Tuesday, 30 November 2021

Whether court can impose an imprisonment for more than one month U/S 125(3) of CRPC?

The question which arises for determination before this

Court is as to whether a Court can in exercise of its powers under Section 125(3) Cr.P.C. impose composite civil imprisonment in case of default in payment of maintenance arrears/allowances, for a period of more than one month, in a single stroke.

The relevant provisions of Section 125(3) Cr.P.C. are

extracted as under:-

“125(3). If any person so ordered fails without

sufficient cause to comply with the order, any such

Magistrate may, for every breach of the order, issue a

warrant for levying the amount due in the manner

provided for levying fines, and may sentence such person,

for the whole or any part of each month' s allowances

remaining unpaid after the execution of the warrant, to

imprisonment for a term which may extend to one month

or until payment if sooner made: Provided that no warrant

shall be issued for the recovery of any amount due under

this section unless application be made to the Court to levy

such amount within a period of one year from the date on

which it became due: Provided further that if such person

offers to maintain his wife on condition of her living with

him, and she refuses to live with him, such Magistrate may

consider any grounds of refusal stated by her, and may

make an order under this section notwithstanding such

offer, if he is satisfied that there is just ground for so

doing.

Explanation.- If a husband has contracted marriage with

another woman or keeps a mistress, it shall be considered

to be just ground for his wife' s refusal to live with him.”

A perusal of the aforementioned leaves no manner of doubt

that for breach of payment of maintenance for each month, the Court can impose a maximum sentence of one month only, unless of course, if the payment of the arrears is made sooner. In Shahada Khatoon's case (Supra), the Supreme Court while dealing with a similar question held in no uncertain terms that the powers of the Magistrate are restricted and no sentence exceeding the maximum i.e. one month, can be imposed for default, and if at all the default persists even after the

expiry of one month the only remedy available to the aggrieved party would be to approach the Magistrate concerned again after the expiry of one month for enforcing her claim of maintenance for sending the delinquent husband to civil imprisonment. Therefore, what flows from Shahada Khatoon's case (supra) is that the defaulter can under no circumstances be ordered to undergo composite civil imprisonment for a period beyond one month irrespective of the fact that the arrears etc.

claimed in a single application by the aggrieved party may be for more than one month.

 IN THE HIGH COURT OF PUNJAB & HARYANA

AT CHANDIGARH


CRR-1218-2021 (O&M)

Date of decision: 12.11.2021

Bal Raj  Vs Priya 

CORAM: MRS. JUSTICE MANJARI NEHRU KAUL


Print Page

Whether Civil Court Can Declare Orders Passed Under Urban Land Ceiling Act As Illegal Or Non Est?

 The Urban Land (Ceiling and Regulation) Act, 1976 is a self-contained Code. Various provisions of the Act make it clear that if any orders are passed by the competent authority, there is provision for appeal, revision before the designated appellate and revisional authorities. In view of such remedies available for aggrieved parties, the jurisdiction of the civil courts to try suit relating to land which is subject-matter of ceiling proceedings, stands excluded by implication. Civil court cannot declare, orders passed by the authorities under the ULC Act, as illegal or non est. More so, when such orders have become final, no declaration could have been granted by the civil court. In this regard reference may be made to the judgment of this Court in the case of Competent Authority, Calcutta, under the Urban Land (Ceiling and Regulation) Act, 1976, (2020) 12 SCC 542. We are totally in agreement with the aforesaid view taken by this Court. {Para 14}

15. In this case, it is clear from the orders passed by the competent authorities, that the original declarant was holding excess land to the extent of 16000.32 square meters. When the orders passed by the competent authority and consequential notifications issued under Section 10(1) and 10(3) of the ULC Act have become final, it was not open for the respondent to file a suit seeking declaration, as prayed for. As we are of the view that jurisdiction of the civil courts is barred by necessary implication, trial court fell in error in entertaining the suit, as filed by the respondent and even the first appellate court and second appellate court have not considered the various grounds raised by the appellant in proper perspective.

Jurisdiction of civil courts to try suit relating to land which is subject matter of ceiling proceedings stands excluded by implication.

                          Supreme Court

JUSTICE R. SUBHASH REDDY JUSTICE HRISHIKESH ROY

State of M.P. Vs. Ghisilal

CIVIL APPEAL NO.2153 OF 2012

22nd November 2021

Author: R.SUBHASH REDDY, J.

Citation: 2021 ALL SCR (ONLINE) 677

Print Page

Is it possible to frame a charge against accused for abetment of suicide and in the alternative for committing murder?

   Here in this case, learned Judge has framed the charge under Section 302 of IPC and in alternative under Section 306. Insofar as alternative charge under Section 306 is concerned; it may be stated that offence under Section 302 and Section 306 are distinct. Its ingredients are altogether different. The framing of charge under Section 302, and in alternative under Section 306 is not permissible inasmuch as when there is doubt as to facts, Section 221 of Cr.P.C. has no application. In the case of Prasoon Gupta and Ors. Vs. The State of U.P. 2010 SCC OnLine All 1887; the Hon’ble Apex Court has held that the question framing of charge in alternative can arise, when there is no doubt about the facts, which can be proved but doubt is as to what offence will be constituted on those facts. It is not permissible in law, to frame a charge for accused having abetted the suicide and a charge in alternative of murder, as it shows doubt as to facts. The offence under Sections 306 and 302 are diametrically opposed to each other. The ingredients of two Sections are different, the framing of the charge in alternative charge under Section 302 as directed, is likely to prejudice the accused Applicants. {Para 7}




12. Undoubtedly, in view of the judgment of the Hon’ble Apex Court in the case of Prasoon Gupta (supra) and in consideration of the facts of the case, the learned Additional Sessions Judge could not have frame the charge under Section 302 and alternative the charge under Section 306 of IPC. Thus, the order to the extent framing the charge alternatively under Section 306 of IPC against the accused No. 1 and 2 is quashed and set aside. Only to this extent, the application is allowed. Needless to say that Prosecution shall proceed to try the Applicants for the offences punishable under Section 302 of IPC.

Bombay High Court

JUSTICE SANDEEP K. SHINDE

Sabirabano Yusuf Sayyad & Anr. Vs. The State of Maharashtra

Criminal Application (APL) No. 125 / 2020

24th November 2021

Citation: 2021 NearLaw (BombayHC) Online 2189

Print Page

Can a civil court entertain a suit if the plaintiff is pleading fraud without material particulars if it is barred as per S 34 of the SARFAESI Act?

 Having considered the pleadings and averments in the suit more particularly the use of word ‘fraud’ even considering the case on behalf of the plaintiff, we find that the allegations of ‘fraud’ are made without any particulars and only with a view to get out of the bar under Section 34 of the SARFAESI Act and by such a clever drafting the plaintiff intends to bring the suit maintainable despite the bar under Section 34 of the SARFAESI Act, which is not permissible at all and which cannot be approved.{ Para 8}

Supreme Court

JUSTICE M. R. SHAH JUSTICE SANJIV KHANNA

Electrosteel Castings Limited Vs. UV Asset Reconstruction Company Limited & Ors.

CIVIL APPEAL NO.6669 OF 2021

26th November 2021

Author: M. R. Shah, J.

Citation: 2021 ALL SCR (ONLINE) 697

Print Page