Leading Judgment on basic concept of panchnama

These provisions demonstrate that a search and seizure under the said Act has to be carried out in the presence of at least two respectable inhabitants of the locality where the search and seizure is conducted. These respectable inhabitants are witnesses to the search and seizure and are known as "panchas". The documentation of what they witness is known as the panchnama. The word 'nama', refers to a written document. Its type is usually determined by the word which is combined with it as a suffix. Examples being, nikah-nama (the written muslim marriage contract), hiba-nama (gift deed, the word hiba meaning - gift), wasiyat-nama (written will) and so on. So a panchnama is a written record of what the panch has witnessed. In Mohan Lal v. Emperor MANU/MH/0124/1940 : AIR 1941 Bom 149, it was observed that "[the panchnama is merely a record of what a panch sees...." Similarly, the Gujarat High Court in the case of Valibhai Omarji v. The State MANU/GJ/0067/1963 : AIR1963Guj145 noted that "[a] Panchanama is essentially a document recording certain things which occur in the presence of Panchas and which are seen and heard by them." Again in The State of Maharashtra v. Kacharadas D. Bhalgar MANU/MH/0222/1978 : (1978)80BOMLR396 , a panchnama was stated to be "a memorandum of what happens in the presence of the panchas as seen by them and of what they hear".

16. We have examined the meaning of the word panchnama in some detail because it is used in Explanation 2(a) to Section 158BE of the said Act although it has not been defined in the Act. A panchnama, as we have seen is nothing but a document recording what has happened in the presence of the witnesses (panchas). A panchnama may document the search proceedings, with or without any seizure. A panchnama may also document the return of the seized articles or the removal of seals. But, the panchnama that is mentioned in Explanation 2(a) to Section 158BE is a panchnama which documents the conclusion of a search. Clearly, if a panchnama does not, from the facts recorded therein, reveal that a search was at all carried out on the day to which it relates, then it would not be a panchnama relating to a search and, consequently, it would not be a panchnama of the type which finds mention in the said Explanation 2(a) to Section 158BE.

IN THE HIGH COURT OF DELHI

ITA 1198/2008

Decided On: 12.11.2008

Commissioner of Income Tax

Vs.

 Shri S.K. Katyal

Hon'ble Judges/Coram:

Badar Durrez Ahmed and Rajiv Shakdher, JJ.

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Whether seizure of blood stained clothes of accused three days after incident can be relied on?

 So far  as  the alleged  recovery  of clothes of the app/acc.no.1
and  app/acc.no.2  is concerned, the prosecution relied upon the testimony of
PW  7 Inosh Pande.  According to PW  7,   on 13.8.2011  the police called him
to the Police Station.     The bloodstained clothes   of the app/acc.no.1 Sumit
from his  person  were seized in his presence.  The clothes were  black  shirt
(P­11)     and   black     jeans   pant     (P­12).   The   police   prepared   the     seizure
Panchnama  (Exh.  157). According to PW 7  on the same day, the police  took
charge of the clothes of app/acc.no.2  Amar Lohkare.  PW 7   however failed to
recollect those clothes.  The police prepared  the seizure   panchnama (Exh.
158). 
23. On   careful     scrutiny   of the testimony fo PW   7     and the
panchnamas, it   did not   appeal to our mind that the bloodstained clothes
were   taken   charge   three   days     after   the   incident   from   the   person   of
app/acc.nos.1 and 2  and  the  accused persons  were wandering in the town
with those alleged bloodstained clothes. The alleged  recovery of the clothes

does not appear to be convincing   and   appears to be doubtful. Thus, no
reliance  can be placed on the recovery of clothes of  app/accd.Nos.1 and 2.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 BENCH AT NAGPUR, NAGPUR.

CRIMINAL APPEAL NO. 521/2014


Amar  s/o Ramesh  Lohkare
v 
The State of Maharashtra


 CORAM :    B.R. GAVAI &
    Mrs. SWAPNA  JOSHI,JJ.
DATED :       4th May, 2016
Citation: 2017 CRLJ(NOC)33 Bom

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Whether registration of FIR can be challenged on ground of prior receipt of information relating to unnatural death?

Learned senior counsel for the appellants submitted that
the earlier or the first information in regard to the commission
of a cognizable offence satisfies the requirement of Section 154
of the Code and there cannot be second FIR or fresh
investigation of any subsequent information in respect of the
same cognizable offence. Learned senior counsel further
stressed upon that when the police had conducted inquiry on

the information and closed the case there is no point in
re-opening the case by filing FIR that too on the basis of
anonymous letters received by the brother of the deceased
after a lapse of 5 (five) years. In view of the above claim of
learned senior counsel for the appellants, it is imperative to
discuss the scope of ‘Inquiry’ under Section 174 of the Code in
order to ascertain as to whether the ‘information’ received
under Section 174 of the Code satisfies the requirement of
Section 154 of the Code.
Scope of ‘Inquiry’ under Section 174 of the Code:
10) The proceedings under Section 174 have a very limited
scope. The object of the proceedings is merely to ascertain
whether a person has died under suspicious circumstances or
an unnatural death and if so what is the apparent cause of the
death. The question regarding the details as to how the
deceased was assaulted or who assaulted him or under what
circumstances he was assaulted is foreign to the ambit and
scope of the proceedings under Section 174 of the Code.
Neither in practice nor in law was it necessary for the police to
mention those details in the inquest report. It is, therefore,

not necessary to enter all the details of the overt acts in the
inquest report. The procedure under Section 174 is for the
purpose of discovering the cause of death, and the evidence
taken was very short. When the body cannot be found or has
been buried, there can be no investigation under Section 174.
This section is intended to apply to cases in which an inquest
is necessary. The proceedings under this Section should be
kept more distinct from the proceedings taken on the
complaint. Whereas the starting point of the powers of police
was changed from the power of the officer in charge of a police
station to investigate into a cognizable offence without the
order of a Magistrate, to the reduction of the first information
regarding commission of a cognizable offence, whether
received orally or in writing, into writing. As such, the
objective of such placement of provisions was clear which was
to ensure that the recording of the first information should be
the starting point of any investigation by the police. The
purpose of registering FIR is to set the machinery of criminal
investigation into motion, which culminates with filing of the
police report and only after registration of FIR, beginning of
investigation in a case, collection of evidence during
investigation and formation of the final opinion is the
sequence which results in filing of a report under Section 173
of the Code. In George and Others vs. State of Kerala and
Another (1998) 4 SCC 605, it has been held that the
investigating officer is not obliged to investigate, at the stage of
inquest, or to ascertain as to who were the assailants. A
similar view has been taken in Suresh Rai and Others vs.
State of Bihar (2000) 4 SCC 84.
11) In this view of the matter, Sections 174 and 175 of the
Code afford a complete Code in itself for the purpose of
“Inquiries” in cases of accidental or suspicious deaths and are
entirely distinct from the “investigation” under Section 157 of
the Code wherein if an officer in-charge of a police station has
reason to suspect the commission of an offence which he is
empowered to investigate, he shall proceed in person to the
spot to investigate the facts and circumstances of the case. In
the case on hand, an inquiry under Section 174 of the Code
was convened initially in order to ascertain whether the death
is natural or unnatural. Learned senior counsel for the
appellants claims that the earlier information regarding
unnatural death amounted to FIR under Section 154 of the
Code which was investigated by the police and thereafter the
case was closed. On a careful scrutiny of materials on record,
the inquiry which was conducted for the purpose of
ascertaining whether the death is natural or unnatural cannot
be categorized under information relating to the commission of
a cognizable offence within the meaning and import of Section
154 of the Code. On information received by P.S. Mulana, the
police made an inquiry as contemplated under Section 174 of
the Code. After holding an inquiry, the police submitted its
report before the sub-Divisional Magistrate, Ambala stating
therein that it was a case of hanging and no cognizable offence
is found to have been committed. In the report, it was also
mentioned that the father of the deceased-R.P. Sharma (PW-1)
does not want to take any further action in the matter. In view
of the above discussion, it clearly goes to show that what was
undertaken by the police was an inquiry under Section 174 of
the Code which was limited to the extent of natural or
unnatural death and the case was closed. Whereas, the

condition precedent for recording of FIR is that there must be
an information and that information must disclose a
cognizable offence and in the case on hand, it leaves no matter
of doubt that the intimation was an information of the nature
contemplated under Section 174 of the Code and it could not
be categorized as information disclosing a cognizable offence.
Also, there is no material to show that the police after
conducting investigation submitted a report under Section 173
of the Code as contemplated, before the competent authority,
which accepted the said report and closed the case.
12) In view of the above, we are of the opinion that the
investigation on an inquiry under Section 174 of the Code is
distinct from the investigation as contemplated under Section
154 of the Code relating to commission of a cognizable offence
and in the case on hand there was no FIR registered with the
P.S. Mulana neither any investigation nor any report under
Section 173 of the Code was submitted. Therefore, challenge
to impugned FIR under Crime No. 194 of 2005 registered by
P.S. Bhilai Nagar could not be assailed on the ground that it
was second FIR in the garb of which investigation or fresh
investigation of the same incident was initiated.
 REPORTABLE
IN THE SUPREME COURT OF INDIA
 CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPEAL NO. 775 OF 2013

Manoj Kumar Sharma V State of Chhattisgarh & Anr.

Citation: 2017 CRLJ 418

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Whether oral evidence contrary to hospital records can be relied on?

 There is one more reason that was given by the trial court in discarding
the dying declaration and if correct, that would afford strong
circumstance to justify its conclusion. It is the PW-4 who has come as a
shield to protect the appellants. For this reason, we advert to the
statement of Balraj (PW-4), brother of the deceased. He stated that on
the night intervening 19th – 20th September, 1999, Ramesh was with him.
He further deposed that at 4:00 a.m. on 20th September, 1999, they
received the information about the deceased having sustained burn
injuries and he along with Ramesh reached PGIMS, Rohtak where she
was already present. It is on the basis of this statement that the trial
court observed that since Ramesh was with Balraj (PW-4) in his house,
he could not be present at the place of incident when it took place and,
therefore, he is falsely implicated and mentioning of his name
considerably dents the veracity of dying declaration thereby rendering it
questionable. However, we find that in accepting the aforesaid version
of PW-4, the trial court committed a serious mistake. As per the hospital
records, it is Ramesh who had brought the deceased to the hospital and
got her admitted which was even the defence case as well. The trial
court completely overlooked this pertinent aspect. This fact alone is
sufficient to discredit the statement of PW-4 that Ramesh was with him
in his house and both of them had received the information about the
incident and when both of them reached PGIMS, Rohtak, the deceased
was already there. In these circumstances, we entirely agree with the
High Court that PW-4, though brother of the deceased, appears to have
been won over by the appellants.
 Present case appears to have been stung by 'culture of compromise'.
Fortunately, statement of PW-4 in attempting to shield the accused
Ramesh has been proved to be false in view of the records of PGIMS,
Rohtak and, therefore, we held that High Court was right in discarding
his testimony.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2526 OF 2014

RAMESH V STATE OF HARYANA 

Citation: 2017 CRLJ 352

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Principles to be followed by court while deciding application for recalling of witnesses

In Mohanlal Shamji Soni (supra), Supreme
Court has reiterated the same principle after
analyzing Section 540 of the Code of Criminal
Procedure, 1898 as well as Section 311 Cr.P.C.
The Court held:
“The next important question is
whether Section 540 gives the court
carte-blanche drawing no underlying
principle in the exercise of the
extraordinary power and whether the
said Section is unguided, uncontrolled
and uncanalised. Though
Section 540 (Section 311 of the new
Code) is, in the widest possible terms
and calls for no limitation, either with
regard to the stage at which the powers
of the court should be exercised, or
with regard to the manner in which they
should be exercised, that power is
circumscribed by the principle that[30]
underlines Section 540, namely,
evidence to be obtained should appear
to the court essential to a just decision
of the case by getting at the truth by all
lawful means. Therefore, it should be
borne in mind that the aid of the
section should be invoked only with the
object of discovering relevant facts or
obtaining proper proof of such facts for
a just decision of the case and it must
be used judicially and not capriciously
or arbitrarily because any improper or
capricious exercise of the power may
lead to undesirable results. Further it is
incumbent that due care should be
taken by the court while exercising the
power under this section and it should
not be used for filling up the lacuna left
by the prosecution or by the defence or
to the disadvantage of the accused or
to cause serious prejudice to the
defence of the accused or to give an
unfair advantage to the rival side and
further the additional evidence should
not be received as a disguise for a
retrial or to change the nature of the
case against either of the parties.”
“The principle of law that emerges
from the views expressed by this Court
in the above decisions is that the
Criminal Court has ample power to
summon any person as a witness or
recall and re-examine any such person
even if the evidence on both sides is
closed and the jurisdiction of the court
must obviously be dictated by exigency
of the situation, and fair-play and good
sense appear to be the only safe guides
and that only the requirements of
justice command the examination of
any person which would depend on the
facts and circumstances of each case.”[31]
30. In Rajendra Prasad (supra), Supreme Court,
while examining power under Section 311
Cr.P.C. to recall or re-summon a witness,
reiterated the principle that power cannot be
exercised to fill up lacuna in prosecution case.
However, while construing the meaning of the
term “lacuna in prosecution case”, the Court
observed that oversight or mistakes during
conducting of a case cannot be understood as
lacuna and so can be corrected. The Court held:
“It is a common experience in
criminal courts that defence counsel
would raise objections whenever courts
exercise powers under Section 311 of
the Code or under Section 165 of the
Evidence Act, 1872 by saying that the
Court could not “fill the lacuna in the
prosecution case”. A lacuna in the
prosecution is not to be equated with
the fallout of an oversight committed by
a public prosecutor during trial, either
in producing relevant materials or in
eliciting relevant answers from
witnesses. The adage “to err is human”
is the recognition of the possibility of
making mistakes to which humans are
prone. A corollary of any such latches
or mistakes during the conducting of a
case cannot be understood as a lacuna
which a court cannot fill up.
Lacuna in the prosecution must be
understood as the inherent weakness or
a latent wedge in the matrix of the
prosecution case. The advantage of it
should normally go to the accused in
the trial of the case, but an over sight
in the management of the prosecution
cannot be treated as irreparable lacuna.
No party in a trial can be foreclosed
from correcting errors. If proper
evidence was not adduced or a relevant
material was not brought on record due
to any inadvertence, the court should
be magnanimous in permitting such
mistakes to be rectified. After all,
function of the criminal Court is
administration of criminal justice and
not to count errors committed by the
parties or to find out and declare who
among the parties performed better.”
Taking into account the fact situation in the
instant case, while accepting the legal
proposition adumbrated in the verdict, in the
considered opinion of this Court, in the backdrop
of facts and circumstances of the instant case,
the judgment cannot render any assistance to
the petitioner.
Reportable
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR


CRL. MISC. (PET.) (CRLMP) NO. 3661 of 2015

Sant Shri Asharamji Bapu V/s. State of Rajasthan

DATED : November 3, 2016
MR. JUSTICE P.K. LOHRA

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Whether prosecution case can be doubted on ground of non recovery of weapon of offence?

The next line of contention taken by the learned counsel for the respondents is that the recovery evidence was false and fabricated. We feel no need to address this issue since it had already been validly discarded by the Trial court while convicting the respondents. In any case, it is an established proposition of law that mere non-recovery of weapon does not falsify the prosecution case where there is ample unimpeachable ocular evidence. [See Lakahan Sao Vs. State of Bihar and Anr., (2000) 9 SCC 82; State of Rajasthan Vs. Arjun Singh & Ors., (2011) 9 SCC 115 and Manjit Singh and Anr. Vs. State of Punjab, (2013) 12 SCC 746].
Reportable

Supreme Court of India

Yogesh Singh vs Mahabeer Singh & Ors on 20 October, 2016

Bench: Pinaki Chandra Ghose, Amitava Roy

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Whether accused will be acquitted if certain questions are not asked in his Statement U/S 313 of CRPC?

It was further contended by the learned counsel for the respondents that material questions regarding marriage, on which the prosecution had allegedly relied upon, were not put to the accused under Section 313 Cr.P.C., thereby causing great prejudice to them. We feel that there is no weight in this submission of the learned counsel for the respondents since the purpose ofSection 313 is only to bring the attention of the accused to all the inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. As has been succinctly held by this Court in Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan, (2013) 5 SCC 722:

“In a criminal trial, the purpose of examining the accused person under Section 313Cr.P.C., is to meet the requirement of the principles of natural justice i.e. audi alterum partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation.”

49. We feel that no such prejudice has been caused to the accused on account of the failure of this Court to examine them under Section 313 on the facts alleged by the prosecution since they were not incriminating in nature. In any case, Nar Singh Vs. State of Haryana, (2015) 1 SCC 496, is an authority for the proposition that accused is not per se entitled for acquittal on the ground of non-compliance of mandatory provisions of Section 313 Cr.P.C.

Reportable

Supreme Court of India

Yogesh Singh vs Mahabeer Singh & Ors on 20 October, 2016

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How to appreciate evidence of inquest Report?

It was further noted by the High Court that the special report of the incident, that is, copy of the FIR had been received by the Magistrate 1½ months after the incident. Moreover, there was no time mentioned by PW8 in the relevant column as to when the inquest proceedings were started nor was any date or time mentioned in the relevant column as to when the inquest proceeding ended allegedly at the instruction of PW9, thus leading to an inference of antedating and fabrication. We find that these observations of the High Court are not supported by the evidence on record inasmuch as the DW1 was himself not sanguine as to the correct date of receipt of the FIR in the present case. He simply stated that due to workload, the entry was made on 10.08.1982. Further, PW8 had stated in his deposition that PW9 must have spoken about the date and time of starting the Panchnama to be recorded in the relevant column but he could not be certain in view of loud noise at the place of the incident at the relevant time. In any event, in the light of the position of law examined above and the observation of the Trial Court that these merely show remissness on part of the investigating officer and should not be treated as fatal to the prosecution case, we are not inclined to disbelieve the prosecution story.

 Further, the evidentiary value of the inquest report prepared under Section 174 of Cr.P.C. has also been long settled through a series of judicial pronouncements of this Court. It is well-established that inquest report is not a substantive piece of evidence and can only be looked into for testing the veracity of the witnesses of inquest. The object of preparing such report is merely to ascertain the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or caused by animals or machinery etc. and stating in what manner, or by what weapon or instrument, the injuries on the body appear to have been inflicted. [See Pedda Narayan Vs. State of A.P., (1975) 4 SCC 153; Khujji Vs. State of M.P., (1991) 3 SCC 627; Kuldip Singh Vs. State of Punjab, 1992 Supp (3) SCC 1; George and Ors. Vs. State of Kerala and Anr., (2008) 4 SCC 605; Suresh Rai Vs. State of Bihar, (2000) 4 SCC 84; Amar Singh Vs. Balwinder Singh, (2003) 2 SCC 518; Radha Mohan Singh Vs. State of U.P., (2006) 2 SCC 450; Sambhu Das Vs. State of Assam, (2010) 10 SCC 374].

42. In the present case, it is not the case of the accused that they have been prejudiced by the alleged delay in dispatch of the FIR to the nearest Magistrate competent to take cognizance of such offence. Moreover, in our opinion, the non-recording of certain relevant entries in the inquest report do not constitute a material defect so grave to throw out the prosecution story and the otherwise reliable testimonies of prosecution witnesses that have mostly remained uncontroverted.

Reportable

Supreme Court of India

Yogesh Singh vs Mahabeer Singh & Ors on 20 October, 2016

Bench: Pinaki Chandra Ghose, Amitava Roy

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Whether evidence of eye witnesses can be disbelieved on ground of discrepancy with site plan?

Next, it has been contended by the learned counsel for the respondents that the site plan belies the prosecution claim in view of the height of agricultural crops, as PW1, PW2 and PW5 could not have seen the incident and more precisely as to which accused was doing what. However, when we examine the deposition of PW8, it appears that there was some disparity in the height of the agricultural crops. While some crops were waist high, others were only as high as the knees. Hence, there is not much force in this submission of the learned counsel for the respondents either. Besides, the judgment of this Court in Prithvi Vs. Mam Raj, (2004) 13 SCC 279, is an authority for the proposition that site plan is not a ground to disbelieve the otherwise credible testimony of eye-witnesses.
Reportable

Supreme Court of India

Yogesh Singh vs Mahabeer Singh & Ors on 20 October, 2016

Bench: Pinaki Chandra Ghose, Amitava Roy

Citation: 2017 CRLJ 291 SC

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Whether dying declaration can be discarded on ground that it was recorded in different language?

In State of Rajasthan v. Bhup Singh, (1997) 10 SCC 675, the

Apex Court took a similar view and held as follows:

“10.         Assuming   that   the   deceased   gave   her

statement   in   her   own   language,   the   dying

declaration would not vitiate merely because it was

recorded in a different language.  We bear in mind

that it is not unusual that courts record evidence in

the   language   of   the   court   even   when   witnesses

depose in their own language.  Judicial officers are

used to the practice of translating the statements

from the language of the parties to the language of

the court.  Such translation process would not upset

either   the   admissibility   of   the   statement   or   its

reliability, unless there are other reasons to doubt

the truth of it.    

The main argument of Shri Bhatia is that Kachrabai (deceased)

was speaking in Chhattisgarhi and, therefore, her statement should13

have been recorded in Chhattisgarhi. It is true that the statement

should be recorded in as close a language as is possible to the

deceased. However, Chhattisgarhi has no script. No question has

been put to the Tahsildar/Magistrate that he did not know

Chhattisgarhi. Chhattisgarhi is quite similar to Hindi and a person who

is working as Naib-Tahsildar/Tahsildar can be presumed to have

knowledge of Chhattisgarhi. The statement had to be recorded in

Devnagari Script. The witness (PW-9, Naib-Tahsildar) has recorded it

in a language which he is more comfortable with him. No suggestion

has been put to him that the witness does not know Chhattisgarhi. In

fact, this witness clearly states that the questions answers were

exchanged in Chhattisgarhi. There is nothing unusual if the statement

was recorded in Hindi. The Apex Court in two judgments, which are

cited above, has held that merely because the dying declaration was

recorded in a different language is not a ground to discard the same.

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No.1063 of 2002

Dated : 29.9.2016

Suresh Purushottam,

v

State of Chhattisgarh, 

Coram:

 Shri Deepak Gupta, Chief Justice

 Shri Justice P. Sam Koshy

Citation: 2017 CRLJ 91 Chhatis

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Whether court can rely on dying declaration if it is not signed by victim?

 Another argument of Shri Bhatia is that the dying declaration as

well as the Dehati Nalishi have not been signed by the victim but have

been thumb marked. When a person has been burnt even though the

person may be asked it is not possible for that person to sign a

document and there is nothing unusual in getting it thumb marked. We

must also remember that PW-5 and PW-9 are a doctor and a NaibTahsildar,

respectively. They are independent witnesses. They have

no personal axe to grind. We cannot disbelieve their statements.

Nothing has been brought on record to show why these people should

tell a lie and why they should have created a false document with a

view to implicate the accused. The fact that Suresh was caught hold of

by the villagers and was brought to the hospital itself indicates that he

was at the spot and he has given no explanation in this regard.

24. Keeping in view all these facts, we are of the considered view that

the Learned Trial Court was fully justified in relying upon the dying

declaration (Ex.P-4).

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No.1063 of 2002

Dated : 29.9.2016

Suresh Purushottam,

v

State of Chhattisgarh, 

Coram:

 Shri Deepak Gupta, Chief Justice

 Shri Justice P. Sam Koshy

Citation: 2017 CRLJ 91 Chhatis

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How magistrate can grant monetary relief under domestic violence Act?

Plain reading of the Sub-Section (3) of
Section 20 of the P.W.D.V. Act empowers the Magistrate to order an
appropriate lump sum payment or monthly payments of
maintenance, as the nature and circumstances of the case may
require. In my opinion, according to the said provisions the
Magistrate shall consider the requirement of the aggrieved person
according to the nature and circumstances of the case and pass
order for payment of monetary relief to the aggrieved person by
respondent either in the form of appropriate lump sum amount or
in the form of monthly payment of maintenance but not both. As
such, said word “or” has been used by the legislature in the statute
to denote it as disjunctive. Therefore, I find that learned Additional
Sessions Judge has rightly interpreted that word as disjunctive in
the impugned judgment. Learned Additional Sessions Judge,
maintaining propriety observed correctly that learned Magistrate
has ordered both an appropriate lump sum and monthly payment
of maintenance which is beyond the scope of the provision of
Section 20 (3) of the P.W.D.V. Act.
 IN THE HIGH COURT AT CALCUTTA
 CRIMINAL REVISIONAL JURISDICTION

Present :  JUSTICE SANKAR ACHARYYA
 C.R.R. No. 1012 of 2015

Shahira Khatoon Mullick
Vs.
Rabiul Haque Mullick & Ors.

Judgment on : 29.03.2016
Citation: 2017 CRLJ 78 Cal

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When offence of cheating is made out against sanyasi?

In case of Sri Bhagwan Samardha Vrs. State of
A.P. and others reported in (1999) 5 Supreme Court Cases
740, it is held as follows:-25
“8. If somebody offers his prayers to God for
healing the sick, there cannot normally be any
element of fraud. But if he represents to another
that he has divine powers and either directly or
indirectly makes that other person believe that
he has such divine powers, it is inducement
referred to in Section 415 IPC. Anybody who
responds to such inducement pursuant to it and
gives the inducer money or any other article and
does not get the desired result is a victim of the
fraudulent representation. The Court can in such
a situation presume that the offence of cheating
falling within the ambit of Section 420 IPC has
been committed. It is for the accused, in such a
situation to rebut the presumption.

IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL NO. 7367 of 2015

Surendranath Mishra V State of Odisha 

P R E S E N T:-
 MR. JUSTICE S.K. SAHOO
 Date of order: 25.05.2016

Citation: 2017 CRLJ30

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Whether court can direct other defendant to furnish names and addresses of legal heirs of deceased defendant?

 Though on a strict construction of rule 10 A of order XXII of the Code, the obligation imposed on the pleader stands discharged on his informing the court about the death of the party but in my view in exceptional circumstances particularly when the litigants are not two private individuals but a public sector undertaking or a public body, which has no sure or prompt means to know the existence and particulars of legal representatives of the defendant, the court would have been within its jurisdiction to exercise its inherent power under section 151 of the Code and issue directions to the other defendants, who, in the present case, happened to be son and daughter-in-law of the deceased defendant, to furnish the names and addresses of the remaining legal representatives or heirs. 

Civil Procedure Code, 1908 - Section 151--Impleadment of legal representative--Powers of Court--In appropriate case, the Court may direct a party to furnish the names and addresses of legal representatives or heirs of the deceased.

IN THE HIGH COURT OF DELHI

IA No. 297/96, 2628/96 & 2629/96 in Suit No. 145/82

Decided On: 09.07.1998

State Bank of India Vs. Gobbs Kay India & Ors.

Hon'ble Judges/Coram:

D.K. Jain, J.

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Whether court can grant declaration of civil death of person who is missing for seven years?

In   the   light   of   the   above   discussion,   the   Court   below
committed serious error in law, which has resulted into miscarriage of
justice to the appellants, which must be corrected.    In that view of the
matter,   the   question   framed   by   me     above,   is     answered   in   the
affirmative.
10. To sum up, following order is inevitable.:­
ORDER
a) Second Appeal No.18/2016 is allowed.
b) Impugned judgment and decree dated 2.9.2015  passed by Joint
Civil Judge, Jr.Dn. Nagpur in R.C.S. No.376/2015 and judgment and
decree  dated  31.10.2015  passed by District Judge­8, Nagpur in Regular
Civil Appeal No.448/2015, both are set aside.
c) There shall be a decree  in terms of prayer clause (2) of the suit
which is reproduced below :­
(2) Declare   that   the   defendant   Shri   Abhay   s/o
Purushottam   Deshmukh as a dead person and   his
death is civil death   as he is missing from 16.3.2008

and issue death certificate.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 BENCH AT NAGPUR, NAGPUR.

SECOND APPEAL NO.  18/2016

 Sou. Swati   Abhay Deshmukh  v  Shri  Abhay   s/o Purushottam Deshmukh

 CORAM :     A.B.CHAUDHARI, J.
DATED :     26th  February, 2016

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Whether the court can grant injunction regarding joint family property without ascertaining who is in possession of suit property?

 It   seems   that   the   property   is   a   joint   family
property.  There is no finding recorded by the Courts below

on the question of possession.  The appellate Court has also
failed to record the finding as to whether the plaintiffs are in
possession or the defendant.  The partition deed, if any, has
not been considered containing recital about the possession
of the property.  In view of this, the order impugned suffers
from non application of mind to the relevant aspect of the
matter.   The same cannot, therefore, be sustained and the
matter will have to be sent back to the lower appellate Court
to decide it afresh.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 2026 OF 2016

Sukhdeo Pandurang Bawankule, V Vasant Eknath Bawankule,

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
CORAM: R. K. DESHPANDE, J.
DATE    :   7 th DECEMBER, 2016 .
Citation:2017(1) ALLMR555

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Whether wife can file application for maintenance at place where she is residing?

 The facts of the present case indicate that though the parties were
married at Paratwada and they resided together at Indore, the non­applicant
was compelled to leave the matrimonial house and reside at Amravati.  The
right to claim maintenance after living separately from her husband was
sought to be exercised from the place where she was residing.  Thus part of
cause of action had arisen at Amravati and therefore the Family Court at
Amravati had the territorial jurisdiction to entertain the proceedings.   The
impugned order holding so, therefore does not suffer from any jurisdictional
error.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL REVISION APPLICATION NO.67 OF 2014
Manoj s/o Ishwarlal Sharma 

­vs
Riti@ Archana w/o Manoj Sharma 

CORAM  : A.S.CHANDURKAR, J. 
 DATE   : January 05,  2017 
Citation: 2017(1) ALLMR 508

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Whether application for compensation under motor vehicles Act can be dismissed in default?

The sole question that hinges for consideration is whether

an application for compensation under Section 166 of the Motor

Vehicles Act can be dismissed for default.

5. The subject-matter of dispute is no more res integra. A

Division Bench of this Court, speaking through Justice Dipak Mishra

(as he then was), in the case of Bhagaban Mallik-Vrs.-Nagendra

Biswal and another 1996(II) OLR 298 in paragraph 8 of the report

held thus:-

“ 8. By incorporation of Rule 20, Order 9 has been

made applicable. The said rule has to be read in harmony

with other Rules. Rule 5 confers express power on the

Tribunal to dismiss an application in a summary manner.

As already indicated earlier Rule 16 deals with framing of

issues. Rule 17 provides that after framing the issues the

Claims Tribunal shall proceed to record evidence thereon

which each party may desire to adduce. As envisaged under

Rule 19 the Claims Tribunal in passing the order shall

record concisely in a judgement the findings on each of the

issues framed and the reasons for such finding and make an

award, justifying the amount of the compensation to be paid

by the insurer and also the person or persons to whom

compensation shall be paid. If an application is not

summarily dismissed it continues to reach its logical end,

and the logical end is as provided for under Rule 19 of the

Rules. That apart, Sec. 166 (old Sec.110-B) casts a mandate

on the Tribunal to pass an award determining the amount of

compensation. Reading the Rules in juxtaposition of Sec.

166 of 1988 Act (110-B of the old Act) it is beamingly clear

that the Tribunal has no jurisdiction to dismiss a claim

petition for default after issues have been framed. But, if an

award has been passed, the same can be set aside taking

resort to Order 9 of the Code (emphasis laid).

HIGH COURT OF ORISSA: CUTTACK

W.P.(C) No.6360 of 2006

Naliniprava Behera 

 V

Executive Engineer,

E.H.T., Keonjhar & another 

PRESENT:

 DR. JUSTICE A.K.RATH

Citation: 2017(1) ALLMR(JOURNAL) 101

 Date of judgment: 28.06.2016

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Whether husband can be granted divorce on ground of cruelty if wife is making false complaints against him?

Cruelty can never be defined with exactitude. What is
cruelty will depend upon the facts and circumstances of each
case. In the present case, from the facts narrated above, it is
apparent that the wife made reckless, defamatory and false
accusations against her husband, his family members and
colleagues, which would definitely have the effect of lowering
his reputation in the eyes of his peers. Mere filing of
complaints is not cruelty, if there are justifiable reasons to file
the complaints. Merely because no action is taken on the
complaint or after trial the accused is acquitted may not be a
ground to treat such accusations of the wife as cruelty within
the meaning of the Hindu Marriage Act 1955 (for short ‘the
Act’). However, if it is found that the allegations are patently
false, then there can be no manner of doubt that the said
conduct of a spouse levelling false accusations against the
other spouse would be an act of cruelty. In the present case,
all the allegations were found to be false.
The petition for divorce filed by the husband under 
Section 13 of the Act is decreed and the marriage of 
the parties solemnized on 13.04.1989 is dissolved by a
 decree of divorce. 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10719 OF 2013
Raj Talreja 
V
Kavita Talreja 
Dated:April 24, 2017

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How to prove that particular person was converted in to Hindu Religion?

In this regard, the learned counsel for respondent/husband placed reliance mainly upon the 3-Judges Bench expression of the Apex Court in Perianal Nadar (Dead) By Lrs. v. Ponnuswami MANU/SC/0361/1970 : AIR 1971 SC 2352, leave about the other expression of Kerala High Court in In. Re: Betsy and Sadanandan MANU/KE/1087/2009 : 2009 (4) KLT 631, in saying intention to convert is enough, in paras-6 to 9 in the controversy as to the wife converted from Christianity to Hinduism, which reads thus:

"6. It is not necessary to decide in this case whether marriage between a Hindu male and an Indian Christian female may be regarded as valid, for, in our judgment, the finding of the Courts below that Annapazham was converted to Hinduism before her marriage with Perumal is amply supported by evidence. A person may be a Hindu by birth or by conversion. A mere theoretical allegiance to the Hindu faith by a person born in another faith does not convert him into a Hindu, nor is a bare declaration that he is a Hindu sufficient to convert him to Hinduism. But a bona fide intention to be converted to the Hindu faith, accompanied by conduct unequivocally expressing that intention may be sufficient evidence of conversion. No formal ceremony of purification or expiation is necessary to effectuate conversion.

7. In Muthusami Mndaliar v. Masilamani alias Subramania Mudaliar I.L.R. 33 Mad. 342 the validity of a marriage according to Hindu rites between a Hindu and a Christian woman fell to be determined. It was held that the marriage contracted according to Hindu rites by a Hindu with a Christian woman, who before marriage is converted to Hinduism, is valid, though the marriage was not in strict accordance with the Hindu system of law. Such a marriage is still common among and recognised as valid by the custom of the caste to which the man belongs.

8. In Goona Durgaprasada Rao and another v. Goona Sudarasanaswami and others MANU/TN/0295/1939 : I.L.R. [1940] Mad. 653 Mockett, J., observed that no gesture or declaration may change a man's religion, but when on the facts it appears that a man did change his religion and was accepted by his co- religionists as having changed his religion and lived and died in that religion, absence of some formality cannot negative what is an actual fact.Krishnaswami Ayyangar, J., observed that a Hindu who had converted himself to the Christian faith returned to Hinduism and contracted a second marriage during the lifetime of his first wife and remained and died a Hindu having been accepted as such by the community and co-religionists without demur. Absence of evidence of rituals relating to conversion cannot justify the Court in treating him as having remained a Christian.

9. The evidence clearly establishes that the parents of Annapazham arranged the marriage. The marriage was performed according to Hindu rites and ceremonies in the presence of relatives who were invited to attend : customary ceremonies peculiar to a marriage between Hindus were performed : no objection was raised to the marriage and after the marriage Annapazham was accepted by the local Hindu Nadar community as belonging to the Hindu faith, and the plaintiff was also treated as a Hindu. On the evidence there can be no doubt that Annapazham bona fide intended to contract marriage with Perumal. Absence of specific expiatory or purificatory ceremonies will not, in our judgment, be sufficient to hold that she was not converted to Hinduism before the marriage ceremony was performed. The fact that Perumal chose to go through the marriage ceremony according to Hindu rites with Annapazham in the presence of a large number of persons clearly indicates that he accepted that Annapazham was converted to Hinduism before the marriage ceremony was performed."

19. No doubt, from the above expression, no particular ceremony is required and bona fide intention to convert is enough followed by faith and belief in Hinduism for the respondent besides being accepted by the local Hindu community and treatment of him as Hindu to say that he has converted. Here that evidence is lacking, apart from his say of not any bonafide intention to convert, but for unwillingly and only to marry the petitioner for a condition stated imposed of conversion to fulfill and not even stated lived as Hindu. 
Thus, at the cost of repetition from what was discussed earlier, when his version is he was as fell in love with her, made to convert as Hindu by adoption to a Hindu family by made to convert; there from there was no voluntary conversion apart from no adoption validly taken place and there was nothing to show any alleged conversion of him besides voluntary with any faith in Hinduism which is the religion of the petitioner, to validate any ceremonies of marriage, not even adduced any evidence of he was accepted as a Hindu by the neighbourhood and the community of Hindus nearby and observing any faith in Hinduism without which there is no valid conversion is the law laid down in Perumal Nadar (supra) and there is no valid conversion from Muslim religion to Hindu religion, the very marriage itself is void ab initio for he is not a Hindu by the time of marriage, and it is a material fact or circumstance relating to him as per Section 12(1)(c) of the H.M. Act to annul the marriage otherwise as per the expression of the Apex Court in Gullapalli Sowria Raj (supra).
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD 

Civil Miscellaneous Appeal No. 28 of 2014

Decided On: 29.09.2015

 Shaik Mahammad Rati

Vs.

 Grandhi Poorna Seetha Manoja

Coram:

R. Subhash Reddy and Dr. B. Siva Sankara Rao, JJ.

Citation:2017(1) ALLMR(JOURNAL)84

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