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July 2018 Crpc Important Decisions

S.125 - Maintenance to wife - Cannot be refused merely on the ground that husband not found guilty of offences under which he has been charge sheeted on FIR lodged by wife. (Orissa) 112
S.125 - Maintenance to wife - Earlier application of wife for maintenance dismissed - Subsequent application for maintenance is not maintainable as it tantamounts to review of earlier order of rejection of application. (Rajasthan) 226
S.125 - Maintenance to wife - Mere fact that husband succeeded in proceeding under Guardians and Wards Act, which is under challenge before this Court, is no ground to negate maintenance to wife, as said proceeding is different in nature. (Orissa) 112
S.125 - Maintenance to wife - Wife lodged FIR against husband relating to torture and on investigation, prima facie evidence found against him for which charge sheet was submitted against him, which itself is a factor for wife to live separately from husband and to claim maintenance - It cannot be said that there was not sufficient reason for wife to refuse to reside with husband. (Orissa) 112
S.125(3), Indian Penal Code, 1860,
S.67 - Maintenance - Default in payment - Sentence of imprisonment - Sentence imposed u/s 125(3) Cr.P.C. is only a mode of enforcement of direction to pay amount of maintenance and not as a punishment - Court below therefore, seriously erred in invoking
S.67 IPC for handing down sentences of 6 months and 3 months respectively to petitioner - Impugned order of sentencing petitioner set aside - Sentence reduced to one month only in both the cases. (Rajasthan) 217
S.125(4) - Maintenance to wife - Adultery - Husband has no personal knowledge about involvement of wife in adultery, as he himself admitted that he came to know about said fact from village gentries - Even mother of wife deposed about the same, but no evidence on record to prove said fact - It cannot be said that husband has established in any way that wife was living in adultery - Sufficient reason to live separately from husband on the part of wife is proved - Taking into account salary of husband and necessity of wife to lead a decent and dignified life, wife entitled to Rs.8000 as maintenance. (Orissa) 112
S.125(4) - Maintenance to wife - Adultery - Living in adultery denotes a continuous course of conduct and not isolated acts of immorality - An act of isolated lapse would not disentitle wife to claim maintenance - Onus is on husband to establish that wife is living in adultery - Evidence which creates some sort of suspicion on conduct of wife is not enough to establish that she is living in adultery. (Orissa) 112
S.125(4) - Maintenance to wife - Adultery - Unsuccessful attempt by husband in levelling disgusting accusations of unchastity entitles wife to live separately from husband and to claim maintenance from him. (Orissa) 112
S.125(4) - Maintenance to wife - Adultery - 'Sufficiency of reason' u/s 125(4) Cr.P.C. is a question of fact - Every reason or pretext put forth on behalf of wife cannot be accepted for fulfilling such requirement. (Orissa) 112
S.145 - Scope of inquiry u/s 145 Cr.P.C. - Question of right to possession is foreign to scope of enquiry - Only question of actual possession has to be determined and to be decided by Magistrate - Question of title should not be allowed to be agitated. (Chhattisgarh) 025
S.145(4) Proviso - Restoration of possession - Magistrate obliged to record a specific and clear cut finding in order to grant restoration of possession of property that party has been forcibly and wrongfully dispossessed within 2 months on which report of police officer or other information was received by Magistrate or atleast 2 months prior to date of passing of preliminary order. (Chhattisgarh) 025
S.145(4) Proviso - Restoration of possession - Magistrate while passing order of restoration of possession not recorded a finding that respondent was forcefully and wrongfully dispossessed prior to 2 months from date of passing of preliminary order - Such finding is sine qua non for passing order of restoration of possession u/s 145(6)(a) of Cr.P.C. - Non-recording of said finding would amount to jurisdictional error - More so, decision of Magistrate is influenced more by consideration of title and right of possession than actual possession over properties in dispute - Order directing restoration of possession not sustainable and set aside - Matter remitted. (Chhattisgarh) 025
Ss.145, 146 - Proceedings u/ss 145, 146 Cr.P.C. -
Ss.145, 146 Cr.P.C., together constitute a scheme for resolution of a situation where there is a likelihood of breach of peace because of dispute concerning any land or water or their boundaries. (Chhattisgarh) 025
Ss.145(4) Proviso, 482 - Restoration of possession - Plea that no finding is recorded by Magistrate that respondent dispossessed prior to 2 months from date of passing of preliminary order - Such plea goes to root of matter - Even though such plea never raised either before Magistrate or before Sessions Court, same can be raised before High Court in a petition u/s 482 Cr.P.C. (Chhattisgarh) 025
Ss.156, 173(8) - Transfer of investigation to CBI - Illegal manufacture and sale of Gutka and Pan Masala - Accused named in FIR, has no right to be heard at the stage of investigation or to have an opportunity of hearing as a matter of course - Mere fact that accused was not impleaded as a party in writ petition or for that matter was not heard, will be of no avail - That per se cannot be basis to label direction issued to transfer of investigation to CBI a nullity. (
S.C.) 102
Ss.156, 173(8) - Transfer of investigation to CBI - Illegal manufacture and sale of Gutka and Pan Masala - Crime in question involving high ranking officials of State as well as Central Government - For instilling confidence in the minds of victims as well as public at large, High Court predicated that it was but necessary to entrust investigation of crime to CBI - Earlier decision of Co-ordinate Bench of same High Court refusing to transfer investigation distinguished from present case, hence no question of disregarding binding decision or precedent made out - Case rightly transferred for investigation to CBI. (
S.C.) 102
Ss.156, 173(8) - Transfer of investigation to CBI - Illegal manufacture and sale of Gutka and Pan Masala - High Court transferred investigation to CBI after due consideration of all relevant aspects - Transfer of investigation to CBI does not depend on inadequacy of inquiry/investigation carried out by State police - Since nature of crime being investigated warrants CBI investigation, case rightly transferred for investigation to CBI. (
S.C.) 102
Ss.156, 173(8) - Transfer of investigation to CBI - Petition filed by member of legislative assembly as Public Interest Litigation - Cannot be brushed aside on the allegation of political vendetta, if otherwise, it is genuine and raises a reasonable apprehension of likelihood of bias in dispensation of criminal justice system. (
S.C.) 102
S.173 - Protest petition/private complaint - Once protest petition/private complaint taken on record by taking Sworn Statements of PW1 to PW3, Magistrate should have proceeded to consider matter on merits and disposed of same after examining witnesses by issuing summons to accused - Magistrate, however, taken a route of
S.468 Cr.P.C and ultimately dismissed the protest petition being barred in view of
S.468 Cr.P.C. - Extended period of limitation u/s 473 Cr.P.C ought to be taken into account - Impugned order of Magistrate dismissing protest petition set aside - Matter remitted. (Madras) 051
S.173(8) - Further investigation or re-investigation - De facto complainant has not been put on notice of final report filed in the case on completion of investigation - He thus, had a right to file a protest petition and seek further investigation - Mere technical error of mentioning re-investigation in protest petition, cannot take away right of complainant - Material records necessary for proving offence alleged in complaint not gathered by investigating agency - Petition filed by de facto complainant for further investigation or re-investigation directed to be considered as protest petition and consider the same on merits in accordance with law. (Madras) 079
Ss.177, 178 - Territorial jurisdiction - Continuing offence - Sexual abuse upon minor girl - When an offence is a continuing offence and is committed in more than one local area, it may be tried by any of those Courts having territorial jurisdiction - Since the first offence committed at place 'G' and thereafter at 'J', Courts at 'G' has territorial jurisdiction to try the case. (P&H) 247
S.197 - Sanction for prosecution - Committing certain excesses during performance of official duty - Sanction is necessary. (Orissa) 139
S.197 - Sanction for prosecution - When there is reasonable connection between alleged act done and official duty, sanction from competent authority is necessary. (Orissa) 139
Ss.211, 215 - Charge - Mere omission to mention provision of law - Does not make the charge invalid, particularly when person is aware of offence that he/she is being accused of. (P&H) 247
S.228 - Framing of charge - Court not to enter into a roving inquiry to appreciate or weigh material on record at the stage of framing of charge - Strong suspicion is enough for Court to form a presumptive opinion as to existence of an event having taken place, justifying framing of charge. (P&H) 247
S.228 - Framing of charge - No meticulous examination of evidence is needed for considering whether case would end in conviction or not at the stage of framing of charge. (P&H) 247
S.228, Indian Penal Code, 1860,
Ss.307, 149, 323, 325 - Framing of charge u/ss 307, 149 IPC - Accused allegedly 8 in number, armed with lathis, named in FIR - But small number of injuries received by injured belies said allegation - Moreover, if accused were intending to kill injured, nothing prevented them from aiming the lathis on his head - Intention of accused thus, was nothing beyond chasing injured and did not extend to making an attempt on his life - Framing of charges u/ss 307, 149 IPC, improper and set aside. (Rajasthan) 144
S.228, Indian Penal Code, 1860,
S.307 - Charge u/s 307 IPC - Determining factor to frame charge u/s 307 IPC is not the nature of injuries suffered but intent and knowledge of accused persons while indulging in assault. (Rajasthan) 144
Ss.228, 161 - Framing of charges - At the time of framing of charges statements of witnesses u/s 161 Cr.P.C. and all other material collected during investigation has to be taken on its face value - Defence of accused and documents produced by accused not to be considered. (Delhi) 168
Ss.397(2), 482 - Second revision petition - Barred u/s 397(2) Cr.P.C. - Petition u/ s 482 Cr.P.C can be entertained only in exceptional and rare cases only if High Court is satisfied that continuation of trial would result in gross abuse of process of law thereby resulting in miscarriage of justice. (Delhi) 168
S.438, Indian Penal Code, 1860,
Ss.366, 376, 506 - Anticipatory bail - Kidnapping and rape - FIR filed as counter blast to complaint made by petitioner against some police officials - There was dispute between petitioner and complainant with regard to dishonour of certain cheques to which petitioner filed complaint u/s 138 of N.I Act against complainant - Petitioner was assaulted by husband of complainant and police officials were threatening petitioner to withdraw complaint u/s 138 of N.I. Act - Subject FIR alleged to be made on behalf of complainant but actually no such complaint has been lodged by complainant - Without commenting merits of case, petitioner has made out a case for grant of anticipatory bail - Application allowed. (Delhi) 014
S.439 - Bail - Gravity of offence - Not a decisive ground to deny bail - Competing factors are required to be balanced by Court while exercising its discretion. (H.P.) 148
S.439 - Cancellation of bail - Bail once granted should not be cancelled unless a cogent case, based on a supervening event is made out. (
S.C.) 001
S.439, Indian Penal Code, 1860,
Ss.298, 323, 324, 341, 307, 302, 34 - Bail - Offence u/ss 298, 323, 324, 341, 307, 302, 34 IPC - Incident occurred over issue of seats sharing etc. in train and there is neither any evidence of any preplanning to cause incident deliberately or intentionally to cause communal disharmony - There is not even remote whisper that petitioner had instigated or asked anybody to make assault - Petitioner has made out a prima facie case based on evidence that was collected by police for his release on bail, particularly because, he does not have any criminal antecedents - He is also entitled to bail on ground of parity with other co-accused who is already granted bail - Bail granted to petitioner with conditions. (P&H) 262
Ss.439, 438 - Anticipatory bail - Interim order granting pre-arrest bail - Accused thereafter surrendered before trial Court and regular bail was granted - Held, when Supreme Court or High Court or Sessions Judge grants interim anticipatory bail and the matter is pending before that Court, there can be no occasion for the accused to appear and surrender before trial Court and seek regular bail - Surrender and bail application in such circumstances is nothing but an abuse of the process of law by the concerned accused. (
S.C.) 195
Ss.468, 473, 173 - Bar u/s 468 Cr.P.C. - Belated protest petition/private complaint - No notice admittedly sent to de facto complainant, at the time of referring matter by sending referring report to Magistrate - Only on insistence of de facto complainant that too pursuant to direction given by this Court, such a notice has been given to de facto complainant - De facto complainant, therefore, cannot be blamed for approaching Court by filing private complaint belatedly - Provision u/s 473 Cr.P.C ought to have been followed - Order dismissing protest petition/private complaint set aside. (Madras) 051
S.482 - Quashing of proceedings - Exoneration in departmental enquiry of same subject matter - Does not automatically lead to acquittal in a criminal trial or even quashing of criminal proceedings. (P&H) 058

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