173(2) of the Code of Criminal Procedure before the relevant magistrate at an early date. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
The writ petition stands disposed of, without costs. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
( Dipankar Datta, J. )
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
A husband harassed with 406 & 498 cocktail approaches the Hon for AB
during the course of the hearing, the court notices that the wife seems to have made fake and exaggerated claims on dowry items and marriage expenses (to the extent of 40 lakhs !!).
The Hon HC notices these exagerated claims and orders investigation into the wife’s family finances and their source of funds . “….During the course of arguments, this Court asked the complainant side to explain where from
40,00,000/- were acquired by the complainant and her parents so as to spend such a huge amount in the marriage, but they could not give any satisfactory answer and to arrive at a correct conclusion, this Court directed the Commissioner of Income-tax, Jalandhar Range, Jalandhar, to verify the said fact. The private parties were directed to appear before the Commissioner of Income-tax, Jalandhar. The report has been received wherein it has been mentioned that the mother of the complainant has no means to spend beyond22,71,900/-……”
The Honourable court also reiterates that sections 406 & 498-A IPC, are not meant for recovery of dowry articles and grants anticipatory bail to husband !! “….9. So far as the recovery of dowry articles are concerned, the provisions of Sections 406 and 498-A, IPC, are not meant for the said purpose. Reference can be made to Jagdish Thakkar v. State of Delhi, 1992 (3) CCR 2764, wherein Delhi High Court held that in a case under Sections 406 and 498-A, IPC, the anticipatory bail cannot be denied only on the ground that jewellery and the dowry articles were not recovered. It has further been held that the proceedings under Sections 406 and 498-A, IPC, are not meant for the recovery of the jewellery and the dowry articles. The wife (complainant) if so chooses can move the Civil Court for the recovery of the said articles…..”
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of Decision: August 23, 2013
Prit Pal Singh …Petitioner
State of Punjab and another …Respondents
CORAM: HON’BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr. Vijay Pal, Advocate, for the petitioner.
Mr. K.S. Pannu, DAG, Punjab, for respondent No. 1.
Mr. Mandeep Singh Sachdev, Advocate, for respondent No. 2.
NARESH KUMAR SANGHI, J.
Learned counsel contends that vide order dated 25.9.2012, the investigating agency was directed not to take coercive steps against the petitioner; the petitioner has joined the investigation several time and fully cooperated with the investigating agency; most of the alleged dowry articles have already been recovered from the house of the petitioner; and that it was a love marriage and the petitioner and the complainant- respondent No. 2 could not pull on well, therefore, just to put pressure on the petitioner and to grab his property, a false case has been registered against him. He further submits that even during the pendency of the application before the learned Additional Sessions Judge, Jalandhar, ad-interim anticipatory bail was granted to the petitioner and he joined the investigation and fully cooperated with the investigating agency. It has also been contended that the complainant has alleged that approximately `40,00,000/- were spent in the marriage, but the report sought by this Court from the Commissioner of Income-tax, Jalandhar-II, Jalandhar, belies the said fact. It has also been contended that the provisions contained in Sections 406 and 498-A, IPC, are not meant for recovery of the dowry articles etc.
Learned counsel for the State on instructions from ASI Ravi Kumar of Police Station, Women, Jalandhar City, District Jalandhar, very fairly concedes that the petitioner has joined the investigation and no more required by the investigating agency. However, all the dowry articles as alleged by the complainant, have not been recovered and for that purpose further interrogation of the petitioner is required.
Learned counsel for the complainant-respondent No. 2 submits that the factum of the love marriage, as alleged by the petitioner, is belied from the compact discs which have been placed on record by her; the petitioner has not joined the investigation and cooperated with the investigating agency; the report received from the Commissioner of Income-tax is incomplete, wrong and perverse; except the husband, no other member of his family has been involved in this case; the grant of anticipatory bail at this stage would prejudice the investigation; and that the previous investigating officer was colliding with the petitioner, therefore, the case could not be effectively investigated.
I have heard learned counsel for the parties and with their able assistance gone through the material available on record.
The marriage of the petitioner with the complainant- respondent No. 2 was solemnized on 1.12.2009. According to the petitioner, it was a love marriage and with the consent of the parents of the petitioner and the complainant, it was performed at Jalandhar. The husband and wife could not pull on well and, hence, the matter was reported to the police, resulting into registration of the present case. The petitioner and the complainant-respondent No. 2 resided at Gurgaon after the marriage, where the petitioner was employed as a Software Engineer in some multinational company. After registration of the case, the petitioner made an application for grant of anticipatory bail before the learned Court of Session and he was granted ad-interim bail. In compliance of the said order, he joined the investigation, but ultimately the said application was dismissed. Hence, he approached this Court.
By virtue of the interim orders passed by this Court, the petitioner further joined the investigation and some of the dowry articles were recovered from him. It is the conceded position that in accordance with the Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985, no list of the gifts was prepared. During the course of arguments, this Court asked the complainant side to explain where from
40,00,000/- were acquired by the complainant and her parents so as to spend such a huge amount in the marriage, but they could not give any satisfactory answer and to arrive at a correct conclusion, this Court directed the Commissioner of Income-tax, Jalandhar Range, Jalandhar, to verify the said fact. The private parties were directed to appear before the Commissioner of Income-tax, Jalandhar. The report has been received wherein it has been mentioned that the mother of the complainant has no means to spend beyond22,71,900/-.
According to the learned counsel for the State, the petitioner has joined the investigation and some of the dowry articles have been recovered, but few dowry articles as disclosed by the complainant side are yet to be recovered.
So far as the recovery of dowry articles are concerned, the provisions of Sections 406 and 498-A, IPC, are not meant for the said purpose. Reference can be made to Jagdish Thakkar v. State of Delhi, 1992 (3) CCR 2764, wherein Delhi High Court held that in a case under Sections 406 and 498-A, IPC, the anticipatory bail cannot be denied only on the ground that jewellery and the dowry articles were not recovered. It has further been held that the proceedings under Sections 406 and 498-A, IPC, are not meant for the recovery of the jewellery and the dowry articles. The wife (complainant) if so chooses can move the Civil Court for the recovery of the said articles.
In Uday Singh v. State of Haryana, 2001 (1) R.C.R. (Criminal) 354, this Court held that the accused who had approached this Court for grant of anticipatory bail in a case arising out of the offences punishable under Sections 406 and 498-A, IPC, had joined the investigation and certain articles of dowry were recovered, in that eventuality, anticipatory bail could not be refused on the ground that some articles were still to be recovered.
In Anil Rajput and others v. State of Haryana, 2010 (6) R.C.R. (Criminal) 1126, this Court also held that during pendency of the anticipatory bail petition in a matrimonial dispute case, the petitioner joined the investigation and in spite of the fact that recoveries were yet to be effected, would not dis-entitle the petitioner/accused to the concession of anticipatory bail.
In Beant Singh and another v. State of Punjab, 2011 (2) R.C.R. (Criminal) 381, this Court also held that where there is a claim and counter claim with regard to the dowry articles, in the said circumstances the concession of anticipatory bail should not be withheld.
In Vishal Gulati v. State of Punjab (CRM-M-17915-2012, decided on 5.7.2012), this Court also expressed the view that the provision contained in Sections 406 and 498-A, IPC, are not meant for recovery of the dowry articles.
Hon’ble the Supreme Court in the matter of Siddharam Satingappa Mhetre v. State of Maharashtra, 2011 (1) R.C.R. (Criminal) 126, held that the arrest should be the last option and it should be restricted to those exceptional cases where arrest of the accused is imperative, in the facts and circumstances of the case.
No contrary view has been produced either by the learned counsel for the State or the learned counsel for the complainant-respondent No. 2.
16. Without discussing much on the merits of the case, but keeping in view the facts that the petitioner has joined the investigation and most of the dowry articles have already been recovered, as well as the ratio of the judgments cited herein above, the present petition for grant of anticipatory bail to the petitioner, Prit Pal Singh, son of Gurjit Singh Walia, resident of G- 77/A, Opposite Ansal Plaza Mall, Palam Vihar, Gurgaon, is allowed. In the event of his arrest, the petitioner shall be admitted to bail, subject to his furnishing bail bonds to the satisfaction of the Arresting Officer.
(NARESH KUMAR SANGHI)
August 23, 2013 JUDGE
I attest to the accuracy
of this order
In this classic is, a wife conceals her income from business, and also fixed deposits held by her while filing for maintenance from her second husband
Her second husband, reduces evidence that she has income from fixed deposit, and also business income, and he proves his case with evidence and by summoning / examining , the income tax officer accepting the wife’s income tax return
The lower court orders prosecution of the wife for perjury
The Hon Guj high court dismisses the wife’s appeal, and approves prosecuting the wife
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CORAM:HONOURABLE MS JUSTICE SONIA GOKANI
Date : 20/10/2016
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 7666 of 2016
SEJALBEN TEJASBHAI CHOVATIYA
Versus STATE OF GUJARAT Respondent(s)
Appearance: MR K S CHANDRANI, ADVOCATE for the Applicant(s) No. 1 MR RONAK RAVAL, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
1. Leave to amend to join the husband as respondent No.2 is permitted. To be carried out forthwith.
2. At the outset, it is to be mentioned that in this petition, challenge is made to the order dated 6.9.2016 passed by the learned Judge, Family Court below Exh.88 in Criminal Miscellaneous Application No.346 of 2013, attempts were made by the Court to see that the parties can reach to any kind of settlement. However, as the same could not be worked out, both the sides have been heard extensively. The petitioner is the wife, who is married to respondent No.2.
3. The petitioner is married to respondent No.2 on 20.11.2008 and a son is begotten out of the said wedlock on 21.12.2010. It is the say of the petitioner that after the birth of the son, the husband got shifted at Jetpur and started residing in a rented premise. He had once again started residing with joint family at Rajkot. The petitioner urged that she was deserted in August, 2012 and thereafter she made an application under Section 125 of the Criminal Procedure Code by preferring Criminal Miscellaneous Application No.346 of 2013 for herself and her son.
4. The trial Court, on an application Exh.88 under sections 195 and 340 of the Code of Criminal Procedure preferred by respondent No.2 on 13.5.2016, recorded the evidence on both the sides and directed the Registrar of Family Court to file an application before the Pradyuman Nagar police station under sections 191,192 and 193 of the Indian Penal Code.
5. After staying the said order for a period of 30 days, the dissatisfied wife is before this Court with various averments and following reliefs: (10) The petitioner on the aforesaid premises, prays before Your Lordships that: (A) Your Lordships may kindly be pleased to quash and set aside the Order impugned Dt.6/09/2016 passed by the learned Judge Family Court, Rajkot below Ex88 in Cri.M.A.No.346 of 2013. (B) Pending admission, hearing and final disposal of present application, Your Lordships may kindly be pleased to stay the implementation, execution and compliance of the Order Dt. 6/09/2016 passed by the learned Judge Family Court, Rajkot below Exh88 in Cri.M.A.No.346 of 2013. (C) Your Lordships may kindly be pleased to pass such other and further relief as may be deemed just and proper in favour of the petitioners, in the interest of justice.
6. Learned advocate Chandrani appearing for the petitioner has urged that even if there is any perjury, the petitioner need not be prosecuted. He has urged that Court below was in error in appreciating the evidence, specifically the income tax return to conclude that the petitioner had suppressed her true income. It is not the case of the petitioner that she was serving and was drawing the salary. Her income tax returns have been managed by her father and it is not unusual for family members to have the income tax returns from the business of family. It is further his say that the lady is a graduate. However, she would not know about any return being filed by the father nor would she be aware of the income of the family members and of hers in absence of any work that she was performing. It is not the case of the other side that she was serving and getting the salary from the account of Kirit Traders owned by her father.
7. He further has urged that the order passed by the learned Judge is contrary to the provision of sections 195 and 340 of the Indian Penal Code and, therefore, also the same deserves to be quashed.
8. Learned advocate appearing for respondent No.2 has urged that it is very rare that the Court would go out of the way to hold that perjury has been committed and, in the instant case, it is quite obvious from the record that she had not revealed the fact that she is given permanent alimony of the sum of Rs.4,00,000/so also all her income is shown under the Income Tax Act
9. Learned Additional Public Prosecutor for respondent No.1 has urged this Court not to interfere. According to him, the Court has in detail given the reasonings for initiating the proceedings against the present petitioner.
10. Admittedly, this order has arisen on account of the affidavit given by the petitioner, wherein she declared herself a housewife having no source of income. However, she has admitted in her crossexamination that she has obtained Rs.4 lakhs from her previous husband at the time of taking divorce from him.
11. An application came to be moved before the Family Court, Ahmedabad by the husband that though she is earning a salary of Rs.40,000/from business, she has mentioned in her affidavit that she is a house wife and has no source of income. The earlier application came to be disposed of on the ground that the evidence was not recorded.
12. Later on, when similar application came to be moved, the Court had questioned as to whether the applicant had produced false evidence on oath and vide order dated 23.5.2016 directed that the same would be decided at the time of deciding the main application.
13. Another application came to be moved being Criminal Revision Application No.429 of 2016 before this Court, which was withdrawn on 10.8.2016. Thereafter, an application was moved before the Family Court, Rajkot to take action against the petitioner under sections 195 read with section 340 of the Code of Criminal Procedure committing an offence under sections 191, 192 and 193 of the Indian Penal Code. The Court below held in affirmation, which has aggrieved the petitioner for ventilating the grievance in this petition memo
14. This Court notices that the Court has elaborately discussed the law and applied the said law to the facts to hold that the petitioner has not stated the correct facts on oath. She has stated that she was doing household work and has no source of income while her income is Rs.40,000/per month from the business. She has of course, revealed that she has received sum of Rs. 4 lakhs from the earlier marriage. With regard to the income tax returns, she is found to have given false evidence. With regard to the fixed deposit and the amount that has been credited in her FDR, she stated that she has no knowledge with regard to her accounts in Central Bank of India and Rajkot Cooperative Bank. The husband also examined the witness, who was Inspector in the Income Tax Department, wherein she submitted her personal income and her incometax returns have been brought on the record to indicate that from the year 201112 she has income from business at Rs.1,48,251/. The business profit was worth Rs.1,84,251/. The Court has given the details from Income Tax returns of her income of every assessment year. Senior Manager of Central Bank of India of Rajkot also has given the details that total of Rs. 17 lakhs, which are deposited in the name of the petitioner that towards the fixed deposit receipt, which she has not disclosed. The Court on noticing that she was getting sufficient income from the fixed deposit receipt and yet has not admitted in the evidence produced by her stating that she has no source of income, had directed the initiation of the prosecution under section 195 read with section 340 of the Code of Criminal Procedure.
15. The Apex Court in the case of Pritish v. State of Maharashtrareported in2002(1) SCC 253 was considering section 340 of the Code of Criminal Procedure to hold that the hub of this provision is formation of an opinion by the court(before which proceedings were to be held) that it is expedient in the interest of justice that an inquiry should be made into an offence which appears to have been committed. In order to form such opinion the Court is empowered to hold a preliminary inquiry. It is not peremptory that such preliminary inquiry should be held. Even without such preliminary inquiry the Court can form such an opinion when it appears to the Court that an offence has been committed in relation to a proceeding in that Court. It is important to notice that even when the Court forms such an opinion, it is not mandatory that the court should make a complaint. This subsection has conferred a power in the Court to do so. It does not mean that the Court should, as a matter of course, make a complaint. But once the Court decides to do so, then the Court should make a finding to the effect that on the fact situation it is expedient in the interest of justice that the offence should further be probed into. If the Court finds it necessary to conduct a preliminary inquiry to reach such a finding it is always open to the Court to do so, though absence of any such preliminary inquiry would not vitiate a finding reached by the Court regarding its opinion. The purpose of preliminary inquiry, even if the Court opts to conduct it, is only to decide whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed.
16. Likewise, in the decision rendered by the Apex Court in the case of Iqbal Singh Marwah and another vs. Meenakshi Marwah and anotherreported in(2005) 4 SCC 370 it has been emphasized that even when there is a case of forgery noticed by the Court and the Court forms the opinion that unless it is expedient in the interest of justice to prosecute a person, the Court is not to do it in a referred manner. The expediency will normally be judged by the Court by weighing not the magnitude of injury suffered by the person affected by the offence, but having regard to the effect or impact of that offence upon administration of justice. The Court also held that bar under section 195(1)(b)(ii) that no Court shall take cognizance of any such offence except on the complaint in writing of such matter. It also held that the bar would be attracted only when the offences enumerated in section 195(1)(b)(ii) have been committed with respect to a document, after it has been produced or given in evidence in a proceeding in any Court. If said offence is committed or given in evidence in Court, no complaint by Court would be necessary and a private complaint would be maintainable.
17. The only aspect that needs to be considered by this Court is as to whether it is expedient in the interest of justice that such prosecution would be necessary. This expediency, as held by Apex Court, is not weighing the magnitude of the injury suffered by the person affected by it but having regard to the effect or impact that the offence would have on administration of justice and considering the factual scenario, the Court has formed a preliminary opinion to hold that it is a case of perjury.
18. As can be noticed from the chronology of events and the evidence that has been adduced before the Court concerned, it is certain that the injury which could have been sustained by the other side has not resulted on account of this alleged falsehood because respondent No.2 could find out at an appropriate time the details which he has furnished before the Court. So far as its impact on the administration of justice is concerned, this Court has no reason to interfere as often it is found that the litigants coming before the Court chose to speak blatant lies and do so with complete impudence.
19. Laws which are otherwise in favour of the distressed wife when are sought to be misused by declaring completely incorrect facts and also by suppressing the material aspect, the trial Court at the time of considering the case found that the impact on the administration of justice would make it expedient for it to direct the prosecution.
20. This Court finds no justification in interfering with the order. Even otherwise, the petitioner is going to get all the opportunities to defend her case effectively. It is also, therefore, necessary for this Court not to elaborate further on the merits of the matter.
21. Petition stands disposed of with above directions.