Forum Replies Created
June 27, 2017 at 12:52 am in reply to: Is summoning of documents from accused violation of Article 20 of Constitution? #1989
Article 20(3) of the Constitution guarantees that “No person accused of any offence shall be compelled to be a witness against himself”.
The issue raised in your question has been settled by a 11-judge bench of the Supreme Court in the case of State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808 : (1962) 3 SCR 10 : (1961) 2 Cri LJ 856, which was decided by a majority of 8 judges. It is pertinent to point out that 11-judges bench decision of the Supreme Court is a rarity. In this case, the Supreme Court, by majority, held as under:
“It is well established that cl. (3) of Art. 20 is directed against self-incrimination by an accused person. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge. For example, the accused person may be in possession of a document which is in his writing or which contains his signature or his thumb impression. The production of such a document, with a view to comparison of the writing or the signature or the impression, is not the statement of an accused person, which can be said to be of the nature of a personal testimony.”
The majority decision in this case also observed as under:
- “To be a witness” means imparting knowledge in respect of relevant facts, by means of oral statements or statements in writing by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation. A person is said ‘to be a witness’ to a certain state of facts which has to be determined by a court or authority authorised to come to a decision, by testifying to what he has seen, or something he has heard which is capable of being heard and is not hit by the rule excluding hearsay, or giving his opinion, as an expert, in respect of matters in controversy.
- ‘To be a witness’ means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.
- The accused may have documentary evidence in his possession which may throw some light on the controversy. If it is a document which is not his statement conveying his personal knowledge relating to the charge against him, he may be called upon by the Court to produce that document in accordance with the provisions of S. 139 of the Evidence Act, which, in terms, provides that a person may be summoned to produce a document in his possession or power and that he does not become a witness by the mere fact that he has produced it; and therefore, he cannot be cross-examined. Of course, he can be cross-examined if he is called as a witness who has made statements conveying his personal knowledge by reference to the contents of the document or if he has given his statements in Court otherwise than by reference to the contents of the documents.
Thus, an analysis of the above judgment shows that if the content of the document does not disclose any information based on the personnel knowledge of the accused, it may be summoned. This is what appears to be the ratio of the above judgment.
Though you have not clarified, it appears to be a case based on a charge sheet filed by police, and NOT on the basis of a private complaint directly filed in court. If it is a case based on police charge sheet, then the trial is to be conducted by the public prosecutor on behalf of the State and not by the complainant. In such cases, the presence of the complainant may not be necessary on all dates, except where the court wants the presence of the complainant for her own testimony or for some other special reason. Therefore, the trial can proceed further even if the complainant (wife of your brother, in this case) is not present in court on every date. Only when her presence is required for recording her own evidence, her presence may be necessary. Otherwise, the trial is required to be conducted by the State and the public prosecutor is required to be present.
June 27, 2017 at 12:08 am in reply to: Income tax liability on income arising out of transfer of money to nominee #1987
This is a case of acquiring property by way of inheritance. It is covered under Section 56 of the Income Tax Act (Income from Other Sources). But, it is not taxed and it is exempted under Section 56 [under Proviso to clause (vii) of Section 56(2)] being a sum or money or property received under a will or by way of inheritance. It can be shown in the Income Tax Return under the relevant column where income exempt from tax is required to be reported.
However, please note that while receipt of such property by inheritance is not taxed, if such property is subsequently sold by such successor or nominee, the profit / gain on such sale may be taxable as per the provisions of the Income Tax Act.
June 26, 2017 at 11:43 pm in reply to: Revision in 125 Crpc order passed by family court of session judge level #1986
In such a situation, you may file the revision petition before the high court since the court passing the order is itself of the level of sessions court.
You have not clarified in your question whether the complaint given by you to police is with regard to a cognizable offence or a non-cognizable offence. The FIR under Section 154 Cr.P.C. can be filed by police only in respect of a cognizable offence. In respect of a non-cognizable offence, you can file a private complaint directly in the court since the police has no power to register FIR.
Now, in case your complaint related to a cognizable offence and police did not register the FIR, then, the following may be noted:
(1) It is mandatory to register FIR if the complaint discloses cognizable offence. This has been re-affirmed in a recent judgment of the Supreme Court in the case of Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1 : 2014 Cri LJ 470 : AIR 2014 SC 187. It was held that, however, if the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. It was held that the category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/family disputes; (b) Commercial offences; (c) Medical negligence cases; (d) Corruption cases; (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months’ delay in reporting the matter without satisfactorily explaining the reasons for delay.
(2) Sub-section (3) of Section 154 of Cr.P.C. provides that: “Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.” So, if the police station refused to register FIR, you may take action as per Section 154(3) of the Cr.P.C.
(3) You may also approach the Magistrate under Section 156(3) Cr.P.C. for directing the police to register FIR and investigate the matter.
(4) You can file a private complaint in the court under Section 190 / 200 of Cr.P.C.
(5) In some exceptional cases, you may also approach the high court for seeking direction to register the FIR and investigate.
June 26, 2017 at 11:30 pm in reply to: Combined rejoinder affidavit or separate rejoinders to 2 respondents? #1984
Though there is no hard and fast rule, as far as I understand, it may be preferable if you file separate rejoinder affidavits to the counter-affidavits filed by the two respondents, wherein you can appropriately deal with the issues raised by them. In case you file a combined rejoinder, you may have to specifically point out which averment in your rejoinder is in response to which counter-affidavit.
June 26, 2017 at 11:27 pm in reply to: Execution of interim maintenance order under section 125 criminal procedure code #1983
The order for interim maintenance issued by the court under Section 125 of the Criminal Procedure Code can be implemented in the same manner in which a regular order of maintenance is implemented. It is provided in sub-section (3) of Section 125 itself, and is as under:
“(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation.—If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.”
Section 128 of the Cr.P.C. is also relevant in this regard and is reproduced as under:
“128. Enforcement of order of maintenance.— A copy of the order of maintenance or interim maintenance and expenses of proceeding, as the case may be, shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be, is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance, or as the case may be, expenses due.”
You may file an application under Section 125(3) of the Cr.P.C. before the court for issuing a warrant against the husband for recovering the amount of interim maintenance in accordance with the provision.
I have already replied to a similar question. Please see: Can a non-lawyer appear in court to defend his wife?
There are two issues here.
Firstly, it appears that you have not filed complaint for an offence under Section 406 of the IPC against your husband, which relates to criminal breach of trust (misappropriation of the items mentioned by you). If that offence is registered, it is for the police to recover those articles from the possession of your husband, if needed by conducting search or by arresting him.
Secondly, even under the Dowry Prohibition Act, there is a specific provision under Section 6 thereof that whatever property is received as dowry, the same shall be for the benefit of the wife or her heirs, and if any person fails to transfer such property within the specified time limit, then that would amount to another offence under Section 6. The relevant extracts of Section 6 are reproduced as under:
“6. Dowry to be for the benefit of the wife or her heirs.—(1) Where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman—
(a) if the dowry was received before marriage, within three months after the date of marriage; or
(b) if the dowry was received at the time of or after the marriage, within three months after the date of its receipt; or
(c) if the dowry was received when the woman was a minor, within one year after she has attained the age of eighteen years,
and pending such transfer, shall hold it in trust for the benefit of the woman.
(2) If any person fails to transfer any property as required by sub-section (1) within the time limit specified therefor or as required by sub-section (3), he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years or with fine which shall not be less than five thousand rupees, but which may extend to ten thousand rupees or with both.”
So, if not done already, you may give a complaint under Section 406 IPC and/or Section 6 of the Dowry Prohibition Act in respect of the articles in respect of which these sections may be applicable in your case. Thereafter, the police will get the power to recover these items from your husband or his family.
June 26, 2017 at 7:19 pm in reply to: Surrender to court after getting anticipatory bail #1974
Firstly, it is not understood why should there be a need to surrender to the court when you have already been granted anticipatory bail by the court. Once there is anticipatory bail granted by the competent court, though the police can arrest you it has to release you immediately on bail in terms of the conditions mentioned in the order for anticipatory bail. Therefore, there is no need for worry about the arrest by police.
In any case, if you still want to surrender to the court after having already obtained the anticipatory bail order from the competent court, there is no legal issue and you can surrender to the court and apply for regular bail.
Definition of the word dowry in the Dowry Prohibition Act, 1961, is as under:
“2. Definition of “dowry”.—In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly—
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person,
at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Explanation I.— ***
Explanation II.—The expression “valuable security” has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860).”
It is clear from the above definition that the definition of dowry specifically excludes from its meaning dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Therefore, the Dowry Prohibition Act would not apply to Muslims in so far as dower or mahr are concerned, since what is punishable in this Act is taking or giving of dowry or demand of dowry, which are specifically excluded from its definition.
The main ingredient of the offence under Section 354 of IPC is that the assault or use of criminal force to any woman must have been with the intention “…to outrage or knowing it to be likely that he will thereby outrage her modesty…”. Therefore, there should be a specific intention of outraging the modesty of the woman to amount to an offence under Section 354 IPC.
In your case, from the limited facts narrated by you, this intention to outrage the modesty of the woman, appears to be missing. You already knew the girl well, and there was some small fight as you have mentioned. While Section 323 IPC offence may have been committed in the facts mentioned by you, offence under Section 354 IPC appears to be not committed. Unless, of course, if some more facts are mentioned by the girl in her complaint to the police which show the above intention, which are not in your knowledge.
June 26, 2017 at 6:59 pm in reply to: Full or part amount of fine to deposit for appeal in cheque bounce conviction? #1971
After conviction in a cheque bounce case under Section 138 of the Negotiable Instruments Act, if the penalty of fine is also imposed, there is no need to deposit the full or a part amount of the fine before filing appeal against such conviction. There is no such provision in law that you have to first deposit the fine imposed on you on such conviction, either in full or in part, before filing the appeal against conviction in cheque bounce case.
While some taxation laws may have such provisions for depositing a part of the fine imposed or the tax due before you file the appeal, there is no similar provision in respect of filing an appeal against conviction in a cheque dishonour case.
As regards the suspension of the sentence of imprisonment, or the issue of grant of bail after conviction, since the imprisonment in your case is only one month, the trial court itself would have granted you bail after suspending your sentence under Section 389 of the Criminal Procedure Code.
June 26, 2017 at 6:51 pm in reply to: Can anticipatory bail application be filed for bailable offences? #1970
The only provision in the Criminal Procedure Code under which anticipatory bail can be granted is Section 438 and this section specifically lays down that: “Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail…”.
Thus, it is quite clear from it that anticipatory bail can be granted only in respect of non-bailable offences. There is no provision for grant of anticipatory bail in bailable offences.
In fact, there is no need for seeking anticipatory bail in a bailable offence for the simple reason is that bail is a matter of right in a bailable offence and you’ll in any case get bail in a bailable offence on being arrested. So, why should there be a provision for anticipatory bail in a bailable offence? Not needed.
June 26, 2017 at 6:34 pm in reply to: Can High Court order CBI investigation in a case under Article 226? #1969
Yes. The high court has the power to direct the CBI to conduct investigation in a case even if that offence has occurred within the territorial jurisdiction of a State. Likewise, the high court has power to transfer a pending case under investigation with State Police within the territorial jurisdiction of a State to the Central Bureau of Investigation (CBI). This power is covered within Article 226 of the Constitution. And, for the high court to exercise this power, consent of the State Government is not required under Section 6 of the Delhi Special Police Establishment Act, 1946.
In the case of State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571 : AIR 2010 SC 1476, a Constitution bench of the Supreme Court has affirmed this legal position. It was held that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law.