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.

 




Bail granted cannot be generally cancelled as it would amount to review/recall of bail order

Sep
25
2015


The parameters for grant of bail and cancellation of bail are entirely different. Bail granted under Section 439(1) of the CrPC can be cancelled where the accused:

  1. Misuses his liberty by indulging in similar criminal activity;
  2. Interferes with the course of investigation;
  3. Attempts to tamper with evidence or witnesses;
  4. Threatens witnesses or indulges in similar activities which would hamper smooth investigation;
  5. Is likely of fleeing to another country;
  6. Attempts to make himself scarce by going underground or becoming unavailable to the investigating agency;
  7. Attempts to place himself beyond the reach of his surety etc.

 




Principles to be followed by Courts while granting/ rejecting Anticipatory Bails #indianlaws

Sep
14
2015


The expression “may, if it thinks fit” occurring in Section 438(1) of the Code of Criminal Procedure (Code), gives discretion to the Court to exercise the power in a particular case or not, and once such a discretion is there merely because the accused is charged with a serious offence may not by itself be the reason to refuse the grant of anticipatory bail if the circumstances are otherwise justified. At the same time, it is also the obligation of the applicant to make out a case for grant of anticipatory bail. But that would not mean that he has to make out a “special case”.




In economic offences, power u/s 482 CrPC should be used sparingly#indianlaws

Sep
6
2015


The Supreme Court has held in the inherent power of the High Court under Section 482 CrPC should be sparingly used. In economic offences Court must not only keep in view that money has been paid to the bank which has been defrauded but also the society at large. It is not a case of simple assault or a theft of a trivial amount; but such offences are well planned and committed with a deliberate design with an eye of personal profit regardless of consequence to the society at large. To quash the proceeding merely on the ground that the accused has settled the amount with the bank would be a misplaced sympathy.




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.




Principles governing need to obtain sanction under Section 197 Cr P C to prosecute public servants

Apr
30
2015


The protection given under Section 197 Cr P C is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants subject to the limitation that the alleged act done by the public servant is reasonably connected with the discharge of his official duty and not merely a cloak for doing the objectionable act.




Sentence in a criminal proceedings has to be fair to accused, victim and society

Apr
10
2015


It is the duty of the Court to award just sentence to a convict against whom charge is proved. While every mitigating or aggravating circumstance may be given due weight, mechanical reduction of sentence to the period already undergone cannot be appreciated. Sentence has to be fair not only to the accused but also to the victim and the society. It is also the duty of the court to duly consider the aspect of rehabilitating the victim. 




Abuse of Section 156(3) Cr P C restricted-protection offered to statutory authorities

Mar
29
2015


The duty cast on the Magistrate while exercising power Under Section 156(3) Code cannot be marginalized. The Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order.




High Court can quash certain non-compoundable offence under Section 482 Cr P C

Mar
15
2015


Criminal cases having overwhelmingly and pre-dominatingly civil favour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute.




Guidelines laid down for handing over the property on Supardari #indianlaws

Sep
24
2014


Delhi High Court has laid down guidlines for handing over of seized properties on Supardari




Revisional Powers of High Court or Sessions Judge exercisable if impugned order intermediate or quasi final #indianlaws

Aug
21
2014


Any order which substantially affects the rights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order.




Husband is obliged to see that his wife does not become a destitute, a beggar #indianlaws

Jul
31
2014


if the husband is required to earn money with physical labour, if he is able bodied. There is no escape route from payment of maintenance, unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds




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.




Court may grant maintenance under Section 125 Cr P C even after minor daughter attains majority #indianlaws #marriagelaws

Apr
2
2014


The court in order to avoid multiplicity of proceedings should have entertained the application filed by the daughter on attaining majority for the reason that ultimately the applicant was entitled for maintenance




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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