FIRST LAW

ALLAHABAD HIGH COURT  | Sudhir Agarwal & Rajeev Misra, JJ. Delivered on : September 13, 2019

The Protection of Women from Domestic Violance Act, 2005 - Sections 12 and 18 - Application to Magistrate - Protection Orders - What should be the period of limitation for filling a complaint under Sections 12 and 18 of the Act.

ALLAHABAD HIGH COURT |  Sanjay Kumar Singh, J .   Appl. U/s. 482 No. 16228 of 2019 25-07-2019 Naval Dey Bharti v. State of U.P. Cognizance of an Offence  – Before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the police report. Judicial Mind  – Without applying judicial mind and without even looking at the facts of the case mechanically issuing process only on the basis of operative portion of the charge sheet, does not amount to application of mind by the Magistrate. Judicial Order  – The judicial order cannot be allowed to be passed in a mechanical manner. Such tendency must be deprecated and cannot be allowed to perpetuate. Frivolous Prosecution  – Charge-sheet under Section 3/10 Examination Act, 1982 – In this case the magistrate concerned also did not take pain even to examine whether the Exam...

Penal Code, 1860 – S. 307 - Attempt to Murder - the offences U/s 307 and allied sections of penal code is the offence against the society, irrespective of the fact to whom it was caused and to gauge the gravity of the offence, nature of weapon used, seat of the injuries and number of the assault inflicted upon the injured are guiding factors.

The Constitution of India – Article 226 - The Securitization and Reconstruction of Financial Assets and Enforcement of Security Act, 2002 - The Security Interest (Enforcement) Rules, 2002 - Rule 8 (1) - Section 13 (4) - There may be sometimes genuine reasons for the borrowers for being late in payments but such issues can be addressed by the appropriate forum provided for dealing with these matters. The extraordinary jurisdiction of Court is not to be invoked in such cases.

Maternity Benefit Act, 1961 - Maternity Benefit (Amendment) Act, 2017 - the petitioner is entitled for maternity leave for period of six months but wholly illegally leave was granted only for a period of three months.  Prakash Padia, J .  Anshu Rani v. State of U.P. , W.A No. 3486 of 2019 19-04-2019

Hindu Marriage Act, 1955 - Section 13(1)(i-b) - Divorce - Ground of Desertion - Where divorce has been sought on the ground of desertion only, the court cannot grant divorce on the ground of cruelty.

Evidence Law - No presumption can be raised against the accused either of fact or in evidence, whatever evidence is available on record, is to be read as it is.

Written Statement - On the same set of facts, the second application seeking amendment in the written statement is not permissible in law.

Penal Code, 1860 - Ss. 148, 302 / 149 - the participation of accused cannot be doubted merely on the ground that being a lady, she would not have joined other accused persons in the murder of the deceased.  Raja Ram v, State of U.P.,   [Allahabad High Court, Pritinker Diwaker & Raj Beer Singh, JJ.] Crl.A. No. 5307 of 2008 11-01-2019

Penal Code, 1860 - Section 302 -  Murder of fratricide and nepolicide i.e. killing of his brother and nephew -  Conviction can be based on the testimony of the single witness where it was straight forward.

Criminal P.C. 1973 - S.391 - Appellate Court may take further evidence or direct it to be taken - Even at the stage of hearing of an appeal before a High Court, it is possible that additional evidence is permitted to be led.

Limitation Act, 1963  - S.3 -  Plea of limitation is the plea of jurisdiction and the Court or Tribunal is under obligation to determine / decide the point of delay even in absence of plea to the same effect set up as a defence.  Basic Shiksha Parishad v. U.P.P.S.T. Lucknow ,  https://bit.ly/SB159of1998  21-12-2018

A case ought not to have decided on the weakness of defence and it is the duty of claimant to plead and prove his case and Court should not blindly rely upon the averments made in the plaint/claim petition even in absence of counter affidavit/written statement.

Motor Vehicles Act, 1988 - Ss. 168 & 173 - the only requirement for determining the compensation is that it must be 'just'. There is no other limitation or restriction on its power for awarding just compensation.

Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 - Presiding Sessions Judges are advised to be cautious while mentioning their designation in judgments.

Constitution of India - Article 235 - ‘Control’ over subordinate judiciary is vested in the High Court and the said control is exclusive in nature, comprehensive in extent and effective in operation and is to subserve a basic feature of the Constitution i.e. independence of Judiciary. The Scheme envisaged in the Constitution makes the High Court, the sole authority, which have administrative and disciplinary control and jurisdiction over the employees and officers of subordinate Courts.

Penal Code, 1860 – Ss. 302, 304B & 498A – Dowry Prohibition Act, 1961 - Ss. 3 & 4 - N either before marriage, the demand of dowry i.e. Colour T.V. and Hero Honda Motorcycle was made nor was it made immediately after marriage rather the same was made two years after marriage - witness was not able to state that soon before the death of the deceased, there was any demand of the aforesaid items - the offence has been committed by the appellant not under Section 304-B I.P.C. rather the same has been found to have been committed under Section 302 I.P.C.

Criminal P.C. 1973 - S.482 - Penal Code, 1860 -  Ss. 498A, 323, 504, 506 - Dowry Prohibition Act, 1961 - Ss. 3, 4 -  for establishment of case of demand of dowry, that must co-relate with the marriage or pre-marriage stage and not every demand made by the applicants after marriage will come within the purview of dowry. 

Rent Law - Mere fact that the tenant continues in possession and rent is accepted and the suit is not instituted are insufficient circumstances for inferring an intention to create a new tenancy after expiration of the first.