Wednesday, 7 December 2016

When court can call record of other court?

 If bringing on record a document is essential for proving the case by a party, ordinarily the same should not be refused; the Court's duty being to find out the truth. The procedural mechanics necessary to arrive at a just decision must be encouraged. We are not unmindful of the fact that the court in the said process would not encourage any fishing enquiry. It would also not assist a party in procuring a document which he should have himself filed.


13. There cannot furthermore be any doubt that by calling for such documents, the Court shall not bring about a situation whereby a criminal proceeding would remain stayed as it is a well settled principle of law that where a Civil proceeding as also a Criminal proceeding is pending, the latter shall get primacy.
Reportable
Supreme Court of India
Lakshmi & Anr vs Chinnammal @ Rayyammal & Ors on 8 April, 2009

Bench: S.B. Sinha, Mukundakam Sharma
Citation:AIR 2009 SC 2352
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Sunday, 4 December 2016

When court can take in to consideration material produced by accused at the time of framing of charge?

We have carefully perused the decision of this Court in the State of Orissa vs. Debendra Nath Padhi (supra). Though the observations in paragraph 16 of the said decision seems to support the view canvassed by by Shri Rohatgi, it may be also pointed out that in paragraph 29 of the same decision it has been observed that the width of the powers of the High Court under Section 482 of Cr.P.C and Article 226 of the Constitution is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of the court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal's case (supra). Thus we have to reconcile paragraphs 16 and 23 of the decision inState of Orissa vs. Debendra Nath Padhi (supra). We should also keep in mind that it is well settled that a judgment of the Court has not to be treated as a Euclid formula vide Dr. Rajbir Singh Dalal vs. Chaudhari Devi Lal University, Sirsa & Anr. JT 2008(8) SC 621. As observed by this Court in Bharat Petroleum Corporation Ltd. & Anr. vs. N.R. Vairamani & Anr AIR 2004 SC 4778, observations of Courts are neither to be read as Euclid's formula nor as provisions of the statute. Thus in our opinion while it is true that ordinarily defence material cannot be looked into by the Court while framing of the charge in view of D.N. Padhi's case (supra), there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the Court at the time of framing of the charges or taking cognizance.
18. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the Court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases, i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted. We agree with Shri Lalit that in some very rare cases the Court is justified in looking into the material produced by the defence at the time of framing of the charges, if such material convincingly establishes that the whole prosecution version is totally absurd, preposterous or concocted.
Reportable
Supreme Court of India
Rukmini Narvekar vs Vijay Sataredkar & Ors on 3 October, 2008

Bench: Altamas Kabir, Markandey Katju
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Whether prosecution U/S 498A and S 294 of IPC can be quashed?

 Thus, in our opinion, while it is true that ordinarily defence material cannot be looked into by the court while framing of the charge in view of D.N. Padhi case [(2005) 1 SCC 568 : 2005 SCC (Cri) 415] , there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the court at the time of framing of the charges or taking cognizance. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted.
38. In my view, therefore, there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such materials as are indicated in Section 227 CrPC can be taken into consideration by the learned Magistrate at that stage. However, in a proceeding taken therefrom under Section 482 CrPC the court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. This, in my view, appears to be the intention of the legislature in wording
 Sections 227 and 228 the way in which they have been worded and as explained in Debendra Nath Padhi case (2005) 1 SCC 568 : 2005 SCC (Cri) 415 by the larger Bench therein to which the very same question had been referred."
12. Accordingly, the documents referred to by the applicants with regard to vehicles owned by them can be looked into. Furthermore, the offence under Section 294 of the IPC is not made out as the incident has taken place within the house of the complainant-wife. It appears that the prosecution has been initiated on account of scuffle which has taken place on 8.9.2013. However, in order to drag more offences against the applicants, the allegations with regard to demand of Indica car have been made. Further, the reliance has been placed by learned counsel for respondent No.2 on the judgment of Hon'ble Supreme Court in Taramani Parakh's case (supra), wherein the Court in paragraph 11 has observed that if the allegations are absurd and do not make any case or if it can be held that there is abuse of process then the proceedings can be quashed. However, the Court has been cautioned from entering into the reliability of the evidence and to discuss about the version and counter version.
13. In the considered opinion of this Court, in the case at hand, as discussed above, the allegations are absurd and have been levelled to make the case more grave. Therefore, following the mandate of Hon'ble the Supreme Court, the powers under Section 482 CrPC are exercised for quashing the FIR to the extent it relates to the offences under Section 498-A and 294 of the IPC.
Madhya Pradesh High Court
Kunaldev Singh Rathore @ Kunal Dev ... vs State Of M.P on 2 December, 2016
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Whether Third Party Has Locus Standi To Present Civil Contempt Petition under contempt of court Act?

 It is a settled position in law that the power conferred
on a High Court under Article 215 of the Constitution of India
to punish for contempt of court must be exercised in
accordance with the provisions of the Contempt of Courts
Act, 1971. Therefore, having regard to the provisions of the
Act, petition to initiate action for civil contempt as defined
under Section 2(b) of the Act can be presented only by a
party aggrieved, except where the Court which passed the
order has given liberty to third parties, who are not parties to
the order, to initiate action for contempt of court. We may
state that Section 14 of the Act relates to procedure where - -

contempt is in the face of the Supreme Court or a High Court
and Section 15 of the Act relates to procedure in the case of
a criminal contempt; they are exceptions to the rule of locus
standi relating to civil contempt stated above.
6. The complainant is not a party to the order in his
personal capacity. As the complainant has presented this
petition in his personal capacity and in his personal name and
not as administrator of the Masjid, he cannot be said to be a
‘party aggrieved’. It is relevant to state that, in the order, no
liberty is given to any third party to initiate action for
contempt of court. Hence, the petition as brought is not
maintainable and is accordingly dismissed. This order will not
come in the way of administrator of the Masjid to initiate
action in the matter in accordance with law.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED : 9TH DAY OF NOVEMBER 2016
PRESENT
 MR. JUSTICE H.G.RAMESH
AND
 MR. JUSTICE K.N.PHANEENDRA
CCC No.1149/2016 (CIVIL)

SRI SHAMSHUDDIN Vs SRI HARIS M.Y.
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