Tag Archives: Madras HC

Courts can’t impose onerous & unreasonable conditions (huge cash deposit) before bail !! Madras HC

in this case the lower courts ordered deposit of Rs 15000 by village labour (daily wage earners) and the HON MADRAS HC after considering various HC and SC cases decided that such onerous conditions cannot be imposed. the cases quoted by the HC are very important and strike at the very root of lower courts imposing such onerous conditions

This case should help husbands who are seeking AB in 498a, 406 cases filed by wife

The cases referred to should also make good reading

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Before the Madurai Bench of Madras High Court

Date: 05-02-2015

Coram
The Hon?ble Mr.Justice S.Vaidyanathan

Crl.O.P.(MD)Nos.19196 of 2014
& Crl.O.P.(MD)Nos.19197 of 2014
&
M.P(MD)No.1 of 2014 in
Crl.OP.(MD)No.19196 of 2014

1.Amaldoss
2.Kannan
3.Meganathan
4.Saminathan
5.Santhana Raju            .. Petitioners in Crl.O.P.(MD)No.
19196 of 2014
1.Mathialagan
2.Tamilalagan
3.Karunanithi
4.Tamilarasan
5.Kalaiyarasan            .. Petitioners in Crl.O.P.(MD)No.
19197 of 2014

Versus

State,
Rep. by the Inspector of Police,
Patteeswaram Police Station,
Thanjavur District.                        .. Respondent

in both petitions Prayer These Criminal Original Petitions are filed under Section 482 of Cr.P.C., praying to set aside the second condition imposed by the learned Principal Sessions Judge, Thanjavur in his order, dated 14.10.2014 in Crl.M.P.No.3779 and 3827 of 2014.

!For Petitioners : Mr.M.Karunanithi ^For Respondents : Mr.P.Kandasamy Government Advocate (Crl. Side) for R1 Mr.B.Jameel Arasu for Intervenor :COMMON ORDER By order, dated 14.10.2014 in Crl.M.P.Nos.3779 and 3827 of 2014, while granting anticipatory bail to the petitioners herein, the learned Principal District and Sessions Judge, Thanjavur, apart from other conditions, imposed a condition, directing the petitioners to deposit a sum of Rs.15,000/- each before the learned Judicial Magistrate, Kumbakonam.

  1. Aggrieved by the said condition, the petitioners have come forward with the present petitions, seeking to set aside the same.
  2. The learned counsel for the appearing for petitioner would submit that the petitioners are agricultural coolies and they find difficulty even to eke out their day-to-day livelihood and hence, they are unable to comply with the condition imposed by the Court below in respect of making deposit of Rs.15,000/- before the learned Magistrate. He would contend that the learned Judge is not having jurisdiction to impose such condition and in fact there is no statutory provision nor any judicial pronouncement empowering the learned Judge to impose condition for depositing of money upon a person at the time of granting bail to him. Therefore, he contended that condition imposed by the Court below is onerous and it tantamounts to abuse of the process of the Court. In support of his contention, the learned counsel relied upon decisions of this Court, in ?Alluvdin versus Inspector of Police, Vandhavasi Police Station?(2001 Crl.L.J.2672); ?N.Sasikala versus Enforcement Officer, Enforcement Directorate, Madras?(1997 Crl.L.J.2120) and also of the Hon?ble Supreme Court reported in ?Ramathal & others versus Inspector of Police and another? (2009 Crl.L.J.2271).

  3. On the other, the learned Government Advocate (Crl.side) would contend that in cases where there would be no possibility of granting anticipatory bail, if the Court comes to the conclusion on facts and satisfied that the person is entitled to anticipatory bail on certain terms and conditions, the same should be not ordinarily interfered with by this Court.

  4. Chapter XXXIII of the Code of Criminal Procedure deals with the provisions as to ?Bail and Bonds?.

  5. Section 437 of Cr.P.C. empowers the authority of law to impose any condition while granting bail to any person accused of, which reads as under: “437. When bail may be taken in case of non-bailable offence. 1[(1) When any person accused of, or suspected of, the commission of any non- bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court other than the High Court or Court of Session, he may be released on bail, but- (i) Such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (ii) Such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non- bailable and cognizable offence: Provided that the court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm: Provided further that the court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason: Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that the shall comply with such directions as may be given by the court.] (2) If it appears to such officer or court at any stage of the investigation, inquiry or trial as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, 2[the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail], or, at the discretion of such officer or court on the execution by him of a bond without sureties for his appearance as hereinafter provided. (3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chatter XVI or Chapter XVII of the Indian Penal Code 45 of 1860 or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1) the court may impose any condition which the court considers necessary- (a) In order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or (b) In order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or (c) Otherwise in the interests of justice. (4) An officer or a court releasing any person on bail under sub-section (1), or sub- section (2), shall record in writing his or its 3[reasons or special reasons] for so doing. (5) Any court which has released a person on bail under sub-section (1), or sub- section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to Custody. (6) If, any case triable by a Magistrate, the trial of a person accused of any non bailable offence is not Concluded within a period of sixty days from the first date fixed for – taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs. (7) If, at any time after the conclusion of the trial of a person accused of a non bailable offence and before Judgment is delivered the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.”

  6. Sub-Section 2 of Section 438 envisages conditions which can be imposed while granting anticipatory bail, which as under: “438 (2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including – (i) A condition that the person shall make himself available for interrogation by a police officer and when required; (ii) A condition that the person shall not, directly or indirectly,- make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer, (iii) A condition that the person shall not leave India without the previous permission of the court; (iv) Such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted -under that section.”

  7. Section 440, 441 and 445 of Cr.P.C. are also relevant and they are extracted as under: ?440. Amount of bond and reduction thereof. (1) The amount of every bond executed under this chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive. (2) The High Court or Court of Session may direct that the bail required by a police officer or Magistrate be reduced. ?441. Bond of accused and sureties. (1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be. (2) Where any condition is imposed for the release of any person on bail, the bond shall also contain that condition. (3) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge. (4) For the purpose of determining whether the sureties are fit or sufficient, the Court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or, if it considers necessary, may either hold an inquiry itself or cause an inquiry to be made by a Magistrate subordinate to the Court, as to such sufficiency or fitness. ?445. Deposit instead of recognizance. When any person is required by any Court or officer to execute a bond with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amount as the Court of officer may if in lieu of executing such bond. ?

  8. A careful consideration of the provisions of Sections 437(3) and 438(2) Criminal Procedure Code shows that conditions which can be imposed are primarily with a view to ensure availability of the accused during investigation, enquiry or trial and his non-interference with the course of justice. Other conditions which Court may think fit can also be imposed but idea should be to ensure his presence as and when required and his non- interference with the investigation, enquiry or trial.

  9. Section 440 Cr.P.C. denotes that the amount of every bond executed shall be fixed with due regard to the circumstances of the case and shall not be excessive. Section 441 Cr.P.C. reads that before any person is released on bail or released on his own bond, a bond for such sum of money as the Court thinks sufficient shall be executed by such person. Section 441 does not speak about deposit of any cash security. Only in certain contingencies, where the accused is unable to secure sureties for his release, he is permitted to deposit a sum of money or Government promissory Note as the Court may fix in lieu of executing such bond, under Section 445, Cr.P.C.

  10. Keeping in view of the above, the issue for consideration is whether the Court below can insist for deposit of money as a condition for grant of bail to the petitioners?

  11. In fact, this issue is no longer res integra as in catena of decisions, various High Courts as well as the Hon?ble Supreme Court have consistently held that imposing condition of depositing money is excessively onerous and unreasonable and such condition may even amount to denial of bail itself.

  12. In ?Sreenivasulu Reddy versus State of Tamil Nadu? reported in (2002) 10 SCC 653, wherein, this Court granted anticipatory bail to the accused on condition to deposit total Rs.50 crores apart from other conditions, which was also complied with by the accused, however aggrieved by imposition of such condition, the accused preferred appeal before the Hon?ble Apex Court. While dealing with the same, the Hon?ble Supreme Court had emphasized that while exercising jurisdiction under Section 438(2) of the Cr.PC, the Court ought only to impose such conditions/terms for enlarging an accused on bail as would ensure that the accused does not abscond. In para 6, it has been held as under: ?6. Having considered the rival submissions and the provisions of Section 438 Cr. PC, we are of the considered opinion that the Court while exercising jurisdiction under Section 438 Cr. PC, must bear in mind and be satisfied that the accused will not abscond or otherwise misuse liberty and this can be ascertained from several factors like conduct of the accused in the past, his assets in the country and so on. But, while granting such anticipatory bail, though the Court may impose such conditions as it thinks fit, but the object of putting conditions should be to avoid the possibility of the person hampering investigation. The discretion of the Court while putting conditions should be an exercise of judicial discretion. ?.

  13. In ?Sandeep Jain v. State of Delhi? reported in (2000) 2 SCC 66, wherein, a direction of the Metropolitan Magistrate, to deposit Rs. 2 lacs apart from furnishing of a bond of Rs. 50,000 with two solvent sureties as a condition precedent for bail, was held to be unreasonable. In ?Sheikh Ayub v. State of M.P.? (2004) 13 SCC 457, wherein, the Supreme Court deleted the direction to deposit a sum of Rs. 2,50,000/-, which was the amount allegedly misappropriated by the accused.

  14. In ?Shyam Singh v. State? reported in (2006) 9 SCC 169, wherein, the Hon?ble Supreme Court, has held in para 4 as under : ?4. We are unable to appreciate even the first order passed by the Metropolitan Magistrate imposing the onerous condition that an accused at the FIR stage should pay a huge sum of Rs 2 lakhs to be set at liberty. If he had paid it is a different matter. But the fact that he was not able to pay that amount and in default thereof he is to languish in jail for more than 10 months now, is sufficient indication that he was unable to make up the amount. Can he be detained in custody endlessly for his inability to pay the amount in the range of Rs 2 lakhs? If the cheques issued by his surety were dishonoured, the Court could perhaps have taken it as a ground to suggest to the payee of the cheques to resort to the legal remedies provided by law. Similarly if the Court was dissatisfied with the conduct of the surety as for his failure to raise funds for honouring the cheques issued by him, the Court could have directed the appellant to substitute him with another surety. But to keep him in prison for such a long period, that too in a case where bail would normally be granted for the offences alleged, is not only hard but improper. It must be remembered that the Court has not even come to the conclusion that the allegations made in the FIR are true. That can be decided only when the trial concludes, if the case is charge-sheeted by the police.?

  15. In ?Keshab Narayan versus State of Bihar? reported in AIR 1985 SC 1666, the Hon?ble Supreme Court held that the condition to furnish cash security with sureties for the likesum appears to be excessively onerous and such conditions may virtually amount to denial of bail itself.

  16. In ?Hussainara Khatoon (I) v. Home Secy., State of Bihar, reported in (1980) 2 SCC 81, the Hon?ble Supreme Court has held as under in para 3: ?3. Now, one reason why our legal and judicial system continually denies justice to the poor by keeping them for long years in pre-trial detention is our highly unsatisfactory bail system. It suffers from a property oriented approach which seems to proceed on the erroneous assumption that risk of monetary loss is the only deterrent against fleeing from justice. The Code of Criminal Procedure, even after its re-enactment, continues to adopt the same antiquated approach as the earlier Code enacted towards the end of the last century and where an accused is to be released on his personal bond, it insists that the bond should contain a monetary obligation requiring the accused to pay a sum of money in case he fails to appear at the trial. Moreover, as if this were not sufficient deterrent to the poor, the courts mechanically and as a matter of course insist that the accused should produce sureties who will stand bail for him and these sureties must again establish their solvency to be able to pay up the amount of the bail in case the accused fails to appear to answer the charge. This system of bails operates very harshly against the poor and it is only the non-poor who are able to take advantage of it by getting themselves released on bail. The poor find it difficult to furnish bail even without sureties because very often the amount of the bail fixed by the courts is so unrealistically excessive that in a majority of cases the poor are unable to satisfy the police or the Magistrate about their solvency for the amount of the bail and where the bail is with sureties, as is usually the case, it becomes an almost impossible task for the poor to find persons sufficiently solvent to stand as sureties. The result is that either they are fleeced by the police and revenue officials or by touts and professional sureties and sometimes they have even to incur debts for securing their release or, being unable to obtain release, they have to remain in jail until such time as the court is able to take up their cases for trial, leading to grave consequences, namely, (1) though presumed innocent, they are subjected to psychological and physical deprivations of jail life, (2) they are prevented from contributing to the preparation of their defence, and (3) they lose their job, if they have one, and are deprived of an opportunity to work to support themselves and their family members with the result that the burden of their detention almost invariably falls heavily on the innocent members of the family. It is here that the poor find our legal and judicial system oppressive and heavily weighted against them and a feeling of frustration and despair occurs upon them as they find that they are helplessly in a position of inequality with the non-poor. The Legal Aid Committee appointed by the Government of Gujarat under the chairmanship of one of us, Mr Justice Bhagwati, emphasised this glaring inequality in the following words: ?The bail system, as we see it administered in the criminal courts today, is extremely unsatisfactory and needs drastic change. In the first place it is virtually impossible to translate risk of non-appearance by the accused into precise monetary terms and even its basic premise that risk of financial loss is necessary to prevent the accused from fleeing is of doubtful validity. There are several considerations which deter an accused from running away from justice and risk of financial loss is only one of them and that too not a major one. The experience of enlightened Bail Projects in the United States such as Manhattan Bail Project and D.C. Bail Project shows that even without monetary bail it has been possible to secure the presence of the accused at the trial in quite a large number of cases. Moreover, the bail system causes discrimination against the poor since the poor would not be able to furnish bail on account of their poverty while the wealthier persons otherwise similarly situate would be able to secure their freedom because they can afford to furnish bail. This discrimination arises even if the amount of the bail is fixed by the Magistrate is not high, for a large majority of those who are brought before the courts in criminal cases are so poor that they would find it difficult to furnish bail even in a small amount.?

  17. In ?Mahesh Chandra versus State of U.P.? reported in (2006) 6 SCC 196, wherein, while remitting the matter for fresh consideration, the Hon?ble Supreme Court set aside the order of the High Court of U.P., in and by which, as a condition for grant of anticipatory bail, the High Court has recorded the undertaking of the petitioners to pay to the victim daughter-in-law a sum of Rs. 2000 per month and failure to do so would result in vacation of the order granting bail. The Hon?ble Supreme Court observed that the parties cannot be made liable to deposit Rs.2000 per month for the maintenance for the victim and while deciding a bail application, it is not the jurisdiction of the High Court to decide civil disputes as between the parties.

  18. Therefore, the practice of imposing condition for depositing of money for granting the bail has been deprecated by the High Courts and the Hon?ble Supreme Court. Of course, while granting the bail, the Court of law is entitled to put certain conditions at its discretion, however, it should not be ignored that such conditions must be reasonable and judicious and should not be arbitrary. In fact, no provision in Code of Criminal Procedure contemplates cash deposit as a condition precedent for grant of bail, but may permit the person to deposit a sum of money in lieu of executing a bond and giving surety of one or two persons. It is needless to state that granting or denying the bail depending upon the circumstances of each case, is within the exclusive discretion of the Court of law or authority, however, such discretion should not be exercised arbitrarily. Once the court comes to the conclusion on the facts and circumstances of the case that a person is entitled to the benefit of bail, then no condition other than those enumerated in Section 437(3) or 438(2) can be imposed. Imposition of such unreasonable condition is not only beyond the purview of the provisions of Code of Criminal Procedure but also beyond the powers of the court. Discretion does not mean that it has no arena or boundary. No Court having howsoever absolute power can traverse beyond the arena carved out for it. Even absolute discretion does not admit element of arbitrariness or whimsicality or capriciousness.

  19. Having regard to the above, this Court is of the view that the condition imposed by the learned Principal Sessions Judge, Thanjavur in his order, dated 14.10.2014 in Crl.M.P.No.3779 and 3827 of 2014, while granting anticipatory bail to the petitioners, to deposit a sum of Rs.15,000/-, is onerous and unreasonable and hence, it is set aside.

Accordingly, these Criminal Original Petitions are allowed. Consequently, the connected Miscellaneous petition is closed.

Suk                            05-02-2015
Index: Yes/No
Internet:Yes/No
S.VAIDYANATHAN, J.

Suk

don’t file Habeas Corpus for child custody !! Madras HC

“…. Insofar as the custody/entitlement/right over the minor child is concerned, we are of the view that the said question cannot be gone into by this Court, hearing Habeas Corpus Petition. Admittedly, the petitioner has not approached the competent rt/Forum to vindicate his grievance…..”

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 25/01/2006

Coram

The Hon’ble Mr. Justice P.SATHASIVAM
and
The Hon’ble Mr. Justice N.PAUL VASANTHAKUMAR

Habeas Corpus Petition No.40 of 2006

R.Suresh Kumar             … Petitioner

-Vs-

  1. K.A.Kalavathi
  2. K.M.Arumugham

  3. The Inspector of Police,
    Kolathur Police Station,
    Kolathur, Chennai-99.            … Respondent

Petition under Article 226 of the Constitution of India for the issuance of writ of habeas corpus to direct the first respondent to produce bodily the petitioner’s male child by name Siddarth, aged about 4 = years, in the court and hand over the said chi ld to the custody of the petitioner.

!For petitioner     : O.R.Abul Kalam.

For Respondents    : Mr.M.K.Subramanian, Government Advocate.
O R D E R

(Order of the Court was made by P.SATHASIVAM, J.) The petitioner by name R.Suresh Kumar has filed this petition seeking for a direction to the first respondent K.A.Kalavathi, who is none else than his wife, to produce his male child by name Siddarth, aged about 4 = years, in the Court and for furth irection to hand over the child to his custody.

  1. In the affidavit filed in support of the above petition, the petitioner has stated that the first respondent is his wife and the second respondent is his father-in-law. The petitioner married the first respondent five years ago and he was blesse rough the first respondent with one male child by name Siddarth, now aged 4 = years, studying in Kinder Garden class, Don Bosco Matriculation School, Madras. They also have a female child by name Mathumitha, aged about 2 = years. According to the pet itioner, on 08.11.2005, the first respondent left the house of the petitioner along with the male child without any intimation. There is no dispute that the petitioner has not made any complaint against anyone including the third respondent.
  • Learned counsel for the petitioner, by drawing our attention to Section-6 of the Hindu Minority and Guardianship Act, 1956, vehemently contended that inasmuch the petitioner being father/natural guardian of the minor, he is entitled to the custod the child and that this Court can issue suitable direction to the first respondent for handing over the minor in favour of the petitioner. In support of the above contention, he relied on a decision of this Court reported in AIR 1984 Madras 186 (Suresh Babu v. Madhu) and also a decision of the Kerala High Court in Vasudevan vs. Viswalakshmi (AIR 1959 Kerala 403).

  • Insofar as the custody/entitlement/right over the minor child is concerned, we are of the view that the said question cannot be gone into by this Court, hearing Habeas Corpus Petition. Admittedly, the petitioner has not approached the competent rt/Forum to vindicate his grievance. Inasmuch as even according to the petitioner, the child, aged about 4 = years, is with the first respondent, who is none else than the mother of the child, we are of the view that the claim of the petitioner cannot be gone into by this court in this petition. It is made clear that the petitioner is free to approach the appropriate forum to vindicate his grievance.

  • With the above observation, the Habeas Corpus Petition is dismissed.

  • JI.

    To The Inspector of Police, Kolathur Police Station, Kolathur, Chennai-99.

    Litigants can no longer approach High Court directly if police fail to act on their complaints :Madras HC

    The filing of a complaint, getting redress or remedy immediately or alternatively police filing an FIR to proceed with criminal investigation and further trial when the charged are the normal processes when a criminal offense is committed.

    It is also the fundamental right of any citizen who is criminally wronged by another to have his complaint heard and redressed without delay.

    However, this matter has been made so complicated and lengthy that it will take ages before honest litigants will see justice

    The procedure as understood by us

    • When complaint is filed only CSR would be given
    • Then police will investigate within six weeks
    • Police can close the case after six weeks
    • If police close the case, NO FIR will be filed
    • If party / complainant is aggrieved by this he can approach the Judicial Magistrate
    • The Magistrate may issue orders to police under Sec 156(3) instructing police to register FIR and conduct inquiry
    • If police do not act according to court instructions contempt of court case can be filed on them !!
    • if litigants are not satisfied with the order of the magistrate they can approach the HC !!

    Now just imagine how long this would take and how a comman man can go thru all this to get justice

    But let me hasten to add, MONEY MILKING #fakeCase FIRs, by women, on hapless husbands and elderly mother in laws would be #fastTracked and handled very well by the well oiled system !!

    ==== news from “The Hindu” online news paper =====

    ‘Litigants can no longer approach High Court directly if police fail to act on their complaints. Madras HC

    The court will entertain applications when the police fail to follow the timetable to take action on a complaint

    The court will entertain applications when the police fail to follow the timetable to take action on a complaint

    In a significant judgment, the Madras High Court has ruled that litigants can no longer approach the High Court directly if police refuse to act upon their complaints, before exploiting the other available remedies, including moving the jurisdictional judicial magistrate.

    Justice P.N. Prakash passed directions to this effect on Tuesday while dismissing a batch of criminal original petitions seeking direction to the police to register FIR on their complaints.

    However, the judge made it clear that the doors of the High Court will not be completely shut. “This court will entertain applications seeking to register an FIR when the police fail to follow the timetable (within six weeks) to take action on a complaint set by the Supreme Court,” the judge said.

    The issue whether litigants can directly approach the High Court under Section 482 (Inherent powers of the high court) of the Cr.P.C. seeking relief either to file an FIR or to quash one without exhausting the alternative remedies available before a judicial magistrate was raised by an advocate while the court was hearing one such petition.

    According to the advocate, such petitions are not maintainable. In view of the objection, Justice Prakash directed the Registry to notify the proposition enabling the members of the Bar to address the issue on September 12. On the appointed day, a large number of senior advocates and lawyers appeared before the court and submitted their views. Recording their contentions, the judge reserved his decision.

    On Tuesday, while pronouncing his decision, the judge ruled that petitions seeking to register an FIR circumventing the timetable fixed by the apex court in Lalita Kumari case was not maintainable.

    Now, in view of the decision, a person aggrieved by the inaction of police on their complaints has to first approach the jurisdictional magistrate with a copy of the complaint and an affidavit setting down the dates on which the complaint was made to the Station House Officer.

    On such application, the magistrate shall pass orders thereon within 15 days, either issuing directions or dismissing the petition.

    SOURCE : The Hindu online

     

    In the absence of proof regarding domestic violence, wife is not eligible to claim maintenance. Madras HC

    We see many honest, innocent husbands being harassed with #fake498a #fakeDV and #FakeMaintenance claims. Here is one such husband who has been actually harassed by the wife

    the Hon Madras HC summarises the fate of the husband in the following lines
    “…21. It is a case where the respondent herein as a father, has made his daughter a professionally qualified personality having educated her upto B.Tech. Even before the claim for maintenance, the respondent has provided shelter, medical facilities, educational facilities, rental income etc. Apart from that, as per the compromise, suggested by the Police Official, he was willing to pay a sum of Rs.400/- per month at that point of time, but the wife was not willing to receive it. In a house built by the husband on obtaining loan, it is the wife and daughter, who were residing and getting rent also by letting out one portion, while the husband is staying away from his own house. These details are not at all stated by the petitioner in chief examination and these facts have been brought out only in cross examination.

    a) Suppression of material fact in a case between the husband and the wife involving intimate interpersonal relationship itself would amount to cruelty.

    b) Neglecting the husband, treating him as invisible, not inviting him for the marriage of his daughter, where throughout the daughter has been supported by the father, certainly would amount to humiliation causing mental cruelty to the husband. The provisions of Domestic Violence Act can be used as a shield / sword to get protection from the domestic violence and it cannot be used as a sword for the purpose of causing violence to the other partner in the life….”

    While on the matter of maintenance, the Hon Madras HC clearly states that eligibility of maintenance is to be tested on facts “… But the question to be seen is whether the petitioner is entitled to maintenance under the context, conduct and the circumstances alleged.…..”

    The Hon HC concludes that “… Perusal of Section 20 of P.W.D.V.Act would go to show that monetary relief including maintenance can be given to the woman, who is proved to be the victim of domestic violence. In the absence of the proof regarding domestic violence, the wife is not eligible to claim maintenance….”

    Criticizing the wife for frequently filing complaints the HC states “…. There is no clarification as to what made the wife to prefer 15 complaints. The details ought to have been clarified and it has not been done. However, everyday life must be at home and not in the Police Station.….”

    and refuses maintenance to the erring wife

    ===================================

    BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

    DATED: 15.10.2015

    CORAM

    THE HON’BLE MRS.JUSTICE S.VIMALA

    Crl.R.C.(MD) No.138 of 2014

    Jeyanthi … Petitioner / Appellant / Petitioner

    -vs-

    Jeyapaul … Respondent / Respondent / Respondent

    Prayer: Criminal Revision Petition has been filed under Sections 397 and 401 of Cr.P.C., to call for records in Crl.A.No.76 of 2012 on the file of the learned II Additional Sessions Judge, Thoothukudi, Thoothukudi District and set aside the judgment dated 26.11.2013, confirming the order dated 26.08.2011 passed in M.C.No.5 of 2010 on the file of the learned Judicial Magistrate No.1, Thoothukudi, Thoothukudi District.

    For Petitioner : Mr.A.Thiruvadikumar
    For Respondent : Mr.N.Dilip Kumar
    Orders Reserved on : 06.10.2015
    Orders Pronounced on : 15.10.2015


    O R D E R

    Alleging violence in domestic relationship, the aggrieved party, namely, the wife filed a complaint against the husband under Section 12 of Protection of Women from Domestic Violence Act (hereinafter referred to as “the P.W.D.V.Act”) before the Judicial Magistrate No.I, Thoothukudi.

    1. The Court, after conducting enquiry, gave a finding that the allegation of domestic violence is not proved and that the claim of maintenance should be made in an appropriate Court. Challenging the same, the wife filed appeal before the Sessions Judge in Crl.A.No.76 of 2012. The order passed by the learned Magistrate in M.C.No.5 of 2012 dated 26.08.2013, was confirmed by the Sessions Judge, by the judgment dated 26.11.2013. This judgment is under challenge in this revision petition.
    2. While confirming the order of the learned Magistrate, the Appellate Court considered the financial supports rendered by the husband to the wife and his child, which are as follows;

    a) the wife herself admitted that her husband met the education expenses of the daughter upto her studies in XII standard.

    b) the husband provided 25 sovereign of jewels to her and daughter

    c) medical facility was provided to her and daughter through the company in which the husband was employed;

    d) at the instance of Police at Pudukottai Police Station, the husband was made to pay Rs.400/- to the petitioner, but she refused to receive the same.

    e) the wife is receiving a sum of Rs.900/- per month by letting the upstair portion of the house on rent;

    1. The husband stated in his evidence that he met the educational expenses of his daughter and remitted the fees at Kalasalingam University and in support of the same, documents were filed. Giving a finding that as per Section 20 of the P.W.D.V.Act, an aggrieved person can claim the relief of maintenance, as a result of domestic violence, but domestic violence in this case is not proved, the dismissal was held proper.
  • In order to appreciate the merits of the judgment passed, it is necessary to look into the details of the petition filed by the wife.

  • The wife filed a petition under Section 12 of the P.W.D.V.Act, 2005, seeking the following reliefs:

  • i) to pass protection order prohibiting the respondent from committing any act of domestic violence either physically or mentally against her and daughter;

    ii) to pass a residence order, making provision for residence at the house, where the petitioner was residing.

    iii) to pass maintenance order for the petitioner and her daughter at Rs.10,000/- per month from the respondent.

    Facts in brief:

    1. The marriage between the parties took place on 08.12.1983. After marriage, they were living at Thoothukudi and a female child born during the year 1992 is alive and other two children born during the year 1985 and 1988 died. When she was pregnant, uterus operations were done and at the time, she was treated cruelly by the respondent.

    7.1. The respondent had illegal intimacy with his brother’s wife and on account of that, she was treated cruelly.

    7.2. The respondent is working as Labour in Tuticorin Port Trust and earning Rs.22,000/- as salary, but he did not give money for the maintenance of the petitioner and her daughter. The respondent is also earning a sum of Rs.27,000/- from his agricultural land.

    1. On 03.05.2008, the petitioner was beaten and injuries were caused to her and hence, she gave a complaint to Sipcot Police Station and a case was registered in Crime No.103 of 2008 under Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act. The husband filed a petition for divorce before the Sub Court, Thoothukudi on 07.05.2008 and later on, he withdrew the petition.
  • This petition, alleging domestic violence, was opposed by the husband as pregnant with false allegations; the alleged domestic violence is denied as false; the statement regarding income is an exaggerative one; the husband provided 25 sovereign jewels to the petitioner and her daughter and also provided a house, which was built by him worth Rs.8 lakhs and also provided household articles, apart from meeting all the educational expense of her daughter.

  • The petitioner gave complaint of dowry harassment falsely on three times against the respondent. During enquiry, the husband was asked to pay Rs.400/- per month to the wife, which was refused by her. About 5 years back, it was only the wife, who pulled and pushed the respondent and caused verbal and physical injury. She used to quarrel for nothing and use abusive languages. Unable to bear the cruelty, he sent a notice through Advocate on 10.01.2008. During the enquiry made by the Sipcot Police, the petitioner admitted her activities and assured to stop that, but she never stopped. Therefore, the respondent filed a petition for divorce in HMOP 40 of 2010 before Sub Court, Thoothukudi.

  • The wife examined herself as P.W.1 and the two documents marked were Ration Card and receipt for payment of college fees. On behalf of the respondent, he has been examined as R.W.1 and the documents marked are the receipt for having given a complaint along with the copy of the complaint apart from the salary certificate of the respondent.

  • The main contention of the learned counsel for the revision petitioner is that the complaint given by the wife has been registered by the Police, would remain as a proof for domestic violence and therefore, the order passed by the Courts below is liable to be set aside. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  • On the other hand, learned counsel for the respondent would submit that whether the complaint given by the wife was on account of the fact that the wife was an aggrieved party seeking redressal or whether the complaint was an outcome of making the husband as an aggrieved party to wreck vengeance against him is a matter for enquiry /trial and therefore, mere registration of the case alone would not amount to proof of domestic violence. This contention merits acceptance. The enquiry / trial alone would unearth the real facts.

  • 14. In view of the rival contentions raised, the following issues arise for consideration.

    i) whether there was any domestic violence to the wife

    ii) whether economic violence also would amount to domestic violence? If so, whether has the wife proved domestic violence.

    1. The word “Domestic Violence” has been defined in the P.W.D.V.Act, 2005. The P.W.D.V.Act creates three basic rights for victims of domestic violence.

    a) right to be protected from violence

    b) right to live in a shared household

    c) right to monetary relief

    1. The Act provides for very comprehensive definition of domestic violence and includes not only actual abuse, but threatened abuse that may be either physical, sexual, verbal, economical or emotional.
  • It is also a gender specific enactment, which means only woman can avail the provisions of this Act. “The Act clearly defines an aggrieved person as “any woman” who is, has been in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the husband…”

  • Respondent has been defined to mean any adult male person, who is or who has been in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought relief.

  • 18.1. The term economic abuse has been defined in Clause 2(ix) as including,

    a) the unreasonable deprivation of economic or financial resources to which a complainant is entitled under law or which the complainant requires out of necessity, including household necessities for the complainant and mortgage bond repayment or payment of rent in respect of shared residence or

    b) the unreasonable disposal of household effects or other property in which the complainant has an interest.

    3(iv) “economic abuse” includes:-

    (a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

    (b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

    (c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household. Explanation II.—For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.”

    1. The definition of domestic violence itself clearly spells out that it is not necessary that the aggrieved person has to be ill-treated and assaulted by the respondent to constitute domestic violence. Any continuous deprivation of economic resources and prohibition as defined under Section 3 (iv) of the Domestic Violence Act comes within the purview of Domestic Violence (K.Ramaraju vs. Lakshmi Prathima, 2008 2 ALD Cri.1).

    20. The learned Magistrate, without understanding that the deprivation of economic resources to which the petitioner is entitled to, may amount to domestic violence, has given a finding that the petitioner can separately file a petition for maintenance. The rationale behind this decision is certainly incorrect. But the question to be seen is whether the petitioner is entitled to maintenance under the context, conduct and the circumstances alleged.

    1. It is a case where the respondent herein as a father, has made his daughter a professionally qualified personality having educated her upto B.Tech. Even before the claim for maintenance, the respondent has provided shelter, medical facilities, educational facilities, rental income etc. Apart from that, as per the compromise, suggested by the Police Official, he was willing to pay a sum of Rs.400/- per month at that point of time, but the wife was not willing to receive it. In a house built by the husband on obtaining loan, it is the wife and daughter, who were residing and getting rent also by letting out one portion, while the husband is staying away from his own house. These details are not at all stated by the petitioner in chief examination and these facts have been brought out only in cross examination.

    a) Suppression of material fact in a case between the husband and the wife involving intimate interpersonal relationship itself would amount to cruelty.

    b) Neglecting the husband, treating him as invisible, not inviting him for the marriage of his daughter, where throughout the daughter has been supported by the father, certainly would amount to humiliation causing mental cruelty to the husband. The provisions of Domestic Violence Act can be used as a shield / sword to get protection from the domestic violence and it cannot be used as a sword for the purpose of causing violence to the other partner in the life.

    1. There are three allegations levelled by the wife against the husband. So far as the 1st allegation is concerned, the incident is said to have taken place around 1985 to 1988 during which she is stated to have been ill-treated after uterus operation. The manner in which the illtreatment caused is not explained. The allegation is vague.
  • The 2nd allegation is that the husband was maintaining illegitimate intimacy with his brother’s wife. The Trial Court has said that no documents have been filed to prove it. The Court has given a finding that nobody else excepting the petitioner has been examined to prove the same. At least some near relatives could have been examined to speak about the probability of the allegation levelled.

  • So far as the 3rd allegation is concerned, it is pertaining to non providing of maintenance to the wife and child.

  • It is appropriate to quote Section 20 of the P.W.D.V.Act, providing for monetary relief:

  • “20. Monetary reliefs.—

    (1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to—

    (a) the loss of earnings;

    (b) the medical expenses;

    (c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

    (d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.

    (2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

    (3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.

    (4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in-charge of the police station within the local limits of whose jurisdiction the respondent resides.

    (5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1).

    (6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.”

    26. Perusal of Section 20 of P.W.D.V.Act would go to show that monetary relief including maintenance can be given to the woman, who is proved to be the victim of domestic violence. In the absence of the proof regarding domestic violence, the wife is not eligible to claim maintenance.

    1. As already indicated, the husband has provided several facilities, which has neither been disclosed in the evidence nor acknowledged in the complaint / petition. In all fairness, if the wife had stated that what was already provided was insufficient and what is the remaining amount of maintenance expected, it would have been fair. Now, the contention is raised with regard to justifiability of the wife to remain away from the company of the husband.

    28. Mere registration of a complaint will not amount to proof of cruelty, as registration of the First Information Report is towards the first step to investigate and to fine out whether the allegation stated in the complaint is true or not.

    1. When a query was raised with regard to the possibility of settlement either in terms of reunion or in terms of separation by mutual consent, having regard to the fact that already 30 years had elapsed, the parties having spent more time in Police Station and Court than at home, it was represented on the side of the wife that what is expected is only the order from the Court.
  • It is the case of the husband that she was always interested in humiliating the husband and was interested in seeing that the child is not affectionate towards the father; there was an intimidation to commit suicide often; levelling allegations; the husband was lavish in spending money; interested in preferring complaints before the Police Station; the wife frequently leaving the house without information; using abusive language against the husband etc.

  • In disputes relating to family matters, by analyzing a single incident, a Court cannot come to a definite conclusion. Only considering the totality of the facts and circumstances, Court will be able to find out what would have happened. The totality of the circumstances in this case indicates that the probability is, the case of the husband must be true, when the wife admits that she has preferred 15 complaints before various police station.

  • 32. There is no clarification as to what made the wife to prefer 15 complaints. The details ought to have been clarified and it has not been done. However, everyday life must be at home and not in the Police Station.

    1. Considering the facts and circumstances of the case, this Court finds nothing to interfere with the concurrent orders passed by the Courts below. The petitioner has not proved the alleged domestic violence as against her. This Court is conscious of the fact that provisions of the P.W.D.V.Act is a legislation providing for justice to victim. It is appropriate to quote the decision of the Hon’ble Supreme court, reported in 1984 AIR 1471 ( Sadhuram Bansal vs. Pulin Behari Sarkar & Ors.) :

    “In our opinion, there appears to be some misapprehension about what actually social justice is. There is no ritualistic formula or any magical charm in the concept of social justice. All that it means is that as between two parties if a deal is made with one party without serious detriment to the other, then the Court would lean in favour of the weaker section of the society, Social justice is the recognition of greater good to larger number without deprivation of accrued legal rights of anybody. If such a thing can be done then indeed social justice must prevail over any technical rule. It is in response to the felt necessities of time and situation in order to do greater good to a larger number even though it might detract from some technical rule in favour of a party. Living accommodation is a human problem for vast millions in our country. The owners, in this case, are getting legally Rs. 1 lakh more.

    We must remember that in administering justice-social or legal jurisprudence has shifted away from finespun technicalities and abstract rules to recognition of human being as human beings and as human needs and if these can be fulfilled without deprivation of existing legal rights of any party concerned, courts must lean towards that and if the Division Bench of the High Court, in the facts and circumstances of the case, has leaned towards that, it is improper for this Court in exercise of the discretion vested under Art. 136 of the Constitution to interfere with that decision. We would do well to remember that justicesocial, economic and political-is preamble to our Constitution. Administration of justice can no longer be merely protector of legal rights but must whenever possible be dispenser of social justice.

    Call it social justice or solving a socio-economic problem or give it any other name or nomenclature, the fact of the matter is that this was the best course in the circumstances that could have been adopted by the court. Unfortunately, the Single Judge completely ignored the following important facts which have been indicated by me earlier:-

    (1) that a bulk of the consideration money, viz., Rs. 3 Lakhs out of Rs. 4 Lakhs, was not paid by the appellant even until the time when the learned Single Judge had passed the order nor was it paid even when the matter was in the High Court, and

    (2) the learned Single Judge overlooked the fact that an owner also has a right to impose certain conditions and in exercise of that he had imposed the condition that the purchaser would have to buy the land subject to the pending litigation whereas in the offer made by the purchaser he had placed the onus on the owners to give him a good marketable title free from litigation.”

    1. It would be appropriate to extract Section 20 of the Domestic Violence Act as under:

    “20. Monetary reliefs.-(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,-19

    (a) the loss of earnings;

    (b) the medical expenses;

    (c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

    (d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.

    (2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

    (3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.

    1. From the provisions of Section 20(1)(d) of the P.W.D.V. Act, it is clear that the grant of maintenance under this Act is in addition to the amount awarded under any other enactment providing for maintenance. Therefore, even though the revision petitioners is not granted any maintenance, it is open to her to work out her remedy before any other law if found eligible.

    S.VIMALA,J.

    In the result, the Criminal Revision Petition is dismissed.

    15.10.2015

    Index: Yes / No

    Internet: Yes / No

    ar

    To:

    1. II Additional Sessions Judge,
      Thoothukudi,
      Thoothukudi District.
  • Judicial Magistrate No.1,
    Thoothukudi,
    Thoothukudi District.

  • PRE-DELIVERY ORDER IN Crl.R.C.(MD) No.138 of 2014

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    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
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    2007-Madras HC “tells police enforce Prevention of Begging Act”. 2016 same Madras HC tells Husband to Beg & Pay Maintenance !!!

    Sharing yet another super post by Kavariman Raja

    Mockery of Indian Courts

    1) In 2007 the Madras HC Madurai Bench “tells police to enforce Prevention of Begging Act”
    ////MADURAI: In an attempt to eradicate the beggary menace, the Madurai Bench of the Madras High Court on Monday directed the Police Department to strictly implement the Tamil Nadu Prevention of Begging Act, 1941. ///
    (http://www.thehindu.com/todays-paper/tp-national/tp-tamilnadu/court-tells-police-to-enforce-prevention-of-begging-act/article1816346.ece)

    2) In 2016 the same Madras HC Madurai Bench tells the Husband to Beg to Pay Maintenance (‘Jobless’ hubby told to beg to pay alimony – The New Indian Express – http://m.dailyhunt.in/news/india/english/the-new-indian-express-epaper-newexpress/jobless-hubby-told-to-beg-to-pay-alimony-newsid-55472329)

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