Delhi HC: Award Is Time-Barred U/S 34(3) Of Arbitration Act Due To Petitioner's Failure To Confirm Award Receipt On Affidavit

 In this case, there is a specific instruction for the Administrative Assistant to the Tribunal to serve a copy of the award. Other than the self- serving statements made across the bar that the copy of the award was not received on 23.08.2017 the Petitioner has not shown any document as to whether it has received the award. The contention of the learned Counsel for the Petitioner that the Tribunal has to show as to when did it served the copy of the award on the Petitioner cannot be accepted. In the absence of any positive affirmation on affidavit from the Petitioner as to when was the award received, this Court cannot accept the mere ipse dixit of the Petitioner that as soon as the award was received it was filed by the Petitioner. {Para 24}

IN THE HIGH COURT OF DELHI

O.M.P. (COMM) 49/2018, I.A. 1565/2018, I.A. 4650/2018, I.A. 4659/2018 and I.A. 9614/2018

Decided On: 12.12.2024

Indure Pvt. Ltd. Vs. Aneja Construction (India) Ltd.

Hon'ble Judges/Coram:

Subramonium Prasad, J.

Citation: MANU/DE/9015/2024.

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Maharashtra Govt clarification dated 30-10-2024: No stamp duty is applicable on affidavits and declarations before any Govt. authority.

 Vide notification dated 1.7.2004 Govt of Maharashtra had exempted stamp duty on affidavits and declarations before any Govt. authority. However, affidavits were being asked on stamp paper of Rs.500 (rate was increased from Rs.100 to Rs.500 w.e.f. 14.10.2024). Hence Govt has clarified that exemption notification is still in force and no stamp duty is applicable on affidavits and declarations before any Govt. authority.

https://drive.google.com/file/d/1I0raU5C1yhmImvDQO6Gk-F3sTASNPg_a/view?usp=sharing

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Orissa HC: Mere absence of affidavit supporting allegations against Judicial Officer does not warrant automatic dismissal of complaint and departmental proceedings

 The Hon'ble Chief Justice of India, vide D.O. letter No. CJI/CC/Comp/2014/1405 dated 03-10-2014, issued a circular, that was later circulated as a guideline by the Government of India, Ministry of Law and Justice as per Annexure-3 for dealing with the complaints against the subordinate judiciary, read as -

“As you are aware, recently, Hon'ble the CJI, vide his D.O. No. CJI/CC/Comp/2014/1405 dt. 03.10.2014 addressed to the Chief Justice of all the High Courts has asked the High Courts and subordinate judiciary not to entertain any complaint against a judicial officer it is accompanied by sworn affidavits and verifiable material to substantiate the allegation. Expressing concern over the large number of complaints being filed against subordinate judiciary by people having vested interest and personal agenda, Hon'ble CJI has directed that authenticity of the complaints must be ascertained before any action is taken on it. In view of the provisions of the Article 235 of the Constitution, further action relating to the grievance/complants against the judicial officers lies at the High Court level.”

The letter imports specific directives to the Chief Justices of all the High Courts, emphasising that complaints against judicial officers should not be entertained unless accompanied by sworn affidavits and verifiable material to substantiate the allegations. This guideline was issued to address the concerns over the rising number of complaints against the subordinate judiciary, often filed by individuals with vested interests and personal agendas. The Hon'ble CJI underscored the necessity of ensuring the authenticity of such complaints before taking any action to prevent unwarranted harassment of judicial officers. {Para 7}

8. A plain reading of the guideline is sufficient to understand its object. The words “accompanied by sworn affidavits” and “verifiable material to substantiate the allegation” have to be read together in a complete and comprehensive manner. It emerges, that, merely because a complaint is not supported by sworn affidavits, it does not automatically warrant an outright dismissal. In the complete and comprehensive reading of the said guideline, a complaint is not supposed to be ignored from its very inception without even verifying the legitimacy of the complaint as nowhere in the guideline the High Court is debarred from initiating its own enquiry over any complaint where the allegations prima facie reveals verifiable material supporting the complaint subject to an enquiry on the authenticity of the allegations against a concerned judicial officer. The object of initiating an enquiry in the first place is to ensure that serious allegations can be investigated thoroughly, even if the initial complaint lacks sworn affidavit, which underscores the High Court's authority and discretion in managing the subordinate judiciary.

While the guideline aims to protect judicial officers from unwarranted harassment, it does not eliminate the possibility of addressing genuine issues faced by individuals or communities due to the actions of a judicial officer. The High Court retains the responsibility to ascertain the authenticity of the complaints and take appropriate action based on verified facts. The requirement for sworn affidavits and verifiable material ensures that the process is fair and that decisions are not arbitrary. This is a kind of precaution suggested to protect the judicial officers from unwarranted harassment.

9. The concerned guideline issued by the Hon'ble CJI is designed to balance the need to protect judicial officers from frivolous complaints with the necessity of addressing genuine grievances. It is to uphold the principles of fairness, non-arbitrariness, and judicial independence, ensuring that the judiciary function effectively and impartially. The guideline is to reinforce the importance of due process in handling complaints against judicial officers. It ensures that complaints are evaluated based on evidence and merit, thereby upholding the rule of law.

 In the High Court of Orissa at Cuttack

(Before S.K. Sahoo and Chittaranjan Dash, JJ.)

Santosh Kumar Agarwal Vs Orissa High Court and Others.

W.P. (C) No. 17678 of 2024

Decided on August 8, 2024

Citation: 2024 SCC OnLine Ori 1952.

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Is Affidavit Mandatory For Application Seeking Leave To Defend Under Sec 43(4) of Maharashtra Rent control Act?

 In view of the above, Section 4 of the Limitation Act could rescue the petitioner, as 24/11/2019 was a Sunday and even 23/11/2019 was a non-working Saturday (the Fourth Saturday). However, it would have to be seen, whether Exh.-8, can be said to be an application, in the eyes of law. In the entire pleadings in the memo of petition, there has not been a whisper that, Exh.-8 was supported with an affidavit that was sworn before an oath administering authority or a notary on or before 25/11/2019. Even a glance at Exh.-8, which is placed on record, would indicate that even the lawyer has not identified the petitioner on the last page of the application. The signature of the petitioner is found at two places with no signature of the lawyer, identifying the petitioner, much less an affidavit in support of Exh.-8. {Para 12}

13. In Amitabh s/o. Ramsharan Nigam v. Amit Raghunandan Saran Sharma & Ors. MANU/MH/0359/2020 : 2020 (3) All M.R. 188, it has been held that the requirement under Section 43(4)(a) of the Rent Act is mandatory in nature. An application filed by the counsel, bearing his signature, seeking leave to defend, does not satisfy the strict requirement of the said provision. No affidavit was filed by the petitioner. Hence, refusing to grant leave to defend was proper, as the petitioner did not satisfy the strict requirement of Section 43(4)(a) of the Rent Act.

14. In view of the above, it is obvious that Exh.-8, without the mandatory affidavit, would not be an application, which is within the strict prescription of law. In fact, the language used in Section 43(4)(a) requires an affidavit to be filed and not a mere application. As such, though Section 4 of the Limitation Act may have rescued the petitioner, the absence of an affidavit, which is mandatory, would render the said application non-existent in the eyes of law.

15. In view of the above, this petition being devoid of merits, is, therefore, dismissed.

 IN THE HIGH COURT OF BOMBAY

Writ Petition No. 579 of 2022

Decided On: 19.01.2022

Laxman Dadasaheb Jagtap  Vs.  Additional Commissioner, Kokan and Ors.

Hon'ble Judges/Coram:

R.V. Ghuge, J.

Citation: MANU/MH/0226/2022

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Can the court accept the applicant's affidavit regarding their residential proof in proceeding U/S 125 of CRPC?

 To summarize : Chapter XXXVI of the Code

of Criminal Procedure providing for maintenance of wives

and children intends to serve a social purpose. Section

488 prescribes alternative forums to enable a deserted

wife or a helpless child, legitimate or illegitimate, to get

urgent relief. Proceedings under the section can be taken

against the husband or the father, as the case may be, in

a place where he resides, permanently or temporarily, or

where he last resided in any district in India or where he

happens to be at the time the proceedings are initiated.

10. On perusal of the aforementioned finding

recorded by Hon’ble Supreme Court, since Section 125 of

Cr.P.C is a social measure providing immediate relief to

the destitute wife and children, prima-facie, accepting the

duly sworn affidavit by aggrieved parties (wife and

children) that they are residing away from the matrimonial

home and the address shown in the affidavit is to be

accepted. Indeed the Family Court ought to have accepted

the address provided in the petition supported by an

affidavit by the petitioners and should have issued notice

to the respondent. Raising objection with regard to

residential proof of the petitioners at that juncture itself

would defeat the very purpose of scope of Section 125 of

Cr.P.C. Undisputably, the affidavit is supported by an

application and the petition is preferred by the wife and

children seeking maintenance. It is also recorded by the

deponent in the said affidavit that they are residing

separately from the husband/father and therefore, I am of

the view that raising objection at the initial stage, directing

the petitioners to provide a residential address with regard

to the jurisdiction aspect, would defeat the entire

legislative intention of Section 125 of Cr.P.C. May be, the

jurisdictional aspect is required with regard to the

competency of the Court, however, such a requirement

may be an exception to the provisions under Section 125

of Cr.P.C. for the reasons mentioned above. If the

applicant/petitioner filed petition along with an affidavit

disclosing their residential address in the duly sworn

affidavit, that itself is sufficient to continue the

proceedings to provide immediate relief to the destitute

wife/children.  {Para 12}

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

SANGEETA W/O BAPU LAMANI Vs BAPU S/O SOMAPPA LAMANI

BEFORE

THE HON'BLE MR JUSTICE E.S.INDIRESH

DATED THIS THE 07TH DAY OF JULY, 2022

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Supreme Court reiterates that Magistrate shall not entertain applications U/S 156 of CRPC unless it is supported by Affidavit

 We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari [(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.” {Para 31}

25. This court has clearly held that, a stage has come where applications under Section 156 (3) of Cr.P.C. are to be supported by an affidavit duly sworn by the complainant who seeks the invocation of the jurisdiction of the Magistrate.

26. This court further held that, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also verify the veracity of the allegations. The court has noted that, applications under Section 156 (3) of the Cr.P.C. are filed in a routine manner without taking any responsibility only to harass certain persons.

27. This court has further held that, prior to the filing of a petition under Section 156 (3) of the Cr.P.C., there have to be applications under Section 154 (1) and 154 (3) of the Cr.P.C. This court emphasizes the necessity to file an affidavit so that the persons making the application should be conscious and not make false affidavit. With such a requirement, the persons would be deterred from causally invoking authority of the Magistrate, under Section 156 (3) of the Cr.P.C. In as much as if the affidavit is found to be false, the person would be liable for prosecution in accordance with law.

29. From the perusal of the complaint it can be seen that, the complainant/respondent No. 2 himself has made averments with regard to the filing of the Original Suit. In any case, when the complaint was not supported by an affidavit, the Magistrate ought not to have entertained the application under Section 156 (3) of the Cr.P.C. The High Court has also failed to take into consideration the legal position as has been enunciated by this court in the case of Priyanka Srivastava v. State of U.P. (supra), and has dismissed the petitions by merely observing that serious allegations are made in the complaint.

IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION

 B.R. GAVAI; KRISHNA MURARI, JJ. 

CRIMINAL APPEAL NO. 252 OF 2022

BABU VENKATESH Vs STATE OF KARNATAKA AND ANOTHER

Author: B.R. GAVAI, J.

Dated: FEBRUARY 18, 2022

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Should competent authority under rent law accept an application for leave to defend if it is not on the affidavit?

 Though the learned advocate for the petitioner, at first blush, would appear to be right in placing reliance upon Section 4 of the Limitation Act, the issues that need to be considered are, (a) whether Section 5 of the Limitation Act would be applicable to the case of the petitioner and, (b) whether application, Exh.-8, seeking leave to defend, could be termed to be an application, in the eyes of law, in the absence of an affidavit or even a verification not affirmed before an oath administering authority. {Para 10}

11. In Prakash H. Jain v. Ms. Marie Fernandes1, the Hon'ble Apex Court has held that the competent authority cannot be mistaken to be a ‘court’. The authority has a limited scope and a specific purpose under the Act and it cannot be deemed to be a ‘court’ for invoking Section 5 of the Limitation Act. A similar view was taken in Sunda Associates v. Ajit Kisanlal Agarwal2, wherein it was held that the authority cannot be deemed to be a ‘court’ and the delay of even one day, cannot be condoned. 

13. In Amitabh s/o. Ramsharan Nigam v. Amit Raghunandan Saran Sharma4, it has been held that the requirement under Section 43(4)(a) of the Rent Act is mandatory in nature. An application filed by the counsel, bearing his signature, seeking leave to defend, does not satisfy the strict requirement of the said provision. No affidavit was filed by the petitioner. Hence, refusing to grant leave to defend was proper, as the petitioner did not satisfy the strict requirement of Section 43(4)(a) of the Rent Act.

14. In view of the above, it is obvious that Exh.-8, without the mandatory affidavit, would not be an application, which is within the strict prescription of law. In fact, the language used in Section 43(4)(a) requires an affidavit to be filed and not a mere application. As such, though Section 4 of the Limitation Act may have rescued the petitioner, the absence of an affidavit, which is mandatory, would render the said application non-existent in the eyes of law.

 In the High Court of Bombay

(Before Ravindra V. Ghuge, J.)

Laxman Dadasaheb Jagtap  Vs Additional Commissioner and Another 

Writ Petition No. 579 of 2022

Decided on January 19, 2022

Citation: 2022 SCC OnLine Bom 155

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Whether court can issue process in cheque dishonour case only on the basis of affidavit of complainant?

Recently, Constitution Bench of Hon'ble Supreme Court In

Re.: Expeditious Trial of Cases Under Section 138 N.I.

Act 1881 reported in [AIR 2021 Supreme Court 1957] in

paragraph-12 observed as under:-

"12. Another point that has been brought to our notice

relates to the interpretation of Section 202 (2) which

stipulates that the Magistrate shall take evidence of the

witness on oath in an inquiry conducted under Section 202

(1) for the purpose of issuance of process. Section 145 of

the Act provides that the evidence of the complainant may

be given by him on affidavit, which shall be read in

evidence in any inquiry, trial or other proceeding,

notwithstanding anything contained in the Code. Section

145 (2) of the Act enables the court to summon and

examine any person giving evidence on affidavit as to the

facts contained therein, on an application of the

prosecution or the accused. It is contended by the learned

Amici Curiae that though there is no specific provision

permitting the examination of witnesses on affidavit,

Section 145 permits the complainant to be examined by

way of an affidavit for the purpose of inquiry under Section

202. He suggested that Section 202 (2) should be read

along with Section 145 and in respect of complaints under

Section 138, the examination of witnesses also should be

permitted on affidavit. Only in exceptional cases, the

Magistrate may examine the witnesses personally. Section

145 of the Act is an exception to Section 202 in respect of

examination of the complainant by way of an affidavit.

There is no specific provision in relation to examination of

the witnesses also on affidavit in Section 145. It becomes

clear that Section 145 had been inserted in the Act, with

effect from the year 2003, with the laudable object of

speeding up trials in complaints filed under Section 138. If

the evidence of the complainant may be given by him on

affidavit, there is no reason for insisting on the evidence of

the witnesses to be taken on oath. On a holistic reading of

Section 145 along with Section 202, we hold that Section

202 (2) of the Code is inapplicable to complaints under

Section 138 in respect of examination of witnesses on

oath. The evidence of witnesses on behalf of the

complainant shall be permitted on affidavit. If the

Magistrate holds an inquiry himself, it is not compulsory

that he should examine witnesses. In suitable cases, the

Magistrate can examine documents for satisfaction as to

the sufficiency of grounds for proceeding under Section

202."

Thus, it is clear from the above judgement of Hon'ble

Supreme Court that even on the basis of affidavit filed on

behalf of the complainant, an accused can be summoned

under Section 138 Negotiable Instruments Act and there is

no need to record statements under Sections 200 and 202

Cr.P.C.

 ALLAHABAD HIGH COURT

Case :- APPLICATION U/S 482 No. - 14051 of 2008

Applicant :- Virendra Kumar Sharma

Opposite Party :- State of U.P. and Another

Hon'ble Sameer Jain,J.

Order Date :- 8.12.2021

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Whether court can permit election petitioner to cure a defect in verification or in affidavit in Election petition?

  It is thus beyond any pale of doubt that the allegations of corrupt practice made in the election petition have to be supported by an affidavit as required in Form 25 and Rule 94-A of the Rules of 1961. The affidavit must clearly indicate which part of the allegations are true to the knowledge of the deponent and which allegations are true to the information of the deponent. Stating the allegations to be true to one’s knowledge and information in the same breath has not been found to be acceptable. At the same time, it is equally well settled that a defect in verification or in the affidavit as filed is a curable defect and an opportunity deserves to be given to an election petitioner to cure the same.

In the light of the aforesaid legal position, I am inclined to grant an opportunity to the election petitioners to cure the defects in the affidavits filed under Form 25 by specifying as to which averments in the election petition are true to the knowledge of the election petitioner nos.1 and 2 and which part of the allegations made are true to their information. It is not necessary in this backdrop to probe deeper into the contention of the election petitioners that all allegations made could be true to the personal knowledge and also to the information as believed to be true since that aspect has not been accepted in R. P. Moidutti (supra). On principles analogous to the doctrine of election, an opportunity is given to the election petitioners to cure the defects in the affidavits filed under Form 25 read with Rule 94-A of the Rules of 1961 as stated above. The same be done within a period of fifteen days from today. The adjudication of Exhibits 19, 20 and 26 would be taken up thereafter. {Para 10}

Bombay High Court

JUSTICE A. S. CHANDURKAR

Shri Nana F. Patole & Anr. Vs. Shri Nitin Gadkari & ors.

ELECTION PETITION NO.10/2019

29th October 2021

Citation: 2021 NearLaw (BombayHC Nagpur) Online 1997

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Should the investigating officer make the application on affidavit to court to issue a proclamation order against the accused?

  As far as the legal position is concerned, if

the accused evades the arrest during the

investigation, no doubt the Investigating Officer

has power to arrest the accused without warrant,

if the offence is cognizable one, but for issuance

of proceeding under Section 82 Cr.P.C., the

investigating officer has to seek help of the

Court and only under the orders of the Court,

proclamation under Section 482 Cr.P.C. can be

issued.

Section 82(1) Cr.P.C. runs as under:-

"82(1). Proclamation for person absconding--If any

Court has reason to believe (whether after taking

evidence or not) that any person against whom a

warrant has been issued by it has absconded or is

concealing himself so that such warrant cannot be

executed, such Court may publish a written

proclamation requiring him to appear at a specified

place and at a specified time not less than thirty

days from the date of publishing such

proclamation."

10. Section 82(1) Cr.P.C. clearly shows that

before issuance of proclamation under Section 82

Cr.P.C. issuance of NBW is necessary because

Section 82 Cr.P.C. itself says that "if the Court

has reason to believe that any person against

whom a warrant has been issued by it has

absconded or is concealing himself", hence the

issuance of NBW before proclamation under

Section 82 Cr.P.C is necessary. In the present

matter, the investigation is going on, wherein a

person died by consuming toxic liquor and the

petitioner is wanted for the investigation. But it

is also important that Magistrate should not pass

such order in a routine manner, on the simple

application of the Investigating Officer. The

application should be supported by an affidavit

of the Investigating Officer stating the reasons

why NBW and proclamation under Section 82

Cr.P.C. is required, as the issue relates to the

personal liberty of a person guaranteed under

Article 21 of the Constitution of India.

ALLAHABAD HIGH COURT

Case :- U/S 482/378/407 No. - 2261 of 2021

Kunwar Mahendra Pratap Singh @ Chandan Singh Vs State Of U.P. & Ors.

Coram: Hon'ble Mrs. Saroj Yadav,J.

Dated: 18.8.2021

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Delhi High Court directs filing of income affidavit of convict, Victim Impact Report for grant of compensation to victim

Victimology

156. Victims are unfortunately the forgotten people in the criminal justice delivery system. Victims are the worst sufferers. Victims‟ family is ruined particularly in cases of death and grievous bodily injuries. This is apart from the factors like loss of reputation, humiliation, etc. The Court has to take into consideration the effect of the offence on the victim's family even though human life cannot be restored but then monetary compensation will at least provide some solace.

157. The criminal justice system is meant for doing justice to all - the accused, the society and the victim.

158. Justice remains incomplete without adequate compensation to the victim. Justice can be complete only when the victim is also compensated.

Sections 357 & 357A of CrPC

159. Section 357 CrPC empowers the Court to award compensation to victims who have suffered by the action of the accused.

160. The object of the Section 357(3) CrPC is to provide compensation to the victims who have suffered loss or injury by reason of the act of the accused. Mere punishment of the offender cannot give much solace to the family of the victim – civil action for damages is a long drawn and a cumbersome judicial process. Monetary compensation for redressal by the Court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at time perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the bread earner of the family.

161. Section 357 CrPC is intended to reassure the victim that he/she is not forgotten in the criminal justice system.

162. Section 357 CrPC is a constructive approach to crimes. It is indeed a step forward in our criminal justice system.

163. The power under Section 357 CrPC is not ancillary to other sentences but in addition thereto.

164. The power under Section 357 CrPC is to be exercised liberally to meet the ends of justice in a better way.

165. Section 357 CrPC confers a duty on the Court to apply its mind on the question of compensation in every criminal case.

166. The word „may‟ in Section 357(3) CrPC means „shall‟ and therefore, Section 357 CrPC is mandatory.

167. The Supreme Court in Ankush Shivaji Gaikwad (supra) has given directions that the Courts shall consider Section 357 CrPC in every criminal case and if the Court fails to make an order of compensation, it must furnish reasons.

Quantum of compensation

168. The amount of compensation is to be determined by the Court

depending upon gravity of offence, severity of mental and physical harm/injury suffered by the victim, damage/losses suffered by the victims and the capacity of the accused to pay. While determining the paying capacity of the accused, the Court has to take into consideration the present occupation and income of the accused. The accused can also be directed to pay monthly compensation out of his income.

Financial capacity of the accused

169. Before awarding compensation, the Trial Court is required to ascertain the financial capacity of the accused. This Court has formulated the format of an affidavit to be filed by the accused after his conviction to disclose his assets and income which is Annexure-A hereto.

Victim Impact Report

170. This Court has formulated the format of Victim Impact Report (VIR) to be filed by DSLSA in every criminal case after conviction. Victim Impact Report (VIR) shall disclose the impact of the crime on the victim. The format of the Victim Impact Report in respect of criminal cases, other than motor accident cases, is Annexure B-1. The format of Victim Impact Report in respect of motor accident cases is Annexure B-2.

Summary Inquiry

171. A summary inquiry is necessary to ascertain the impact of crime on the victim, the expenses incurred on prosecution as well as the paying capacity of the accused.

172. This Court is of the view that the summary inquiry be conducted by Delhi State Legal Services Authority (DSLSA) considering that DSLSA is conducting similar inquiry under the Delhi Victim Compensation Scheme, 2018 and is well conversant with the manner of conducting the inquiry.

173. After the conviction of the accused, the Trial Court shall direct the accused to file the affidavit of his assets and income in the format of Annexure-A within 10 days.

174. After the conviction of the accused, the Court shall also direct the State to disclose the expenses incurred on prosecution on affidavit along with the supporting documents within 30 days.

175. Upon receipt of the affidavit of the accused, the Trial Court shall immediately send the copy of the judgment and the affidavit of the accused in the format of Annexure-A and the documents filed with the affidavit to DSLSA.

176. Upon receipt of the judgment and the affidavit of the accused, DSLSA shall conduct a summary inquiry to compute the loss suffered by the victims and the paying capacity of the accused and shall submit the Victim Impact Report containing their recommendations to the Court within 30 days. Delhi State Legal Services Authority shall seek the necessary assistance in conducting the inquiry from SDM concerned, SHO concerned and/or prosecution who shall provide the necessary assistance upon being requested.

177. The Trial Court shall thereafter consider the Victim Impact Report of the DSLSA with respect to the impact of crime on the victims, paying capacity of the accused and expenditure incurred on the prosecution; and after hearing the parties including the victims of crime, the Court shall award the compensation to the victim(s) and cost of prosecution to the State, if the accused has the capacity to pay the same. The Court shall direct the accused to deposit the compensation with DSLSA whereupon DSLSA shall disburse the amount to the victims according to their Scheme.

178. If the accused does not have the capacity to pay the compensation or the compensation awarded against the accused is not adequate for rehabilitation of the victim, the Court shall invoke Section 357A CrPC to recommend the case to the Delhi State Legal Services Authority for award of compensation from the Victim Compensation Fund under the Delhi Victims Compensation Scheme, 2018.

179. In pending appeals/revisions against the order on sentence in which Section 357 CrPC has not been complied with, the Public Prosecutor shall file an application seeking a direction from the Court for directing the accused to file his affidavit of assets and income in the format of Annexure-A and directions to DSLSA to conduct a summary inquiry to ascertain the loss/damage suffered by the victim(s) and the paying capacity of the accused in the format of Annexures-B/B-1 in terms of Sections 357(4) CrPC in accordance with procedure mentioned hereinabove.

180. All the Courts below shall send a monthly statement to the Registrar General of this Court containing the list of cases decided each month. The list shall contain the name and particulars of the case; date of conviction; whether affidavit of assets and income has been filed by the accused; whether summary inquiry has been conducted to assess the compensation and determine the paying capacity of the accused; and compensation amount awarded. The monthly statement shall also contain one page summary format of the above information. 

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 27th November, 2020

 CRL.A. 352/2020

  KARAN  Vs STATE NCT OF DELHI 

Coram: J.R. MIDHA, J. RAJNISH BHATNAGAR, J. BRIJESH SETHI, J. 

Author: J.R. MIDHA, J.

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Questions and answers on law part 13

Q.1:- Under which circumstances prosecution can adduce evidence on affidavit?

Ans:- Normal rule is that Court should record every evidence in oral before it according to section 272 to 294. But there are some exceptions like section 295 and 296 of Cr.P.C.

Prosecution can adduce evidence on affidavit in exceptional circumstances like section 295 and 296 of Cr.P.C.

295. Affidavit in proof of conduct of public servants.—When any application is made to any Court in the course of any inquiry, trial or other proceeding under this Code, and allegations are made therein respecting any public servants, the applicant may give evidence of the facts alleged in the application by affidavit, and the Court may, if it thinks fit, order that evidence relating to such facts be so given.

296. Evidence of formal character on affidavit.—(1) The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code.

(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavit.

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Guidelines of Karnataka HC regarding necessary averments to be made in an affidavit filed in support of complaint under S 156 of CRPC

In the said decision Priyanka Sreevatsa & another Vs. State of Uttar Pradesh noted supra, the apex Court has specifically considered about the nature of affidavit that should be filed by the party and what should be the contents of the said affidavit. Even the magistrate has not even had patience to go through the said decision of the apex Court to find out whether such affidavit filed by the complainant is in compliance with the direction of the apex court. Therefore, it is worth to reiterate the said guidelines of the apex court which are at paragraph Nos. 30 and 31 of the decision, which read as under:

In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.

We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case.

7. Therefore, it is clear from the above said decision that, the complainant has to state that he has exhausted the remedy U/s. 154(1) and 154(3) of Cr.P.C. and he has to clearly spell out in the application and in the affidavit and necessary document to that effect shall be filed. Thereafter the Court has to take a decision as to whether the application U/s. 156(3) of Cr.P.C. to be referred to the Police or not a decision has to be taken by the Court after applying its judicious mind. But this exercise has not been done by the trial Court, but very casually and mechanically referred the complaint to Police for investigation.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Crl. P. No. 8636/2017

Decided On: 05.03.2018

 Ganesh Krishnan  Vs. Ramesh Nanjund Shastri and Ors.

Hon'ble Judges/Coram:

K.N. Phaneendra, J.

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Whether subsequent event in eviction suit on ground of bonafide need can be brought on record by way of affidavit?

The facts sought to be brought on record do not, in fact, create a fresh cause of action but support the existing cause of action on the basis of which the original eviction petition has been filed. In rent control matters, where the leave to defend has been granted and the matter is pending, it is common for facts to arise during the pendency of the petition, which may strengthen the already filed eviction petition in favour of the Landlord. Such facts cannot be relegated to fresh eviction petitions, leading to multiplicity of proceedings. So long as there is adequate notice of the facts sought to be pleaded in the amendment, subsequent events and facts ought to be permitted to be brought on record. In Gurcharan Singh (supra), a similar situation had arisen wherein the Landlord had fallen ill during the pendency of the petition and this fact was permitted to be added. The Court observed:

"24. This was a subsequent development. It is true that the landlord could have amended eviction petition to plead his ill-health also as a ground for eviction of the tenant but the fact remains that these were developments during the pendency of the eviction proceedings of which the tenants had full notice.

.............................

27. There can be no doubt that in cases of ejectment on the ground of bona fide requirement of the landlord, the Court is entitled to take into consideration the developments that may have taken place till the time of passing of order of ejectment in order to mould the relief. It is also true that cases of illness must be proved by best evidence. The subsequent developments should, however, relate to the requirement of the landlord. It is another thing as to how the subsequent developments should be pleaded and/or proved. As I stated earlier the petition for ejectment can always be amended but failure to amend the petition does not mean that the subsequent events cannot be considered. Rules of natural justice require that the tenant should have full notice about it and should have time and opportunity to rebut it. In the present case, much before the evidence of the tenant commenced, the illness of the landlord was brought to the notice of the court as well as of the tenant and that is why the landlord was allowed to be examined on commission. The landlord even deposed about it in his testimony and this was never challenged in cross-examination. Thus, no prejudice has been caused to the tenant by non-amendment of the ejectment application. In fact, when the evidence of the landlord was being recorded and he was deposing about his illness because of heart attack, no objection was taken on behalf of the tenant to the recording of such evidence. Nor was the fact of illness challenged, as stated earlier."

8. Recently, this Court has considered a similar situation in Bhagwan Dass v. Usha Tyagi [CM (M) 1229/2019, decided on 23rd August, 2019] wherein subsequent facts were permitted to be brought on record by means of an affidavit. 

IN THE HIGH COURT OF DELHI

CM (M) 1376/2019

Decided On: 18.09.2019

 Kashi Ram Vs.  Anita Garg

Hon'ble Judges/Coram:

Prathiba M. Singh, J.

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Whether court can allow cross examination of deponent of application for restitution of property?

 The adjudication of an application under Section 144 of CPC conclusively determines the rights of the parties with regard to the matter in controversy. The definition of decree under Section 2(2) of CPC also makes it clear that any adjudication by a Court under Section 144 of CPC is also a decree. The decree is passed only after appreciation of evidence by the court. Therefore, the requirement of evidence for the purpose of deciding an application under Order XIX Rule 2 of CPC has been satisfied by the respondents/defendants. The application filed by the respondents/defendants is under Section 144 of CPC seeking restitution of possession and an application under Section 144 of CPC cannot be treated on par with an application for injunction under Order XXXIX of CPC. The averments contained in the affidavit filed in support of I.A. No. 3508 of 2008 in O.S. No. 2077 of 1997 under Section 144 of CPC regarding illegal dispossession of the petitioners can be adjudicated only through evidence and a bare affidavit will not be sufficient to prove or disprove the rival contentions. The Judgment relied upon by the learned counsel for the petitioners (a) Dhanalakshmi vs. Karuppayee reported in MANU/TN/4427/2017 : 2017-5-L.W. 758; (b) V. Baby v. Sekar and Another reported in MANU/TN/2877/2014 : (2015) 1 MLJ 443; (c) Kannammal v. Bagyammal reported in MANU/TN/0047/1998 : 1998 (1) CTC 280; (d) P.N. Karuppa Gounder v. Karuppayal and Others reported in MANU/TN/2228/2012 : (2013) 1 MLJ 814 relate to injunction applications filed under Order XXXIX of the CPC and they are not applicable for the facts of the instant case, since the application filed by the respondents/defendants is one under Section 144 of CPC which cannot be equated on par with an affidavit filed in support of an injunction application under Order XXXIX of CPC.

17. This Court has perused and examined the impugned order and is of the considered view that the Trial Court has rightly allowed the application filed by the respondents/defendants under Order XIX Rule 2 of CPC to cross examine the deponent of the affidavit filed in support of an application under Section 144 read with Section 151 of CPC

IN THE HIGH COURT OF MADRAS

C.R.P.(PD). No. 1627 of 2014 and M.P. No. 1 of 2014

Decided On: 01.02.2019

N. Vamanan  Vs. Doss and Ors.

Hon'ble Judges/Coram:

Abdul Quddhose, J.

Citation: AIR 2019 Madras 94

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Whether filing of false affidavit before court amounts to contempt of court?

 It has been held in the case of Hiralal Chawala and Anr. v. State of U.P. and Ors. MANU/SC/0432/1990 : [1990]1SCR325 that filing of false affidavit also amounts to Contempt of this Court. The Registry is, therefore, directed to issue show cause notice to Sh. S. C. Pabreja, returnable before us within four weeks from today, as to why action in contempt should not be taken against him for having filed a false affidavit in this court.

IN THE SUPREME COURT OF INDIA

I.A. No. 18 in Civil Appeal No. 5502 of 1983

Decided On: 07.03.2003

U.P. Resi. Emp. Co-op. House B. Society Vs. New Okhla Indus. Deve. Authority and Ors.

Hon'ble Judges/Coram:

S.N. Variava and B.N. Agrawal, JJ.

 Citation : AIR 2003 SC 2723

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Whether accused in cheque dishonour case can lead evidence on affidavit?

On the other hand, the view taken and the directions issued
in a more recent decision of the Apex Court, in the case of
Indian Bank Association (supra) does contemplate evidence
by affidavit by the accused. The relevant portion is extracted
hereunder:
“DIRECTIONS:
21. Many of the directions given by the various High
Courts, in our view, are worthy of emulation by the
Criminal Courts all over the country dealing with
cases under Section 138 of the Negotiable Instruments
Act, for which the following directions are being given:-

(1) Metropolitan Magistrate/Judicial Magistrate
(MM/JM), on the day when the complaint under
Section 138 of the Act is presented, shall
scrutinize the complaint, and if the complaint is
accompanied by the affidavit, and the affidavit
and the documents, if any, are found to be in
order, take cognizance and direct issuance of
summons.
(2) The MM/JM should adopt a pragmatic and
realistic approach while issuing summons.
Summons must be properly addressed and sent
by post as well as by e-mail address got from
the complainant. The court, in appropriate cases,
may take the assistance of the police or the
nearby court to serve notice on the accused. For
notice of appearance, a short date be fixed. If the
summons is received back un-served, immediate
follow up action be taken.
(3) The court may indicate in the summons that if
the accused makes an application for
compounding of offences at the first hearing of
the case and, if such an application is made, the
court may pass appropriate orders at the
earliest.
(4) The court should direct the accused, when he
appears to furnish a bail bond, to ensure his

appearance during trial and ask him to take
notice under Section 251 Cr.P.C. to enable him to
enter his plea of defence and fix the case for
defence evidence, unless an application is made
by the accused under Section 145(2) for recalling
a witness for cross-examination.
(5) The Court concerned must ensure that
examination-in-chief, cross-examination and
reexamination of the complainant must be
conducted within three months of assigning the
case. The court has option of accepting affidavits
of the witnesses, instead of examining them in
court. The witnesses to the complaint and
accused must be available for cross-examination
as and when there is direction to this effect by
the court.
22. We, therefore, direct all the criminal courts in the country
dealing with Section 138 cases to follow the abovementioned
procedures for speedy and expeditious disposal
of cases falling under Section 138 of the Negotiable
Instruments Act. The writ petition is, accordingly, disposed
of, as above.”
Incidentally, in the above judgment, the Supreme Court has
referred to with approval the views expressed in the
following decisions, in stating thus:-

“22. We notice, considering all those aspects, few High
Courts of the country have laid down certain
procedures for speedy disposal of cases under Section
138 of the Negotiable Instruments Act. Reference, in
this connection, may be made to the judgments of the
Bombay High Court in KSL and Industries Ltd. Vs.
Mannalal Khandelwal, 2005 Cri.L.J. 1201 (Bom), Indo
International Ltd. Vs. State of Maharashtra, 2006
Cri.L.J. 208, and Harischandra Biyani vs. Stock
Holding Corpn. of India Ltd.,(2006)4 MahLJ 381, the
judgment of the Calcutta High Court in Magma
Leasing Limited v. State of West Bengal, (2007)3 CHN
574, and the judgment of the Delhi High Court in
Rajesh Agarwal vs. State, ILR (2010)6 Del 610.”
In KSL and Industries Ltd., vs. Mannalal Khandelwal
(supra), a Division Bench of the Bombay High Court in order
to accomplish the underlying object of the Act, has issued
certain directions, one of which reads as follows:-
“(b) The Court concerned must ensure that
examination-in-chief, cross-examination and
reexamination of the complainant must be concluded
within three months of assigning the case. The Court
has option of accepting affidavits of the witnesses,
instead of examining them in Court. Witnesses to the
complaint and accused must be available for crossexamination
as and when there is direction to this
effect by the Court.” (emphasis supplied)

In M/s Indo-International Ltd., vs. State of Maharashtra,
(supra), the decision in KSL and Industries Ltd., vs.
Mannalal Khandelwal (supra) has been relied upon and
followed.
In Harischandra Biyani vs. Stock Holding Corporation of
India Ltd. (supra), the Bombay High Court has again applied
and followed the decision in KSL and Industries Ltd., vs.
Mannalal Khandelwal (supra).
In Magma Leasing Ltd. vs. State of West Bengal (supra),
there is a reference to KSL and Industries Ltd., vs. Mannalal
Khandelwal (supra), and the same has been referred to and
relied upon in holding that Section 145 enables the accused
or defence to lay evidence by affidavit.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3367 of 2018

 MR.JUSTICE J.B.PARDIWALA

RAKESHBHAI MAGANBHAI BAROT Vs STATE OF GUJARAT

CORAM: MR.JUSTICE J.B.PARDIWALA
Date : 29/01/2019

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Whether departmental enquiry can be initiated against judicial officer in absence of complaint on affidavit?

In the context of the challenge raised in the above Petitions, the issue that
arises is as regards the power of the Disciplinary Authority in the instant case
being the Hon'ble the Chief Justice, the Hon'ble Judges of this Court to
institute the disciplinary proceedings against the Petitioner. There can be no

dispute about the fact that the Maharashtra Civil Services Rules are applicable.
A useful reference could be made to Rule 8(1) and (2) of the said Rules which
are relevant for the purpose of the present Petition:
8. Procedure for imposing major penalties:(
1)
No order imposing any of the major penalties
shall be made except after an inquiry held, as far
as may be, in the manner provided in this rule
and Rule 9, or where such inquiry is held under
the Public Servants (Inquiries) Act, 1850 (37 of
1850) in the manner provided in that Act.
(2) Whenever the disciplinary authority is of the
opinion that there are grounds for inquiring into
the truth of any imputation of misconduct or
misbehaviour against a Government servant, it
may itself inquire into, or appoint under this rule
or under the provisions of the Public Servants
(Inquiries) Act, 1850, as the case may be, an
authority to inquire into the truth thereof.
Provided that, where there is a complaint of
sexual harassment within the meaning of Rule 22A
of Maharashtra Civil Services (Conduct) Rules
1979, the Complaints Committee established in
each Department or Office for inquiring into such
complaints, shall be deemed to be the inquiring
authority appointed by the disciplinary authority
for the purpose of these rules and the Complaints
Committee shall hold, if separate procedure has
not been prescribed for the Complaints
Committee for holding the inquiry into the
complaints for sexual harassments, the inquiry as
for as practicable in accordance with the
procedure laid down in these rules.
ExplanationWhere
a disciplinary authority
itself holds an inquiry under this rule, any
reference to an inquiring authority in this rule
shall, unless the context otherwise requires, be
construed as reference to the disciplinary
authority.

A reading of the said Rule 8(2) therefore discloses that the
discretion is of the Disciplinary Authority if it is of the opinion that there are
grounds for inquiring into the truth of any imputation of misconduct or
misbehaviour against a Government servant. Hence the said Rule (2) can be
said to confer a wide discretion in the Disciplinary Authority in the matter of
inquiring into the truth of any misconduct or misbehaviour against the
Government servant.
12 Now coming to the guide lines which have been formulated by the
Hon'ble The Chief Justice of India which are comprised in the letter dated 3102014
they read thus:A.
The complaint making allegations against
members of the Subordinate Judiciary in the
States should not be entertained and no action
should be taken thereon, unless it is accompanies
by a duly sworn Affidavit and verifiable material
to substantiate the allegations made therein.
B. If action on such complaint meeting the
above requirement is deemed necessary,
authenticity of complaint should be duly
ascertained and further steps thereon should be
taken only after satisfaction of the competent
authority designated by the Chief Justice of the
High Court.
C. If the above requirements are not complied
with, the complaint should be filed/lodged
without taking any steps thereon.

The said guidelines were modified and communicated vide letter
dated 1632017
issued by the Hon'ble The Chief Justice Of India. The
modification carried out which is relevant for the purposes of the present
Petition is in clause (A). The modified clause (A) reads thus:
A. The complaint making allegations against
members of the Subordinate Judiciary in the
States should not be entertained and no action
should be taken thereon, unless it is accompanied
by a duly sworn Affidavit and/or verifiable
material to substantiate the allegations made
therein.
(emphasis supplied)
13 Hence by modification the requirement is that a complaint should
be accompanied by duly sworn affidavit and/or verifiable material to
substantiate the allegations made therein. Hence a complaint can be
entertained in two contingencies one is when a complaint is accompanied by a
duly sworn affidavit and second is when the complaint contains verifiable
material. It is in the light of the said modification that the instant case would
have to be considered. The said modification being in the matter of the
procedure which is required to be followed prior to holding a Departmental
Enquiry, the same would obviously relate back to the date of issuance of the
show cause notice, even if the notice is prior to the issuance of the
modification.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.643 OF 2017

Asif Badremunir Tahasildar Vs. State of Maharashtra 

CORAM :R. M. SAVANT, &
SARANG V KOTWAL, JJ

PRONOUNCED ON : 4th MAY, 2018
Citation: 2018(6) MHLJ 850
JUDGMENT (PER R.M.SAVANT J.)

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