Supreme Court of India
Sunita Kumari Kashyap vs State Of Bihar And Anr on 11 April, 2011
Bench: P. Sathasivam, B.S. Chauhan
REPORTABLE
Citation;AIR2011SC1674,2011CriLJ2667,
2011(2)Crimes181(SC),
Thursday 31 December 2015
Landmark Judgment of supreme court on territorial jurisdiction of court in offence U/S 498A of IPC
When prosecution U/S 498A of IPC should not be quashed on ground of territorial jurisdiction of court?
Delhi High Court
Dr.Baljeet Singh vs State Nct Of Delhi & Anr. on 2 May, 2013
Citation:2013VIIIAD(Delhi)471,201(2013)DLT791, III(2013)DMC338Whether there is conflict between Hindu succession Act and Maharashtra rent control Act?
Therefore, there appears to be no conflict in the two
provisions. The HS Act amends and codifies the law relating to
succession amongst Hindus and therefore the overriding effect given to
it by section 4(1)(b) over other law in force immediately before
commencement of the HS Act relating to intestate succession amongst
Hindus, that law ceased to apply insofar as it is inconsistent with any
other provisions contained in the HS Act. The reliance placed on this
clause by Mr. Thakkar is entirely misplaced. Once we understand the
controversy in the above manner, then, we do not see how we can apply
the mandate of Article 254 of the Constitution of India. That Article has
no application.
We have already held that nothing in clause (d) of section
7(15) of the MRC Act interferes with the rule of succession enacted by
the HS Act. That definition of the term 'tenant' has been inserted to
mean any person by whom or on whose account rent is payable for any
premises and includes firstly such person who is a tenant or who is a
deemed tenant or who is a sub tenant as permitted under a contract or
by the permission or consent of the landlord or who has derived title
under a tenant or to whom interest in premises has been assigned or
transferred as permitted by virtue of or under the provisions of any of
the repealed Acts. Secondly, it includes a person who is deemed to be a
tenant under section 25 of the MRC Act or a person to whom interest in
premises has been assigned or transferred as permitted under section 26
of the MRC Act and finally, in relation to any premises when the tenant
dies, whether the death occurred before or after the commencement of
this Act, any member of the tenant's family, who, when the premises are
let for residence, is residing or when the premises are let for education,
business, trade or storage, is using the premises for any such purpose
with the tenant at the time of his death or in the absence of such
member, any heir of the deceased tenant, as may be decided, in the
absence of agreement, by the Court, will step in. If there was any
intention to interfere with the law of succession and the rule laid down
thereunder, the words “any heir of the deceased tenant” would not have
been appearing in the definition at all. We also find that the definition
read in its entirety reveals as to how the tenant means any person by
whom or on whose account rent is payable for any premises and
includes, after the death of the tenant, a member of the tenant's family.
It is not as if only a right is created by this provision in the member of
the family residing with the tenant or carrying on business with him but
there is a duty and obligation while permitting the member of the
family to step in after the tenant's demise and that is to pay rent and
other charges for the premises in terms of the MRC Act and also to
abide by it so far as the matters covered by it. Therefore, we do not
find that there is any substance in the contentions of the learned
Counsel appearing for the Petitioner.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1853 OF 2014
Urmi Deepak Kadia Vs State of Maharashtra
CORAM : S. C. DHARMADHIKARI &
G. S. KULKARNI, JJ.
PRONOUNCED ON : AUGUST 11, 2015
Citation;2015 (6) MHLJ 462 Bom
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provisions. The HS Act amends and codifies the law relating to
succession amongst Hindus and therefore the overriding effect given to
it by section 4(1)(b) over other law in force immediately before
commencement of the HS Act relating to intestate succession amongst
Hindus, that law ceased to apply insofar as it is inconsistent with any
other provisions contained in the HS Act. The reliance placed on this
clause by Mr. Thakkar is entirely misplaced. Once we understand the
controversy in the above manner, then, we do not see how we can apply
the mandate of Article 254 of the Constitution of India. That Article has
no application.
We have already held that nothing in clause (d) of section
7(15) of the MRC Act interferes with the rule of succession enacted by
the HS Act. That definition of the term 'tenant' has been inserted to
mean any person by whom or on whose account rent is payable for any
premises and includes firstly such person who is a tenant or who is a
deemed tenant or who is a sub tenant as permitted under a contract or
by the permission or consent of the landlord or who has derived title
under a tenant or to whom interest in premises has been assigned or
transferred as permitted by virtue of or under the provisions of any of
the repealed Acts. Secondly, it includes a person who is deemed to be a
tenant under section 25 of the MRC Act or a person to whom interest in
premises has been assigned or transferred as permitted under section 26
of the MRC Act and finally, in relation to any premises when the tenant
dies, whether the death occurred before or after the commencement of
this Act, any member of the tenant's family, who, when the premises are
let for residence, is residing or when the premises are let for education,
business, trade or storage, is using the premises for any such purpose
with the tenant at the time of his death or in the absence of such
member, any heir of the deceased tenant, as may be decided, in the
absence of agreement, by the Court, will step in. If there was any
intention to interfere with the law of succession and the rule laid down
thereunder, the words “any heir of the deceased tenant” would not have
been appearing in the definition at all. We also find that the definition
read in its entirety reveals as to how the tenant means any person by
whom or on whose account rent is payable for any premises and
includes, after the death of the tenant, a member of the tenant's family.
It is not as if only a right is created by this provision in the member of
the family residing with the tenant or carrying on business with him but
there is a duty and obligation while permitting the member of the
family to step in after the tenant's demise and that is to pay rent and
other charges for the premises in terms of the MRC Act and also to
abide by it so far as the matters covered by it. Therefore, we do not
find that there is any substance in the contentions of the learned
Counsel appearing for the Petitioner.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1853 OF 2014
Urmi Deepak Kadia Vs State of Maharashtra
CORAM : S. C. DHARMADHIKARI &
G. S. KULKARNI, JJ.
PRONOUNCED ON : AUGUST 11, 2015
Citation;2015 (6) MHLJ 462 Bom
Procedure to be followed by arbitrator in arbitration proceeding
A perusal of the minutes of the meetings held by the learned arbitrator
clearly indicates that the respondent no.1 had not served any statement of claim,
documents or affidavit of evidence upon the petitioners which were filed before
the learned arbitrator. In my view, the directions issued by the learned arbitrator
that the petitioners could obtain copy of statement of claims and supporting
documents from the learned arbitrator only upon filing appearance and not issued
any direction to the respondent no.1 to serve such pleadings and documents upon
the petitioners is the procedure unknown to law and contrary to section 24(3) of
the Arbitration and Conciliation Act, 1996. The entire procedure followed by the
learned arbitrator shows patent illegality and is gross violation of principles of
natural justice. This court in case Rajnikant B.Vora (supra) has held that under
section 24(2) of the Arbitration Act, the learned arbitrator has to give sufficient
advance notice of any hearing and/or any meeting of the arbitral tribunal to the
parties. It is also held that under section 24(3) of the Arbitration Act, all
statements, documents or other information supplied to or applications made to the
arbitral tribunal by one party have to be communicated to the other party.
Similarly any expert report or evidentiary document on which the arbitral tribunal
may rely in making its decision has to be communicated to the parties. This court
has held that if the learned arbitrator has relied upon any such statement of claim,
documents and also the affidavit of evidence which were not served upon the other
party, the award would be contrary to section 24 of the Arbitration Act and would
be in gross violation of principles of natural justice. In my view, the said judgment
of this court squarely applies to the facts of this case. I am respectfully bound by
the said judgment.
In my view, the learned arbitrator could not have relied upon the statement
of claim, documents and evidence filed by the respondent no.1 unless the same
were served upon the petitioners and could not have drawn any inference and/or
conclusion that in the absence of any rebuttal of the evidence led by the respondent
no.1 by the petitioners, the testimony of the respondent no.1 or the document
exhibited by them were deemed to have been proved. The award shows patent
illegality and is in conflict with public policy.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION PETITION NO. 427 OF 2013
Naresh Kanayalal Rajwani
VERSUS
M/s.Citi Financial Consumer Finance
CORAM : R.D. DHANUKA, J.
DATED : 17th AUGUST, 2015
Citation;2015(6) MHLJ444
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clearly indicates that the respondent no.1 had not served any statement of claim,
documents or affidavit of evidence upon the petitioners which were filed before
the learned arbitrator. In my view, the directions issued by the learned arbitrator
that the petitioners could obtain copy of statement of claims and supporting
documents from the learned arbitrator only upon filing appearance and not issued
any direction to the respondent no.1 to serve such pleadings and documents upon
the petitioners is the procedure unknown to law and contrary to section 24(3) of
the Arbitration and Conciliation Act, 1996. The entire procedure followed by the
learned arbitrator shows patent illegality and is gross violation of principles of
natural justice. This court in case Rajnikant B.Vora (supra) has held that under
section 24(2) of the Arbitration Act, the learned arbitrator has to give sufficient
advance notice of any hearing and/or any meeting of the arbitral tribunal to the
parties. It is also held that under section 24(3) of the Arbitration Act, all
statements, documents or other information supplied to or applications made to the
arbitral tribunal by one party have to be communicated to the other party.
Similarly any expert report or evidentiary document on which the arbitral tribunal
may rely in making its decision has to be communicated to the parties. This court
has held that if the learned arbitrator has relied upon any such statement of claim,
documents and also the affidavit of evidence which were not served upon the other
party, the award would be contrary to section 24 of the Arbitration Act and would
be in gross violation of principles of natural justice. In my view, the said judgment
of this court squarely applies to the facts of this case. I am respectfully bound by
the said judgment.
In my view, the learned arbitrator could not have relied upon the statement
of claim, documents and evidence filed by the respondent no.1 unless the same
were served upon the petitioners and could not have drawn any inference and/or
conclusion that in the absence of any rebuttal of the evidence led by the respondent
no.1 by the petitioners, the testimony of the respondent no.1 or the document
exhibited by them were deemed to have been proved. The award shows patent
illegality and is in conflict with public policy.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION PETITION NO. 427 OF 2013
Naresh Kanayalal Rajwani
VERSUS
M/s.Citi Financial Consumer Finance
CORAM : R.D. DHANUKA, J.
DATED : 17th AUGUST, 2015
Citation;2015(6) MHLJ444
Whether mere allegation of fraud will preclude civil court from referring parties to arbitration?
allegations are relating to nonpayment of the balance
consideration by defendants 1 to 3. It is not in dispute that total
consideration agreed between the parties as 42 Lakhs and that
the plaintiffs have received Rs. 28,55,200/- (almost 2/3rd). The
plaintiffs have not paid remaining consideration of
Rs.13,44,800/-. Thus, the main grievance of the plaintiffs is
breach of contract. The other grievance is that the defendants
have allegedly purchased the suit property at throwaway price.
Perusal of the entire plaint shows that the subject matter of the
dispute has imminently civil profile as held by the Division Bench
in the case of Avitel Post Studioz Ltd. In my opinion, having
regard to the nature of the allegations of fraud made by the
plaintiffs in the suit, it does not involve serious charges
requiring parties to lead heavy documentary and oral evidence.
Applying the tests laid down in the above Judgments as also in
the light of the decisions of the Apex Court in the case of P.
Anand Gajapathi Raju (supra), in my opinion, the learned trial
Judge committed serious error in dismissing the application
without examining the allegations of fraud made in the Plaint.
The impugned order, therefore, cannot be sustained and
deserves to be set aside. Hence, Civil Revision Application is
allowed. The impugned order is set aside and the application at
Exh.19 is allowed. The suit is disposed of and the matter is
referred to arbitration in terms of clause 29 of the Agreement of
Sale dated 12.11.2010.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9598 OF 2014
M/s VBHC, Mumbai Value Homes
Pvt Ltd
Vs
Shri Laxman Bhoir and Ors .. Respondents
CORAM : R.G.KETKAR,J.
PRONOUNCED ON: 03/07/2015
Citation; 2015 (6) MHLJ 385
Whether notice of eviction served on one legal heir of deceased tenant is binding on other legal heirs of deceased tenant?
upon death of tenant, the legal representatives become
joint tenants and not the tenants in common. The
tenancy right is indivisible. Therefore, it is an
established principle of law that the notice of eviction
served on one of the joint tenants is binding on all the
joint tenants. Then if by notice of determination of
tenancy, issued to one of the joint tenants, all the
joint tenants would become trespassers in case the
suit premises are not vacated, naturally the suit
against some of the joint tenants would also bind the
remaining joint tenants.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 112 OF 2012
Rameshchandra Daulal Soni,
VERSUS
Devichand Hiralal Gandhi,
CORAM : M.T. JOSHI, J.
DATED : 20th JULY, 2015
Citation;2015(6) MHLJ 309 Bom
Whether directors are vicariously liable for prosecution for offences under IPC committed by company?
For academic interest, it may be pointed out that the three-Judge Bench, in SMS Pharmaceuticals Ltd. (supra), has held that the managing director or joint-managing director, who is, admittedly, in charge of, and responsible to, the company for the conduct of the business of the company, would, by virtue of his office, be treated as the person, who is in charge of, and responsible to, the company for the conduct of the business of the company. In such circumstances, his prosecution, under Section 141 , N. I. Act, is possible unless they can be shown that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence. The indian Penal Code does not, however, make any such provisions as regards vicarious liability of the functionaries of a corporate body; hence, the decision, rendered in SMS Pharmaceuticals Ltd. (supra), is wholly inapplicable to the facts of the present case.
Criminal - Quashing of Proceeding - Section 420 and 409 of Indian Penal Code, 1860 (IPC) - Present petition filed for quashing of proceeding of under Section 420 and 409 of Indian Penal Code, 1860 (IPC) - Held, it was clear that simply because of fact that person had been functioning as director, manager or secretary of company, he could not be made vicariously liable for act done by company for it would depend upon role, which such man was assigned by company - Vicarious liability which was sought to be extended to company officers, would not arise until time statute provides therefore - Court point out that concept of vicarious liability in respect of offences punishable under Sections 406 and 420 of IPC had not even been conceived of
Equivalent Citation: 2010CriLJ4591, (2011)6GLR604, 2009(4)GLT741
IN THE HIGH COURT OF GAUHATI
Criminal Petition No. 274 of 2008
Decided On: 03.09.2009
Appellants: The Mahindra and Mahindra Financial Services Ltd. and Anr.
Vs.
Respondent: Delta Classic Pvt. Ltd.
Vs.
Respondent: Delta Classic Pvt. Ltd.
Hon'ble Judges/Coram:
I.A. Ansari, J.
I.A. Ansari, J.
When sanction for prosecution is not required for prosecution of public servant?
The real question therefore is whether the acts complained of in the present case were directly concerned with the official duties of the three public servants. As far as the offence of criminal conspiracy punishable under Section 120-B, read with Section 409 of the Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act, are concerned they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar."
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Supreme Court of India
Raghunath Anant Govilkar vs State Of Maharashtra And Ors on 8 February, 2008
Bench: Dr. Arijit Pasayat, D.K. Jain
Citation;2008CriLJ2054,(2008)11SCC289,
Whether a person can be held guilty for misappropriation if he is acting in accordance with order passed by high court?
On this factual backdrop it is really difficult to see as to how the two accused persons who were the officers of the Reserve Bank and were acting under the orders of the High Court could be said to have committed an offence under Section 406 of the Indian Penal Code. This was a very tricky situation in which the Reserve Bank and more particularly, the accused persons who were the officers thereof were caught in without there being any role on their part. These officers have nothing to do with the marital discord between the complainant and his wife. They had also nothing to do with the liability of the complainant to pay maintenance to his wife. The Reserve Bank seems to have been dragged in on account of the order passed by the High Court, initially attached the salary which was also later on clarified by the High Court by the subsequent order that it was not an attachment, however, all the same the High Court directed the Reserve Bank to send the maintenance amount by money order. This order continued. It has come on record that the dispute between the complainant and his wife ultimately came to an end by the final judgment passed in F.A. No. 43 of 2002 on 14th February, 2003, wherein the liability of the petitioner was found at Rs. 3000/- per month by way of permanent alimony. It is to be remembered that this was precisely the amount by way of maintenance pendente lite under Section 24 of the Hindu Marriage Act by the order dated 4th September, 2001, passed by the Division Bench seems to have been continued in the final judgment. If this was so and if there was again an order passed by the Division Bench on 18th June, 2004 in the very same F. A. No. 43 of 2002 which already stood disposed of by the final judgment dated 14th February, 2003 directing the Reserve Bank to make the payment of Rs. 3000/-per month from the salary of the complainant, it was very natural on the part of the Reserve Bank and more particularly the accused persons who were its officers to expect a further order from the High Court to be able to stop the payment. They were after all acting under the orders of the High Court and they were quite justified in feeling bound by the direction given in the last order dated 18th June, 2004.
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Calcutta High Court
Arun Kumar Mohanti vs Probhat Kumar Chakravorty on 5 April, 2005
Equivalent citations: (2005) 3 CALLT 154 HC, 2005 (2) CHN 561, II (2005) DMC 203
Bench: V Sirpurkar
Whether class four employee can be held guilty for misappropriation of money if he can not be handed over money as per rules?
Lastly, the learned Counsel for the revisionist contended that the revisionist was a class IV employee and the money would not have been entrusted to the revisionist. It was further pointed out that the special instructions have been given by the District Co-operative Bank, Uttarkashi that the money of the bank shall not be sent through the class IV employees. The learned A.G.A. refuted the contention and contended that even if there are administrative instructions in this regard, but if any contamination is made by the employees, they may be liable for the negligence. The revisionist cannot be acquitted on this score alone.
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Uttaranchal High Court
Umed Chand Ramola vs State Of Uttaranchal on 25 July, 2005
Equivalent citations: 2006 CriLJ 951
Bench: J Rawat
Whether a person can be held guilty for misappropriation when property is not entrusted to him?
Paras Ram (P.W. 2), who had initially chalked out the damage report on 28-12-1990 has only given oral version to the effect that the case property was handed over to the respondent on spuardarinama but he nowhere has stated that any spuardarinama was ever executed to that effect. Unless or until entrustment of the case property or dominion over it is proved, no case can be said to have been made out against the respondent. Damage report Book Ex. P.W. 4/B did not contain Damage Report No. 35 dated 28-12-1990 which is alleged to have contained the spuardarinama.
Therefore, in these circumstances, in my considered opinion the respondent was rightly acquitted by the trial Court. As such, the judgment of acquittal passed by the trial Court cannot be said to be perverse.
Himachal Pradesh High Court
State Of H.P. vs Mast Ram on 4 July, 2007
Equivalent citations: 2007 CriLJ 4381
Bench: S Singh
Wednesday 30 December 2015
When power of attorney holder can be prosecuted for offence U/S 409 or S 420 of IPC?
Admittedly, in this case the accused/petitioner was the power of Attorney Holder of the firm/Kirti Electricals, of which his brother is said to be the proprietor. The petitioner submitted the quotation on behalf of firm for supply of Generator set. Entire quotation amount of Rs. 2,60,000/- was handed over to the accused-petitioner by way of Bank Draft and he received the Bank Draft on behalf of the firm being its power of attorney holder. He himself deposited the amount in the Bank account of the firm which was being operated by him and also withdrew the entire amount, thereafter closed the Bank account. The Generator set, which was supplied, was defective and delivered in broken condition and immediately thereafter when the defective condition of the Generator was brought to the notice, the same was taken back by the supplier. But in spite of repeated requests the petitioner did not take any step for supply of new Generator set by way of replacement of the broken/defective Generator set nor returned back the amount received by him. As such, the petitioner having got himself fully involved in the matter may be as a power of attorney holder, cannot get himself absolved of both his civil as well as criminal liability.
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Orissa High Court
Jayendra C. Shah @ Jayendra Ch. ... vs State Of Orissa on 9 November, 2005
Equivalent citations: 2006 CriLJ 847, 2005 II OLR 737,CLT(2006)Supp.Crl.16
Bench: N Prusty
Whether court can try girlfriend of husband for offence U/S 498A of IPC along with husband?
By no stretch of imagination a girl friend or even a concubine in an etymological sense would be a `relative'. The word `relative' brings within its purview a status. Such a status must be conferred either by blood or marriage or adoption. If no marriage has taken place, the question of one being relative of another would not arise.
We may notice that the Andhra Pradesh High Court in Rajeti Laxmi v. State of Andhra Pradesh, [ 1 (2007) DMC 797 ], held as under :-
"4. The entire reading of the charge-sheet and the statements of L.Ws. 1 to 7, goes to show that it is nobody's case of the accused or the prosecution that A-6 is the relative of husband of L.W. 1. She is only concubine of A-1 and having illicit intimacy with him. Therefore, in the absence of any averment in the charge-sheet or any statement that she is a relative of A1, I am of the opinion that the offence under Section 498A,IPC do not attract to A-6. Even as per the dictionary meaning "relative" means a person connected by blood or marriage or `a species' related to another by common origin". Simply because A-6 is having illicit intimacy with A-1, it cannot be said that she is a relative of A-1. Accordingly, the Criminal Petition is allowed quashing the proceedings in C.C. No.233 of 2004 for the offence under Section 498-A, IPC, against the petitioner,A-6. Insofar as the other offences are concerned, it may go on."
A learned Single Judge of the Bombay High Court, Bench at Aurangabad, in Swapnaja v. State of Maharashtra and another, [ Criminal Application No.388 of 2008 decided on 21.4.2008 ], opined :-
"....Even assuming that due to her extramarital relation with husband of the respondent No.2, she is being ill-treated or subjected to harassment by her husband and his relatives, then also it is difficult to say that the applicant is accountable to answer the charge for offence punishable under Section 498-A of the I.P.C. For, she is not related to husband of the respondent No.2 nor can be regarded as the person, who can fall within explanation (a) or (b) of Section 498-A of the I.P.C."
To the similar effect is the law laid down by the same High Court in Ranjana Gopalrao Thorat v. State of Maharasthra,
[ 2007 CRI.L.J. 3866 ].
REPORTABLE
REPORTABLE
Supreme Court of India
U.Suvetha vs State By Insp.Of Police & Anr on 6 May, 2009
Bench: S.B. Sinha, R.M. Lodha
Citation;2009CriLJ2974, (2009)6SCC757,
Citation;2009CriLJ2974, (2009)6SCC757,
Whether wife from second marriage can be treated as relative for purposes of S 498A of IPC?
The Hon‟ble Supreme Court has taken a view that the Court should liberally consider the word or expression relating to the person committing the offence so as to rope in not only those persons of faulty marriages but also any one who has undergone some or other forms of marriage and thereby assumed for himself the position of husband.
On the analysis of the aforesaid judgment, it is completely clear that it cannot be brushed aside the status of a woman arising from 2nd marriage as a wife when the husband, relative or society considered and recognized the 2nd wife as a wife. If that be the situation it cannot be said that the 2nd wives are excluded from the purview of Section 498A of the Indian Penal Code. So the proposition advanced by the petitioners that 19 Patna High Court Cr.Misc. No.17039 of 2011 P19 / 25 the petitioner no.3 who has entered into a marriage with Rakesh Kumar Singh and petitioner Nos. 2 and 3 cannot be treated as a relative for the purpose of Section 498A of the Indian Penal Code of Rakesh Kumar Singh is not acceptable and, as such, this argument of the petitioners is rejected.
Patna High Court - Orders
Asha Devi & Ors. vs The State Of Bihar & Anr. on 24 July, 2012
Citation: 2012(3)Crimes356, II(2013)DMC230, 2012(4)PLJR942
When prosecution for offence U/S 498A and S 406 of IPC can be quashed against parents in law?
In order to lodge a proper compliant, mere mention of the sections and the language of those sections is not be all and end of the matter. What is required to be brought to the notice of the court is the particulars of the offence committed by each and every accused and the role played by each and every accused in committing of that offence. When we see the complaint, the complaint is sadly vague. It does not show as to which accused has committed what offence and what is the exact role played by these appellants in the commission of offence. There could be said something against Rajesh, as the allegations are made against him more precisely but he is no more and has already expired. Under such circumstances, it would be an abuse of process of law to allow the prosecution to continue against the aged parents of Rajesh, the present appellants herein on the basis of vague and general complaint which is silent about the precise acts of the appellants.
The High Court has merely mentioned that the allegation in the complaint are of retaining jewellery articles in possession of the husband and the petitioners. Now if the articles were in the possession of the husband, there is no question of the present appellants being in possession of the jewellery. This is apart from the fact that it has already been expressed by us that there is no mention of the date on which the said ornaments, if any, were entrusted to the appellants or even the date when they were demanded back and were refused to be given back by the appellants or any one of them. Insofar as the offence under Section 498A IPC is concerned, we do not find any material or allegation worth the name against the present appellants. All the allegations appear to be against the Rajesh.
Supreme Court of India
Neelu Chopra & Anr vs Bharti on 7 October, 2009
Bench: V.S. Sirpurkar, Deepak Verma
REPORTABLE
Citation: 2010CriLJ448, (2009)10SCC184,
When prosecution for offence U/S 498A and S 406 of IPC should not be quashed?
"Court shall not allow quashing of proceeding against accused if charges is proved at prima facie stage."
Kolkata High Court (Appellete Side)
Rupa Agarwal & Anr vs The State Of West Bengal on 23 March, 2011
Precaution to be taken by Magistrate while summoning of additional accused as per S 319 of crpc in case of misappropriation of streedhan
What should be the ambit and scope of the provisions of Section 319 of the Code came to be discussed in case Lajpat Rai v. State of Haryana, 2002 (1) RCR 280, wherein in para 2 it was stated as under ;
"12. The above provisions leave no manner of doubt that the pre-requisite for invoking the provisions of Section 319 of the Code is that evidence should disclose the commission of offence by the person who had not been arraigned as an accused for which he should be tried together with other accused. The key to the satisfaction of such a requirement is contained in the words "it appears from the evidence that any person not being an accused has committed an offence". The manifest significance of the word "appears" employed in this section by the Legislature is to cover both the stages envisaged under the provisions of Section 319 of the Code in relation to the person who had not been earlier facing trial as an accused but such person must appear to have committed the offence so that he be tried together with other accused. Though these provisions had vested a discretionary power in the Court but it being a judicial discretion has to be exercised in such a manner which would advance the cause of criminal justice. The Court is duty bound to see that these provisions are not used as a handle by a witness to bring another person in the area of trial without any acceptable basis brought forth in his statement. The Court will definitely come to the rescue of the complainant where on the basis of evidence brought on record, it is clearly made out that the other person named by him had not been sent up to face trial along with other accused unfairly by the prosecution though the other person named on record was also responsible for commission of crime. That being so, it is the paramount duty of the Court that the left over person should be made to face the trial along with other accused so that cause of justice could not be allowed to suffer at the hands of the investigating agency. Therefore, the Court has to be extra cautious while exercising the discretion vested in it and apply the test that prima facie there is sufficient evidence to warrant conviction of the person to be summoned to face trial along with other co-accused."
9. In para 15 of that very judgment, the factors which needed to be looked into for invoking the provision of Section 319 were highlighted and the same are as follows :
(i) the doubt about the involvement of the other accused has no place;
(ii) discretionary power so vested in Cr.P.C. under these provisions should be exercised to advance the cause of criminal justice;
(iii) there is compelling duty on the Court to proceed against other accused;
(iv) the power vested in this section is an extraordinary power which should be used very sparingly."
Punjab-Haryana High Court
Dr. Sant Singh vs State Of Punjab on 27 April, 2002
Equivalent citations: II (2003) DMC 232
Bench: R Kathuria
What will be period of limitation for offenceU/ S 406 of IPC for misappropriation of streedhan?
No doubt, non-applicant daughter-in-law was turned out from the marital home in 1973 and accordingly, a report was lodged on 5-12-1973 and also on 17-12-1973 and demands after demands were also made for return of Stridhan but no heed was paid and ultimately on 2-11-1987, a registered notice with acknowledgement was also sent. Therefore, when the demand is made and the notice is served, from that date a fresh period of limitation shall begin to run and this will be a continuing offence and the provisions of Section 472, Cr. P.C. would be attracted which read as under :
"In the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues."
In Bhagirath Kanoriya v. State of M.P., AIR 1984 SC 1688, where the accused persons were charge-sheeted for non-payment of employer's contribution towards provident fund before the due date, it has been held that the offence being a continuing offence, the period of limitation prescribed by Section 468, Cr. P.C. cannot have any application and under the circumstances, provisions of Section 472, Cr. P.C. will be attracted giving fresh period of limitation to run at every moment of the time during which the offence continues. In the instant case, whenever the demand is made, the period of limitation will be computed from that date. The last notice was served on 2-11-1987 and the complaint was filed on 12-1-1988 i.e. within three months from the date of notice. Therefore, the complaint is not barred by limitation. Besides this, provisions ofSection 473, Cr. P.C. are emphatic giving jurisdiction to the Court for extending the period of limitation in certain cases and where the trial Court is satisfied that the delay has been satisfactorily explained or that it is necessary to do so in the interest of justice, the trial Magistrate may take cognizance of an offence even after expiry of the period of limitation prescribed UnderSection 468, Cr. P.C. (hereinafter referred to as the Code). However, the facts of the instant case do not fall within the ambit of Section 473, Code but certainly fall within the ambit of Section 472of the Code being a continuous offence, as discussed above; and the submission made by the learned counsel in this regard is rejected being without any force.
Madhya Pradesh High Court
Bairo Prasad And Anr. vs Smt. Laxmibai Pateria on 27 February, 1991
Equivalent citations: 1991 CriLJ 2535
Bench: B Lal
Whether Magistrate can issue process against accused even though no list of witnesses is filed?
The provisions of Sub-section (2) of Section 204 of the Code are mandatory in the sense, a process issued before filing the list of witnesses would be invalid. This sub-section is coached in a negative language and it goes to the power of the Magistrate to issue summons or warrants, as the case may be. Having regard to the wordings of Sub-section (2) of Section 204 of the Code, it is clear that the filing of the list of prosecution witnesses is essential unless the complainant is the only witness in the case and that alongwith summons or warrant issued under Sub-section (1) ofSection 200 of the Code, a copy of the complaint ought to be sent to the accused. It is, therefore, not competent for a Magistrate to issue process without complying with these mandatory provisions (See Chaturbhuj v. Nahar Khan AIR 1958 MP 28 : (1958 Cri LJ 50) : However, if the requirements of the offence alleged Under Section 406, I.P.C. satisfied (Sic) the Court by the statement of the complainant itself, being the only witness, the trial Court may, in the circumstances of the case, issue process against the accused persons even without furnishing any list of witnesses.
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Madhya Pradesh High Court
Bairo Prasad And Anr. vs Smt. Laxmibai Pateria on 27 February, 1991
Equivalent citations: 1991 CriLJ 2535
Bench: B Lal
Whether vicarious liability can be imposed upon any person for acts of other person for offence of criminal breach of trust U/S 406 of IPC?
The learned counsel for the petitioners has rightly argued that in the absence of any clear, specific and unambiguous allegations either concerning entrustment of articles of dowry (constituting Istri Dhan) at the time of the marriage, to a particular accused, or, at a later stage, in the absence of specific allegations either that the accused refused to return Istri Dhan or articles of dowry entrusted to any individual accused or that the same were, dishonestly and mala fide retained by that particular accused, in order to cause wrongful gain to him and wrongful loss to the complainant, no prima facie case for commission of any offence punishable under Section 406, I.P.C. would be made out against that particular accused.
Mere general allegations in the complaint either concerning entrustment of articles of dowry constituting istridhan to all the accused, or, their refusal to return such articles of dowry to the complainant wife at a later stage, would not per se be sufficient to make out a prima facie case for commission of offence punishable under Section 405 or 406, I.P.C. against any particular accused. In the absence of clear, specific and unambiguous allegations concerning entrustment of specific articles of dowry to any particular accused and in the absence of further allegations against him that he had dishonestly or with mala fide intention retained the same and had refused to return those articles to the wife for whose exclusive use such articles were allegedly entrusted to him, no prima facie case for commission of such offence would be made out against that particular accused. Normally, in the cases relating to commission of offence of criminal breach of trust punishable under Section 406 of the Indian Penal Code, a particular accused can prima facie be said to be responsible only for his individual acts and cannot be fastened with joint or vicarious liability.
Punjab-Haryana High Court
Dr. Vinod Kumar Goyal And Ors. vs Union Territory And Ors. on 14 December, 1990
Equivalent citations: 1990 CriLJ 2333
Bench: S Grewal
When directors of company should not be held vicariously liable for offence committed by company under S 406 of IPC?
As, admittedly, drafts were drawn in the name of the Company, even if the Appellant was its Managing Director, he cannot be said to have committed an offence Under Section 406 of the Penal Code. If and when a statute contemplates creation of such a legal fiction, it provides specifically therefore. In absence of any provision laid down under the statute, a Director of a Company or an employee cannot be held to be vicariously liable for any offence committed by the Company itself.
Equivalent Citation: 2014(4)RCR(Criminal)908
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 2090 of 2014 (Arising out of SLP (Crl.) No. 3099 of 2013)
Decided On: 22.09.2014
Uday Shankar Rao Vs. Amarendera Kumar Dutta
Hon'ble Judges/Coram:T.S. Thakur and R. Banumathi, JJ.
Whether offence of criminal misappropriation of property is made out when property is not entrusted to accused?
The learned Advocate-General appearing for the State Government saw the difficulty in the way of establishing that there was any entrustment with the accused in respect of the sum of Rs. 23,100 paid to him by P. W. 1. He tried to get round this difficulty by saying that it could be held on the facts of this case that the entrustment with the accused was in respect of the goods of the mills and the criminal breach of trust consisted in disposing of the goods contrary to the directions of the court and misappropriating the sale proceeds. It is not necessary to enter into the merits of this argument for the simple reason that this was not the charge upon which the accused was tried.
The subject of criminal breach of trust, as stated in the charge, was a sum of Rs. 23,100 and the definite allegation against the accused was that he and his co-receiver functioning as public servants neither remitted this amount to the credit of the company, nor brought it to the company's accounts, but dishonestly misappropriated the same with the intention of causing illegal loss to the company and illegal gain to themselves. No doubt the charge, which we have set out in the beginning, refers to the two accused having custody of the company's goods, but the charge nowhere indicates that the offence consisted in wrongful use or disposal of these goods in violation or any direction of law, and it was not stated also what these directions of law were.
Supreme Court of India
Chelloor Mankkal Narayan ... vs State Of Travancore-Cochin on 10 November, 1952
Bench: M. Patanjali Cji, B. K. Mukherjea, S. R. Das, V. Bose, G. Hassan
Citation: AIR1953SC478, 1953()KLT173(SC),1954 CRLJ102
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