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Habeas Corpus Petition for Custody of Minor Child: A Case of Parental Dispute

 

Mahesh D. Yatnalli vs The State Of Karnataka

23 May, 2023

Bench: Hon’ble Alok Aradhe, Hon’ble Anant Ramanath Hegde

 

Introduction:

A recent case, WPHC No. 34 of 2023, brought before the court involved a petition seeking a writ of Habeas Corpus to produce a minor son, Kautik Iyer Yatnalli, before the court. The petitioner, the father, alleged that the respondent, the mother, had denied him access to their child, contrary to the terms of a previously reached compromise. The court examined the maintainability of the writ petition and made a decision based on the best interests of the child.

 

Background:

The petitioner and respondent No.4 were married in 2011 but separated in 2014 due to matrimonial disputes. As a result of their separation, respondent No.4 initiated a maintenance proceeding under Section 125 of the Criminal Procedure Code, which was resolved through a compromise. As per the compromise, respondent No.4 was appointed as the guardian of the child, and the petitioner was granted visitation rights during weekends and custody during Summer and Winter Vacations.

Petitioner’s Allegations:

The petitioner claimed that despite the agreed-upon compromise, he was denied access to his son during one of the weekends in January 2023 and also during the Summer Vacation starting from March 25, 2023. The petitioner sent emails to respondent No.4 seeking resolution but received no response and was completely denied access to his son. Frustrated by this situation, the petitioner filed a writ of Habeas Corpus in April 2023.

Legal Arguments:

The petitioner’s counsel argued that the writ of Habeas Corpus was maintainable in this case, citing the decision in ‘RAJESWARI CHANDRASEKAR GANESH vs. STATE OF TAMIL NADU & OTHERS’ (2022 SCC ONLINE SC 885). They emphasized that the petitioner, a senior manager at Hindustan Aeronautics Limited, was entitled to access his son as per the compromise. The petitioner assured the court of making suitable arrangements, including the presence of his mother and sister, to ensure a congenial atmosphere during the child’s stay.

The respondent’s counsel contended that the petitioner had not provided evidence of obtaining leave and argued that the petitioner, being alone, would not be able to properly attend to the child’s needs, particularly considering the child’s medical condition of epilepsy. The respondent suggested that the court interview the child and raised concerns regarding the jurisdiction of Habeas Corpus in cases where the child is in the custody of one parent.

Court’s Decision:

The court considered the submissions from both sides and examined the precedents. Referring to the decision in ‘YASHITA SAHU vs. STATE OF RAJASTHAN’ (2020) 3 SCC 67, the court concluded that a writ of Habeas Corpus could be maintained even when a child is in the custody of one parent, if it serves the best interest of the child. In this case, since the petitioner had been deprived of access to the child during the Summer Vacation as agreed upon in the compromise, the court deemed the writ of Habeas Corpus maintainable.

The court also took into account a medical report stating that the child’s current medical condition was stable and interacted with the child privately. Based on these factors, the court concluded that a congenial atmosphere was necessary during the child’s stay with the petitioner.

Court’s Directions:

The court orders the mother to hand over custody of the child to the father, who will spend time with the child until a specified date. The father is directed to provide proper care, including medical attention, and the mother is allowed to make daily video calls. The custody will be returned to the mother as per the agreement’s terms.

In this case, the court upholds the father’s right to spend time with his child and emphasizes the best interests of the child. It acknowledges the importance of maintaining a harmonious environment for the child’s well-being. While the court does not address the breach of the compromise agreement directly, it indicates that such matters can be pursued through contempt proceedings.

 

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JUDGEMENT REVIEWED BY SHREEYA S SHEKAR

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Challenging Criminal Proceedings: An Analysis of Quashing Petitions under Section 482 of Cr.P.C.

 

 

Sri. S. Rajendra Kumar vs The State Of Karnataka

22 May, 2023

Bench: Hon’ble K.Natarajan

 

Introduction:

In the Indian legal system, the right to seek redressal and challenge criminal proceedings is an integral part of ensuring justice. The provision under Section 482 of the Code of Criminal Procedure (Cr.P.C.) empowers individuals to file petitions for quashing criminal proceedings. This blog delves into a specific case involving the petitioner-accused No.6 and provides an analysis of the arguments presented, the court’s decision, and the implications of such petitions in ensuring a fair and just legal process.

Background of the Case:

The petitioner-accused No.6 has filed a petition under Section 482 of Cr.P.C. seeking the quashing of criminal proceedings pending against them. The case, C.C.No.10026/2022, originated from Crime No.100/2022 registered by Nelamangala Town Police Station, Bengaluru. The charges against the accused include various sections of the Indian Penal Code (IPC) such as Sections 143, 147, 148, 114, 323, 329, 384, 307, 353, 332, 504, 506, along with Section 149.

Indian Penal Code:-

Section Content
143 Punishment for members of an unlawful assembly
147 Punishment for those guilty of rioting
148 Punishment for those guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death
114 Punishment for abettor who is present when offence is committed
323 Punishment for whoever voluntarily causes hurt
329 Punishment for those who voluntarily causing grievous hurt to extort property, or to constrain to an illegal act
384 Punishment for extortion
307 Punishment for whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder
353 Punishment for the offence of assault upon a public servant by causing hurt or grievous hurt in order to deter or obstruct him in the discharge of duties
332 Punishment for whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant
504 Punishment for whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace
506 Punishment for criminal intimidation
149 Punishment for members of an unlawful assembly acting with the intention to fulfil a common objective

Arguments Presented:

The counsel representing the petitioner argued that their client is innocent of the alleged offences. They contended that the petitioner, a friend of accused No.1, had gone to their house for dinner, and there were no illegal activities or unlawful assembly present. The counsel specifically disputed the applicability of Sections 307 (attempt to murder) and 332 (voluntarily causing hurt to public servant) of the IPC to the petitioner’s case. Based on these grounds, the counsel sought the quashing of the criminal proceedings.

 

Counter-arguments:

The learned High Court Government Pleader, representing the respondents, opposed the petition. They argued that the police had received credible information about illegal activities taking place at the house of accused No.1. When the police arrived at the scene, all the accused persons obstructed them from discharging their official duties, which constitutes an offence under Section 353 of the IPC. The counter-arguments further stated that a scuffle ensued, resulting in the assault of the complainant and other police officials, which attracts the provisions of Sections 307 and 332 of the IPC. The respondents also highlighted the allegations of verbal abuse, threats, and the formation of an unlawful assembly by the accused, leading to charges under Sections 504, 506, 323, and 149 of the IPC.

Court’s Decision and Analysis:

After considering the arguments presented and examining the records, the court dismissed the petition filed by the petitioner-accused No.6. The court noted that the police had received credible information about illegal activities at the location, which led them to visit the house of accused No.1. The accused obstructed the police, scolded them, and engaged in a scuffle with the intention to commit murder, resulting in injuries to the complainant and police officials. The court emphasized that the charges against the petitioner and other accused were supported by the seizure of relevant evidence, including play cards, liquor bottles, cash, and clubs.

The court further reasoned that the actions of the accused, including assaulting the police, verbally abusing them, and threatening their lives, constitute offences punishable under the IPC. The court noted the presence of a common object and common intention among the accused, leading to the charge under Section 149 of the IPC for forming an unlawful assembly. Given the establishment of the common object and common intention in the charge sheet, the court concluded that the petitioner must face trial, as the evidence could not be appreciated without conducting a proper trial.

Implications and Significance:

The court’s decision in this case reaffirms the importance of allowing criminal trials to proceed and weigh the evidence presented. Quashing criminal proceedings under Section 482 of Cr.P.C. is not suitable when there is a reasonable basis for the charges and the existence of a prima facie case against the accused. The decision also highlights the significance of preserving the integrity of the legal process and ensuring that all relevant evidence is examined during the trial.

 

Conclusion:

The case discussed above exemplifies the complexities involved in seeking the quashing of criminal proceedings under Section 482 of Cr.P.C. While the right to file such petitions is essential to safeguard individual rights, the court’s decision ultimately depends on a careful analysis of the facts, evidence, and applicable laws. It is crucial for individuals involved in similar cases to understand the nuances of quashing petitions and seek appropriate legal counsel to navigate the legal process effectively.

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JUDGEMENT REVIEWED BY SHREEYA S SHEKAR

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IF THE VEHICLE IS NOT CLAIMED BY THE ACCUSED OR OWNER OR INSURANCE COMPANY OR BY THIRD PARTY, THEN SUCH VEHICLE MAY BE ORDERED TO BE AUCTIONED BY THE COURT.: MADRAS HIGH COURT

The High Court of Madras passed a judgment on 25 April 2023 stating that if the vehicle is not claimed by the accused or owner or insurance company or by third party, then such vehicle may be ordered to be auctioned by the court.It was stated in the case of SHANTHI Vs. THE STATE BY INSPECTOR OF POLICE (CRL OP.3219/2023) which was passed by the single judge bench comprising of HONOURABLE JUSTICE G.CHANDRASEKARAN.

 

FACTS OF THE CASE:

These petitions are filed to modify the conditions imposed in the order dated 07.11.2022 on the file of learned Judicial Magistrate No.II, Kallakurichi (FAC) Principal District Munsif, Kallakurichi as far as directing the petitioner concerned to give undertaking affidavit that she/he will not  dispose the property at the time of trial proceedings, will not alienate the property and will produce the vehicles whenever required by the court. The petitioner is the correspondent of Sakthi Matriculation Higher Secondary School and ECR International School at Kaniyamoor, Chinnasalem Taluk, Kallakurichi District. Due to an riot caused by the accused persons in Crime No.236 of 2022, school buildings and its belongings like buses, van, tractor and assets inside the school premises were vandalized, ransacked and destroyed and the case under Sections 147, 148, 294 (b), 323, 324, 332, 336, 353, 435, 436, 379, 506 (ii) IPC, Sections 3, 4 and 5 of Tamil Nadu Public Property (Prevention of Damage and Loss) Act, 1992 was registered. Burnt vehicles were seized by the respondent police and they were kept in the school premises for more than six months. All the vehicles stand in the name of the petitioner/Correspondent of the school. Original RC Books of the said vehicles were burnt in the incident. Due to the extent of damage caused, many of the vehicles will not be useful for any purpose and they would be taken only for scrap value. Some of the half burnt vehicles are also kept in the school premises and due to sunlight and rain, the vehicles get damaged day-by-day. Petitioner(s) filed applications in return the vehicles to the custody of the petitioner(s), enabling the petitioner(s) to sell the vehicles. The learned Judicial Magistrate, allowed the petitions with a condition that the petitioner(s) shall give an undertaking affidavit that he/she will not dispute the property, will not alienate the property and will produce the vehicles as and when required by the court. The vehicles are almost totally burnt. They are kept in open air, exposed to sun light, air and rain. The vehicles cannot be moved and therefore, they cannot be produced before the Court. The vehicles can be marked as Material Objects (M.Os.), with the use of photographs taken, Seizure Mahazar and Form-95. Therefore, these petitions are filed for altering/modifying the condition No.3 imposed in the order of the learned Judicial Magistrate No.II, Kallakurichi Principal District Munsif, Kallakurichi .

JUDGEMENT OF THE CASE

If the vehicles are kept in open air exposed to sunlight and rain, they become junk day-by-day. In appropriate cases, the vehicles can also be sold. In the case before hand, the photographs filed with the petitions show that some vehicles had been half burnt and some vehicles had been totally burnt. It is not possible for moving these vehicles to the court for marking them as material objects. It is stated that the vehicles had been remanded to the court custody and after taking necessary photographs and videos. Therefore, marking of the vehicles as material objects can be done with the help of Seizure Mahazar, Form-95 and photographs of the vehicles. No one is claiming ownership of these vehicles except the petitioner(s). If petitioner(s) is/are permitted to sell these half burnt and totally burnt vehicles, at least petitioner(s) shall be in a position to recover some portions of the cost of the properties damaged. In his view of the matter, this Court sets aside condition No.3 of the order passed by the learned Judicial Magistrate No. Kallakurichi  Principal District Munsif, Kallakurichi, and gives permission to the petitioner(s) to sell the vehicles. However, learned Magistrate is directed to ensure that the vehicles are photographed with necessary and detailed panchanama prepared and produced before the court for the purpose of marking as exhibits, during the course of trial. It must also be ensured that Motor Vehicle Inspector inspected all the vehicles and submitted his report with regard to the nature and extent of the damage caused to each and every vehicle.  With the above observations and directions, these Criminal Original Petitions are allowed.

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JUDGEMENT REVIEWED BY ROSHNI SABU, KERALA LAW ACADEMY LAW COLLEGE.

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INORDINATE DELAY IN FORWARDING THE FIR TO THE COURT,  CREATES INITIAL DOUBT IN THE CASE OF THE PROSECUTION: MADRAS HIGH COURT

The High Court of Madras passed a judgment on 26 April 2023 stating that Inordinate delay in forwarding the FIR to the Court,  creates initial doubt in the case of the prosecution .It was stated in the case of ARPUTHAN Vs. INSPECTOR OF POLICE (CRL A.1305/2022)  which was passed by the division bench comprising of HONOURABLE JUSTICE M.SUNDAR AND THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR.

 

FACTS OF THE CASE:

On 29.06.2020, the defacto complainant Rajendran, his wifeJamuna along with Rani, a neighbour were sitting in front of their house in veranda and were talking, at that time the appellant/accused who is residing in the opposite house came with a hammer and attacked  on her head uttering . When witness attempted to ward off, her left index finger got injured and fractured. Her husband/defacto complainant who came to her rescue was inflicted with a cut injury on his left ear and thereafter, the appellant fled from the scene of occurrence. Thereafter, the defacto complainant called his friend Narasimman, who came in an auto took the defacto complainant and to Royapettah Government Hospital where Casualty Medical Doctor gave treatment to both and Rajendran, recorded injuries in the Accident Register.

The defacto complainant went to the respondent Police Station, lodged a complaint, who registered the FIR/Sub-Inspector of Police after registration of the case, sent FIR to the Court and informed the higher officials. Investigating Officer on receipt of the same visited the scene of occurrence, prepared observation mahazar, rough sketch in the presence , seized the hammer and blood stained piece of cement floor by Seizure Mahazar.  examined the witnesses present in the scene of occurrence and recorded their statement. Further, after getting opinion and medical report altered the sections by alteration report and filed the charge sheet before the concerned Court. In the meanwhile, the appellant/accused obtained anticipatory bail and thereafter, the case was committed to the Court of Sessions

JUDGEMENT OF THE CASE

It is seen that the prosecution had suppressed the genesis and origin of the occurrence and failed to give explanation on the injuries sustained by the accused at the time of occurrence and in the background of well settled proposition of law and in view of the improbabilities, the serious omissions and infirmities, the interested nature of the evidence and other circumstances, it is clear that the prosecution failed to prove the case against the appellant beyond reasonable doubt.

Accordingly, the Criminal Appeal stands allowed. The conviction and sentence passed by the learned XV Additional District and Sessions Judge, Chennai is set aside and the appellant is acquitted of all charges. Appellant is directed to be released forthwith unless his presence/custody is required in connection with any other case. The Bail Bond if any executed stands cancelled. Consequently, connected miscellaneous petition is closed.

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JUDGEMENT REVIEWED BY ROSHNI SABU, KERALA LAW ACADEMY LAW COLLEGE.

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In our opinion the order passed by the Tribunal warrants no interference. No substantial questions of law arise in the present appeal: Bombay High court

The High Court of Bombay passed a judgement on 04 May 2023, in a recent legal battle under the Income Tax Act. The case of PR. COMMISSIONER OF INCOME TAX-19 VS. VISHWASHAKTI CONSTRUCTION IN INCOME TAX APPEAL NO. 1016 OF 2018 WITH INCOME TAX APPEAL NO. 1026 OF 2018 two appeals were filed challenging an order passed by the Income Tax Appellate Tribunal (ITAT) in Mumbai. The appeals were related to the assessment years 2009-10 and 2010-11 and were brought forth by a partnership firm engaged in road repairs and construction as a contractor for the Municipal Corporation of Greater Mumbai.

FACTS

The appellant, a partnership firm, filed a return of income for the assessment year 2009-10, declaring a total income of Rs. 37,04,810. During the assessment proceedings, the assessing officer (A.O.) noticed that the firm had claimed purchases totalling Rs. 88,53,059 from various entities. However, suspicions arose when the Sales Tax Department provided information about certain bogus parties, whose TIN matched with those from whom the purchases were allegedly made.

The A.O. issued notices under Section 133(6) of the Act to the parties involved, but there was no compliance. The firm also failed to produce the said parties, and as a result, the A.O. treated the amount of Rs. 88,53,059 as bogus purchases and added it back to the total income. The CIT(A) concurred with the A.O. on the bogus purchases but held that only the profit element embedded in the disputed purchases should be assessed as income, estimating it at 12.5%. The ITAT upheld the CIT(A)’s view and decision.

LAWS INVOLVED

The appeals were preferred under Section 260A of the Income Tax Act, 1961, which allows for appeals against orders of the ITAT. The case involved the interpretation and application of various provisions of the Act, including Section 143(3) and Section 147, which pertain to the assessment of income and reopening of assessments, respectively. Additionally, the decision of the CIT(A) was relied upon, along with the judgment of the Gujarat High Court in CIT v. Bholanath Poly Fab Private. Limited., which formed the basis for the ITAT’s decision.

ARGUMENTS

Two appeals were filed under Section 260A of the Income Tax Act, challenging the order passed by the Income Tax Appellate Tribunal. The appellant, claimed purchases from various entities, which were later flagged as bogus by the assessing officer. The firm argued that the completion of assigned projects for the Municipal Corporation of Greater Mumbai would have been impossible without genuine purchases. The Commissioner of Income Tax (Appeals) agreed partially with the assessing officer’s decision. The ITAT upheld the CIT(A)’s view, treating the purchases as bogus but retaining a portion of the addition. Similar cases were referenced to support the decision. The tribunal found no substantial questions of law and dismissed both appeals.

CONCLUSION

The case discussed highlights the legal implications and complexities surrounding the assessment of purchases made by businesses. While the court acknowledged the presence of bogus purchases, it also considered the practicality of completing assigned works if all purchases were deemed non-genuine. The decision emphasizes the need for a balanced approach when determining the tax implications of disputed purchases. Under Section 260A of the Income Tax Act, both appeals were dismissed, and the ITAT’s decision was upheld.

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JUDGEMENT REVIEWED BY VETHIKA D PORWAL, BMS COLLEGE OF LAW

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