Thursday, 4 March 2021

Questions and answers on law part 18

Q 1:-  Whether court can appoint court commissioner as per provision of CRPC?

Ans:- CrPC 284: Section 284 of the Criminal Procedure Code

When attendance of witness may be dispensed with and commission issued

  1. Whenever, in the course of any inquiry, trial or other proceeding under this Code, it appears to a Court of Magistrate that the examination of a witness is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, the Court or Magistrate may dispense with such attendance and may issue a commission for the examination of the witness in accordance with the provisions of this Chapter:
    Provided that where the examination of the President or the Vice-President of India or the Governor of a State or the Administrator of a Union Territory as a witness is necessary for the ends of justice, a commission shall be issued for the examination of such a witness.
  2. The Court may, when issuing a commission for the examination of a witness for the prosecution direct that such amount as the Court considers reasonable to meet the expenses of the accused including the pleader’s fees, be paid by the prosecution.

Q 2:- Whether convict is liable to pay compensation even after he has undergone default sentence in cheque dishonour case?

Ans:- Under Section 357(3), Section 431, Section 70 Indian Penal Code and Section 421(1) proviso would make it clear that by a legal fiction, even though a default sentence has been suffered, yet, compensation would be recoverable in the manner provided Under Section 421(1). This would, however, be without the necessity for recording any special reasons. This is because Section 421(1) proviso contains the disjunctive "or" following the recommendation of the Law Commission, that the proviso to old Section 386(1) should not be a bar to the issue of a warrant for levy of fine, even when a sentence of imprisonment for default has been fully undergone. The last part inserted into the proviso to Section 421(1) as a result of this recommendation of the Law Commission is a category by itself which applies to compensation payable out of a fine Under Section 357(1) and, by applying the fiction contained in Section 431, to compensation payable Under Section 357(3).

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 896-897 of 2017

Decided On: 05.05.2017

 Kumaran Vs. State of Kerala and Ors.

Q 3:- What is distinction between Doctrine of Lis Pendens and Order of Temporary Injunction ?


Ans:- Thus, it is apparent that, both, "the Principle of Lis Pendens" and "the order of temporary injunction", have not only different objects but the breaches thereof have also different consequences. The transaction made in breach of injunction order is apparently and patently illegal and binds no party, even the purchaser. Whereas, transaction effected during lis pendens does not attract the taint of illegality. It remains legal, valid and binding on the parties, subject to the outcome of the litigation. It also does not entail the consequences of penalty or contempt, as there is no order passed by the Court in Doctrine of Lis Pendens.
Bombay High Court
Shri Prakash Gobindram Ahuja vs Shri Ganesh Pandharinath Dhonde ... on 4 October, 2016

Q 4:- Whether violation of interim orders passed by court is not punishable if it is subsequently found that court had no jurisdiction to entertain suit?

ANS:- Whether person who disobeys interim injunction made by Civil Court can be punished under Order 39 Rule 2-A where it is ultimately found that Civil Court had no jurisdiction to entertain and try suit - mere objection to jurisdiction does not instantly disable Court from passing interim Orders - interim Orders comes to end when it is found that Court had no jurisdiction - violation of interim Order can be punished even after question of jurisdiction was decided against plaintiff provided violation is committed before decision of Court on question of jurisdiction.
IN THE SUPREME COURT OF INDIA
Civil Appeal Nos. 16662-66 of 1996
Decided On: 19.02.1997

Tayabbhai M. Bagasarwalla and another  Vs. Hind Rubber Industries Pvt. Ltd. etc.
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