Narendra V/s. Balbir SinghCRIMINAL APPLICATION (APPA) NO. 748 OF 2018

FACTS OF THE CASE

1. The Bench in the present case was constituted to answer the question referred by the Single Bench of this Court vide order dated 24/10/2018, whereby the learned referral Judge expressed a diagonally opposite view as that of taken by the Single Bench of this Court itself in the case of Sai Accumulator Industries, Sangamner Vs. Sethi Brothers, Aurangabad, wherein he took a view took a view that the complaint filed by an unregistered firm under Section 138 of the Negotiable Instrument Act, 1888 (in short “N.I. Act”) is not tenable in law in view of the bar under Section- 69(2) of the Indian Partnership Act, 1932 (in short “the Act of 1932”) and referred the question for consideration of the larger Bench.
2. In the backdrop, the Applicant, an unregistered rm, had initiated proceedings under Section 138 for dishonour of cheque. The Respondent contested the proceedings, stating that the applicant did not have locus to initiate such proceedings, in view of the bar under Section 69(2).

ISSUES RAISED

1. Whether prosecution of accused under Section 138 of the Negotiable Instruments Act, 1888, is hit by the bar created by sub-section (2) of Section 69 of the Indian Partnership Act, 1932? 

RULING OF THE COURT/ THE COURT HELD THAT

While appreciating the efforts of Learned counsels who ably assisted the court in reaching to the answer to the referred question, while observing the following:

1. “The court held that the term ‘suit’ under Section 69(2) must receive its ‘plain and simple meaning’ and should not be stretched for securing immunity from criminal prosecutions, which is reproduced below with the except from the judgment, “There is no point in stretching the bar which is in the nature of temporary bar to the suit to the complaints under section 138 of the N. I. Act, which is in the nature of penal provision with the object to inculcate faith in banking transactions.”
2. In this regard, reliance was placed on a coordinate bench decision of the Andhra Pradesh High Court in AV Ramanaiah v. M. Shekhara, ALD(CRI) 2009 2 801, which fortified its view by observing that, “The bar contained under Section 69 of the Act of 1932 is intended to prevent an unregistered partnership rm to enforce a right arising out of a contract against a third party, and that it is not intended to create any such bar for the purposes of enforcing rights arising out of statutes or for invoking the protection available under any other statute.”
3. Accordingly, the Hon’ble High Court answered the reference as under, “The prosecution of an accused under Section 138 of the Negotiable Instruments Act, 1888, is not hit by the bar created by sub-section (2) of Section 69 of the Indian Partnership Act, 1932.” It added, “the ‘debt or other liability’ as has been referred in Section 138 of the N.I. Act, is a ‘legally enforceable debt or other liability’. However, by creating a bar to enforce a right arising out of contract by an unregistered rm, with the object to promote registration of the firms and to exempt the small firms from compulsory registration, the inherent character of enforceability of the ‘right’ does not get changed and it would still remain as a right enforceable by law.”

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KALINDI DAMODAR GARDE (D) BY LRS. V/s. MANOHAR LAXMAN KULKARNI & ORS. ETC. CIVIL APPEAL NOS. 6642-6643 OF 2010

FACTS OF THE CASE

1. The facts are that Laxman was given in adoption to Saraswati on 2^nd November, 1935. Laxman had three sons Gangadhar aged 4 years 5 months; Dattatraya aged 2 years 5 months and Manohar aged 9 months at the time of his adoption. After adoption, Laxman and his wife Padmavati joined the family of Saraswati along with their 3 sons. It was in the year 1938, daughter Kalindi was born to Laxman and Padmavati. The natural father of Laxman, Pandurang effected partition in respect of his joint family property on 30^th December, 1948 wherein Laxman was excluded from any share as he had gone in adoption to Saraswati.
2. After the death of Saraswati, Laxman inherited the property of Saraswati which is the subject matter of the present appeals. After the death of Laxman, his daughter Kalindi applied for effecting the change in the village revenue record for inclusion of her mother Padmavati and herself as owners. The mutation was entered on 11th March, 1987. The matter was taken at various stages thereafter. The revision filed by Manohar, son of Laxman, was dismissed on 8th September, 1992. Aggrieved, Manohar had filed writ petition. 
3. Padmavati, wife of Laxman, died on 10th October, 1992 leaving a registered Will dated 21st May, 1987 in which she had bequeathed her share to her 3 sons which were born prior to the date of adoption. On 20th October, 1996, Gangadhar, one of the sons of Laxman and Padmavati, died. Thereafter, Dattatraya, the second son filed a suit for partition, separate possession and mesne profit against forcible possession by Kalindi. This suit was decreed on 13^th November, 2004.
4. In a suit by Kalindi, the daughter born to Laxman and Padmavati, she had taken a plea that the sons born before adoption have no right, title or interest in the properties left behind by Laxman and she being a daughter born to Laxman after his adoption would inherit the entire property along with Padmavati, her mother.

ISSUES RAISED

1. Whether the three sons of Laxman born before adoption in 1935, namely, Gangadhar, Dattatraya and Manohar are entitled to inherit the property in adoptive family of Laxman after his death? 

RULING OF THE COURT/THE COURT HELD THAT

Dismissing the appeal and confirming the order of High Court, the Hon’ble Supreme Court finds the following observations: 

1. “The bench comprising Justices L. Nageswara Rao and Hemant Gupta noticed that the full bench of the High Court in Martand Jiwajee Patil & Anr. v. Narayan Krishna Gumast-Patil had held that that the adoptee will remain the father of the son. It said that the Judgment in Kalgavda Tavanappa Patil has not been accepted even under the Hindu Law.”
2. “It further observed that since the succession has opened after the death of Laxman on 10th January, 1987, succession has to be in accordance with the Hindu Succession Act and not as per Hindu law as all text, rule or interpretation of Hindu law prior to commencement of the Act have ceased to have any effect unless expressly provided for in the said Act. It further noted that there is no provision of denying the rights of succession to the natural born son of an adoptee father” and stated:

“In view of the provisions of the Act which do not make any distinction between the son born to a father prior or after adoption of his father and that there is no provision which bars the natural born son to inherit the property of his natural father, therefore, the High Court has rightly upheld the rights of the sons of Laxman. In fact, in the Full Bench judgment of Bombay High Court in Martand Jiwajee Patil, it has been held that the natural father retains the right to give in adoption his son born before his own adoption. Therefore, if he has a right to give his son in adoption, such son has a right to inherit property by virtue of being an agnate. There was a full blood relationship between the three sons and the daughter who was born after adoption. All the children of Laxman are entitled to inherit the property of their natural father and mother in accordance with the provisions of the Act as succession has opened after the death of Laxman in 1987 and subsequently the mother in the year 1992.”

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D.K. Chandel V/s. M/S. Wockhardt Ltd. & Anr. CRIMINAL APPEAL NO(S). 132 OF 2020

FACTS OF THE CASE

1. This appeal arises out of judgment and order dated 20.12.2017 passed by the High Court of Punjab and Haryana at Chandigarh in CRA-S-1717-SBA of 2005 in and by which the High Court has set aside the Order of the First Appellate Court and restored the judgment of the Trial Court and thereby convicting the appellant under Section 138 of the Negotiable Instruments Act and sentencing him to undergo imprisonment for six months and also imposing fine of Rs.4,17,148/-.
2. The case is that the appellant-accused purchased the pesticides on credit from the respondent-company and made part payments. Both the appellant and the respondent were maintaining the running accounts. In lieu of payment due and payable to the respondent, the appellant has issued a cheque on 30.04.1999 of Rs.4,17,148/- drawn on State Bank of India at Bathinda (Punjab). When the said cheque was presented for collection the same was returned with the endorsement “insufficient funds”. The intimation of dishonoured of cheque was received by the respondent on 26.05.1999. Since no payment was made and the amount was not forthcoming, the respondent filed a complaint against the appellant under Section 138 of the N.I. Act.
3. The High Court in the impugned judgment held that “the reason given by the lower Appellate Court that he did not bring the cash book or order book etc. could well be understood, if civil suit is tried” but on the contrary the order passed by the lower Appellate Court is in the criminal case filed under Section 138 of the N.I. Act. Insofar as the authorisation in favour of the respondent to file the complaint is concerned, the High Court held that the Resolution of the company dated 22.04.1999 empowered the complainant to file a complaint in all such cases and therefore has no relevant to the date of the cheque i.e. 30.04.1999.

ISSUES RAISED

1. Whether production of account books/cash book is necessary in cases u/s. 138 of the Negotiable Instruments Act 1881 (hereinafter referred as NI Act)? 

RULING OF THE COURT/THE COURT HELD THAT

Upholding the judgment of the Hon’ble High Court and Ld. Trial Court of conviction, the Hon’ble Apex Court have made the following observations: 

1. “As held by the Trial Court as well as by the High Court that the cheque was issued towards the amount due and payable by the appellant for purchase of pesticides. As rightly observed by the High Court production of the account books/cash book may be relevant in the civil court; but may not be so in the criminal case filed under Section 138 of the N. I. Act. This is because of the presumption raised in favour of the holder of the cheque. In view of the concurrent findings recorded by the Trial Court as well as by the High Court we do not see any ground warranting interference with the conviction of the appellant under Section 138 of the N. I. Act.”
2. “So far as the question of sentence is concerned, the cheque was issued by the appellant, for discharge of the debt, way back in the year 1999. Considering the fact that the cheque was issued in the year 1999 and having regard to the other facts and circumstances of the case and in the interest of justice we deem it appropriate to modify the sentence of imprisonment imposed upon the appellant and also the fine amount of Rs.4,17,148/-.”
3. “In the result, the impugned judgment is modified and the appeal is partly allowed to the extent indicated below. For the conviction under Section 138 of the N. I. Act, the appellant is imposed upon only fine amount of Rs.4,17,148/- and the sentence of imprisonment imposed upon the appellant is set aside.”

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Commissioner of Income Tax (TDS), Pune V/s. M/s. Vodafone Cellular Limited ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 1152 OF 2017

FACTS OF THE CASE

1. In the present case, the Respondent Company sold the SIM cards / recharge coupons at the discounted rate to the distributors, which was termed by the Income Tax Department as Commission under the head of Section 194H of the Income Tax Act, 1961 and thus, the Petitioner contended the factum that Respondent company is thereby liable to TDS. 

ISSUES RAISED

1. Whether on the facts and in the circumstances of the case and in law, Hon’ble ITAT was justified in holding that TDS provisions under section 194H of the Income Tax Act, 1961 are not attracted on discounts given by the Assessee to the distributors of prepaid SIM cards?

RULING OF THE COURT/THE COURT HELD THAT

While dismissing the present appeals preferred by the Petitioner and finding no error and infirmity in the view taken by the Tribunal, the Hon’ble Bombay High Court observed the following: 

1. Relying on the decision in the case of Pr. Commissioner of Income Tax-8, Mumbai v/s. M/s. Reliance Communications Infrastructure Ltd. this Court held that when transaction is between two persons on principal to principal basis, deduction of tax at source as per Section 194H of the Act would not be made since the payment was not for commission or for brokerage, which quoted as follows- “Having heard the learned Counsel for the parties and having perused the documents on record, we do not find any error in the view of the Tribunal. The Tribunal, as noted, besides holding that the Commissioner’s order setting aside the order passed u/s 201 was not carried in appeal, had also independently examined the nature of the transaction and come to the conclusion that when the transaction was between two persons on principal to principal basis, deduction of tax at source as per section 194H of the Act, would not be made since the payment was not for commission or brokerage.”
2. Adverting to the facts of the present case, Tribunal held as under: “36. In view of our discussion in the preceding paragraphs we hold that the sale of SIM cards / recharge coupons at discounted rate to distributors is not commission and therefore not liable to TDS u/s. 194H of the I.T.Act. However, we have restored the issue to the file of the Assessing Officer for necessary verification in the light of the decision of Hon’ble Karnataka High Court (supra). Therefore, the grounds for the other years on the issue of liability u/s. 194H are allowed for statistical purposes. We hold and direct accordingly.”
3. “In view of the above and following the earlier decision of this Court in M/s. Reliance Communications Infrastructure Ltd. (supra), we are of the view that the Tribunal was justified in holding that the provisions of Section 194H of the Act was not applicable on discounts given by the Assessee to the distributors of prepaid SIM cards.”

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ASHOK KUMAR KALRA V/s. WING CDR SURENDRA AGNIHOTRI SPECIAL LEAVE PETITION (CIVIL) No(s). 23599/2018

FACTS OF THE CASE

1. The facts of the case were that, a counterclaim in the instant matter was preferred and filed after the stage of framing of Issues, whereby the issues were framed in entirety. 
2. The Court, while hearing the Special Leave Petition in respect of the present case, which raised this sole legal issue referred to it last year wherein 3-judge bench of the Hon’ble Supreme Court of India held that a Court can exercise its discretion and permit the ling of a counter-claim after the written statement, till the stage of framing of the issues of the trial. 
3. The present issue goes beyond to consider the acceptance of counterclaim when issues were framed. 

ISSUES RAISED

1. Whether counterclaim in the civil suit be filed after the issues are framed in that case?

RULING OF THE COURT/ THE COURT HELD THAT

While dismissing the present Special Leave Petition and permitting the petitioners to file a fresh suit on the cause of action arose in the Counter claim if otherwise permissible in law, the Hon’ble Supreme Court of India observed the following: 

• “After going through the three-Judge Bench Judgment in Ashok Kumar Kalra vs. Wing Cdr. Surendra Agnihotri & Ors., 2019 (16) Scale 544, in particular, para 20” which states as follows: –

“We sum up our findings, that Order VIII Rule 6A of the CPC does not put an embargo on filing the counter-claim after filing the written statement, rather the restriction is only with respect to the accrual of the cause of action. Having said so, this does not give absolute right to the defendant to file the counter-claim with substantive delay, even if the limitation period prescribed has not elapsed. The court has to take into consideration the outer limit for filing the counter-claim, which is pegged till the issues are framed. The court in such cases have the discretion to entertain filing of the counter-claim, after taking into consideration and evaluating inclusive factors provided below which are only illustrative, though not exhaustive:

• Period of delay.
• Prescribed limitation period for the cause of action pleaded.
• Reason for the delay.
• Defendant’s assertion of his right.
• Similarity of cause of action between the main suit and the counterclaim.
• Cost of fresh litigation.
• Injustice and abuse of process. 
• Prejudice to the opposite party.
• Facts and circumstances of each case.
• In any case, not after framing of the issues.”“Given the fact that on the facts of the present case, a counter-claim was filed after the issues were framed, the said counter-claim cannot be filed as per the law laid down by this judgment.”

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Om Prakash V/s. Suresh Kumar CIVIL APPEAL NOS. 833­834 OF 2020

FACTS OF THE CASE

1. The facts very briefly are that the appellant being owner of the premises having three rooms with one veranda, admeasuring 36.53 square meters situated in Ward No. 6, M.C. Area, near Sabji Mandi, Up Mahal, Hamirpur, Himachal Pradesh (for short, “the suit premises”), had inducted the father of the respondent as its monthly tenant in the year 1969 to use it for non-residential purpose and the respondent was in occupation thereof when the appellant filed eviction proceedings before the Rent Controller for possession. The respondent, at the relevant time, was carrying on business as cloth merchant in the suit premises.
2. During the hearing of the said petition, the learned counsel for the respondent tenant had urged before the High Court that the tenant was ready and willing to handover possession of the suit premises subject to the landlord (present appellant) agreeing to reinduct him as tenant in equivalent area occupied by him in the suit building. In response to the said submission, the learned counsel appearing for the present appellant, unequivocally, stated before the High Court that the appellant was not averse to the offer so made by the tenant.
3. The appellant changed his Advocate and then filed review petition before the High Court being Review Petition No. 65/2016, asserting that he had never instructed his counsel to make such statement before the Court regarding re­induction of the respondent tenant in the newly constructed shops. The said review petition came to be dismissed vide order dated 24.8.2016. Consequently, both these decisions (dated 12.5.2016 and 24.8.2016) passed by the High Court are subject matter of challenge in the present appeals.

ISSUES RAISED

1. whether the appellant should be bound by the statement made by his counsel before the High Court that the respondent tenant will be reinducted in equal area in the newly constructed building within one month i.e. on or before 30.11.2017 from the date of completion of the construction work i.e. 31.10.2017? 

RULING OF THE COURT/THE COURT HELD THAT

While directing the arrangement that would result in compliance of the statement made on behalf of the appellant (through counsel) before the High Court and which was made the basis to dispose of the respondent’s revision petition and at the same time, minimise the loss of area to be made over to the respondent tenant and optimize the utility of the premises to be used by him for non-residential purpose after re­induction and also adequately compensate him for the loss of area. Apart from the same, the following observations were made by the Hon’ble Court: 

1. “The engagement was in respect of eviction proceedings and the statement was in relation to the commitment of the appellant qua the subject matter thereof and being an unequivocal statement, it will be binding on the appellant.” 
2. “Generally, admissions of fact made by a counsel are binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions A lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed. We may add that in some cases, lawyers can make decisions without consulting the client. While in others, the decision is reserved for the client. It is often said that the lawyer can make decisions as to tactics without consulting the client, while the client has a right to make decisions that can affect his rights.”

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State of Gujarat V/s. Rameshchandra Ramabhai Panchal R/Crl. Appl. No. 122/1996 & R/Crl. Appl. No. 25/1996

FACTS OF THE CASE

1. The present appeals arise from a common judgment and order passed by the Additional Sessions Judge, Ahmedabad Rural, Ahmedabad dated 24th November, 1995 in the Sessions Case No.229 of 1994, those were heard analogously and are being disposed of by this common judgment and order, which convicted the accused u/s. 363 and 366 of the Indian Penal Code, 1860 and with effect of it same has acquitted the accused from the charge of Section 376 of Indian Penal Code, 1860. 
2. It is the case of the prosecution that the victim viz.Hansaben Shankarbhai, a resident of Village­Gyaspur Bhatha, Taluka Daskroi, District­Ahmedabad while was on her way to answer nature’s call early in the morning of 26th March 1994 was hit by the accused with a weapon called ‘Dato’ and forcefully took her away. The victim was forcefully taken away by the accused to his village by name ‘Godha’. According to the case of the prosecution, the accused kept the victim at his house for few days and thereafter at the house of his brother situated at Kadi. While the victim was in custody and confinement of the accused, she was ravished forcefully.
3. The court was deciding a very unique acquittal appeal. “We are saying so because the entire appreciation of the oral evidence on record by the trial Court, more particularly, the evidence of the victim is on the basis as if the victim was major at the time of the commission of the offence and was a consenting party. It is only at the time when the trial Court heard the prosecution and the defence on the point of sentence that the trial Court realized that it had committed a mistake in calculating the age of the victim. At one stage, the trial Court has recorded in its judgment that the victim, at the time of commission of offence, was aged 16 years 06 months and 25 days old. Later, the trial Court realized that she was less than 16 years of age. In fact, the trial Court has also acknowledged its mistake, but declined to do anything in the matter, as the order of acquittal was already pronounced.”

ISSUES RAISED

1. Whether the prosecutrix was minor at the time of the commission of the alleged offence of rape?
2. Whether the ‘Per Vaginal’ Test popularly known as ‘Two-Finger Test’ is unconstitutional? 

RULING OF THE COURT/THE COURT HELD THAT

While holding the accused guilty of offence u/s. 376 of Indian Penal Code and allowing the acquittal appeal of State, the court made the following observations: 

• In the light of Lilu @ Rajesh and Anr. Vs. State of Haryana; (2013) 14 SCC 643 and Re: Assessment of The Criminal Justice System in Response to Sexual Offences in SMW (Cri.) No(s). 04 of 2019, the court observed that-

“13. In view of International Covenant on Economic, Social, and Cultural Rights 1966; United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, rape survivors are entitled to legal recourse that does not retraumatize them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures conducted in a manner that respects their right to consent. Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender based violence. The State is under an obligation to make such services available to survivors of sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with his privacy.

14. Thus, in view of the above, undoubtedly, the two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent.”

• “Unfortunately, the trial Court realized its mistake in calculating the age of the victim at a very late stage. The trial Court had already pronounced the judgment of acquittal so far as the offence of rape is concerned. While the trial Court was hearing the accused and the prosecution at the point of sentence it realized that the victim was a minor. In such circumstances, the trial Court found itself in a helpless situation as it could not have reviewed its order of erroneous acquittal or illegal acquittal so far as the offence of rape is concerned.”

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Gurmail Chand V/s. State of Punjab CRIMINAL APPEAL NO.149 OF 2020

FACTS OF THE CASE

1. This appeal has been filed against the judgment of the High Court dated 13.01.2016 in CRA No. S-764-SB of 2003 by which judgment the appeal of the appellant challenging his conviction and sentence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as the ‘NDPS Act’) has been dismissed.
2. The prosecution states that, S.I. Gurcharan Singh accompanied by ASI Teja Singh H.C. Major Singh and other police officials were present on the bridge canal minor in the area of village Khanjarwal when Hari Krishan s/o Bhajan Lal r/o village Raikot arrived there on 16-10-1998. At around 8.30 AM, Gurmail Chand, the appellant-accused was seen coming and stopped on suspicion. On being enquired about the name and parentage etc., a polythene bag was found lying on the foot mat of the scooter.
3. The DSP arrived at the spot at 9.15 a.m. and he disclosed his identity to the accused-appellant and also apprised him of his rights of search before some other Gazetted Officer or Magistrate. The accused-appellant reposed confidence in the DSP and consent statement of the accused-appellant in this regard was recorded as Ex.PB. On direction of the DSP, Harjit Singh Pannu, SI Gurcharan Singh conducted the search of the polythene bag, from which 10 Kgs. opium was recovered. Two samples of 10 gms. each were separated, sealed and sent for examination.
4. The appellant was charge-sheeted and faced the trial. Hari Krishan, who was witness of seizure, had appeared on behalf of the accused as DW1. Appellant’s statement under Section 313 Cr.P.C. was recorded.
5. The Trial Court on considering the evidence, convicted the accused to undergo rigorous imprisonment for 10 years and to pay ₹1,00,000/- fine (in default 2 years rigorous imprisonment).

Arguments from the side of Appellant

Learned counsel for the appellant questioning the judgment of High Court contends that Hari Krishan, who was claimed to be independent witness of the seizure, had appeared as DW1 and had stated that in his presence no seizure was made and he had signed on the blank papers. He further submits that seizure having not been proved in accordance with law, Courts below have committed error in convicting the appellant. He further submits that there is violation of Section 57 of the NDPS Act, since the report was not sent to the Higher Official within the period as prescribed, which has vitiated the entire proceeding. He further submitted that case property was not produced in the Court which itself was sufficient to disbelieve the entire prosecution story. He submitted that what was produced in the Court, the seal was illegible.

Arguments from the side of Respondent

Learned counsel for the respondent contended the factum that mere non-compliance of provision of NDPS Act shall not vitiate the entire proceedings, keeping it just a mere procedural non-compliance which shall not entirely affect the judicial proceedings. Furthermore, the sole witness becoming the Defence witness shall not affect the credibility of the statement of the witness in respect of the seizure made before him. 

ISSUES RAISED

1. Whether non-compliance of procedure u/s. 57 of NDPS Act will vitiate the entire proceedings and the trial? 

RULING OF THE COURT/ THE COURT HELD THAT

While dismissing the appeal, the court finds the following observations: 

1. “The mere fact that the witness of seizure Hari Krishan has appeared as DW1 does not led to the conclusion that the entire prosecution story has to be disbelieved. There are signatures of Hari Krishan in the seizure memo along with other police officers. The Trial Court as well as the High Court has rightly accepted the seizure, which was held to be in accordance with law. DW1 has not denied his signatures on the seizure memo rather his excuse was that it was taken on the blank paper which was rightly disbelieved by the Courts below.”
2. “In so far as production of the case property, the Judicial Magistrate himself has appeared in the witness box and deposed that it was produced in the Court. The mere fact that one seal was illegible does not vitiate the proceeding.”
3. “In so far as submissions on the basis of Section 57 of NDPS Act is concerned, it has been held that the said provision is not to be interpreted to mean that in event the report is not sent within two days, the entire proceeding shall be vitiated. The provision has been held to be directory and to be complied with but mere not sending the report within the said period cannot have such consequence as to vitiate the entire proceeding. A three-Judge Bench of this Court in Sajan Abraham vs. State of Kerala has held that non-compliance of Section 57 would not vitiate the prosecution case.”

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Kamala & Ors v. M.R. Mohan Kumar (Criminal Appeal No. 2368-2369/2019)- Strict Proof of Marriage is not a pre-requisite for claiming maintenance u/s. 125 of CrPC.

The Supreme Court in this case has reiterated the settled principle of law that unlike other matrimonial proceedings, a strict proof of marriage is not essential in claim of maintenance under Section 125 of CrPC and that when the parties live together as husband and wife, there is a presumption u/s. 114 of the Indian Evidence Act 1872, that they are legally married couple for claim of maintenance under Section 125 CrPC.

The Two-Judge Bench of the Supreme Court in view of the evidence and material available on record allowed the appeal holding that there was a valid marriage between the parties and moreover a strict proof of marriage was not a pre-requisite for claiming maintenance under Section 125 of CrPC. The other observations made by the Apex Court in the case are as under:

The Supreme Court also made reference to its judgment in the case of Dwarika Prasad Satpathy v. Bidyut Prava Dixit [(1999) 7 SCC 675], wherein it was held that the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 IPC. It was also noted in the case that an application under Section 125 does not really determine the rights and obligations of the parties as the section is enacted with a view to provide a summary remedy to neglected wives to obtain maintenance.

The Apex Court in this case also remarked that a broad and expansive interpretation should be given to the term “wife” to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a precondition for maintenance under Section 125 CrPC, so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125 which is a social legislation and shall be interpreted accordingly. 

Savitaben Somabhai Bhatiya Vs. State of Gujarat, [2005 Cr.L.J. 2141 (SC)]- Women not lawfully married cannot be termed as wife and provision of Section 125 cannot be invoked by her for maintenance. 

Hon’ble Supreme Court has observed in this case that, ‘the legislature considered it necessary to include within the scope of Sec. 125 an illegitimate child but it has not done so with respect to woman not lawfully married. As such, however, desirable it may be to take note of the plight of the unfortunate woman, who unwittingly entered into wedlock with a married man the legislative intent being clearly reflected in Sec. 125 of the Cr PC, there is no scope for enlarging its scope by introducing any artificial definition to include woman not lawfully married in the expression ‘wife’. This may be an inadequacy in law, which only the legislature can undo. Even if it is true that husband was treating the woman as his wife it is really inconsequential. It is the intention of the legislature which is relevant and not the attitude of the party. The principle of estoppels cannot be pressed into service to defeat the provision of Sec. 125 of the Cr PC.’ 

Badshah Vs. Urmila Badshah Godse and Another, [(2014) 1 SCC 188]- Second wife is entitled to claim maintenance from husband u/s. 125 if the subsistence of first marriage is concealed by the husband. 

Hon’ble Supreme Court of India has held that, ‘The Second wife is entitled to maintenance under section 125 CrPC if the husband had concealed from her the subsistence of his first marriage.

Where the husband had duped the second wife by not revealing to her the fact of his earlier marriage, it has been held by the Supreme Court that the husband cannot deny maintenance to his second wife u/s 125 CrPC in such a case and he cannot be permitted to take advantage of his own wrong by raising the contention that such second marriage during the subsistence of his first marriage, being void under the Hindu Marriage Act, 1955, the second wife was not entitled to maintenance as she was not his legally wedded wife. The earlier judgments of the Supreme Court reported in (i) Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav, (1988) 1 S.C.C. 530 and (ii) Savitaben Somabhai Bhatiya Vs. State of Gujarat, (2005) 3 S.C.C. 636 supporting the said contention of the husband would apply only in those circumstances where a woman marries a man with full knowledge of subsistence of his first marriage. Second wife thus having no knowledge of first subsisting marriage is to be treated as legally wedded wife for purposes of claiming maintenance.

Shailja & Anr. v. Khobanna [(2018) 12 SCC 199]– Mere capability of earning by the wife doesn’t disentitle her to claim maintenance from husband. 

In this case, the Supreme Court made a remarkable observation by stating that merely because the wife is capable of earning it is not a reason to reduce the maintenance awarded to her and said that whether a wife is capable of earning and is actually earning are two different factors.

What should be the Quantum of Maintenance?

The Supreme Court answered this question in the case of Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy by holding that 25% of the husband’s net salary would be just and proper as maintenance to wife.

The Supreme Court while deciding the review petition made reference to the case of Dr. Kulbhushan v. Raj Kumari & Anr., wherein it was held that 25% of the husband’s net salary would be just and proper to be awarded as maintenance to the respondent-wife.

Other remarkable observations made by the Court in the case were:

• That the amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance.
• That maintenance is always dependant on the factual situation of the case and the Court would be justified in moulding the claim for maintenance passed on various factors.

A similar observation has been recently made by the High Court of Kerala in the case of Alphonsa Joseph v. Anand Joseph [2018 SCC OnLine Ker 5012], wherein the Court remarked that Maintenance to Wife can’t be rejected on ground that she is earning

The High Court thus, while making reference to Apex Court’s judgment in Sunita Kachwaha and Ors. V. Anil Kachwaha [(2014) 16 SCC 715], noted that even if the wife was earning some amount that may not be a reason to reject her application for maintenance outright.

It was also stated by the High Court that as held by the Apex Court in a catena of decisions, the concept of sustenance does not necessarily mean to live the life in penury and roam around for basic maintenance. The wife is entitled in law to lead a life in the same manner as she would have lived in the house of her husband with respect and dignity.

That the husband is not entitled to contend that he is not prepared to pay any maintenance and the courts are not expected to accept the blatant refusal of the husband with folded hands. If the Family Court decides to deny interim maintenance to the wife or pay a lesser amount than claimed to the minor child, it can only be on legally permissible reasons and not on the strength of a memo filed by the husband.

Chaturbhuj Vs. Sita Bai, [AIR 2008 SC 530]– Earning wife is also entitled to claim maintenance from husband u/s. 125 CrPC. 

The Apex Court held that, ‘Where the husband had placed material to show that the wife was earning some income, it has been held by the Hon’ble Supreme Court that it is not sufficient to rule out the application of Sec. 125 CrPC. It has to be established that with the amount she earned, the wife was able to maintain herself. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient, she can claim maintenance u/s 125 CrPC. The test is whether the wife is in a position to maintain her in the way she was used to in the place of her husband. The factual conclusions of the court that the wife is unable to maintain herself cannot be interfered with in the absence of perversity.’ 

Manoj Kumar v. Champa Devi [Criminal Appeal No. 10137/2015]- Wife term to include ‘Divorced Wife’ which makes her entitle to claim maintenance from her former husband even after passing of decree of Divorce. 

In the case, the husband had contended that as the decree of divorce had been passed, he was under no obligation to pay maintenance to the wife as contemplated under Section 125(4) of CrPC. However, the High Court held that a divorced woman continues to enjoy the status of ‘wife’ for claiming maintenance under Section 125 of CrPC.

Danial Latifi v. Union of India (AIR 2001 SC 3958)- Muslim husband liable to pay maintenance to his divorced wife even after iddat period provided she has not remarried and is unable to maintain herself. 

The Constitutional Bench of Hon’ble Supreme Court held that Muslim husband is liable to make reasonable and fair provision for future of divorced wife which includes maintenance. Liability to pay maintenance is not confined to iddat period. Divorced Muslim woman unable to maintain herself after iddat period can proceed u/s 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 against her relatives or Wakf Board for maintenance. Such a scheme provided under the said Act is also equally beneficial like one provided u/s 125 CrPC. Provision under the said Act depriving Muslim women from applicability of Section 125 CrPC is not discriminatory or unconstitutional 

The following remarks were addressed by the 5-judge bench as, ‘A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act (Muslim Women (Protection of Rights on Divorce) Act, 1986). Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period.’ 

A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance. 

Sachin Gupta v. Rachna Gupta (Delhi High Court- Criminal Revision No. 476/2018)– Maintenance Petition can be filed t nay place where the wife is residing. 

In the case, the Petitioner has challenged the Trial Court’s order, whereby petitioner’s application objecting Respondent wife’s claim for maintenance under section 125 of CrPC on the ground of territorial jurisdiction has been rejected. Here it would be relevant to mention that the Respondent had instituted application for maintenance in Delhi and the Petitioner opposed the same on the ground that in all proceedings except in these proceedings the Respondent has mentioned her residential address as Aligarh.

The Respondent on the other hand contended that though Aligarh is her parental home, she was residing in Delhi and had filed the petition in Delhi as she is living with her brother in Delhi.

The High Court of Delhi in dismissed the petition and made the following observations in the case: 

• The High Court of Delhi referred to Section 126 (1) of CrPC which stipulates that the proceedings under 125 CrPC may be filed in any district where the respondent resides or where his wife resides or where the respondent last resided with his wife, or as the case may be, with the mother of the illegitimate child. 

In view of the facts of the instant case, the High Court of Delhi noted that keeping in view of the fact that the wife can maintain a petition at any place where she is residing and the fact that the respondent has placed on record copies of her Aadhar Card, Voter ID Card, which reflect the address of Delhi, the Trial Court did not commit any error in rejecting the application of the petitioner holding that the Trial Court has territorial jurisdiction.

Ramchandra Laxman Kamble vs. Shobha Ramchandra Kamble And Anr. [Bombay High Court- Writ Petition No. 3439/ 2016]- Agreement to waive the right of maintenance by wife is unenforceable and is opposed to Public Policy. 

In an interesting judgment, the Bombay High Court has ruled that an agreement wherein the wife waives her right to claim maintenance under section 125 of Code of Criminal Procedure is opposed to Public Policy and hence in unenforceable.

It was also observed by the Court that the consent decrees made by the courts are in effect of nothing but contracts with the seal of the court super­added to them. Accordingly, if the term of the contract is itself opposed to public policy then, such term, is void and unenforceable. If the term is severable then, only the term can be declared as void. If the term is not severable, then, perhaps, the entire contract may fall.

Nagendrappa Natikar Vs. Neelamma [AIR 2013 SC 1541]– CrPC being a general law doesn’t preclude the wife from claiming maintenance under Hindu Adoptions and Maintenance Act, 1956 which is a special law. 

The Supreme Court said that an order passed u/s 125 CrPC by compromise or otherwise cannot foreclose remedy available to a wife u/s 18(2) of the Hindu Adoptions and Maintenance Act, 1956. Order passed u/s 125 CrPC would not preclude wife from making claim u/s 18 of the 1956 Act.

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Sushila Aggarwal & Ors. V/s. State (NCT of Delhi) & Anr. SPECIAL LEAVE PETITION (CRIMINAL) NOS.7281­7282/2017

FACTS OF THE CASE

While hearing the considered matter by the larger bench wherein the contradicting views on the question, “Whether the protection granted to a person under Section 438 Cr.P.C. should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail and Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court” was referred to them, the other question which was answered was that regarding the fundamental nature of the Rights enshrined in our Indian Constitution. 

ISSUES RAISED

1. Whether the restrictions on the fundamental rights shall also be regarded as fundamental or not? 

RULING OF THE COURT/ THE COURT HELD THAT

The Judge reproduced a quote of Joseph Story, the great jurist and US Supreme Court judge: “personal security and private property rest entirely upon the wisdom, the stability, and the integrity of the courts of justice.”

He said that arbitrary and groundless arrests continue as a pervasive phenomenon and cautioned against restriction of power to grant anticipatory bail by judicial interpretation. The judge concluded his judgment as follows: “The history of our republic – and indeed, the freedom movement has shown how the likelihood of arbitrary arrest and indefinite detention and the lack of safeguards played an important role in rallying the people to demand independence. Witness the Rowlatt Act, the nationwide protests against it, the Jallianwalla Bagh massacre and several other incidents, where the general public were exercising their right to protest but were brutally suppressed and eventually jailed for long. The specter of arbitrary and heavy-handed arrests: too often, to harass and humiliate citizens, and oftentimes, at the interest of powerful individuals (and not to further any meaningful investigation into offences) led to the enactment of Section 438.

Despite several Law commission reports and recommendations of several committees and commissions, arbitrary and groundless arrests continue as a pervasive phenomenon. Parliament has not thought it appropriate to curtail the power or discretion of the courts, in granting pre-arrest or anticipatory bail, especially regarding the duration, or till charge sheet is led, or in serious crimes. Therefore, it would not be in the larger interests of society if the court, by judicial interpretation, limits the exercise of that power: the danger of such an exercise would be that in fractions, little by little, the discretion, advisedly kept wide, would shrink to a very narrow and unrecognizably tiny portion, thus frustrating the objective behind the provision, which has stood the test of time, these 46 years.”

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