DVC CASE - Practice & Procedure - Magistrate shall issue a notice of the date of hearing fixed under Sec.12-the Magistrate need not, nay shall not issue warrant for securing presence of respondent - the Court need not insist for personal attendance of the parties for each adjournment like in criminal cases.-if the respondents failed to turn up after receiving notice and file their counter affidavit if any,pass an exparte order by virtue of the power conferred on him under Sec.23 of the D.V.Act.-only under exceptional circumstances, if the Magistrate feels required, he may issue warrants for securing the presence of the concerned party. -2015 A.P. MSKLAWREPORTS( Telegana)

A close perusal of Section 28 would show that though as per this
Section the proceedings under Sec.12, 18 to 23 and offences under Sec. 31 are
governed by the Code of Criminal Procedure, 1973, that is not an inscrutable
rule inasmuch as Sec.28(1) is having a saving clause and also subject to sub-
section(2).  
When we analyse the limitations of Section 28(1) with reference
to the civil nature of the remedies provided under Sec.18 to 22 and saving
provisions under Sec.13 and 23, we can understand that for conducting
enquiry, the Court need not insist for personal attendance of the parties for
each adjournment like in criminal cases.  
It is because, Sec.13 lays down that
the Magistrate shall issue a notice of the date of hearing fixed under Sec.12 to
the Protection Officer for serving on the respondent. So for securing the
appearance of respondent, at the first instance, the Magistrate need not, nay
shall not issue warrant. 
Even if the respondents failed to turn up after
receiving notice and file their counter affidavit if any, the Magistrate need
not take coercive steps for securing their presence and on the other hand he can
treat them as Non-contesting respondents and pass an exparte order by
virtue of the power conferred on him under Sec.23 of the D.V.Act. 
So during
the enquiry under Sec.12 and till an order is passed under Sec.18 to 23, the
Magistrate need not insist the presence of parties for each adjournment and
take coercive steps due to their absence. 
It is only under exceptional
circumstances, if the Magistrate feels required, he may issue warrants for
securing the presence of the concerned party.  
Such a judicial flexibility to
lay down own procedure is conferred on the Magistrate under Sec.28(2) of the
D.V. Act.  
By following this procedure, learned Magistrate can obviate the
presence of the respondents, some of whom in most of the cases are 
unnecessarily roped in, throughout the enquiry.


i)      Since the remedies under D.V Act are civil remedies, the Magistrate in
view of his powers under Section 28(2) of D.V Act shall issue notice to the
parties for their first appearance and shall not insist for the attendance of
the parties for every hearing and in case of non-appearance of the parties despite
receiving notices, can conduct enquiry and pass exparte order with the
material available.  It is only in the exceptional cases where the Magistrate
feels that the circumstance require that he can insist the presence of the
parties even by adopting coercive measures. 
ii)     In view of the remedies which are in civil nature and enquiry is not a
trial of criminal case, the quash petitions under Sec.482 Cr.P.C on the plea
that the petitioners are unnecessarily arrayed as parties are not maintainable.
It is only in exceptional cases like without there existing any domestic
relationship as laid under Section 2(f) of the D.V. Act between the parties, the
petitioner filed D.V. case against them or a competent Court has already
acquitted them of the allegations which are identical to the ones leveled in the
Domestic Violence Case, the respondents can seek for quashment of the  
proceedings since continuation of the proceedings in such instances certainly
amounts to abuse of process of Court. - 2015 A.P. MSKLAWREPORTS( Telegana)

Sec.498 A, Sec.4 of Dowry Act and Domestic Violence Act - the A.P.High court gave certain guide lines - investigation must be verified by an officer not below the rank of DSP - for deleting the name of falsely named accused in charge sheet permission of S.P. necessary - on immediate complaint of either party wife or husband - both parties should be asked to undergo counselling before the expert counsellors and their report may be made as part of record and SP in consultation with District legal services authorities may prepare panel of counsellors - except in serious offences - no arrest should be effected for mere dowry harassment with out permission of S.P. - No harassment by police and no force for compromise - Magistrate too has to examine the grounds of remand other wise , accused should be released on bail on personal bonds - 2015 A.P.(2014) MSK LAW REPORTS

   In the light of the above discussion, the following
guidelines have been issued.

a)      A fair and dispassionate investigation should be
conducted.  After completing investigation, the
same should be verified by an officer not below
the rank of Deputy Superintendent of Police.

b)      During the course of investigation, if the
investigating officer is satisfied that there is false
implication of any person in the complaint then
he may delete the names of such persons from 
the charge sheet after obtaining necessary
permission from the Superintendent of Police or
any other officer equivalent to that rank.

c)      As soon as a complaint is received either from
the wife alleging dowry harassment or from the
husband that there is every likelihood of him
being implicated in a case of dowry harassment,
then, both the parties should be asked to
undergo counselling with any experienced
counsellor or counsellors.  The report of such
counsellors should be made as a part of the
report to be submitted by the investigating
officer to the Court.

d)      The Superintendent of Police, in consultation
with the Chairman, District Legal Services
Authority, may prepare a panel of counsellors
and such panel of counsellors along with their
address and phone numbers should be made   
available at all the police stations.

e)      Normally, no accused should be arrested, where 
the allegation is simple dowry harassment.  If
the arrest is necessary during the course of
investigation, the investigating officer should
obtain permission of the Superintendent of
Police or any other officer of the equal rank in
metropolitan cities.  If arrest is not necessary,
the police may complete the investigation and
lay charge sheet before the Court without
arresting the accused and seek necessary orders
from the Court.  However, in the case of dowry
death, suspicious death, suicide or where the
allegations are serious in nature such as
inflicting of bodily injury etc., the police officer
may arrest the accused.  However, the
intimation of such arrest should be immediately
sent to the concerned Superintendent of Police
who may give necessary guidance to the 
arresting officer.

f)      No accused or witness should be unnecessarily 
called to the police station and as soon as the
purpose of summoning them to the police station
is over they should be sent back.  There should
not be any unnecessary harassment to any
person i.e. either to the relatives of the de facto
complainant or to the relatives of the husband.

g)      The higher police officers should see that the
parties do not make any allegations that they are
forced to come to any settlement in police
stations against their wish.  However, this does
not mean that the police officers should not
make any effort for amicable settlement.

h)      The advocates have to play their role in trying to
unite the families.  They must act as social
reformers while dealing with these kind of cases,
particularly, where the couple have children.
Even when an accused is produced before the
Magistrate, they should examine the matter
judiciously and consider whether there are valid
grounds for remanding the accused to the
judicial custody.  No accused should be
remanded to judicial custody mechanically in
routine manner.  If the Magistrate feels that the
accused cannot be released after taking bonds,
necessary orders may be passed accordingly. 

   The Director General of Police, Andhra Pradesh, is
requested to issue necessary instructions to all the
concerned in this regard.

      In the instant case, having regard to the allegations
made against the petitioners and in the facts and
circumstances of the case, I am inclined to grant
anticipatory bail to the petitioners.

      In the event of arrest of the petitioners, they shall
be enlarged on bail on their executing a bond for a sum
of Rs.5,000/- (Rupees Five Thousand Only) each with
one surety for a like sum each to the satisfaction of the
arresting officer, Falaknuma Police Station, Hyderabad.

      Accordingly, the Criminal Petition is allowed. -2015 A.P.(2014) MSKLAWREPORTS

Section 138 of the Negotiable Instruments Act - Cheque was issued by and on behalf of the firm - Notice issued about the dishonor of cheque - after completion of Trial - pending the case A2 died on 2-12-2006 - Trail court dismissed the complaint against the A1 firm and A2 as abated and after hearing the A 3 and A4 dismissed the case on merits - Whether Firm A1 too abated when it was represented by A3 and A4 other partners ? for the purpose of imposing fine of double the amount, the death of A2 does not abate the firm as other partners can continue the firm on the death of one of the partner as per law - Remanded the matter to decide the case on the point whether the firm dissolved or not with reference to the D-1 partnership deed already exhibited, from death of A-2 one of the partners and if not dissolved for nothing to abate to decide the liability of A-1 firm though not A-3 representing A-1 firm personally liable, to the liability of imposing fine against the firm in the event of the debt is proved legally enforceable - 2015 A.P.msklawreports

the Complainant is a merchant and doing
cotton business, A-1 is cotton merchant, A-2 to A-4 are its partners .                                                      they used to purchase cotton from several persons like complainant on credi
from 12.06.1998 onwards accused are
maintaining khata with the complainant in the course of their
business, that the said Khata is running and mutual
As per the khata
the accused has to pay an amount of Rs.4,89,655/- to the
complainant as on 05.12.2000 and the complainant demanded the   
accused several times to pay the said amount, that the accused gave
cheque for Rs.4,76,552/- and the same was when presented returned 
dishonoured.  
The complainant issued a statutory legal notice and the
accused got issued reply and did not pay the amount, for which the
complainant presented the complaint.

The trial Court recorded that the case against
Accused Nos.1 and 2 was abated on 05.12.2006, for death of A-2 who 
was representing A-1 firm and after hearing both sides and after
perusal of material and evidence on record, the trial Court held the
other two partners of the firm A-3 and A-4 not guilty for the offence
punishable under Section 138 of the Negotiable Instruments Act and
accordingly they were acquitted for said offence.
High court held that 
Thus, the trial Court ought not to have recorded the
proceedings against A-1 firm as abated, but for recording A-3 being
one of the partners on record to represent A-1 firm and once, A-1
firm is there on record, though not liable for imprisonment of A-3
representing A-1 firm, fine can be imposed to recover for not
exceeding double the value of the cheque amount. 
In particular for,
either from P.W-1 cross-examination or from D.W-1 evidence with
reference to Exs.P-1, P-4, P-9 and P-10, there is not much in dispute
of Ex.P-1 cheque issued by the firm duly signed by A-2 as its
authorised partner to make the firm responsible for the dishonor as
firm was also served with notice under Ex.P-4 acknowledged by A-2 in
his individual capacity also under Ex.P-5 and P-6 apart from A-3 and
A-4 under Exs.P-7 and P-8 acknowledgements referred supra.  
To that
extent as act of Court shall prejudice no man not sanctioned by law,
the matter requires remittance for re-trial to decide fresh, the
liability of A-1 entity by setting aside the trial Courts observation of
the prosecution against A-1 is abated from death of A-2 for still A-3
partner of A-1 firm continuous on record though as observed by the
trial Court and uphold by this Court, A-3 personally not made liable
equally A-4; A-1 if at all to be made liable being a firm to represent
by other partners for the reason of A-3 as partner of the firm on
record to represent A-1.  

   In the result, while upholding the trial Courts acquittal
judgment of A-3 and A-4, however by setting aside the recording of
abatement of the prosecution against A-1 firm by remitting the
matter to the trial Court for re-trial in directing to decide afresh by
arraying A-3 as representing A-1 firm as one of the partners for
continuation of the prosecution of A-1 firm to decide whether the
firm dissolved or not with reference to the D-1 partnership deed
already exhibited, from death of A-2 one of the partners and if not
dissolved for nothing to abate to decide the liability of A-1 firm
though not A-3 representing A-1 firm personally liable, to the liability
of imposing fine against the firm in the event of the debt is proved
legally enforceable.2015 A.P.msklawreports

question of jurisdiction = the principal Civil Court locating in Hyderabad cannot be a Court within the meaning of Section 2 (1) (e) of the aforesaid Act as no part of cause of action has arisen nor the respondents are having place of business within the territorial limit of this State. It would appear from said tripartite agreement that the same was executed and entered into at Bangalore. Works in terms of the contract is to be executed at Bangalore. Hence, performance of tripartite agreement has to be done in Bangalore. Nothing has happened in Hyderabad except the 2nd respondent is having his place of business at Hyderabad. It is settled position of law that by agreement of the parties jurisdiction cannot be conferred upon any Court which does not have under law. Admittedly, the agreement has been made and entered into at Bangalore, works which are to be performed in terms of bipartite agreement initially, now tripartite one at Bangalore, and performance and non-performance therefore, necessarily will take place at Bangalore. It is however argued that I can entertain this application by virtue of clause (b) of Section 20 of Code of Civil Procedure as one of the respondents carries on business at Hyderabad. This provision cannot be invoked having regard to approach of the application wherein seat of arbitration being Hyderabad is sought to be asserted, and no leave as required under clause (b) of Section 20 of C.P.C. has been asked for. In view of discussion, as above, no answer is called for as far as third question is concerned. In view of discussion above, I dismiss this application with liberty to file before appropriate Honble Chief Justice or designated Judge, as the case may be, of the High Court.-2015 A.P. MSK LAWREPORTS

The applicant is wholly owned subsidiary of
Solentanche-Freyssinet Group, and is dealing in mechanically
stabilized Reinforced Earth Retaining Walls/Precast Arch
Structures, etc.  
The 2nd respondent which was formerly known as
Maytas Infra Limited was awarded a contract, dated 29th February,
2008, for construction of boundary walls, roads, drains and earth
filling, by Bangalore Metro Rail Project at Bayappanhalli Depot,
Bangalore.  
Thereafter, on 28th March, 2008, it, having faced
difficulties in completing works of the principal contract as per
schedule, entered into a sub-contract with the applicant for the
works of construction of reinforced earth retaining wall of the main
contract on back to back basis.
 Thereafter, tripartite agreement
was executed on 3.6.2009 amongst the applicant on one hand and  
the respondents 1 & 2 on the other hand. 
 By this tripartite
agreement, it was agreed mutually that all the bills, including taxes
for materials supplied and services provided by the applicant
settled till 28th February, 2009 would be raised and submitted to
the 2nd respondent on 1st March, 2009 and to be paid by the 1st
respondent. 
In 
the contract dated 28.03.2008 the parties thereto by its clause-12
agreed to resolve the disputes arising out thereof of by the
mechanism of arbitration and the venue of the same would be in
Hyderabad only.  
Since by the tripartite agreement this arbitration
clause has also been accepted and incorporated therein, all the
parties to the tripartite agreement are bound by it.    
In spite of
making request to both the respondents for invoking arbitration
clause, no steps have been taken for appointment of arbitrators.

raised question of jurisdiction =  the principal Civil Court locating in Hyderabad cannot be
a Court within the meaning of Section 2 (1) (e) of the aforesaid Act as no part of cause of action has arisen nor the respondents are having place of business within the territorial limit of this State.  
It would appear from said tripartite agreement that the same was executed and entered into at  Bangalore.  
Works in terms of the contract is to be executed at Bangalore.  
Hence, performance of tripartite agreement has to be done in Bangalore. 
 Nothing has happened in Hyderabad except the  2nd respondent is having his place of business at Hyderabad. 

High court held that

It is settled position of law that
by agreement of the parties jurisdiction cannot be conferred upon any Court which does not have under law. 
 In any view of the matter, this forum selection clause is not sought to be enforced by the applicant.  
Much emphasis has been placed to take benefit of clause-12 quoted above read with judgment of Constitution Bench.
The Supreme Court in case of Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc. (1 supra) 
 as per Judgment,  it appears that under the Arbitration and Conciliation Act, 1996 two courts will have jurisdiction to deal with the matter; 
one is natural forum, which would have jurisdiction
under Section  2 (1) (e) of the aforesaid Act, and
 another one within whose jurisdiction arbitration takes place.
the Legislature mindfully clarified by making a provision in clause (b) of sub-section (12) of Section 11 read with Section 2 (1) (e) of the Act, 1996.  
 It would appear that provision of Section 2 (1) (e) of the Act,
1996 has been adopted by clause (b) of sub-section (12) of Section 11 by way of reference not by way of incorporation.
Therefore, Chief Justice or designated person or institution has to be construed strictly as being only one of the High Court within whose jurisdiction principal Civil Court is situated and which could have decided the matter, if the same had been the subject matter of
a suit, not any other High Court Chief Justice.   Logically, jurisdiction of principal Civil Court has to be traced from the provisions of Sections 16 to 20 of the Code of Civil Procedure only.
Moreover, even if, for arguments sake, above statement of law in paragraph-96 of the judgment is applied, the Constitution Bench has not ruled out applicability of the concept of forum conveniens.
I find here, applying this principle, nothing has taken
place in Hyderabad.  
Admittedly, the agreement has been made and  entered into at Bangalore, works which are to be performed in terms of bipartite agreement initially, now tripartite one at Bangalore, and performance and non-performance therefore,  necessarily will take place at Bangalore.   
 It is however argued that I can entertain this application by virtue of clause (b) of Section 20
of Code of Civil Procedure as one of the respondents carries on business at Hyderabad.  
This provision cannot be invoked having regard to approach of the application wherein seat of arbitration being Hyderabad is sought to be asserted, and no leave as required under clause (b) of Section 20 of C.P.C. has been asked for.
In view of discussion, as above, no answer is called for as far as third question is concerned.

In view of discussion above, I dismiss this application with liberty to file before appropriate Honble Chief Justice or designated Judge, as the case may be, of the High Court. -2015 A.P.MSKLAWREPORTS

Arbitration and Conciliation Act, 1996 two courts will have jurisdiction to deal with the matter; one is natural forum, which would have jurisdiction under Section 2 (1) (e) of the aforesaid Act, and another one within whose jurisdiction arbitration takes place. - 2015 S.C.(2012) MSKLAWREPORTS

      Section 2(1)(e) of the Arbitration Act, 1996 reads as under:
   2. Definitions.(1) In this Part, unless the context otherwise
requires 
   (a)-(d)      *       *       *
   (e) Court means the Principal Civil Court of Original
Jurisdiction in a district, and includes the High Court in exercise
of its ordinary original civil jurisdiction, having jurisdiction to
decide the questions forming the subject-matter of the arbitration
if the same had been the subject-matter of a suit, but does not
include any civil court of a grade inferior to such Principal Civil
Court, or any Court of Small Causes;

We are of the opinion, the term subject-matter of the arbitration
cannot be confused with subject-matter of the suit. 
The term
subject-matter in  Section 2(1)(e) is confined to Part I. It has a
reference and connection with the process of dispute resolution.
Its purpose is to identify the courts having supervisory control
over the arbitration proceedings. Hence, it refers to a court
which would essentially be a court of the seat of the
arbitration process. 
In our opinion, the provision in Section
2(1)(e) has to be construed keeping in view the provisions in
Section 20 which give recognition to party autonomy. Accepting
the narrow construction as projected by the learned counsel for
the appellants would, in fact, render Section 20 nugatory. 
In our
view, the legislature has intentionally given jurisdiction to two
courts i.e. the court which would have jurisdiction where the
cause of action is located and the courts where the arbitration
takes place. 
This was necessary as on many occasions the  
agreement may provide for a seat of arbitration at a place which
would be neutral to both the parties. 
Therefore, the courts where
the arbitration takes place would be required to exercise
supervisory control over the arbitral process. For example, if the
arbitration is held in Delhi, where neither of the parties are from
Delhi, (Delhi having been chosen as a neutral place as between a
party from Mumbai and the other from Kolkata) and the tribunal
sitting in Delhi passes an interim order under Section 17 of the
Arbitration Act, 1996, the appeal against such an interim order
under Section 37 must lie to the courts of Delhi being the courts
having supervisory jurisdiction over the arbitration proceedings
and the tribunal. 
This would be irrespective of the fact that the
obligations to be performed under the contract were to be
performed either at Mumbai or at Kolkata, and only arbitration is
to take place in Delhi. 
In such circumstances, both the courts
would have jurisdiction i.e. the court within whose jurisdiction the
subject-matter of the suit is situated and the courts within the
jurisdiction of which the dispute resolution i.e. arbitration is
located. - 2015 S.C.(2012) MSK LAWREPORTS