Questions and answers on law(Part 71)

 Q 1:- What is basic concept of universal donee?

Ans:- Section 128 in The Transfer Of Property Act, 1882

128. Universal donee.—

Subject to the provisions of section 127, where a gift consists of the donor’s whole property, the donee is personally liable for all the debts due by and liabilities of the donor at the time of the gift to the extent of the property comprised therein.Q 2 :- What is difference between  warrant and summons case?

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Procedure to be followed by magistrate in complaint sent by session court for offence U/S 340 of CRPC

 Section 343(1) of the Code now enjoins the Trial Magistrate to deal with the complaint Under Section 340 or Section 341 by treating it to be a case, as if instituted on a police report. There is indeed a deeming element ingrained in the provision.

 We are thus of the firm opinion that a Trial Magistrate, on receipt of a complaint Under Section 340 and/or Section 341 of the Code, if there is a preliminary inquiry and adequate materials in support of the considerations impelling action under the above provisions are available, would be required to treat such complaint to constitute a case, as if instituted on police report and proceed in accordance with law. However, in absence of any preliminary inquiry or adequate materials, it would be open for the Trial Magistrate, if he genuinely feels it necessary, in the interest of justice and to avoid unmerited prosecution to embark on a summary inquiry to collect further materials and then decide the future course of action as per law. In both the eventualities, the Trial Magistrate has to be cautious, circumspect, rational, objective and further informed with the overwhelming caveat that the offence alleged is one affecting the administration of justice, requiring a responsible, uncompromising and committed approach to the issue referred to him for inquiry and trial, as the case may be. In no case, however, in the teeth of Section 343(1), the procedure prescribed for cases instituted otherwise than on police report would either be relevant or applicable qua the complaints Under Section 340 and/or 341 of the Code of Criminal Procedure.

59. Reverting to the case in hand, the complaint was filed by the Trial Court stating that the Respondent had committed an offence Under Section 193 Indian Penal Code, he having resorted to falsehood on oath at the trial in order to screen the Accused from the crime and to enable him to escape punishment. The offence alleged is one included in Section 195(1)(b) of the Code and is otherwise, having regard to the punishment prescribed, to which, warrant procedure would be applicable. In course of the arguments, it had transpired that the Trial Magistrate had examined the complainant and some other witnesses before framing charge against the Respondent under the above provision of law. The High Court by the order impugned however, to reiterate, had sustained the plea of the Respondent that as the complaint ought to have been construed to be a case otherwise than on police report to which warrant procedure was applicable, charge could not have been framed as the prosecution had not adduced all its evidence at that stage, as required Under Section 244 of the Code of Criminal Procedure. Significantly, no challenge has been made to the legality and/or the validity of the order Under Section 340 or the complaint on any ground. It has also not been asserted in the course of arguments that the evidence already recorded is not sufficient to frame a charge, as had been done by the Trial Magistrate.

60. In view of the determination as above, the approach of the High Court is wholly indefensible, as in the face of Section 343(1) of the Code of Criminal Procedure, the procedure prescribed for cases instituted otherwise than on police report is not attracted qua a complaint Under Section 340 and/or Section 341 of the Code. Even assuming that the Trial Magistrate had examined few witnesses in support of the complaint, it was in the form of a summary inquiry, to be satisfied as to whether the materials on record would justify the framing of charge against the Respondent or not and nothing further. Any other view would fly in the face of the ordainment of Section 343(1) of the Code of Criminal Procedure and thus cannot receive judicial imprimatur. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 1427-1428 of 2017 (Arising out of S.L.P. (Crl.) Nos. 122-123 of 2016)

Decided On: 18.08.2017

 State of Goa Vs.  Jose Maria Albert Vales

Hon'ble Judges/Coram:

Arun Mishra and Amitava Roy, JJ.

Citation:( 2018) 11 SCC 659

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When Magistrate can discharge accused in warrant trial complaint case without recording evidence?

There is however no warrant for the proposition that Under Section 245(2), Criminal Procedure Code a Magistrate is prevented in any way from discharging the accused at any previous stage prior to taking all the evidence, if he comes to the conclusion, for reasons to be recorded, that he considers the charges to be groundless. If in any particular case, as has happened here, the complainant fails to produce the witnesses for which he has assumed responsibility, and the case is dragged on due to such successive lapses of the complainant, there is nothing inherently unreasonable in the Magistrate coming to the conclusion that the charge is groundless and that the accused persons be discharged. To hold the contrary should grant a premium to the complainant to prolong the harassment to the accused at his mercy. 

IN THE HIGH COURT OF ORISSA

Criminal Revision No. 103 of 1980

Decided On: 17.09.1986

 Agadhu Das Vs.  Baban Parida and ten Ors.

Hon'ble Judges/Coram:
G.B. Patnaik and Lingaraj Rath, JJ.

Equivalent Citation: 62(1986)CLT540, 1986(II)OLR493, 1986(2)OLR493,1987CRLJ555 Orissa

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Whether trial in food adulteration case is vitiated on the ground that it was tried as warrant case?

In the case of Shyam Sunder Vs. State of Rajasthan & Anr.
[1996(3) W.L.C. 722], a similar question had arisen and the
question was referred to a Larger Bench for answer. The Larger
Bench opined that in post conviction cases, the trial of a case for
offence under Section 16(1) read with Section 7 of the Act by
adopting the procedure of a warrant case does not stand vitiated
unless prejudice caused to the accused is shown. Since no
prejudice occasioned to the petitioner by trying the case of the
petitioner as per procedure in a warrant trial court has been
shown, the argument advanced by Mr. Jain has no substance and
accordingly rejected.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR

:ORDER:
Ishwar Singh Vs. The State of Raj.
S.B. Criminal Revision Petition No.311 of 1995
under Section 397 read with Section 401 Cr.P.C.
against the judgment dated 29.09.1995 passed
by the learned Special Judge cum Additional
Sessions Judge, Pratapgarh in Criminal Appeal
No.3/1995 (1/1992) whereby he upheld the
judgment dated 10.12.1991 passed by the
learned Additional Chief Judicial Magistrate,
Pratapgarh in Criminal Case No.35/1984 whereby
he convicted the petitioner for the offence
under Section 7/16 of the Food Adulteration Act.
<><><>
Date of Order ::: 31.01.2014
Present
Hon'ble Mr. Justice Banwari Lal Sharma

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Whether Magistrate can close warrant trial case if prosecution fail to adduce evidence inspite of several chances?

After carefully considering all the aforesaid decisions and the views expressed therein, we are of the view that if the prosecution had made an application for the issue of summons to its witnesses either under Section 242(2) or 254(2) of the Criminal Procedural Code it is the duty of the court to issue summons to the prosecution witnesses and to secure the witnesses by exercising all the powers given to it under the Criminal Procedure Code, as already indicated by us and if still the presence of the witnesses could not be secured and the prosecution also either on account of pronounced negligence or recalcitrance does not produce the witnesses after the Court had given it sufficient time and opportunities to do so, then the Court, being left with no other alternative would be justified in acquitting the accused for want of evidence to prove the prosecution case, under Section 248, Cr. P. C., in the case of warrant cases instituted on a police report and under Section 255(1), Cr. P. C. in summons cases,

Madras High Court

The State (Tamil Nadu) vs Veerappan And Ors. on 24 March, 1980

Equivalent citations: AIR 1980 Mad 260

Bench: Paul, Natarajan, R Pandian

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