advocatemmmohan

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ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

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Sunday, October 31, 2010

MERE DEMAND ?

mere demand for money for purchasing tractor and bull etc., without any harassment or coercion, cannot be considered as cruelty as per explanations of sec. 498A IPC . so no conviction is required. - 2009 [2] A L D Cri. AP 700.

dowry harassment place of resident - territorial jurisdiction

after the marriage, the parents of wife, came to Andhra Pradesh and settled. after one year of the marriage, she was forced to come out of the matrimonial house by the husband from Uatter Pradesh. all the allegations said to be occurred were happens in the U.P. state but not at A.P. where she is now residing , unless the case falls under sec. 178 Cr.P.C. JURISDICTION OF THE CRIMINAL COURTS IN

INQUIRIES AND TRIALS

177. Ordinary place of inquiry and trial.— Every offence shall ordinary be inquired into and tried by a Court within whose local jurisdiction it was committed.

178. Place of inquiry or trial.— (a) When it is uncertain in which of several local areas an offence was committed, or

(b) Where an offence is committed partly in one local area and party in another, or

(c) Where an offence is a continuing one, and continues to be committed in more local area has one, or

(d) Where it consists of several acts done in different local areas, It may be inquired to or tried by a Court having jurisdiction over any of such local areas. the court at sangareddy , would got jurisdiction. since there is no pleadings as per sec.178, the sangareddy court has no territorial jurisdiction. ---2009 [2] ALD Cri. A.P. 349.

what is cruelty ?

sec, 498 A and explanations [a] and [b] - to constitute cruelty within meaning of exp.[a] conduct on part of husband or relatives of husband of woman, must be of such a nature as to cause the woman to commit suicide or to cause grave injury or danger to life ,limb, or health, whether mental or physical of a woman. To constitutes cruelty of exp.[b] - thee must be harassment of woman with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security . In the absence of any such allegations neither in FIR nor charge make out a case under section 498A - that FIR and charge sheet both are liable to quashed under sec.482 of Cr.P.C. 2009 [2] ALD Cri. SC 497.

BIGAMY -ADMISSION OF ACCUSED IN his counter of M.C.

SEC.494 IPC494. Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Exception.—This Section does not extend to any person whose marriage with such husband or wife has been declare void by a Court of competent jurisdiction,

Nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.======SO, the mere admission of second marriage by accused not sufficient to sustain conviction and complainant has to prove that accused married another person according to Hindu law during subsistence of first marriage - 2009 [2] ALD Cri. AP 450 229. Conviction on plea of guilty.—If the accused pleads guilty; the Judge shall record the plea and may, in his discretion, convict him thereon. THIS SECTION OF CRIMINAL PROCEDURE CODE NOT APPLY AS THE ACCUSED NOT ADMITTED DIRECTLY WHILE ANSWERING THE CHARGE . THE ALLEGED ADMISSION BY WAY OF COUNTER IN M.C., IS NOT AND NOT AT ALL BE CONSIDERED AS PLEADED GUILTY UNDER SEC.229 OF Cr.P.C.- HOPE THAT THE DOUBTS ARE CLEARED.

HOW TO PROVE SELF DE FENCE .

SEC. 96 TO 100 OF INDIAN PENAL CODE OF THE RIGHT OF PRIVATE DEFENCE

96. Things done in private defence.—Nothing is an offence which is done in the exercise of the right of private defence.

97. Right of private defence of the body and of property.—Every person has a right, subject to the restrictions contained in Section 99, to defend.—

First.—His own body, and the body of any other person, against any offence affecting the human body;

Secondly.—The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief for criminal trespass.

98. Right of private defence against the act of a person of unsound mind, etc.—When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.

ILLUSTRATIONS

(a) Z, under the influence of madness, attempts to kill A; Z is guilty of no offence. But A has the same right of private defence which he would have if Z were sane.

(b) A enters by night a house which he is legally entitled to enter Z, in good faith, taking A for a house-breaker, attacks A. Here Z, by attacking A under this misconception, commits no offence. But A has the same right of private defence against Z, which he would have if Z were not acting under that misconception.

99. Act against which there is no right of private defence.—There is no right of private defence against an act which does not reasonable cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act, may not be strictly justifiable by law.

There is no right of private defence against an act which does not reasonable cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law.

There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.

Extent to which the right may be exercised.—The right to private defence in no case extends to the inflicting of more harm that it is necessary to inflict for the purpose of defence.

Explanation 1.—A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant.

Explanation 2.—A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.

100. When the right of private defence of the body extends to causing death.—The right of private defence of the body extends, under the restrictions mentioned in the last preceding Section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely—

First.—Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

Secondly.—Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;

Thirdly.—An assault with the intention of committing rape;

Fourthly.—An assault with the intention of gratifying unnatural lust;

Fifthly.—An assault with the intention of kidnapping or abducting;

Sixthly.—An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release. BURDEN OF PROOF THOUGH ON ACCUSED, NOT AS ONEROUS AS THE ONE WHICH LIES WITH PROSECUTION. ACCUSED MAY DISCHARGE HIS ONUS BY ESTABLISHING A MERE PREPONDENRANCE OF PROBABILITIES EITHER BY LAYING BASIS FOR THAT PLEA IN CROSS EXAMINATION OF PROSECUTION WITNESS OR BY ADDUCING DEFENCE EVIDNEC - 2009 [2] ALD Cri. SC 233.

CHEQUE BOUNS - UNDER REG.PARTNERSHIP FIRM

AN UN REGISTERED PARTNERSHIP FIRM CAN FILE A CHEQUE BOUNS CASE AGAINST A THIRD PARTY EVEN THOUGH A CIVIL SUIT FOR RECOVERY IS BARRED UNDER SEC. 69 OF PARTNER SHIP ACT DUE TO NON-REGISTRATION OF FIRM. - 2009 [2] ALD Cri. AP [FB] 801.

no criminal case against the girl friend/concubine of the husband.

against a girl friend or a concubine of the husband, a wife can not file a case under sec.498A IPC, 3and 4 of Dowry prohibition act on the ground that she is relative of husband - 2009[2] ALD Cri. SC 1.

maintainability of simultaneously proceedings by wife ?

a wife can file any number of cases under various acts simultaneously against the husband. because no act is enacted against any other act . she can file cases under women laws simultaneously for alternative reliefs and others -2009[2] ALD Cri.A.P.972.

Friday, October 29, 2010

FUTURE EARNINGS -DISABILITY -NON-FATAL ACCIDENT

SEC. 163 A AND 166 -WHEN THE DISABILITY OF PAINTER ASSESSED AS MORE THAN 33% IN THE HANDS AND LEGS, WHILE FIXING HIS COMPENSATION, HIS FUTURE EARNINGS ARE TO BE TAKEN INTO CONSIDERATION -2010 SAR CIVIL 799.

FUTURE EARNINGS - ACCIDENTS CASE

SEC.110 -WHILE FIXING COMPENSATION, FUTURE EARNINGS OF THE DECEASED IS ALSO TO BE CONSIDERED ON HYPOTHETICAL BASIS. BUT AFTER DEDUCTING 1/3 rd SALARY FOR PERSONAL EXPENSES, AGAIN SHOULD NOT MADE ANY DEDUCTIONS -2010 SAR CIVIL 862

Wednesday, October 27, 2010

CAN A HEAD CONSTABLE RECORD DYING DECLARATION?

SEC. 32 OF EVIDENCE ACT M DYING DECLARATION WAS RECORDED BY HEAD CONSTABLE. DECEASED WAS FIT TO MAKE A STATEMENT - THE STATEMENT WAS READ OVER TO HIM AND AFTER HE FOUND THE STATEMENT AS CORRECT HIS SIGNATURE WAS OBTAINED ON THE STATEMENTS, ADMISSIBLESTATEMENTS BY PERSONS WHO CANNOT BE CALLED AS WITNESSES

32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.—Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, with an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases: -

(1) When it relates to cause of death.—When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person s’ death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

(2) Or is made in course of business.—When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him.

(3) Or against interest of maker.—When the statement is against the pecuniary or proprietary interest of the person making it or when, if true, it would expose him or would have exposed him to criminal prosecution or to a suit for damages.

(4) Or gives opinion as to public right or custom, or matters of general interests.—When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.

(5) Or relates to existence of relationship.—When the statement relates to the existence of any relationship 1[by blood, marriage or adoption] between persons as to whose relationship 1[by blood, marriage or adoption] the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.

(6) Or is made in will or deed relating to family affairs.—When the statement relates to the existence of any relationship 1[by blood, marriage or adoption] between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait, or other thing on which such statement are usually made, and when such statement was made before the question in dispute was raised.

(7) Or is document relating to transaction mentioned in Section 13, clause (a).—When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Section 13, clause (a).

(8) Or is made by several persons and expressed feelings relevant to matter in question.—When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.

ILLUSTRATIONS

(a) The question is, whether A was murdered by B, or

A dies of injuries received in a transaction the course of which she was ravished. The quest is whether she was ravished by B; or

The question is, whether A was killed by B under such circumstances that a suit would lie against B by A’s widow.

Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration, are relevant facts.

(b) The question is as to the date of A’s birth.

An entry in the diary of a deceased surgeon regularly kept in the course of business, stating that, on a given day he attended A’s mother and delivered her of a son, is a relevant fact.

(c) The question is, whether A was in Calcutta on a given day.

A statement in the diary of a deceased solicitor, regularly kept in the course of business, that on a given day the solicitor attended A at a place mentioned in Calcutta, for the purpose of conferring with him upon specified business, is a relevant fact.

(d) The question is, whether a ship sailed from Bombay harbour on a given day.

A letter written by a deceased member of a merchants firm, by which she was chartered to their correspondents in London, to whom the cargo was consigned, stating that the ship sailed on a given day from Bombay harbour, is a relevant fact.

(e) The question is, whether rent was paid to A for certain land.

A letter from A’s deceased agent to A, saying that he had received the rent on A’s account and held it at A’s orders is a relevant fact.

(f) The question is, whether A and B were legally married.

The statement of a deceased clergyman that he married them under circumstances that the celebration would be a crime is relevant.

(g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day is relevant.

(h) The question is, what was the cause of the wreck of a ship.

A protest made by the Captain, whose attendance cannot be procured, is a relevant fact.

(i) The question is, whether a given road is a public way.

A statement by A, a deceased headman of the village, that the road was public, is a relevant fact.

(j) The question is, what was the price of grain on a certain day in a particular market.

A statement of the price, made by a deceased baniya in the ordinary course of his business is a relevant fact.

(k) The question is, whether A, who is dead, was the father of B.

A statement by A that B was his son, is a relevant fact.

(l) The question is, what was the date of birth of A.

A letter from A has deceased father to a friend, announcing the birth of A on a given day, is a relevant fact.

(m) The question is, whether, and when, A and B were married.

An entry in a memorandum book by C, the deceased father of B, of his daughter’s marriage with A on a given date, is a relevant fact.

(n) A sues B for a libel expressed in a painted caricature exposed in a shop window. The question is as to the similarity of the caricature and its libellous character. The remarks of a crowd of spectators on these points may be proved. 2010 SAR CRI. 748. STATEMENT RECORDED UNDER SEC. 161 CAN ALSO BE TREATED AS A DYING DECLARATION AFTER HIS DEATH - FIRST ON THE DATE OF INCIDENT, ANOTHER ON THE SECON D DAY AND LAST ONE IS ON THIRD DAY. FIRST BY MAGISTRATE AND SECOND BY POLICE AND THIRD BY HUSBAND OF DECEASED WIFE.2010 SAR CRI 758.

WHEN ACCUSED BEHIND BARS - APPEAL FATE?

SIMPLY THE ACCUSED IS NOT IN A POSTION TO PROSECUTE HIS APPEAL AS HE IS BEHIND BAR, THE COURT SHOULD NOT HASTELY DISMISS THE APPEALM WITHOUT DISPOSING THE SAME ON MERITS - 2010 SAR CRI.805.

SCOPE OF 156[3] AND SEC.202 OF Cr.P.C.

SEC.156[3] , 200 AND 202 - POWER OF MAGISTRATE UNDER SEC.156[3] AND 200, 202 - CHAPTER XII CONTAINS PROVISIONS RELATING TO INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE WHEREAS CHAPTER XV, WHICH CONTAINS SEC.202 DEALS WITH THE PROVISIONS OF RELATING TO THE STEPS WHICH A MAGISTRATE HAS TO ADOPT AFTER TAKING COGNIZANCE OF ANY COMPLAINT. IF HE DECIDES TO REFER THE CASE TO THE POLICE UNDER SEC. 156 [3], THERE IS NO NEED TO HIM TO EXAMINE THE COMPLAINANT AND ANY BODY ON HIS BEHALF AS WITNESS. IF HE DECIDE TO EXAMINE THE WITNESS AND COMPLAINANT, THEN HS HAS TO FOLLOW THE SEC.202 CR.P.C, OTHER WISE NOT NEED.-2010S A R CRIMINAL 737.

TWO FIRS ?

SEC.154,156,173 AND 482 OF Cr.P.C - TWO FIRS IN RESPECT OF SAME OFFENCE, SECOND FIR IS LIABLE TO BE QUASHED. INVESTIGATION IS TAINTED , BOTH CHARGE SHEETS ARE LIABLE TO BE QUASHED - FRESH INVESTIGATION BY ANOTHER AGENCY IS PROPER- 2010 SAR CRIMINAL793.

Monday, October 25, 2010

ALIBI

THE BURDEN OF ESTABLISHING THE PLEA OF ALIBI THE ACCUSED MUST LAY SOME FOUNDATION HE HAS TO PROVE HIS PLEA BY EXAMINE THE WITNESSES - NO EVIDENCE PLACED BEFORE COURT - SO NOT BELIEVABLE. 2010 SAR CR. 814.

NO INTENTION TO KILL

WHEN THERE IS NO INTENTION TO KILL AND WHEN DEATH OCCURRED DUE TO FIGHT, THE OFFENCE CAN BE TREATED UNDER SEC. 304 PART II INSTEAD OF SEC. 302 IPC. FIRST THE CASE WAS REGISTERED UNDER SEC.323 , AFTER DEATH IT WAS CHANGED AS 302 . BUT THERE IS NO INTENTION TO KILL. SO LIABLE TO BE CONVICTED UNDER SEC.304 PART II -2010 SAR CRI. 748CHAPTER XVI

OF OFFENCES AFFECTING THE HUMAN BODY

299. Culpable homicide.—Who ever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

ILLUSTRATIONS

(a) A lays sticks and turf over a pit, with the intention of there by causing death, or with the knowledge that death is likely to be thereby caused. Z believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide.

(b) A knows Z to be behind a bush. B does not know it A, intending to cause, or knowing it to be likely to cause Z’s death, induces B fires and kills Z. Here B may be guilty of no offence; but A has committed the offence of culpable homicide.

(c) A, by shooting at a fowl with intent to kill and steal it, kills B who is behind a bush; A not knowing that he was there. Here, although A was doing an unlawful act, he was not guilty of culpable homicide, as he did not intend to kill B, or to cause death by doing an act that he knew was likely to cause death.

Explanation 1.—A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.

Explanation 2.—Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.

Explanation 3.—The causing of the death of child in the mother’s womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.

300. Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or.—

2ndly.—If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or.—

3rdly.—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or.—

4thly.—If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

ILLUSTRATIONS

(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.

(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of heath, here A, although he may intend to cause bodily injury, is not guilty of murder, if he d8id not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death.

(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here, A is guilty of murder, although he may not have intended to cause Z’s death.

(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.

Exception I.—When culpable homicide is not murder.—Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos .—

First.—That the provocations not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly.—That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly.—That the provocations not given by anything done in the lawful exercise of the right of private defence.

Explanation.—Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

ILLUSTRATIONS

(a) A, under the influence of passion excited by a provocation given by Z, intentionally kills, Y, Z’s child. This is murder, in as much as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation.

(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide.

(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This murder, inasmuch as the provocation was given by a thing done by a public servant in the exercise of his powers.

(d) A appears as a witness before Z, a Magistrate, Z says that he does not believe a word of A’s deposition, and that A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder.

(e) A attempts to pull Z’s nose, Z, in the exercise of the right of private defence, lays hold of a to prevent him form doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, inasmuch as the provocation was given by a thing done in the exercise of the right of private defence.

(f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B’s rage, and to cause him to kill Z, puts a knife into B’s hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder.

Exception 2.—Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

ILLUSTRATION

Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide.

Exception 3.—Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting or the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

Exception 4.—Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner.

Explanation.—It is immaterial in such cases which party offers the provocation or commits the first assault.

Exception 5.—Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

ILLUSTRATION

A, by instigation, voluntarily causes, Z, a person under eighteen years of age to commit suicide. Here, on account of Z’s youth, he was incapable of giving consent to his own death; A has therefore abetted murder.

301. Culpable homicide by causing death of person other than person whose death was intended.—If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.

302. Punishment for murder.—Whoever commits murder shall be punished with death, or 1[imprisonment for life] and shall also be liable to fine.

COMMENTS

Where the accused persons armed with deadly weapons, attacked the deceased, caused forearm injuries resulting in the death of the deceased, the accused were convicted under Section 302. [R. V. Badiger v. State of Karnakata, 1995 Cr LJ 1535 (SC).]

Where the two accused inflicted injuries on the witnesses, the evidence of injured witness was found reliable, the accused were convicted under Section 324, I.P.C. [Shivan v. State, 1999 Cr LJ 4153 (DB) (Mad).]

1. Subs.by Act 26 of 1955, Sec. 117and Sch. for “transportation for life”(w .e. f.1.1.1956).

303. Punishment for murder by life convict.—whoever, being under sentence of 1 [imprisonment for life],commits murder, shall be punished with death.

1. Subs. by Act 26 of 1955, Sec.117 and Sch., for “transportation for life” (w.e.f..1-1-1956).

304. Punishment for culpable homicide not amounting to murder.—Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life ],or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death,

1. Subs. by Act 26 of 1955, Sec.117 and Sch., for “transportation for life” (w.e.f.1-1-1956).

Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death ,but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

MEDICAL EVIDENCE

when a doctor report and postmortem report doesn't spelt that the death was caused due to bullet injury. may be negligence in treatment, accused cannot be convicted under sec.302 IPC , but only under sec.326 IPC -2010 S.A.R. Criminal 770.

Saturday, October 23, 2010

DIVORCE ON CUSTOMARY DIVORCE

AS PER SEC.13 HINDU MARRIAGE ACT, NO DIVORCE CAN BE GRANTED BASING ON THE DOCUMENT PREPARED AT A PANCHAYAT OUT SIDE COURT GRANTING CUSTOMARY DIVORCE, AS THERE IS NO ANY SUCH GROUND IN THAT SECTION. -2010 S.A.R. CIVIL 814

NO FAULT COMPENSATION

AS PER SEC. 140 TO 144 OF MOTOR VEHICLE ACT. EVEN THE ACCIDENT OCCURRED DUE TO NEGLIGENCE OF DECEASED., STILL THE DEPENDANTS ARE ENTITLED FOR COMPENSATION . 2010 S.A.R. CIVIL 812.

Wednesday, October 20, 2010

ISSUE OF CHEQUE ON DEFUNCT BANK ?

THE BANK WAS CLOSED ABOUT 5 YEAR AGO. THE ACCOUNT WAS CLOSED. BUT THE ACCUSED ISSUED A CHEQUE TO THE COMPLAINANT. IN ONE CASE THEIR LORDSHIP OF APEX COURT HELD THAT THOUGH THE CHEQUE IS NOT RETURNED FOR WANT OF FUNDS AND THOUGH THE QUESTION ACCOUNT CLOSED IS NOT COVERED UNDER ANY PROVISION OF THE ACT,THE APEX COURT GAVE A WIDE MEANING FOR THE WORDS " RETURNED FOR INSUFFICIENT FUNDS " REPORTED IN AIR 1999 SC 1952. APPLYING THE SAME PRINCIPLE , ISSUE OF CHEQUE ON DEFUNCT BANK WAS ALSO COVERS THE SEC.138 OF N.I. ACT. AND AS SUCH ACCUSED IS LIABLE FOR PROSECUTION-2009 [1] A.L.D Cri.AP 1

RETURN OF GOLD AND OTHER COMPENSATION

PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT 2005 - SEC. 12 THE COMPLAINANT FILED PRIVATE COMPLAINT AGAINST THE ACCUSED FOR RETURN OF HER GOLD JEWELERY AND OTHER COMPENSATION EXPENSES ETC., THEY ARE SQUARELY COVERED UNDER VARIOUS PROVISIONS OF LAW SINCE THERE IS PRIMA FAICE CASE, IT IS MAINTAINABLE FINALLY THE MAGISTRATE CAN DECIDED WHETHER THE RELIEF CAN BE GRANTED OR NOT=2009[1] A.L.D.Cri.AP 817.

Monday, October 18, 2010

FILLING BALNK CHEQUE -NOT MATERIAL ALTERATION

FILLING UP BLANK CHEQUE ISSUED BY ACCUSED, IS NOT MATERIAL ALTERATION UNDER 20,49,86,87,118,125 OF NEGOTIABLE INSTRUMENTS ACT


2009 A.L.D [1] CRIMINAL [DEL. N.O.C.13] 13 :-

SIMULTANEOUS CIVIL AND CRIMINAL CASES

WHEN THERE IS POSSIBILITY OF FILING TWO CASES AGAINST THE ACCUSED ON CIVIL SIDE AND CRIMINAL SIDE ON TWO SEPARATED CAUSES OF ACTION, BOTH CASES ARE SIMULTANEOUS MAINTAINABLE


2009[1] ALD CRIMINAL SC 599 :-

CHEQUE BOUNCE -BURDEN OF PROOF


2009 A.L.D. [1] CRIMINAL S.C. 468. : SEC.118 AND 139 PRESUMPTIONS ONCE THE EXECUTION OF CHEQUE BY ACCUSED IS PROVED BY THE COMPLAINANT, THE PRESUMPTIONS WOULD SHIFT BURDEN ON THE ACCUSED. THEN THE ACCUSED HAS TO PROVE THE NON PASSING OF CONSIDERATION BY RELYING ON THE WEAKNESS OF THE COMPLAINANT AND BY RELYING ON THE PROVISIONS OF SEC.114 OF EVIDENCE ACT AND ALL OTHER MODES HAS TO REBUT THE EVIDENCE OF THE COMPLAINANT, THEN THE PRESUMPTIONS UNDER THE ABOVE SECTION DOESNOT COME TO AID OF THE COMPLAINANT AND COMPLAINANT HAS TO POSITIVELY PROVE THE PASSING OF CONSIDERATION . WHEN THE COMPLAINANT CLEARLY STATED THAT FOR SUPPLY OF WOOLEN CARPETS, THE ACCUSED ISSUED TWO CHEQUES, WAS NOT PROVED BY THE COMPLAINANT AND ON THE OTHER HAND BY EXAMINING SALES TAX OFFICER ETC., THE ACCUSED DISPROVED THE SUPPLY OF WOOLEN CARPETS TO THE ACCUSED ON THE ALLEGED DAY. THE DEFENCE THAT THE CHEQUES WERE ISSUED AS ADVANCE IS PROBABLE – HENCE THE ACCUSED IS ENTITLED FOR ACQUITAL.


CHEQUE DEMAND NOTICE - PLACE OF PAYMENT

. 2009[1] ALD CRIMINAL[BOM.NOC.5] 5 :- IN THE STATUTORY DEMAND NOTICE, THE PLACE OF PAYMENT SHOULD BE SPECIFICALLY MENTIONED. IN THE ABSENCE OF IT , IT CAN BE PRESUMED THAT GENERALLY, IT IS DUTY OF ACCUSED TO SEARCH AND FIND AND HAS TO PAY THE AMOUNT TO THE COMPLAINANT,. IN THE NOTICE, THE ADDRESS OF THE COMPLAINANT IS GIVEN. HENCE IT IS SUFFICIENT .

Sunday, October 17, 2010

QUASHING OF CRIMINAL CASES

SEC.482 OF Cr.p.c - when a case is filed as a counter blast to the case of other side, the later case is liable to be quashed . WHEN a cheque bouns case is filed against the one "x", later Mr.x filed private complaint against the payee, is not mainatainable and is liable to quashed. -482. Saving of inherent power of High Court.— Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

COMMENTS

Quashing proceedings.—The Court should not, except in extraordinary circumstances, exercise its jurisdiction, under Section 482, Cr. P.C., so as to quash the prosecution proceeding after they have been launched. The power of quashing criminal proceedings should be exercised very sparingly and with circumspection and that too, in the rarest of rare cases; the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint. The extraordinary or inherent power does not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. [State of Maharashtra v. Ishwar Piraji Kalpatu, 1996 Cr LJ 1127 (SC).

Where prima facie case is made out, FIR cannot be quashed under Section 482 Cr. P.C. [Vivay Kumar v. State of Punjab, 1996 Cr LJ 3070 (P &H).]

2009[1]A.L.D.S.C.200. ========== sec.482 of cr.p.c. - when there is a possibility of maintaining both civil and criminal cases = cheque bouns case UNDER SEC.405 AND 420 OF IPC and a suit for recovery of cheque amount = criminal proceedings are not liable to be quashed as it is a civil remedy case- 2009[1]A.L.D. S.C.83. ======== sec.482 cr.p.c. - while obtaining loan, and in collusion with bank officials , falsefication and forgery of accounts were taken place, then it is a criminal case and as such both civil and criminal cases are maintainable - civil case before debt recovery tribuanl and later compromise land setteled ,is no significance while taking cognizance of criminal case for the already commenced offences -2009 ALD [1] S.C. 976,

TRANSFER OF CRIMINAL CASE

Sec.407 deals with power of high court and sec.408 cr.p.c deals with the power of sessions court while transfering one case from one place to another place . 407. Power of High Court to transfer cases and appeals.— (1) Whenever it is made to appear to the High Court-

(a) That a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or

(b) That some question of law of unusual difficulty is likely to arise; or

(c) That an order under this Section is required by any provision of this Code, or will tend be the general convenience of the parties or witnesses, or is expedient for the ends of, justice, it may order-

(i) That any offence be inquired into or tried by any Court not qualified under Sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;

(ii) That any particular case, or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;

(iii) That any particular case be committed for trial of to a Court of Session; or

(iv) That any particular case or appeal be transferred to and tried before itself

(2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative.—

Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.

(3) Every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation.

(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Curt may award under sub-section (7).

(5) Every accused person making such application shall give to the Public Prosecutor, notice in, writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the applications unless at least-twenty-four hours have elapsed between the giving of such notice and the hearing of the application.

(6) Where the application is for the transfer of a case of appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose.—

Provided that such stay shall not affect the subordinate Court’s power of remand under Section 309.

(7) Where an application for an order under sub-section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the such sum not exceeding one thousand rupees as it may consider proper in the circum­stances of the case.

(8) When the High Court orders under sub-section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.

(9) Nothing in this Section shall be deemed to affect any order of Government under Section 197.

408. Power of Sessions Judge to transfer cases and appeals.— (1) Whenever it is made to appear to a Sessions Judge that an order under this sub-section is expedient for the ends of justice, he may order that any particular case be transferred from one Criminal Court to another Criminal Court in his session’s division.

(2) The Sessions Judge may act either on the report of the lower Court, or on the application of a party interested or on his own initiative.

(3) The provisions of sub-sections (3), 4), (5), (6), (7) and (9) of Section 407 shall apply in relation to an application to the Sessions Judge for an order under sub-section (1) as they apply in relation to an application to the High Court for an order under sub-section (1) of Section 407, except that sub-section (7) of that Section shall so apply as if for the words “one thousand” rupees occurring therein, the words “two hundred and fifty rupees” were substituted.

2009[1] A.L.D. AP174.

FIR DELAY AND CONSEQUENCES

sec.154 of cr.p.c. F.I.R. omission of material facts pertaining to crime in first information report is fatal to the prosecution CHAPTER-XII

INFORMATION TO THE POLICE AND THEIR POWERS TO

INVESTIGATE

154. Information in cognizable cases. – (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informants and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.

(3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer Subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.

COMMENTS

Omission of overt acts of accused in FIR is not fatal. [Podda Narayama v. State of Andh Prad, AIR 1975 SC 1252: 1975 Cr LJ 1062(1065); Dadi Nassi Reddy v. State of A.P., 1999 Cr LJ 2055 (DB) (A.P.)

155. Information as to non-cognizable cases and investigation of such cases.— (1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer, the informant to the Magistrate.

(2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.

(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.

(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable

156. Police officer's power to investigate cognizable cases.—(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one, which such officer was not empowered under this Section to investigate.

(3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.

157. Procedure for investigations.– (1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may by general order, prescribe in this behalf, to proceed, to the spot, to investigate circumstances of the case, and, if necessary to take measures for the discovery of the offender.—

Provided that-

(a) When information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the office in-charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;

(b) If it appears to the officer in charge of a police station that there is sufficient ground for entering off an investigation, he shall not investigate the case.

(2) In each of the cases mentioned in clauses (a) and (b) of the proviso sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements to that sub-section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the information, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case of cause it to be investigated.

158. Report how submitted.—(1) Every report sent to a Magistrate under Section 157 shall, if the State Government so directs, be submitted through such superior officer of police as the State Government, by general or special order, appoints in that behalf.

(2) Such superior officer may give such instructions to the officer in charge or the police station as he thinks fit, and shall, after recording such instructions on such report, transmit the same without delay to the Magistrate.

159. Power to hold investigation or preliminary inquiry.—Such Magistrate, on receiving such report, may direct an investigation, or, if he thinks fit, at once proceed of depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry into or otherwise to dispose of, the case in the manner provided in this Code.

2009 [1] A.L.D.Cri.S.C.239. =========================== SEC.154 and 162 - first information report if prepared after police investigation, it is hit by sec.162 .sec.154 is a mandatory one as soon as information received , one has to register FIR, if it is registered after investigation, the only conclusion is that the FIR was prepared to suit the case and not guinene one- 154. Information in cognizable cases. – (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informants and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.

(3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer Subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence. 162. Statements to police not to be signed.— Use of statements in evidence.— (1) No statement made by any person to a police officer in the course of' an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.—

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of' his statement, if duly proved, may be used by the accused, and with the permission of' the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872) and when any part of' such statement is so used, any part thereof' may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.

(2) Nothing in this Section shall be deemed to apply to any statement failing within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.

Explanation.—An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.

2009[1] A.L.D.Cri. S.C.730

SEC. 125 OF Cr.P.C.maintainence agreement not to claim ?

sec.125 of Cr.P.C. - any agreement not to claim maintaenance - is void under sec.23 of contract act. even divorced wife is entitled to maintenance as long as she remains unmarried and unable to maintain herself - mere divorce does not end right to maintenence - a clause in an agreement that wife shall not be entitled to claim maintenance from the husband cannot be used as a defence under sec.125 proceedings since it is opposed to public policy 23. What consideration and objects are lawful, and what not.—The consideration or object of an agreement is lawful, unless-

It is forbidden by law;1or

Is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.

In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.

ILLUSTRATIONS

(a) A agrees to sell his house to B for 10,000 rupees. Here, B’s promise to pay the sum of 10,000 rupees is the consideration for as promise to sell the house and as promise to sell the house is the consideration for B’s promise to pay the 10,000 rupees. These are lawful considerations.

(b) A promises to pay 1,000 rupees at the end of six months, if C, who owes that sum to B, fails to pay it. B Promises to grant time e to C accordingly. Here, the promise of each party is the consideration for they promise of the other party, and they are lawful considerations.

(c) A Promises for a certain sum paid to him by B, to make good to B the value of his ship if it is Wrecked on a certain voyage. Here, A’s promise is the consideration for B’s payment, and B’s Payment is the consideration for A’s Promise, and these are lawful considerations.

(d) A promises to maintain B’s child, and B promises to pay 1,O00 rupees yearly for the purpose. Here, the promise of each party is the consideration for the Promise of the other party. They are lawful considerations.

(e) A, B and C enter into an agreement for the division among them of gains acquired or to be acquired, by them by fraud. The agreement is void, as its object is unlawful.

(f) A promises to obtain for B an employment in the public service and B promises to pay 1,000 rupees to A. The agreement is void, as the consideration for it is unlawful.

(g) A, being agent for a landed proprietor, agrees for money, without the knowledge of his principal, to obtain for B a lease of land belonging to his principal. The agreement between A and B is void, as it implies a fraud by concealment, by A, on his principal.

(h) A promises B to drop a prosecution which he has instituted against B for robbery, and B promises to restore the value of the things taken. The agreement is void, as its object is unlawful.

(i) A’s estate is sold for arrears of revenue under the provisions of an Act of the Legislature, by which the defaulter is prohibited front purchasing the estate. B, upon an understanding with A becomes the purchaser, and agrees to convey the estate to A upon receiving from him the price which B has paid. The agreement is void, as it renders the transaction, in effect, a purchase by the defaulter and would so defeat the object of the law.

(j) A, who is B’s mukhtar, promises to exercise his influence, as such, with B in favour of C, and C promises to pay 1,000 rupees to A. The agreement is void, because it is immoral.

(k) A agrees to let her daughter to hire to B for concubinage. The agreement is void, because it is immoral, though the letting may not be punishable under the Indian Penal Code (45 of 1860).

1. See S. 26, 27, 28, and 30, infra.

---2009[1]ALDCri.855.

Saturday, October 16, 2010

MIXED MILK - FOOD ADULTERATION

SEC, 7[i],2[ia][m]and16[1][a][i] - no standards prescribed - mixed milk is meant for tea and sending sec.13[1] notice after the lapse of one year for sending for second opinion, is fatal to prosecution as it is self destroyed by the lapse of time..13. Report of public analyst.—1[(1) The public analyst shall deliver, in such from as may be prescribed. a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis.

(2) On receipt of the report of the result of the analysis under subsection (1) to the effect that the article of food is adulterated the Local (Health) Authority shall, after the institution of prosecution against persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Sec. 14-A forward, in Such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the Court within a period of ten days from the date of ‘receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.

(2-A) When an application is made to the Court under sub-section (2), the Court shall require the Local (Health) Authority to forward the parts of the sample kept by the said Authority and upon such requisition being made, the said Authority shall forward the part or parts of the sample to the Court within a period of five days from the date o receipt of such requisition.

(2-B) On receipt of the part or parts of the sample from the Local (Health) Authority under sub-section (2-A), the Court shall first ascertain that the mark and sea] or fastening as provided in Cl. (b) of sub-section (1) of Sec. 11 are intact and the signature or thumb impression, as the ease may be, is not tampered with, and despatch the part or, as the case 1-nav be, one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis.

(2-C) Where two parts of ‘the sample have been sent to the Court and only one part of- the sample has been sent by the Court to the Director of the Central Food Laboratory under subsection (2-B), the Court shall, as soon as practicable, return the remaining part to the Local (Health) Authority and that Authority shall destroy that part after the certificate from the Director of the Central Food Laboratory has been received by the Court:

Provided that where the part of the sample sent by the Court to Director of the Central Food Laboratory is lost or damaged, the Court shall require the Local (Health) Authority to forward the part of the sample, if any, retained by it to the Court and on receipt thereof the Court shall proceed in the manner provided in sub-section (2-B).

(2-D) Until the receipt of the certificate of the result of the analysis from the Director of the Central Food Laboratory, the Court shall not continue with the proceedings pending before it in relation to the prosecution.

(2-E) It, after considering the report, if any, of the Food Inspector or otherwise, the Local (Health) Authority is of the opinion that the report delivered by the public analyst under sub-section (1) is erroneous, the said Authority shall forward one of the parts of the sample kept by it to any other public analyst for analysis and if the report of the result of the analysis of that part of the sample by that other public analyst is to the effect that the article of food is adulterated, the provisions of sub-sections(2) to (2-D)) shall, so far as may be, apply.]

(3) The certificate issued by the Director of the Central Food Laboratory 1[under sub-section (2-B)] shall supersede the report given by the public analyst under subsection (1).

(4) Where a certificate obtained from the Director of the Central Food Laboratory 1[under sub- section (2-B)] is produced in any proceeding under this Act or under Sees. 272 to 276 of the Indian Penal Code (45 of 1860), it shall not be necessary in such proceeding to produce any part of the sample of food taken for analysis.

(5) Any document purporting to be a report signed by a public analyst, unless it has been superseded under sub-section (3), or any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under this Act or under Sees. 272 to 276 of the Indian Penal Code:

1[Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory [not being a certificate with respect to the analysis of the part of the sample of any article of food referred to in the proviso to sub- section (I -A) of Sec. 161 shall be final and conclusive evidence of the facts stated therein.]

2[Explanation-In this section, and in Cl. (9 of sub-section (1) of Sec. 16, “Director of the Central Food Laboratory” shall include the officer I or the time being in charge of any Food Laboratory (by whatever designation he is known) recognised by the Central Government for the purposes of this section.] ----2010 [1] ALD Cri. AP 73 AND CHILLI POWDER 447.

Wednesday, October 13, 2010

NO PLEADINGS AGAINST RELATIVES OF HUSBAND

PROSECUTION AGAINST THE RELATIVES OF HUSBAND IS NOT MAINTAINABLE AS THEY ARE ALL MARRIED AND LIVING FAR AWAY PLACES , THE MERE ALLEGATIONS THAT THEY INSTIGATED THE A 1 AND A2 FATHER OF A1 NOT BELIEVABLE -2007 [2] A L D CRI. AP 802

SEC.498 -A - NO SPECIFIC WORD " DOWRY"

SECTION 498A IPC GIVES THE DEFINITION OF THE WORD WHAT IS CRUELTY = APPREHENSION OR DANGER TO LIFE AND LIMB ; DEMANDING VALUABLES OR PROPERTIES FROM THE RELATIVES OF WIFE UNDER THE COERCE
1[CHAPTER XXA
OF CRUELTY BY HUSBAND OR RELATIVES OF HUSBAND

1. Ins. by Act 46 of 1983, sec. 2.

498A. Husband or relative of husband of a woman subjecting her to cruelty.


Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation-For the purpose of this section, "cruelty" means-

(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical) of the woman; or

(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her meet such demand.] -2007 [2] ALD CRI. SC 565

PROTECTION OF WOMEN UNDER D V ACT

SEC.12, 20 AND 22 MONETARY RELIEFS ASKED ONLY AGAINST HUSBAND ONLY, AND NO RELIEFS WERE ASKED AGAINST OTHER RESPONDENTS, AND AS SUCH THE COMPLAINT IS LIABLE TO BE QUASHED AGAINST THE OTHERS - 2007 [2] ALD CRI. AP 248.

FOOD ADULTERATION - CORN MEAL - CORN FLOUR

SEC. 2[ia] ,[m], 7[1] AND SEC. 16 [1][a][b] - FOR CORN MEAL- NO STANDARD PRESCRIBED IN THE SCHEDULE , THE STANDARDS OF CORN FLOUR CANNOT BE TAKEN INTO CONSIDERATION AS THE CORN MEAL IS USED FOR PREPARING PIZZA-2007 [2] ALD CRI. AP 446.

SEC.498 -A AND 406 I.P.C.

DOWRY HARASSMENT FILING CIVIL CASE FOR DIVORCE, IS NOT A BAR FOR FILING DOWRY HARASSMENT CRIMINAL CASE AS THE COMPLAINT FILED ONLY WHEN ALL EFFORTS TO RETURN MATRIMONIAL HOME WERE EXHAUSTED-2007 [2] ALD CRI. SC 860

Sunday, October 10, 2010

SEC. 498a AND 494, 495 IPC- BY SECOND WIFE

SINCE THE COMPLAINANT IS A SECOND WIFE, THE ALLEGATIONS MADE UNDER SEC.498A IS LIABLE TO BE QUASHED AND OTHER OFFENCES ARE MAINTAINABLE SINGLE BENCH JUDGEMENT IS NO MORE GOOD LAW REPORTED IN 2000[2] ALD CRIMINAL AP 200 IN VIEW OF DEVISION BENCH DECISION IN 2007 [1] ALD 13 AP because UNDER SECTION 198[1] PROVISO [C] OF Cr.P.C. only on complaint 494 ipc before magistrate is maintainable but not on police report 2010[1] ALD CRI.562

QUASHING OF DOWRY HARASSMENT CASE

WHEN ALREADY DIVORCE WAS GIVEN , PRIOR TO COMPLAINT ITSELF. AGAIN FILING A COMPLAINT UNDER SEC. 494, AND 498 A IPC IS NOT MAINTAINABLE AS THE PROSECUTION ON ITS FACE ABUSED THE PROCESS OF LAW SUPPRESSING THE MATERIAL FACTS . HENCE THE CASE IS LIABLE TO BE QUASHED -2010 [1] ALD CRIMINAL SC 664.

DEFAMATION - NEWS PAPER

SEC.500 OF IPC -PRESUMPTION UNDER SEC.7 OF PRESS ACT CANNOT BE APPLIED AS AGAINST SUCH PERSONS WHO ARE DESCRIBED AS CHIEF EDITOR OR MANAGING EDITOR -PRIVATE COMPLAINT IS NOT MAINTAINABLE AS DISTRICT EDITIONS HAVE EMERGED HAVING LOCAL EDITORS ON THE DISTRICT TABLES - HENCE COMPLAINT IS LIABLE TO BE QUASHED- 2010 [1] ALD CRIMINAL AP 706.

DEATH OF COMPLAINANT - EFFECTS

WHEN A WIFE FILED A PRIVATE COMPLAINT AND AFTER SOME TIME ,BEFORE THE TRIAL, IF SHE DIED, THE COMPLAINT IS STILL MAINTAINABLE AND BASING ON THE OTHER CORROBORATED EVIDENCE CONVICTION CAN BE GIVEN. IT IS NOT A HEARSY BECAUSE OF THE EVIDENCE OF MEDICAL REPORTS-2010 [1] ALD CRIMINAL AP 403

498-A I.P.C. AND 304 B IPC AND 12[1] PASSPORT ACT

WHEN FIR IS NOT DISCLOSING NO DETAILS OF OFFENCE AND WHEN THE DECEASED AND ACCUSED ARE LIVING SEPARATELY FOR THE PAST ONE AND HALF YEAR SEPARATELY, EVEN THOUGH DEATH OCCURRED WITHIN 7 YEARS OF MARRIAGE, IT CANNOT BE ASSUMED AS DOWRY DEATH AS THE MEDICAL RE PORT SAYING THE DEATH IS NATURAL, AND FIR ALSO NOT DISCLOSING ANY THING AGAINST THE ACCUSED. SUPPRESSION MARITAL STATUS AND FALSE EDUCATIONAL QUALIFICATIONS GIVEN BY ACCUSED WHILE ISSUING A PASSPORT IS NOT AN OFFENCE UNDER SEC.12[1] OF PASSPORT ACT. IN TOTO ACQUITTAL IS JUST 154. Information in cognizable cases.
(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informants and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.

(3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer Subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.

Section 304B. Dowery death
1[304B. Dowery death.

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death.

Explanation:-For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 ( 28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.]


PASS PORT ACT

12. Offences and penalties. (1) Whoever–

(a) contravenes the provisions of section 3; or

(b) knowingly furnishes any false information or suppresses any material information with a view to obtaining a passport or travel document under this Act or without lawful authority alters or attempts to alter or causes to alter the entries made in a passport or travel document; or

(c) fails to produce for inspection his passport or travel document (whether issued under this Act or not) when called upon to do so by the prescribed authority; or

(d) knowingly uses a passport or travel document issued to another person; or

(e) knowingly allows another person to use a passport or travel document issued to him,
———————————————————————
1. Subs. by Act 35 of 1993, s. 5 (w.e.f. 1-7-1993)

34.shall be punishable with imprisonment for a term which may extend to
1*[two years or with fine which may extend to five thousand rupees]
or with both.

1*[(1A) Whoever, not being a citizen of India,-

(a) makes an application for a passport or obtains a passport by suppressing information about his nationality, or

(b) holds a forged passport or any travel document,

shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to five years and with fine which shall not be less than ten thousand rupees but which may extend to fifty thousand rupees.]

(2) Whoever abets any offence punishable under 1*[Sub-section (1)
or sub-section (1A)] shall, if the act abetted is committed in consequence of the abetment, be punishable with the punishment provided in that sub-section for that offence.

(3) Whoever contravenes any condition of a passport or travel document or any provision of this Act or any rule made thereunder for which no punishment is provided elsewhere in this Act shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both.

(4) Whoever, having been convicted of an offence under this Act, is again convicted of an offence under this Act shall be punishable with double the penalty provided for the latter offence.

2010 [1] ALD CRI. 953.