Magistrates have to be vigilant before issuing summons or taking cognizance of an offence

May
2
2017


Supreme Court in the matter of Mahender Singh Dhoni Vs. Yerraguntla Shyamsundar; Transfer Petition (Criminal) no. 23 of 2016 cautioned the magistrates who have been conferred with the power of taking cognizance and issuing summons are required to carefully scrutinize whether the allegations made in the complaint meet the basic ingredients of the offence; whether the concept of territorial jurisdiction is satisfied; and whether the accused is really required to be summoned.




Order of the Magistrate refusing to take cognizance revisable by Sessions Court #indianlaws

Jun
6
2016


The order of the Magistrate refusing to take cognizance is revisable. This power of revision can be exercised by the superior Court, which in this case, will be the Court of Sessions itself, either on the revision petition that can be filed by the aggrieved party or even suo moto by the revisional Court itself. The Court of Sessions is, thus, not powerless to pass an order in its revisionary jurisdiction. 




For quashing of proceedings against a Director u/s 138/141 of the Act it must be shown that no offence is made out against him and quashing is not to be granted merely on asking #indianlaws

May
9
2016


When in view of the basic averment process is issued, the complaint must proceed against the Directors. But, if any Director of a company wants the process to be quashed by filing a petition under Section 482 of the Code on the ground that only a bald averment is made in the complaint and that he is really not concerned with the issuance of the cheque, he must in order to persuade the High Court to quash the process either furnish some sterling incontrovertible material or acceptable circumstances to substantiate his contention. He must make out a case that making him stand the trial would be an abuse of process of court. He cannot get the complaint quashed merely on the ground that apart from the basic averment no particulars are given in the complaint about his role, because ordinarily the basic averment would be sufficient to send him to trial and it could be argued that his further role could be brought out in the trial.




Magistrate can change or alter the charge u/s 216 Cr.PC if there is defect or something is left out #indianlaws

Mar
21
2016


Magistrate has power under Section 216 Code of Criminal Procedure to alter or modify the charge on the basis of an application filed by the informant and further the trial court can alter the charge if some evidence has come on record or on the basis of the material already on record. 




Public Prosecutor when asking for withdrawal of prosecution U/s 321 of CrPC to act independently with application of mind #indianlaws

Feb
10
2016


The Supreme Court, in this case has held that while filing an application u/s 321 of CrPC, the Public Prosecutor is required to apply his own mind and the effect thereof on the society in the event such permission is granted. The Public Prosecutor is required to act in good faith, peruse the materials on record and form an independent opinion that the withdrawal from the prosecution would really subserve the public interest at large. He is not supposed to act as a post office and he is expected to remember his duty to the Court as well as his duty to the collective. 




Giving of dowry and traditional presents does not always raise a presumption that it’s custody is with in-laws #indianlaws

Jan
31
2016


The Court clarified that giving of dowry and the traditional presents at or about the time of wedding does not in any way raise a presumption that such a property was thereby entrusted and put under the dominion of the parents-in-law of the bride or other close relations so as to attract ingredients of Section 6 of the Dowry Prohibition Act. In respect of ‘stridhana articles’ given to the bride, one has to take into consideration the common practice that these articles are sent along with the bride to her matrimonial house and used by her in her matrimonial house. Accordingly, it could not be held that dowry was given to groom’s parents and sisters who were living separately from the couple and they were duty bound to return the same to the deceased.

In the absence of specific allegations of entrustment of the dowry amount and articles to the in-laws, continuation of criminal proceeding against Appellants was held to be unjust and improper. 

The court further observed that power under Section 482 Cr.P.C. should be sparingly exercised in rare cases. When a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is to determine as to whether the uncontroverted allegations as made in the complaint prima facie establish the offence. The Court must take into consideration any special feature which appears in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue.

 




Complaint alleging breach of trust and cheating must convincingly prove entrustment and deception #indianlaws

Aug
1
2015


To constitute an offence punishable under Section 406 IPC, the essential ingredient is the “entrustment” of the property.  It is only after entrustment is shown, it can be said that there was criminal breach of trust. To constitute an offence punishable under Section 409 IPC, apart from entrustment, it is an essential requirement that it should be shown that the accused has acted in the capacity of a public servant, banker, merchant, factor, broker, attorney or agent.




Amendment in Criminal Complaint is permissible where Court is yet to take cognizance of the offence(s) complained #indianlaws

Aug
1
2015


Amendment in Criminal Complaint is permissible where Court is yet to take cognizance of the offence(s) complained. A Magistrate takes cognizance of an offence when he decides to proceed against the person accused of having committed that offence and not at the time when the Magistrate is just informed either by complainant by filing the complaint or by the police report about the commission of an offence.




Power of competent authority to summon any person to give evidence or produce records not illegal #indianlaws

Jun
19
2014


Section 50(2) of the PML Act, vest power in the competent authority to summon any person whose attendance he considers necessary whether to give evidence or to produce any records during the course of any investigation or proceeding under the Act.




CLB can compound certain offences under Companies Act, 1956, without permission from Court

May
8
2013


Company Law Board if so approached can compound offences and in such case no prior permission of the Court is necessary
 








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