RELEVANT CONSIDERATIONS FOR GRANTING BAIL

Bail Conditions

 

(a) While granting bail the Court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the Court in support of the charge.

(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 

Read Anticipatory Bail

  1. Vaman Narain Ghiya v. State Of Rajasthan, Hon’ble Supreme Court has held that:-

   Balance to be maintained between the personal liberty of the accused and the investigational right of the police. –An accused is not detained in custody with the object of punishing him on the assumption of his guilt. Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police. It must result in minimum interference with the personal liberty of the accused and the right of the police to investigate the case. It has to dovetail two conflicting demands, namely, on the one hand the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz. the presumption of innocence of an accused till he is found guilty.

Liberty exists in proportion to wholesome restraint, the more restraint on others to keep off from us, the more liberty we have. The law of bail, like any other branch of law, has its own philosophy, and occupies an important place in the administration of justice and the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal. An accused is not detained in custody with the object of punishing him on the assumption of his guilt.

Detailed discussion of the evidence and elaborate documentation of the merits is to be avoided while considering an application for bail- While considering an application for bail, detailed discussion of the evidence and elaborate documentation of the merits is to be avoided. This requirement stems from the desirability that no party should have the impression that his case has been pre-judged. Existence of a prima facie case is only to be considered. Elaborate analysis or exhaustive exploration of the merits is not required. (See Niranjan Singh and Anr. v. Prabhakar Rajram Kharote and Ors). Where the offence is of serious nature the question of grant of bail has to be decided keeping in view the nature and seriousness of the offence, character of the evidence and amongst others the larger interest of the public. (See State of Maharashtra v. Anand Chaintaman Dighe AIR 1990 SC 625 and State v. Surendranath Mohanty 1990 (3) OCR 462).

  1. Sukhwant Singh and Others v.  State Of Punjab, it was held that:-

Reputation of a person is his valuable asset and is a facet of his right under Article 21- Grant of interim bail pending regular bail application Following the decision of this Court in the case of Kamlendra Pratap Singh Vs. State of U.P. and Others [(2009) 4 SCC 437], we reiterate that a Court hearing a regular bail application has got inherent power to grant interim bail pending final disposal of the bail application. In our opinion, this is the proper view in view of Article 21 of the Constitution of India which protects the life and liberty of every person.

The reputation of a person is his valuable asset, and is a facet of his right under Article 21 of the Constitution When a person applies for regular bail then the court concerned ordinarily lists that application after a few days so that it can look into the case diary which has to be obtained from the police authorities and in the meantime the applicant has to go to jail. Even if the applicant is released on bail thereafter, his reputation may be tarnished irreparably in society. The reputation of a person is his valuable asset, and is a facet of his right under Article 21 of the Constitution vide Deepak Bajaj v. State of Maharashtra and Another [(2008) 16 SCC 14]. Hence, we are of the opinion that in the power to grant bail there is inherent power in the court concerned to grant interim bail to a person pending final disposal of the bail application. Of course, it is in the discretion of the court concerned to grant interim bail or not but the power is certainly there. 

  1. State of U.P. Through C.B.I v. Amarmani Tripathi

Factors to be considered while granting bail:  It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge;(iii) severity of the punishment in the event of conviction; (iv) danger of accused absconding or fleeing if released on bail; (v) character, behavior, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail (See Prahlad Singh Bhati v. NCT, Delhi (2001) 4 SCC 280 and Gurcharan Singh v. State (Delhi Administration) (1978) 1 SCC 118). While a vague allegation that accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused.

Scope of interference in the matters of bail – Art 136 The general rule that this Court will not ordinarily interfere in matters relating to bail, is subject to exceptions where there are special circumstances and when the basic requirements for grant of bail are completely ignored by the High Court.

  1. Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Another

Person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation

Findings of a higher court or a coordinate bench must receive serious consideration at the hands of the court entertaining a bail application at a later stage when the same had been rejected earlier The principles of res judicata and such analogous principles although are not applicable in a criminal proceeding, but the courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country.In such an event, the courts must give due weight to the grounds which weighed with the former or higher court in rejecting the bail application. Ordinarily, the issues which had been canvassed earlier would not be permitted to be reagitated on the same grounds, as the same it would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting.

Subsequent bail application – Allowed, if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. The decisions given by a superior forum, undoubtedly, is binding on the subordinate fora on the same issue even in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application.

Therefore, we are not in agreement with the argument of learned counsel for the accused that in view the guaranty conferred on a person under Article 21 of the Constitution of India, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by courts earlier including the Apex Court of the country. 

  1.        Akhtari Bi (Smt.) v. State Of M.P.

 Prolonged delay in disposal of the trials and thereafter appeals in criminal cases, for no fault of the accused, confers a right upon him to apply for bail  

 To have speedy justice is a fundamental right which flows from Article 21 of the Constitution. Prolonged delay in disposal of the trials and thereafter appeals in criminal cases, for no fault of the accused, confers a right upon him to apply for bail. This Court, has time and again, reminded the executive of their obligation to appoint requisite number of judges to cope with the ever increasing pressure on the existing judicial apparatus. Appeal being a statutory right, the trial court’s verdict does not attain finality during pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction.

We feel that if an appeal is not disposed of within the aforesaid period of 5 years, for no fault of the convicts, such convicts may be released on bail on such conditions as may be deemed fit and proper by the Court.

Recovery of Money only on basis of Bank Transaction

Recovery of Money only on basis of Bank Transaction

Can anybody recover money of  from you  merely on the basis of bank transaction is it possible?

the money cannot be recovered if there is a cash transactions with no written instruments in between the parties in Hindi we call it ni likhit padat.

But what is the situation in case there is a bank transactions and money is actually was transferred by way of cheque or by NEFT transactions, can recovery is possible in this scenario. Many people come and overwhelmingly tell that the money they have transferred was by cheque or NEFT and their case is strong for the recovery of money. The answer is clear no.

Image result for entry bank

In view of Section 34 of Indian Evidence Act, 1872, a mere entry in the statement of account is not sufficient to fasten any liability and the entries in the statement of account have to be proved by means of the documents/vouchers of the transaction.

M/S. J.K. SYNTHETICS LTD…..versus M/S. DYNAMIC CEMENT TRADERS

Therefore as per the High court decision on bank transaction, mere transaction cannot help to fasten liability.

Advocate Nitish Banka

9891549997

 

 

Mediation agreement breached is it contempt of court?

In Avneesh Sood vs Tithi Sood on 30 April, 2012 [1]
,
Shikha Bhatia (supra) the wife had filed an FIR against the husband.
The husband filed the anticipatory bail application and during pendency
of that petition, a settlement was reached between the parties to
the effect that the parties will seek divorce by mutual consent, and
husband will pay 8 lakhs to the wife at different stages and all the
pending cases between the parties will be withdrawn by both the parties.
Acting on that settlement the anticipatory bail was granted to the
husband and he also paid certain amount to the wife. Thereafter the
husband did not comply with the terms of the settlement and the Court
held him guilty of contempt of Court. The Court observed:
“The respondents once having taken the advantage of the agreement entered
into the terms of the settlement cannot CONT.CAS (C) 559/2011 Page
23 of 34 be withdrawn by the respondents to suit his whims and fancies
and to the determent of the petitioner.”
In Avneesh Sood vs Tithi Sood on 30 April, 2012 [1]
,

Image result for contempt of court
In Hitesh Bhatnagar (supra), both husband and wife had filed mutual
divorce petition. After the passing of the first motion petition the
wife withdrew her consent before the decree of divorce could be granted.
The husband insisted for passing of the decree and the matter travelled
up to Supreme Court. The Supreme Court framed the following question
to be determined “Whether the Court can grant a decree of divorce
by mutual consent when the consent has been withdrawn by one of the
parties, and if so, under what circumstances”.
43. The Court answered the above mentioned question in the following
words:-
CONT.CAS (C) 559/2011 Page 21 of 34
“15)……… Besides, from the language of the Section, as well as
the settled law, it is clear that one of the parties may withdraw their
consent at any time before the passing of the decree. The most important
requirement for a grant of a divorce by mutual consent is free
consent of both the parties. In other words, unless there is a complete
agreement between husband and wife for the dissolution of the marriage
and unless the Court is completely satisfied, it cannot grant a
decree for divorce by mutual consent. Otherwise, in our view, the expression
divorce by mutual consent would be otiose.
16) In the present fact scenario, the second motion was never made by
both the parties as is a mandatory requirement of the law, and as has
been already stated, no Court can pass a decree of divorce in the
absence of that. The non-withdrawal of consent before the expiry of the
said eighteen months has no bearing. We are of the view that the eighteen
month period was specified only to ensure quick disposal of cases
of divorce by mutual consent, and not to specify the time period
for withdrawal of consent, as canvassed by the appellant.”
44. In neither of these cases the Supreme Court was dealing with the
issue, whether the breach of an undertaking given to the Court in terms
of a settlement arrived at between the parties, to grant consent for
the second motion petition, would amount to civil contempt, or not
. A party is not bound at the stage of moving the first motion petition
to give an undertaking to the Court that he/she shall grant his/her
consent for moving a second motion petition as well. The law gives
both the spouses the right to opt out of the divorce proceedings, and
not to give their respective consent to proceed with the second motion.
In the present case as well, it was open to the respondent not to
have given her undertaking to the Court, that she would give her consent
to CONT.CAS (C) 559/2011 Page 22 of 34 move the second motion petition.
However she did, as a matter of fact, give her undertaking to
the Court to this effect. She gave this undertaking on account of heContempt
Indian Kanoon 1
r settlement with the petitioner wherein she received a substantial amount
of Rs.1.5 crores from out of the total settlement amount of Rs.
7 crores. Had she not agreed to give the said undertaking and, in fact,
not given the said undertaking to the Court, obviously the settlement
agreement would not have been acted upon by the petitioner and he
would not have paid the said amount to the respondent which she accepted,
pocketed and appropriated.
In Shikha Bhatia vs Gaurav Bhatia And Ors on 13 May, 2010 [2]
,
For holding the respondents to have committed contempt, civil contempt
at that, it has to be shown that there has been willful disobedience
of the judgment or order of the Court. Power to punish for contempt
is to be resorted to when there is clear violation of the Court’s order.
Since notice of contempt and punishment for contempt is of far reaching
consequence, these powers should be invoked only when a clear
case of willful disobedience of the court’s order has been made out.
Whether disobedience is willful in a particular case depends on the
facts and circumstances of that case. Judicial orders are to be properly
understood and complied. Even negligence and carelessness can amount
to disobedience particularly when attention of the person is drawn
to the Court’s orders and its implication. Disobedience of Court’s
order strikes at the very root of rule of law on which our system of
governance is based. Power to punish for contempt is necessary for the
maintenance of effective legal system. It is exercised to prevent perversion
of the course of justice. In his famous passage, Lord Diplock
in Attorney General v. Times Newspapers Ltd. (1973) 3 All.E.R. 54
said that there is also “an element of public policy in punishing civil
contempt, since administration of justice would be undermined if the
order of any court of law could be disregarded with impunity”. Jurisdiction
to punish for contempt exists to provide ultimate sanction
against the person who refuses to comply with the order of the court
or disregards the order continuously. Initiation of contempt proceedings
is not a substitute for execution proceedings though at times that
purpose may also be achieved.
No person can defy Court’s order. Wilful would exclude casual, accidental
bona fide or unintentional acts or genuine inability to comply
with the terms of the order. A petitioner who complains breach of Court’s
order must allege deliberate or contumacious disobedience of the
Court’s order.
In Shikha Bhatia vs Gaurav Bhatia And Ors on 13 May, 2010 [2]
,
Rama Narang Vs. Ramesh Narang & Anr., reported at (2006) 11 SCC 114,
it has been held by the Supreme Court of India that even in the absence
of undertaking in appropriate cases, defiance even of a compromise
decree may be contemptuous if the conduct is found to be interfering
in the due course of justice. It has also been held in the case of Santanu
Chaudhuri Vs. Subir Ghose, reported at (2007) 10 SCC 114 that
even without an undertaking a contempt may be made out when the Court
has acted on the basis of a representation of a party. In this case
not only the order dated 23.10.2007 read with orders dated 8.1.2008 and
15.2.2008 would show that the Court had disposed of the bail petitioners
on the basis of a settlement between the parties. A complete reading
of the order would show that the parties were bound to comply
with the obligation as per the settlement.
References
1. a, b Avneesh Sood vs Tithi Sood on 30 April, 2012
2. a, b Shikha Bhatia vs Gaurav Bhatia And Ors on 13 May, 2010

By Nitish Banka

Advocate

Medical Negligence consumer forums Judgements

Medical Negligence How to prove

Here are some Medical Negligence consumer forums Judgements

V. Krishnakumar vs State Of Tamil Nadu &Ors.

One thing is clear about the disease, and this was not contested by the learned counsel for the respondents, that the disease occurs in infants who are prematurely born and who have been administered oxygen and blood transfusion upon birth and further, that if detected early enough, it can be prevented. It is said that prematurity is one of the most common causes of blindness and is caused by an initial constriction and then rapid growth of blood vessels in the retina. When the blood vessels leak, they cause scarring. These scars can later shrink and pull on the retina, sometimes detaching it. The disease advances in severity through five stages – 1, 2, 3, 4 and 5 (5 being terminal stage). Medical literature suggests that stage 3 can be treated by Laser or Cryotherapy treatment in order to eliminate the abnormal vessels. Even in stage 4, in some cases, the central retina or macula remains intact thereby keeping intact the central vision. When the disease is allowed to progress to stage 5, there is a total detachment and the retina becomes funnel shaped leading to blindness. There is ample medical literature on the subject. It is, however, not necessary to refer all of it. Some material relevant to the need for check up for ROP for an infant is:

“All infants with a birth weight less than 1500 gms or gestational age less than 32 weeks are required to be screened for ROP.”[1] Applying either parameter, whether weight or gestational age, the child ought to have been screened. As stated earlier, the child was 1250 gms at birth and born after 29 weeks of pregnancy, thus making her a high risk candidate for ROP

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In present case ROP related treatment not performed.

In the circumstances, we consider it appropriate to apportion the liability of Rs. 1,38,00,000/- among the respondents, as follows: Rs. 1,30,00,000/- shall be paid by Respondent Nos. 1 and 2 jointly and severally i.e. The State of Tamil Nadu and the Director, Government Hospital for Women & Children, Egmore, Chennai; and Rs. 8,00,000/- shall be paid by Respondent Nos. 3 and 4 equally i.e. Rs. 4,00,000/- by Dr. S. Gopaul, Neo- pediatrician, Government Hospital for Women & Children, Egmore, Chennai and Rs. 4,00,000/- by respondent no. 4 i.e. Dr. Duraisamy, Neo Natology Unit, Government Hospital for Women & Children, Egmore, Chennai.

The above mentioned amount of Rs. 1,38,00,000/- shall be paid by Respondent Nos. 1 to 4 within three months from the date of this Judgment otherwise the said sum would attract a penal interest at the rate of 18% p.a.

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Flat Buyers (Consumers) can join hands and approach National Consumer Commission: Directly.

Flat Buyers (Consumers) can join hands and approach National Consumer Commission: Directly.

 

>>> “Society is guilty if anyone suffers unjustly”: (Late) Justice V.R. Krishna Iyer: India’s Super Judge……………. People’s Judge……..Judge for: Justice for the Masses.

Justice VR Krishna Iyer envisaged: ‘mass action appeals’, in which a mass of common man can appeal against a common evil………….in other words…..Class Action Suits!

 

 

Class Action Suit: by Consumers has become a reality to happen in India, with order of Apex Consumer Commission and Apex Court of India.

 

 

>> The Supreme Court of India upheld a decision by the National Consumer Disputes Redressal Commission (NCDRC) to allow flat buyers to jointly approach it in case of a dispute with a builder, allowing home buyers to leapfrog lower Forums: District Consumer Disputes Redressal Forum, State Consumer Disputes Redressal Commission, and approach the National (Apex) consumer commission (NCDRC), directly.

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Why your startup E-commerce/Service site needs a Privacy Policy,User Agreement, Terms and conditions.

If you are a startup or an E-commerce company providing a services rendered by third parties then this is an important article for you-

Ever wondered why you need a privacy agreement, user agreement or third party agreement on your website, some of the think its such a waste to have them on their website but if you are an E-commerce company providing a services rendered by third parties this is an important feature to prevent you from legal liabilities that may arise due to unlawful activities done by your third party vendors.

How? Read Below.

Section 79 of the IT act talks about the exception from liability of intermediaries, meaning thereby the intermediaries will not be held responsible for any of the unlawful acts done by the third party on your website. It is an exception/immunity section specifically for the intermediaries, Section 79(2)(c) talks about a responsibility of due diligence on the part of intermediaries.

Now what due diligence intermediaries have to take?

Section 79(2)(c) of the IT act talks about due diligence which are mentioned in guidelines of the central government  framed by the central government with respect to intermediaries. Under such guidelines and under rule-3 of the guidelines

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Quashing of False FIR registered under 498A and 406 of the Indian Penal Code

Quashing of False FIR registered under 498A and 406 of the Indian Penal Code

 

Harsh Vardhan Arora v. Smt Kavita Arora, 2002 MLR 528= 2002(2) RCR (Cr) 499 (Pb & Har.)

The Court can exercise extraordinary jurisdiction vested under section 482 of the Code of Criminal Procedure 1973 primarily to prevent the abuse of the process of the court or otherwise secure the ends of justice. Basically it would depend on fact situation of each case which would enable the court after reading the complaint as a whole whether allegations made therein at their face value bring out the ingredients made therein at their face value bring out the ingredients of the offence or whether these do not constitute the offence for which cognizance was taken by the magistrate and in the later case the court would be justified in quashing the complaint.

In the present case the facts detailed in the complaint have been noticed above. Omnibus allegations had been made against all the accused in respect of demand of dowry, harassment, torture and beating given to her during the period she stayed in the matrimonial home. No specific date, month or year had been specified when these incidents had taken place. It cannot be ignored that every member of the family of the complainant’s husband has been implicated in this case. The allegations made are vague and general and for that reason no offence under Section 498-A, IPC is made out against the accused.

Image result for 498a

 

Mukesh Rani V. State of Haryana, 2002 MLR 175=2002 (2) Cr.CC 123= 2002 (1) RCR (Cr) 163= 2002 (1) CC Cases (HC) 48 (Pb. & Har.)      

In the instant case respondent No.2 is the husband of respondent No.3 and respondent No.3 is the sister of husband of the complainant. In the FIR, it has not been specifically mentioned what dowry articles were entrusted to respondents 2 and 3 at the time of the marriage. If no article has been entrusted to respondents 2 and 3, then no case under section 406 is made out. It is also not the case of the complainant that respondents2 and 3 are residing with the husband of the complainant. The respondents have placed on record the documents showing that they are employed as teachers and are living separately in village Bamble from the complainant and her husband Satyadev. Even on the date when the alleged occurrence took place respondents were present in their school i.e. on 07.01.1994.

If on the face of the compliant it shows that complaint is false, charge should not be framed. In the instant case, there is evidence that respondent No.3 who is the sister of the husband of the complainant was living separate with her husband-respondent No.2 in a different village and were employed as teacher, the learned trial court has rightly discharged respondents 2 and 3.

For the reasons mentioned above, there is no ground to interfere in the well reasoned orders passed by the learned courts below. Hence this petition is dismissed.

Read More about 498a quashing-:

Quash 498a -Vague allegations in Fir

498a quash against relatives

498a Quashing-How to Quash?

 

 Anu Gill V. State and Anr., 2001 MLR 467 = 2001 (59) DRJ 417 (Delhi)

To constitute the offence under section 406, IPC there must be clear and specific allegation that the accused was entrusted with some property or domain over it, by the complainant, that the accused has dishonestly misappropriated or converted the same to his own use or that accused refused to return back the articles when the same were demanded by the complainant. Perusal of the allegations appearing against the petitioner do not show that articles of Istridhan were even entrusted to her. In misappropriation or conversion to her use does not arise. Thus the most vital ingredient to constitute the offence under section 406, IPC is missing. In view of the above, no case under section 406, IPC is spelt out against the petitioner.

After her marriage complainant- respondent No.2 started living with her husband who never posted in Delhi. Admittedly petitioner was employed in Ministry of Finance at the time of marriage of the complainant. The petitioner was married in 1997 and since then she is living in her own matrimonial home. Allegations made by the complainant that her husband used to misbehave with her, at the behest of the petitioner are totally vague, inherently improbable and unworthy of credence. From these allegations even a strong suspicion cannot be interfered. Even the statements recorded during investigation do not furnish the requisite material so as to make out the prima facie case under section 498-A, IPC against the petitioner.

 

Raj Pal Singh & Ors. V. State of Haryana, 2000 MLR 594= 2000(3) Rec. C.R. 135 (Pb. & Har.)

So far as cruelty by the complainant is concerned, the complaint is once again vague and general. The complainant has stated that from the beginning, all the accused especially accused No.1 (her husband) treated her cruelly. There is no allegation against any of the petitioners. The further allegation that few days after the marriage the accused persons started torturing her is also vague and without details. Similarly the allegation that the other accused instigated her husband is also vague and general without being specific. Though the complainant has stated that five months after the birth of male child, she was turned out of the matrimonial home, she has not specified as to who has done so. Her allegation that in July, 1997, her husband at the instance of the other accused severely beat her and turned her out of the matrimonial home is again the allegations regarding the entrustment of the dowry articles and the allegations regarding misappropriation are also not in this petition is that the petitioners are living separately while the complainant and her husband lived separately in separate house and, therefore, there was no occasion for these petitioners to either demand dowry or misappropriate it or to treat the complainant cruelly as alleged by her. But the complainant has not chosen to appear and deny the allegation that herself and separately in a separate house. This is also an additional factor which has to be taken into consideration. Therefore, I am of the view that the reading of the F.I.R. does  not disclose any ground for proceeding against the petitioners for any of the offences alleged in the F.I.R. Therefore, the F.I.R. has to be quashed on this ground only.

Neera Singh v. The state (Govt. of NCT of Delhi) & Ors., 2007 MLR 335= 2007 (2) LRC 75= 2007 (1) DMC 345=2007 (138) DLT 152=2007 (2) JCC 906 Delhi

Considering the allegations made by the complainant in her statement to the police and in the FIR, the learned ASJ observed that the ingredients under section 498-A of the IPC were not made out against the minor girls Kamlesh and Mamta. The remarks as alleged were made by the two girls. There were no allegations of either physical or mental torture by these two girls and, therefore, he considered the no case was made out against the two minor girls under section 498-A of the IPC.                  

                The cruelty perpetuated on a women may be physical or mental. However, not doing household work by minor girls either or their own or at the instance of their mother, as alleged, cannot be stated to be cruelty to the women or the utterances as assigned to these two minor girls that she had not brought any gold item for them would amount to harassment being made by minor girls for the purpose of coercing her or her relatives to meet the unlawful demands.

Now-a-days it has become a tendency to make vague and omnibus allegations against every member of the family of the husband, involving everybody under section 498-A and 406 of the IPC by making one or the other allegations. Hence, it has become very necessary for the courts to carefully scrutinize the allegations and to find out if the allegations made really constitute the offence and meet the requirements of law at least prima facie. The learned ASJ scrutinized the entire FIR and the statement of the complaiant and thereafter observed that no case was made out against these two minor girls. I have also gone through the record and find that except above allegations made by the complainant, no other role was assigned to these two minor girls (respondents).

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156(3) of CrPC-When police does not register FIR

The Power of The Magistrate Under Section 156 (3) of Cr.P.C

The information under section 154 of Cr.P.C is generally known as FIR, It is pertinent to see that the word ” first” is not used in Cr.P.C in section 154 of Cr.P.C. Yet, it is popularly known as FIRST INFORMATION REPORT. Nevertheless a person,who is a grievance that police officer is not registering FIR under section 154 of Cr.P.C, such a person can approach Superintendent of Police (SP), with written application, under sub-section 3 of section 154 of Cr.P.C. In case of SP also does not still register FIR, or despite FIR is registered, no proper investigation is done, in such a case, the aggrieved person can approach Magistrate concerned under section 156 (3) of Cr.P.C. If that be so, it is very essential and interest to know the powers conferred on Magistrate under section 156 (3) of Cr.P.C. Therefore, I deem that it is very useful if it is discussed with relevant case law as to the powers of Magistrate under section of 156 (3) of Cr.P.C.

Section 156(3) is very briefly worded. The powers of Magistrate are not expressly mentioned in section 156 (3) of Cr.P.C. If that be so, a paucity will be crept mind that whether there is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and /or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same or not.

That too, an aggrieved person has right to claim that the offence he alleges be investigated properly. However, The Hon’ble Supreme Court held in CBI & another vs. Rajesh Gandhi and another 1997 Cr.L.J 63 (vide para 8) that no one can insist that an offence be investigated by a particular agency.

The Classification Of Magistrates:
Before discussing the powers of Magistrate under section 156 (3) of Cr.P.C, it is necessary to understand the categories of Magistrates in our country. The classification of Magistrates is given in the Code of Criminal Procedure,1973. It stipulates that in each sessions district, there shall be

· Executive Magistrates
· Judicial Magistrate of Second Class
· Judicial Magistrate of First Class; and
· The Chief Judicial Magistrate

Inasmuch as section 156 (3) of Cr.P.C says that ” Any Magistrate empowered under section 190 may order such an investigation as above mentioned”., we must understand section 190 of Cr.P.C.

Let us see the relevant case law in order to know the power of Magistrate under section 156 (3) of Criminal Procedure Code,1973.

– It has been held by The Hon’ble Apex Court in CBI & another vs. Rajesh Gandhi and another 1997 Cr.L.J 63 (vide para 8) that ”no one can insist that an offence be investigated by a particular agency”. This view was agreed in Sakiri Vasu vs State Of U.P. And Others.

– In Sakiri Vasu vs State Of U.P. And Others, it was further held that if a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156 (3) Cr.P.C. before the learned Magistrate concerned. If such an application under Section 156 (3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.
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