Sec 174A IPC - no complaint is necessary

Maneesh Goomer Vs State Hon'ble High Court of Delhi on 04.01.12 observed that 174A of IPC is a cognizable offence and other offence of this line are non-cognizable thus it can not be said that a complaint by court is necessary for all section including sec 174A IPC. Under this section police may registered FIR and file charge sheet without formal complaint by court. Main offence of sec 138 IPC is already compounded but same is not ground to quash present case u/s 174A and this is a distinctive offence. 

meager sentences.. counter productive in the long run

Ahmed Hussein Vali Mohammed Saiyed and Anr Vs State of Gujarat, (2009) 7 SCC 254, Hon'ble Supreme Court of India observed as 

“99.….The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence, which reflects the conscience of the society and the sentencing process has to be stern where it should be.

Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.

100. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. The court will be failing in its duty if appropriate punishment is “not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong”

Just punishment is the collective cry of the society

Gopal Singh Vs State of Uttarakhand JT 2013 (3) SC 444 Hon'ble Supreme Court of India observed as 

“18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence”

Injunction is a form of specific relief

Arbitration Act - sec 11(6) - limitation of 30 days is not applicable to this section and a party may appoint arbitrator even after 30 days of notice. - specific relief act - Injunction defined Injunction is a form of specific relief. It is an order of a court requiring a party either to do a specific act or acts or to refrain from doing a specific act or acts either for a limited period or without limit of time. In relation to a breach of contract, the proper remedy against a defendant who acts in breach of his obligations under a contract, is either damages or specific relief. The two principal varieties of specific relief are, decree of specific performance and the injunction (See David Bean on Injunctions). The Specific Relief Act, 1963 was intended to be "An Act to define and amend the law relating to certain kinds of specific reliefs." Specific Relief is relief in specie. It is a remedy which aims at the exact fulfilment of an obligation. According to Dr. Banerjee in his Tagor Law Lectures on Specific Relief, the remedy for the non performance of a duty are (1) compensatory, (2) specific. In the former, the court awards damages for breach of the obligation. In the latter, it directs the party in default to do or forbear from doing the very thing, which he is bound to do or forbear from doing. The law of specific relief is said to be, in its essence, a part of the law of procedure, for specific relief is a form of judicial redress. Thus, the Specific Relief Act, 1963 purports to define and amend the law relating to certain kinds of specific reliefs obtainable in civil courts. It does not deal with the remedies connected with compensatory reliefs except as incidental and to a limited extent. The right to relief of injunctions is contained in part-III of the Specific Relief Act. Section 36 provides that preventive relief may be granted at the discretion of the court by injunction temporary or perpetual. Section 38 indicates when perpetual injunctions are granted and Section 39 indicates when mandatory injunctions are granted. Section 40 provides that damages may be awarded either in lieu of or in addition to injunctions. Section 41 provides for contingencies when an injunction cannot be granted. Section 42 enables, notwithstanding anything contained in Section 41, particularly clause (e) providing that no injunction can be granted to prevent the breach of a contract the performance of which would not be specifically enforced, the granting of an injunction to perform a negative covenant. Thus, the power to grant injunctions by way of specific relief is covered by the Specific Relief Act, 1963.”

Adhunik Steels Ltd vs Orissa Manganese And Minerals Hon'ble Supreme Court of India  on 10 July, 2007

A team whose goal is justice

Ram Chander Vs State Of Haryana AIR 1991 SC 1036 

Evidence Act- sec 165- power of court to ask question- role of court in evidence

"“If a Criminal Court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. The Court has wide powers and must actively participate in the trial to elicit the truth and to protect the weak and the innocent. It is the duty of a judge to discover the truth and for that purpose he may "ask any question, in any form, at any time, of any witness, or of the parties, about any fact, relevant or irrelevant". But this he must do, without unduly trespassing upon the functions of the public prosecutor and the defence counsel, without any hint of partisanship and without appearing to frighten, coerce, confuse, intimidate or bully witnesses. He must take the prosecution and the defence with him. The Court. the prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge. The judge, like the conductor of a choir, must, by force of personality personality, induce his team to work in harmony; subdue the raucous, encourage the timid, conspire with the young, flatter and old”

sentence should reflect the crime

Hazara Singh vs Raj Kumar Hon'ble Supreme Court of India observed on 18.04.13 as

“The cardinal principle of sentencing policy is that the sentence imposed on an offender should reflect the crime he has committed and it should be proportionate to the gravity of the offence.”

“If acquittal of some co-accused casts a cloud of doubt over the entire prosecution case, the whole case may be rejected. But we fail to understand how acquittal of some of the accused can have any relevance to the question of sentence awarded to those who are convicted.”

“Mr Jain said that the High Court has enhanced the fine and compensated the injured and, therefore, we should not enhance the sentence. Accepting such a submission would mean that if your pockets can afford, commit serious crime, offer to pay heavy fine and escape entacles of law. Power of wealth need not extend to overawe court processes.”

In Sondur Gopal Vs Sondur Rajini Hon'ble Supreme Court of India observed as on 15.07.13

“State cannot have operation in another State. A law which has extra territorial operation cannot directly be enforced in another State but such a law is not invalid and saved by Article 245 (2) of the Constitution of India. Article 245(2) provides that no law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation. But this does not mean that law having extra-territorial operation can be enacted which has no nexus at all with India”

“Therefore, in our opinion, the decision of the Calcutta High Court taking a view that the provisions of the Act would apply to a Hindu whether domiciled in the territory of India or not does not lay down the law correctly”

“To say that it applies to Hindus irrespective of their domicile extends the extra-territorial operation of the Act all over the world without any nexus which interpretation if approved, would make such provision invalid.”

“the Act will apply to Hindu outside the territory of India only if such a Hindu is domiciled in the territory of India.”

“The right to change the domicile of birth is available to any person not legally dependant and such a person can acquire domicile of choice. It is done by residing in the country of choice with intention of continuing to reside there indefinitely. Unless proved, there is presumption against the change of domicile”
Read on Indiankanoon

Hindu under HMA

In Sondur Gopal Vs Sondur Rajini Hon'ble Supreme Court of India observed as on 15.07.13

“State cannot have operation in another State. A law which has extra territorial operation cannot directly be enforced in another State but such a law is not invalid and saved by Article 245 (2) of the Constitution of India. Article 245(2) provides that no law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation. But this does not mean that law having extra-territorial operation can be enacted which has no nexus at all with India”

“Therefore, in our opinion, the decision of the Calcutta High Court taking a view that the provisions of the Act would apply to a Hindu whether domiciled in the territory of India or not does not lay down the law correctly”

“To say that it applies to Hindus irrespective of their domicile extends the extra-territorial operation of the Act all over the world without any nexus which interpretation if approved, would make such provision invalid.”

“the Act will apply to Hindu outside the territory of India only if such a Hindu is domiciled in the territory of India.”

“The right to change the domicile of birth is available to any person not legally dependant and such a person can acquire domicile of choice. It is done by residing in the country of choice with intention of continuing to reside there indefinitely. Unless proved, there is presumption against the change of domicile”

Unlawful Assembly

Baladin and others Vs State of Uttar Pradesh AIR 1956 SC 181 “It is well settled that mere presence in an assembly does not make such a person a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under section 142, Indian Penal Code”

Hindu under HMA

In Sondur Gopal Vs Sondur Rajini Hon'ble Supreme Court of India observed as on 15.07.13

“State cannot have operation in another State. A law which has extra territorial operation cannot directly be enforced in another State but such a law is not invalid and saved by Article 245 (2) of the Constitution of India. Article 245(2) provides that no law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation. But this does not mean that law having extra-territorial operation can be enacted which has no nexus at all with India”

“Therefore, in our opinion, the decision of the Calcutta High Court taking a view that the provisions of the Act would apply to a Hindu whether domiciled in the territory of India or not does not lay down the law correctly”

“To say that it applies to Hindus irrespective of their domicile extends the extra-territorial operation of the Act all over the world without any nexus which interpretation if approved, would make such provision invalid.”

“the Act will apply to Hindu outside the territory of India only if such a Hindu is domiciled in the territory of India.”

“The right to change the domicile of birth is available to any person not legally dependant and such a person can acquire domicile of choice. It is done by residing in the country of choice with intention of continuing to reside there indefinitely. Unless proved, there is presumption against the change of domicile”

Court Question- role of court

Ram Chander Vs State Of Haryana AIR 1981 SC 1036 

Evidence Act- sec 165- power of court to ask question- role of court in evidence

"“If a Criminal Court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. The Court has wide powers and must actively participate in the trial to elicit the truth and to protect the weak and the innocent. It is the duty of a judge to discover the truth and for that purpose he may "ask any question, in any form, at any time, of any witness, or of the parties, about any fact, relevant or irrelevant". But this he must do, without unduly trespassing upon the functions of the public prosecutor and the defence counsel, without any hint of partisanship and without appearing to frighten, coerce, confuse, intimidate or bully witnesses. He must take the prosecution and the defence with him. The Court. the prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge. The judge, "like the conductor of a choir, must, by force of personality personality, induce his team to work in harmony; subdue the raucous, encourage the timid, conspire with the young, flatter and old”

“The Court, the prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge.”

Common object” may also be developed at the time of incident

 Ramachandran and others v. State (2011) 9 SCC 257

 “27. Thus, this Court has been very cautious in a catena of judgments that where general allegations are made against a large number of persons the court would categorically scrutinise the evidence and hesitate to convict the large number of persons if the evidence available on record is vague. It is obligatory on the part of the court to examine that if the offence committed is not in direct prosecution of the common object, it yet may fall under the second part of Section 149 IPC, if the offence was such as the members knew was likely to be committed. Further inference has to be drawn as to what was the number of persons; how many of them were merely passive witnesses; what were their arms and weapons. The number and nature of injuries is also relevant to be considered. “Common object” may also be developed at the time of incident”

Execution of decree

Babu Lal Vs M/s. Hazari Lal Kishori Lal & Ors. (1982) 1 SCC 525 Hon'ble Supreme Court of India observed as 

“Procedure is meant to advance the cause of justice and not to retard it. The difficulty of the decree holder starts in getting possession in pursuance of the decree obtained by him. The judgment debtor tries to thwart the execution by all possible objections…...”

Disposal of case property- how to prove

AIR 2003 SC 638 Sunderbhai Ambalal Desai and C M Mudaliar Vs State of Gujarat Hon'ble Supreme Court of India observed as 

“In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:--

1. Owner of the article would not suffer because of its remaining unused or by its misappropriation;

2. Court or the police would not be required to keep the article in safe custody;

3. If the proper panchnama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and

4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles."

“For this purpose, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after:--

(1) preparing detailed proper panchnama of such articles;

(2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and  (3) after taking proper security.

13. For this purpose, the Court may fol ow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 Cr.P.C. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The Court should see that photographs of such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the Court under Section 451 Cr.P.C. to impose any other appropriate condition.”

“In any case, such articles should be produced before the Magistrate within a week of their seizure. If required, the Court may direct that such articles be handed over back to the Investigating Officer for further investigation and identification. However, in no set of circumstances, the Investigating Officer should keep such articles in custody for a longer period for the purpose of investigation and identification. For currency notes, similar procedure can be followed”

“For articles such as seized liquor also, prompt action should be taken in disposing it of after preparing necessary panchnama. If sample is required to be taken, sample may kept properly after sending it to the chemical analyser, if required. But in no case, large quantity of liquor should be stored at the police station. No purpose is served by such storing.

20. Similarly for the Narcotic drugs also....”

“In our view, no further directions are required to be given in these matters.

However, it is made clear that in case where accused disputes that he is not involved in the alleged incident and no article was found from him then such endorsement be taken on the photograph. Further with regard to the vehicle also, it is made clear that there may not be any necessity of producing the vehicle before the Court and the seizure Report may be sufficient”

Disqualification of MP on conviction

Hon'ble Supreme Court of India in Lily Thomas Vs Union of India observed on 10.07.13 as  “if any sitting member of Parliament or a State Legislature is convicted of any of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act and by virtue of such conviction and/or sentence suffers the disqualifications mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act after the pronouncement of this “judgment, his membership of Parliament or the State Legislature, as the case may be, will not be saved by subsection (4) of Section 8 of the Act which we have by this judgment declared as ultra vires the Constitution notwithstanding that he files the appeal or revision against the conviction and /or sentence."

Delay in lodging the FIR

In State of H P Vs Gian Chand (2001) 6 SCC 71 Hon'ble Supreme Court of India observed as,

“Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered “for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case”