Evidence Act - Admissibility of previous depositions -2015 S.C.(1976) MSKLAWREPORTS

Evidence Act - Admissibility of previous depositions - Apex court held that

(i) The admissions by the 3rd defendant were substan-
 tive  evidence of the facts admitted and  such  admissions,
 duly proved, were admissible evidence irrespective of wheth-
 er the party making them appeared in the witness box or not,
 and  whether  that  party when appearing as  a witness  was
 confronted  with those statements in case a  statement con-
 trary  to those admissions was made. They were  taken into
 consideration against the 3rd defendant and not against  the
 2nd defendant. [975 H, 976 A-B]
 
 (ii)  There is no requirement of the Evidence  Act that
 unless the  admissions were adverse to his  interests when
 made,  they  could not be read against  the  person  making
 them. [976 F]
 (iii) The contention that the evidence of the admissions
 is admissible only in terms of s. 33 of the Evidence Act was
 untenable  because  that section deals with  statements  of
 persons  who  cannot  be called as witnesses  and  does  not
 restrict  or override the provisions relating to  admissions
 in the Evidence Act. [977 A-C] -2015 S.C.(1976) MSKLAWREPORTS

sec. 40,41,42 of Indian Evidence Act - admissions made in earlier criminal proceedings is admissible in evidence - Apex court held that It is now almost well-settled that, save and except for Section 43 of the Indian Evidence Act which refers to Sections 40, 41, and 42 thereof, a judgment of a criminal court shall not be admissible in a civil suit. What, however, would be admissible is the admission made by a party in a previous proceeding. The admission of the appellant was recorded in writing. -2015 S.C.(2009) MSKLAWREPORTS

Whether the admission of guilt in criminal case in respect of some transaction made by respondent is admissible in the present case to the extent of fact that there was transaction between the parties?

 Respondent examined himself as a witness in the suit. 
He stated that the appellant being his cousin brother, no document was executed.
He also testified that in the criminal case, appellant having admitted his crime and 7 pledge of jewellery with him, a fine of Rs. 150/- was imposed and on in default thereof, imprisonment of five days was ordered.

 Indisputably, the judgment in the criminal case was marked as an exhibit.

 It is now almost well-settled that, save and except for Section 43 of the Indian Evidence Act which refers to Sections 40, 41, and 42 thereof, a judgment of a criminal court shall not be admissible in a civil suit.

What, however, would be admissible is the admission made by a party in a previous proceeding. The admission of the appellant was recorded in writing. While he was deposing in the suit, he was confronted with the question as to whether he had admitted his guilt and pleaded guilty of the charges framed.2015 S.C.(2009) MSKLAWREPORTS

Whether the application under sec.12, should be filed in Form-II as prescribed under Rule 6(1) of the Rules and verified in the prescribed manner with out any modification ? - No whether calling and according consideration to Domestic Incident Report of a Protection Officer or the Service Provider is sine qua non for passing an order, interim or final, on an application under section 12(1) of the Act? - No -2015 J & K ( 2014) msklawreports

whether calling and according consideration to Domestic Incident Report of a Protection Officer or the Service Provider is sine qua non for passing an order, interim or final, on an application under section 12(1) of the Act?

A comparative reading of sections 4, 9 and 10 of the Act and Rules 4 and 8 of the Rules on one hand and section 12 of the Act on the other would make it clear that giving of information about domestic violence to the Protection Officer under section 4 or to Service Provider under section10 and making an application seeking relief under section 12(1) or two different and independent aspects of the Act. Making an application under section 12(1) to the Magistrate is no way linked with or dependent upon providing information to the Protection Officer or the Service Provider. To say the other way, giving information to Protection Officer or Service Provider and their report to the Magistrate in no way can be taken as a sine qua non for making an application under section 12(1) to the Magistrate. It is open to an aggrieved person to straightway make an application to the Magistrate under section 12(1) seeking one or more reliefs under the Act. The only interpretation that can be given to the proviso to section 12(1) of the Act is that the Magistrate before passing any order on the application of the aggrieved person will have to accord consideration to a Domestic Incident Report of a Protection Officer or a report of a Service Provider, if such a report has been received by the Magistrate. Key to such interpretation seem to have been made available in the proviso itself by use of word any . Proviso does not mandate calling for a report from a Protection Officer or Service Provider but refers to any report received from a Protection Officer or Service Provider, which, however, would be available only in a case where information to the Protection Officer or a Service Provider about an act of domestic violence had been given by the aggrieved person himself or by any person .

Whether the application under sec.12, should be filed in Form-II as prescribed under Rule 6(1) of the Rules and verified in the prescribed manner with out any modification ?

 Rule 6(1) reads as under: 6. Applications to the Magistrate.- (1) Every application of the aggrieved person under section 12 of the Act shall be in Form II or as nearly as possible thereto.

On its plain reading, it would be clear Rule 6(1) does not make it mandatory for the applicant to prepare an application under section 12(1) of the Act in Form II only. 

The Rule provides also that it may be as nearly as possible to Form-II. 

Form-II on its reading would show that it mainly provides for giving the name of the person (aggrieved person/Protection Officer/any other person on behalf of aggrieved person) who makes the application and details about the order(s) sought from the Magistrate, that is, Protection Order under section 18/Residence Order under section 19/ Monetary Reliefs under section 20/ Custody Order under section 21/Compensation Order under section.

 It may be stated in this regard that the Act is a welfare legislation to provide for effective protection of rights of women guaranteed under the Constitution, who were victims of domestic violence. A relief sought under the Act will not be defeated merely on technical defects like application having not been filed in prescribed form unless the application does not convey or make out what is required and sufficient for grant of the relief. - 2015 J & K ( 2014) msklawreports

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