Important Legal Insights to the Point by RAKESH SONTAKKE

Chandrakant Narayanrao Tandale vs The State Of Maharashtra And ... on 9 December, 2020 Bench: S.V. Gangapurwala, Shrikant Dattatray Kulkarni IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD PrONOUNCED ON : 09.12.2020 FINAL ORDER (PER SHRIKANT D. KULKARNI, J.) : Euthanasia means intentional premature termination of life of another person as per his request to have a "good death". There are types of euthanasias. They are as under :- (I) Active euthanasia (II) Passive euthanasia (III) Voluntary euthanasi (IV) Non voluntary euthanasia (V) Involuntary euthanasia. 11. The Hon'ble Supreme Court in case of Common Cause Vs. Union of India (supra) has elaborated above types ofeuthanasia in following words :- (I) Active euthanasia - Causing death of a person with his/her consent by direct medical intervention - Some positive act on part of person causing death necessary. (II) Passive euthanasia - Withholding or withdrawing life prolonging medical treatment in accorda...

The appellant had filed a Civil Suit No.541 of 2000 for possession of the suit scheduled property with an application under Order 39 Rules 1 and 2 CPC, seeking injunction restraining the respondent herein from alienating the suit property and putting up any construction thereon. The trial court on the interim application filed by the appellant granted an order of temporary injunction, as prayed for. Be that as it may, Mr. Sachhar is right in contending that unless and untill a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should b...

There is no law that the accused shall personally remain present for cancellation of warrant. If the lawyer makes an application for cancellation of warrant, the same needs to be considered on merits by the learned Magistrate without insisting the for appearance of the Applicant/accused. It is noted by this Court that many Writ Petitions are filed in this Court only because the learned Magistrate straight way take a view that warrant cannot be cancelled unless accused appears before the Court. The view taken by a few of the Magistrates particularly in the city of Bombay, in my opinion, is not correct. It is high time that this Court lets the Magistrate note that the appearance of the applicant/accused is not necessary when application for cancellation of warrant is made. IN THE HIGH COURT OF BOMBAY Writ Petition No. 4429 of 2013 Decided On: 24.12.2013 Arunkumar N. Chaturvedi Vs. The State of Maharashtra and Ors. Hon'ble Judges/Coram: M.L. Tahaliyani, J.

Under the provisions of the DVC Act, 2005 the victim i.e. estranged wife or live-in-partner would be entitled to more relief than what is contemplated Under Section 125 of the Code of Criminal Procedure, 1973, namely, to a shared household also. The questions referred to us by the Referral Order were formulated on the basis of the decisions of this court rendered in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Anr. MANU/SC/0579/1988 : 1988 (1) R.C.R. (Criminal) 322 : (1988) 1 SCC 530 and Savitaben Somabhai Bhatiya v. State of Gujarat and Ors. MANU/SC/0193/2005 : 2005 (2) R.C.R. (Criminal) 190 : (2005) 3 SCC 636 which were rendered prior to the coming into force of the DVC Act, 2005. In view of what has been stated herein before, it is, therefore, our considered view that the questions referred would not require any answer. We, therefore, decline to answer the said questions. The Appellant is left with the remedy of approaching the appropriate Forum under the provisions of ...

The second prayer in the present petition relates to the quashing of CC No. 7601 of 2017 under Section 12 of Protection of Women from Domestic Violence Act (in short ‘PWDV Act’). 10. As perusal of the prayers in the complaint under Section 12 of the PWDV Act relate primarily to grant of maintenance to respondent No. 2 and the minor child. Non providing of maintenance is a continuous cause of action and even if for three years the respondent No. 2 did not claim the maintenance for herself or for the child, the same would not debar her from seeking maintenance under Section 12 of the PWDV Act and the complaint thereon cannot be dismissed being barred by limitation. In the High Court of Delhi at New Delhi (Before Mukta Gupta, J.) Anthony Jose v. State of NCT of Delhi & Ors. W.P(CRL) 2325/2017 and Crl. M.A No. 13146/2017 (stay) Decided on December 5, 2018 Citation: 2018 SCC OnLine Del 12956

Even in a case where the application under Section 12 is not filed by the aggrieved person but is filed by a protection officer or any other person on behalf of the aggrieved person, such protection officer or any other person will be an aggrieved person if an order sought by such protection officer or any other person has not been granted by the Magistrate. Hence, the expression 'aggrieved person' in Section 29 of the Act is wide enough not only to take in the parties to the application but also a protection officer or a person who has moved the Magistrate on behalf of the aggrieved person. Anyhow, such a finer distinction as is attempted by the revision petitioner does not arise in the present revision since the revision petitioner was the respondent to the application filed by his daughter and the revision petitioner is competent to file an appeal against the impugned order in view of Section 29 of the Act. I am not persuaded to accept the distinction drawn by the learned...

The considerations in the prosecution under Section 498­A of the Indian Penal Code are different from the considerations while dealing with an application under Section 12 of the Domestic Violence Act, 2005. “Cruelty” as explained/contemplated by Section 498­A of the Indian Penal Code is different from the “domestic violence” as defined by Section 3 of the Domestic Violence Act, 2005. “Economic abuse” as defined by clause (iv) of Explanation I of Section 3 of the Domestic Violence Act, 2005 cannot be an offence under Section 498­A of the Indian Penal Code. The denial of right of shared household or denial of alternate accommodation to the wife or denial of monetary assistance to the wife will not constitute an offence punishable under Section 498­A of the Indian Penal Code. Considering the facts of the case, in my view, the submissions made on behalf of the applicant relying on the provisions of Section 300 of the Code of Criminal Procedure, are misdirected. Apart from the fac...

It is clear from the provisions of the the Protection of Women from Domestic Violence Act, 2005, are mainly made for giving relief to the affected women, due to domestic Violence etc.. The respondent in such case is not an accused, until he commits a breach of an order passed by the Court under the provisions of the Act. It is only after such breach, the respondent is treated as an accused under section 31 of the Act. In other words, the proceeding under the Act are of the quasi civil nature and in such proceeding, the court would have power to allow amendment in an application and written statement. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Criminal Writ Petition No. 143 of 2010 1 Raosaheb Pandharinath Kamble .....Petitioners. Vs. Shaila Raosaheb Kamble and others Dated;20 april 2010 Citation;2010 CR L J 3596

The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guideline. Generally stated these guidelines are: (1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary...

The Bombay and Delhi High Courts, have held that in case of parallel proceedings, adjustment or set-off must take place. The Bombay High Court in a well-reasoned judgment delivered in Vishal v Aparna & Anr., 2018 SCC OnLine Bom 1207. has taken the correct view. The Court was considering the issue whether interim monthly maintenance awarded under Section 23 r.w. Section 20 (1)(d) of the D.V. Act could be adjusted against the maintenance awarded under Section 125 Cr.P.C. The Family Court held that the order passed under the D.V. Act and the Cr.P.C. were both independent proceedings, and adjustment was not permissible. The Bombay High Court set aside the judgment of the Family Court, and held that Section 20(1)(d) of the D.V. Act makes it clear that the maintenance granted under this Act, would be in addition to an order of maintenance under Section 125 Cr.P.C., and any other law for the time being in force. Sub-section (3) of Section 26 of the D.V. Act enjoins upon the aggrieve...

Section 21 is amenable to two interpretations as is being highlighted by the parties, in such event only that interpretation which advanced the object of the provision can be accepted. It is worthwhile to note that the Act was enacted to prevent the occurrence of domestic violence in the society and keeping in view that, several protection orders including the safety of the aggrieved person and the ‘child’ have been contemplated to be passed. Therefore, the cause of the safety of the aggrieved person or the child is always warrants to be taken into account in interpreting the provision. In such situation, if the interpretation given on behalf of the wife-aggrieved party is accepted, it will render the provision incomplete as in case where wife-aggrieved party seeks custody of the child, if the child is in custody of the husband and an order of custody is passed in favour of the aggrieved party, visitation right can be granted to the husband. But, if custody lies with the wife–aggriev...

The Hon'ble apex court in the case of Nevada Properties Private Limited Vs. State of Maharashtra, AIR 2019 SC 4554, in para Nos. 20 and 21 held as under:- " 20. Section 102 postulates seizure of the property. Immovable property cannot, in its strict sense, be seized, though documents of title, etc., relating to immovable property can be seized, taken into custody and produced. Immovable property can be attached and also locked/sealed. It could be argued that the word seize would include such action of attachmetn and sealing. Seizure of immovable property in this sense and manner would in law require dispossession of the person in occupation/possession of the immovable property, unless there are no claimants, which would be rare. Language of Section 102 of the Code does not support the interpretation that the police officer has the power to dispossesses a person in occupation and take possession of an immovable proerty in order to seize it. In absence of the Legislature conf...

In Rai Sandeep @ Deepu vs. State of NCT of Delhi, (2012) 8 SCC 21, the Supreme Court commented about the quality of the sole testimony of the prosecutrix which could be made basis to convict the accused. It held :- “In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any pr...

The question that has been raised is about the power of the Commissioner to declare a witness hostile. Order XVIII Rule 4(4) requires that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments. Order XVIII Rule 4(8) stipulates that the provisions of Rules 16, 16-A, 17 and 18 of Order XXVI, in so far as they are applicable, shall apply to the issue, execution and return of such commission thereunder. The discretion to declare a witness hostile has not been conferred on the Commissioner. Under section 154 of the Evidence Act, it is the Court which has to grant permission, in its discretion, to a person who calls a witness, to put any question to that witness which might be put in cross-examination by the adverse party. The powers delegated to the Commissioner under Order XXVI Rules 16, 16-A, 17 and 18 do not include the discretion that is vested in Court under section 154 of the Evidenc...

The next plank of argument of Mr. Giri is that since Nepal Singh who had been stated to have accompanied PW-2 and PW-3 has not been examined and similarly, Ram Kala and Bansa who had been stated to have arrived at the tube-well as per the testimony of PW-2, have not been examined, the prosecution's version has to be discarded, for it has deliberately not cited the independent material witnesses. It is noticeable from the decision of the trial court and the High Court, reliance has been placed on the testimony of PWs 1 to 3 and their version has been accepted. They have treated PW-2 and PW-3 as natural witnesses who have testified that the accused persons were leaving the place after commission of the offence and they had seen them quite closely. The contention that they were interested witnesses and their implication is due to inimical disposition towards accused persons has not been accepted and we have concurred with the said finding. It has come out in evidence that witnesses...

"The necessity for "independent witness" in cases involving police raid or police search is incorporated in the statute no for the purpose of helping the indicated person to bypass the evidence of those panch witnesses who have had some acquaintance with the police or officers conducting the search at some time or the other. Acquaintance with the police by itself would not destroy a man's independent outlook. In a society where police involvement is a regular phenomenon many people would get acquainted with the police. But as long as they are not dependent on the police for their living or liberty are not independent person. If the police in order to carry out official duties, have sought the help of any other person he would not forfeit his independent character by giving help to police action. The requirement to have independent witness to corroborate the evidence of the police is to be viewed from a realistic angle. Every citizen of India must be presumed to be...

The defining attributes of a ‘chance witness’ were explained by Mahajan, J., in the case of Puran Vs. The State of Punjab, AIR 1953 SC 459. It was held that such witnesses have the habit of appearing suddenly on the scene when something is happening and then disappearing after noticing the occurrence about which they are called later on to give evidence. 24. In Mousam Singha Roy and Ors. Vs. State of W.B., (2003) 12 SCC 377, this Court discarded the evidence of chance witnesses while observing that certain glaring contradictions/omissions in the evidence of PW2 and PW3 and the absence of their names in the FIR has been very lightly discarded by the Courts below. Similarly, Shankarlal Vs. State of Rajastahan, (2004) 10 SCC 632, and Jarnail Singh & Ors. Vs. State of Punjab, (2009) 9 SCC 719, are authorities for the proposition that deposition of a chance witness, whose presence at the place of incident remains doubtful, ought to be discarded. Therefore, for the reasons recorded b...

The judgment of the Supreme Court very clearly indicates that the provisions under Section 233, Cr.P.C. should not be permitted for the defence to move an application for calling upon a prosecution witness who has been examined and cross-examined at one point of time and later on has to be called as a defence witness to give entirely contradictory statement from what has already been given earlier as a prosecution witness. 14. If we peruse the provisions under Section 233, Cr.P.C., it clearly gives an indication that the said provision is to be attracted after the prosecution evidence is closed and that the Court has reached to the conclusion that prima facie, there is sufficient material against the accused persons for proceeding further with the case and at that time the accused persons can bring his defence witness and adduce any evidence in support of their defence. It further envisages that under Section 233, Cr.P.C. if the accused persons take for issuance of any process for c...

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 BEN...

Whenever there is information of force being used at police stations resulting in serious injury and/or custodial deaths, it is necessary that persons be free to complain for a redressal of the same. Such complaints may not only be made to the State Human Rights Commission, which is then to utilise its powers, more particularly under Sections 17 and 18 of the Protection of Human Rights Act, 1993, for redressal of such complaints, but also to Human Rights Courts, which must then be set up in each District of every State/Union Territory under Section 30 of the aforesaid Act. The Commission/Court can then immediately summon CCTV camera footage in relation to the incident for its safe keeping, which may then be made available to an investigation agency in order to further process the complaint made to it. 19. The Union of India is also to file an affidavit in which it will update this Court on the constitution and workings of the Central Oversight Body, giving full particulars thereof...

It cannot be disputed that local Revenue Authorities may record finding as per their provisional inquiry and observations on the basis of modes such as spot inspection, inventory, inquiry into area etc. They cannot like competent Civil court conclusively decide legal rights agitated by the parties because legal right could be decided upon evidence recorded by the competent Civil Court, unless it's jurisdiction is barred by any law. 5) Learned counsel for the petitioners rightly relied on the judgment in the case of Pandurang Chandrabhan Bauche and antoher v. Jalindhar Sarandhar Tupe and others reported in 2009(3) Mh.L.J. 467 It is held that Section 143 of the Maharashtra Land Revenue Code, 1966 confers independent right on an owner of an agricultural land to claim right of way for having reasonable access to his field. That right is not dependent upon proof of an easement, whether by way of necessity or by way of prescription as provided under the Easements Act. Section 14...

By Judgment dated 02/08/2014, passed by this Court (Coram F. M. Reis, J.), in Writ Petition No. 79 of 2014, it was ordered that custody of the child would continue with the petitioner therein i.e. the petitioner herein, but the respondent being the mother would definitely have frequent visitation rights of minor child, which shall tentatively be for at least three days in a week. "Frequent" means occurring often or in close succession. Frequent cannot mean continuous. The learned trial Court, however, by impugned order has fixed Saturday, Sunday and Monday of every week as the days for visitation of child by respondent but has further directed that the child shall be brought in the Court on every Saturday at 9.30 a.m. and handed over to the respondent, to remain with her till Monday and that she shall return the child in the court every Monday at 5.00 p.m. to the petitioner. The above means that the respondent is not allowed to visit the child as per the order of this Cou...

The presumption that everyone knows the law is a myth that causes needless suffering to millions of people in India ñ especially those who are unlettered. Ignorance of laws ñ and the rights guaranteed by them ñ facilitates blatant misuse of authority by law enforcers, whose job is to protect peopleís rights. Merely putting in place, provisions for the protection of human rights without empowering people through human rights education about the means to ensure their compliance is meaningless. Rule of law to be meaningful must meet the end of legal awareness. One of the essential functions of the National Human Rights Commission (NHRC) is to spread a human rights culture, and to aid the empowerment of people for the better protection of human rights in the country. Non-governmental organisations in particular have been making a valuable contribution in this respect by sharing the responsibility of the State and the NHRC. The Commonwealth Human Rights Initiative (CHRI) is one such org...

On consideration of facts and circumstances revealed that the Muslim husband has not treated his wife in accordance of Holy Queen which leads to conclusion that he has dis-entitled himself to a decree of restitution of conjugal rights. When the husband proceeds against for wife for restitution conjugal rights and also contracted second marriage during the pendency of the suit for restitution of conjugal rights and in the instant case, the wife also complained of physical cruelty to extract money, after 18 years of matrimonial life. Then the burden of proof is on the plaintiff-husband who takes a second wife to explain his action to prove that, his taking of a second wife involves no cruelty to the first wife, by adducing necessary evidence to that effect. For instance, he may rebut the presumption of cruelty by proving that his second marriage took place on the suggestion of first wife otherwise the Court will presume that under modern social conditions that the action of the hus...

Mr. Sharma, learned counsel for the applicant/husband would submit that the non- applicant/wife is practicing Advocate and is able to maintain herself and therefore, she is not entitled for maintenance. The fact remains that nonapplicant/ wife is junior Advocate and enrolled as an Advocate, only in the year 2004 and she is unable to maintain herself as such it cannot be held that she is not entitled for maintenance. HIGH COURT OF CHHATTISGARH AT BILASPUR ------------------------------------------------------ SINGLE BENCH: HON'BLE SHRI JUSTICE SANJAY K. AGRAWAL. ------------------------------------------------------ CRIMINAL REVISION NO. 399/2008 Rishikesh Singh alias T.R. Singh V Kiran Gautam Read original judgment here; click here (Passed on 05/09/2014) Citation; 2015 CRLJ126 Chhatis

Both the learned counsel arguing the case before me then urged a yet another point pertaining to the interpretation of S. 421(1) of Code of Criminal Procedure. Pointing out that the aforesaid sub-section has said, "when an offender has been sentenced to pay a fine, the Court passing sentence may take action for recovery of a fine, in either or both of the following ways." Emphasis was led on the word "may take action". It was submitted, quite with force, that the provisions contained in this sub-section were not restrictive provisions, but they were enabling provisions. It was, therefore, submitted that, even if a restricted interpretation was put on clause (a) of the said section, the section itself did not bar the jurisdiction of the Court to recover the amount of fine in ways other than the two ways enumerated in the section. Sub-section (1) enables the Criminal Courts to recover the levy of fine in two ways specified in clauses (a) and (b) of the said sub-sect...

In Vanmala v. Maroti Sambhaji Hatkar, MANU/MH/0032/2000, a learned single Judge of Bombay High Court pointed out the difficulties in the wife in executing the order in the following words, "The remedy of execution is not an easy remedy. The execution does not at all provide short cuts to the destination. The difficulties of a successful litigant begin when he succeeds to obtain an order in his favour. Driving out a penniless wife to initiate a separate execution proceedings for the purpose of recovery of arrears of interim alimony and expenses of the proceedings frustrates the very purpose and spirit of Section 24 of the Hindu Marriage Act. The approach adopted by the learned Matrimonial Court makes the very purpose of Section 24 of the Hindu Marriage Act redundant and nugatory. .... A Court can, in exercise of its powers under Section 151 of the Civil Procedure Code, pass an order of staying the petition of divorce if it is found that the husband deliberately and contumaciousl...

A perusal of Domestic Violence Act shows that Domestic Violence Act does not create any additional right in favour of wife regarding maintenance. It only enables the Magistrate to pass a maintenance order as per the rights available under existing laws. While, the Act specifies the duties and functions of protection officer, police officer, service providers, magistrate, medical facility providers and duties of Government, the Act is silent about the duties of husband or the duties of wife. Thus, maintenance can be fixed by the Court under Domestic Violence Act only as per prevalent law regarding providing of maintenance by husband to the wife. Under prevalent laws i.e. Hindu Adoption & Maintenance Act, Hindu Marriage Act, Section 125 Cr.P.C - a husband is supposed to maintain his un-earning spouse out of the income which he earns. No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not. Court cannot tell...

Code of Civil Procedure, 1908 - S. 100 - second appeal - plaintiff filed suit for cancellation of sale deed contending that when property was sold by mother and brother of plaintiff, plaintiffs were minor and their interest in the property was not taken care of - on facts, suit filed in collusion with venders of property - Trial Court dismissed suit - held, suit being abuse of process of court plaintiff not entitled to relief claimed - Trial Court was justified in dismissing suit - appeal dismissed. 5.2 This Court further finds that, and it is also the finding of the Court below that, not only the plaintiffs were not entitled for declaration as prayed for, but there was connivance of the plaintiffs with the family members, being defendant Nos. 3,4 & 5, and thereby they had attempted to abuse the process of law. There is also finding to the effect that, the bona­fide purchaser is kept in litigation throughout these decades by one of the family members, since ...