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The inherent power under Section 482 CrPC cannot be used by the High Court to reopen or alter an order disposing of a petition decided on merits : Tripura High Court

The Tripura High Court in the case of Ramendra Kishore Bhattacharjee vs Smt. Madhurima Bhattacharjee (Crl.Petn.No.53 of 2021) upheld that the inherent power under Section 482 CrPC cannot be used by the High Court to reopen or alter an order disposing of a petition decided on merits.

Facts of the case : The wife presented an application under Section 12 of the DV Act in the court of the Judicial Magistrate of the First class at Agartala Seeking various reliefs under the DV Act wherein she referred to several incidents of domestic violence against her husband. Her husband subjected her to harassment and torture for dowry and since she was unable to meet his demand, she was physically assaulted by her husband on various dates. Unable to bear his torture, the wife parted with his company on 17.12.2015. 

The High Court directed the Respondent No.1 was further directed as part of residence order to make payment of Rs.2000/- per month as rent for accommodation to the aggrieved petitioner. He was further directed to make payment of Rs.15,000/- per month as monetary relief in the form of maintenance to the aggrieved petitioner. 

Judgment : Counsel for the petitioner husband in the present Criminal petition contends that this court is not powerless to review or alter its judgment passed in Criminal Revision Petition No.36 of 2020. and in terms of the legislative scheme of Section 125 and 127 Cr.P.C court does not become functus officio after a judgment/order relating to maintenance allowance is passed. Court has power to review its judgment or final order if the circumstances so require. 

Mr. Raju Datta, learned counsel appearing for the respondent wife on the other hand contended that the present petition is not maintainable because this court has become functus officio after it has passed the judgment in Crl.Rev.P.No.36 of 2020

The court held that the High Court has no jurisdiction to review its order either under Section 362 or under Section 482 CrPC. The inherent power under Section 482 CrPC cannot be used by the High Court to reopen or alter an order disposing of a petition decided on merits. After disposing of a case on merits, the Court becomes functus officio and Section 362 CrPC expressly bars review and specifically provides that no Court after it has signed its judgment shall alter or review the same except to correct a clerical or arithmetical error.

When the judgment was passed in Crl.Rev.P.No.36 of 2020, income of the petitioner, his liabilities and the status and needs of his wife and all other relevant factors were taken into consideration to determine the amount of monthly monetary relief for his wife. The learned counsel could not make out any new ground to reconsider the same. The court cannot reopen the case and review/recall its judgment for modification. Resultantly, the petition was dismissed. 

JUDGMENT REVIEWED BY : SHUBHANGI CHAUDHARY

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Can A Kazi Adjudicate Disputes And Issue Orders Like A Court? Madhya Pradesh HC answers.

The Madhya Pradesh High Court, in the case of Aadil v. Union of India and others (W.P No.24741/2018), through the Division Bench of Vivek Rusia and Rajendra Kumar (Verma), JJ., held that- If a Kazi entertains a dispute and acts as a mediator to settle the dispute between the members of the community that would be permissible, but he cannot adjudicate the dispute like a court and pass an order like a decree.

 

Brief Facts Of The Case: A Public Interest Litigation was filed alleging that respondents 4 to 8 were operating a parallel court system in violation of the Indian Constitution and the country’s established legal and judicial system. They were said to be conducting their own courts and issuing orders and judgments in their own affairs. Respondent 7 allegedly issued such orders to petitioner, and petitioner claimed to be a victim of them. Furthermore, the petitioner provided one of the decisions issued by respondent 7 on an application for divorce filed by his wife, dubbed “Khula,” in which he made several claims against him. Under the Kanoon-E-Shariat, she sought Talaq.

 

According to the petitioner, respondent 7 continued with the process and ordered the Talaq (divorce) by Khula, which is not permitted under Indian law. The petitioner claimed that respondent 7 was entertaining such issues and making orders in the subject that were liable to be brought before the Court for adjudication under the guise of respondents 4, 5 & 6. Because no action had been taken, the petitioner filed a Public Interest Litigation with this Court. Respondent 6, the All India Muslim Personal Law Board, had argued that the personal law governing marriage and divorce must be controlled by Muslim personal law as acknowledged by them in their religious denominational books. It is also claimed that Kazis nominated by the All-India Muslim Personal Law Board are given explicit instructions not to accept issues in which the parties have already addressed a court of law or refuse to agree to an amicable conclusion. As a result, they are not alternative court systems founded in defiance of or in opposition to the country’s recognised judicial system.

 

Judgement: The Madhya Pradesh High Court stated that in view of the Supreme Court decision in Vishwa Lochan Madan v. Union of India, and the arguments advanced by the Senior Counsel A.M. Mathur, the order passed by Chief Kazi on an application filed by respondent 8 had no legal sanctity. The Kazi is only allowed to join into a negotiation/mediation between parties in order to settle the issue, according to the Bench.

 

The Court also stated that the Legal Services Authority of Jabalpur and Indore has trained more than 70 volunteers from various communities and religions to act as mediators in community disputes that are not resolved in court. While disposing of the writ petition, the High Court held that this Court won’t express any view in respect of the matrimonial dispute of the parties albeit they are free to access the remedies provided under the law.

 

JUDGEMENT REVIEWED BY PRAKIRTI JENA

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‘Habeas Corpus Not Maintainable When Detention Is Under The Witness Protection Scheme, 2018’: Madhya Pradesh HC

In the matter of Gautam Das & Others v/s The State of Madhya Pradesh & Others (Writ Petition No.26319/2019), the Madhya Pradesh High Court decided that any petition in the nature of Habeas Corpus would not be maintainable when the detention is for the purpose of safeguarding a witness under the Witness Protection Scheme, 2018.

 

Brief Facts Of The Case: The authorities raided a brothel that was being run as a resto-bar, where children and women were being forced to engage in sexual activities. These women and children were being brought in from Bengal, Assam, Bangladesh, and other neighbouring locations. Women and children were moved to shelter houses for safety under the plan after reportedly 67 women and 7 children volunteered to become witnesses in this case under section 164 of the Crpc. The agents who were responsible for the trafficking of these women and children submitted this petition, claiming that they were their husbands.

 

Judgement: The court declined to hear the petition, stating that it is not a case for the issue of a writ of habeas corpus, and that the rescued women are key witnesses in relation to Crime No. 496/2019, and that their lives are in danger. This Court places a premium on the safety of women, particularly when they are minors who have been exposed to torture and other forms of sexual violence, and finally, the court dismissed the case, stating that “merely because a habeas corpus petition has been filed, this Court does not find any basis to grant the writ petition.” In the unique facts and circumstances of the case, no writ of habeas corpus may be issued, especially where there is no illegal detention and the witnesses have been protected and cared for by the state.

 

JUDGEMENT REVIEWED BY PRAKIRTI JENA

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‘Convict Himself Has Minor Daughter, Chances Of Rehabilitation Can’t Be Ruled Out’: Madhya Pradesh High Court, Indore Bench.

In the case of Madhya Pradesh Versus Ankit Vijayvargiya S (CRRFC No.2/2020 and CRA No.3665/2020), the Madhya Pradesh High Court, Indore Bench recently commuted the death sentence of a man convicted of rape and murder of a 4-year-old girl, asserting that because he was the father of a minor girl, his possibilities of rehabilitation could not be ruled out. The death sentence of the Appellant was commuted to 20 years in jail by a division bench of Justice Subodh Abhayankar and Justice S.K. Singh.

 

Basic Facts of the case: The deceased’s parents had filed a missing person report for their daughter. The corpse of the dead was discovered in a rundown bungalow during a police search. The police arrested the Appellant, who confessed to his offence after additional inquiry. He revealed to the authorities that he grabbed the girl while she was asleep and raped her, and that he had to strangle her to death because she was screaming. The trial court found him guilty of violating Sections 363, 366-A, 376AB, 376A, 302, 201 of IPC, as well as Sections 5(m), 6 POCSO Act. Accordingly, the lower court sentenced the Appellant to death and forwarded the case to the Court for confirming the same. An appeal against his conviction was also preferred by the Appellant, who questioned the judgement of his conviction.

 

The Appellant contended in front of the Court that the case was founded only on circumstantial evidence, and that he was unfairly accused based on CCTV material that could not be checked clearly. He further claimed that, despite the fact that his case did not qualify as “rarest of rare,” the death punishment imposed on him was excessive. He also stated that given his young age, lack of criminal history, and a long life ahead of him, the possibility of his rehabilitation should not be ruled out. As a result, he asked that his death sentence be commuted to life imprisonment if the Court found that no intervention in his conviction was warranted.

 

The State vehemently opposed the commutation, claiming that the dead was a four-year-old child who had her entire life ahead of her, which had been brought to an end by the Appellant’s salacious mentality. It was further claimed that the Appellant was a pervert who belonged nowhere in society. As a result, it was determined that no sentence less than the death penalty was necessary in order to provide fair justice in the case.

 

Judgement: After reviewing the parties’ representations and the trial court record, the Court concluded that nothing meaningful could be gleaned from the witnesses’ statements. The DNA evidence, however, plainly revealed the Appellant’s involvement, according to the Court. Analyzing key Apex Court rulings on murder and injuries inflicted on the deceased by their individual offenders, the Court concluded that, given the high threshold established for cruelty, bringing a case within the ‘rarest of the rare’ category has become extraordinarily difficult. The Court also stated that a capital punishment that is not carried out within a reasonable time loses its impact on the public. In light of the circumstances, the Court upheld the Appellant’s conviction, but instead of the death penalty, it decided to give him a term of twenty years. As a result, the reference was decided, and the appeal was partly allowed.

 

JUDGEMENT REVIEWED BY PRAKIRTI JENA

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Education Department is one of the largest litigants before this court, and the vast proportion of writ petitions involve the transfer and adjustment of instructors.: Himachal Pradesh High Court

The court dismissed the petition, refusing to interfere with the transfer order, and adding that the government is equally liable for breaking notices imposing a transfer prohibition, is upheld by the High Court of Himachal Pradesh through the learned Judge JUSTICE TARLOK SINGH CHAUHAN AND BHUSAN BAROWALIA, in the case of Milap Chand v. State of HP, (2021 SCC OnLine HP 560).

Brief facts of the case:

The petitioner was elevated to the position of Headmaster and assigned to Government High School Naila in Tehsil Churah, District Chamba, after a long period of dedicated service. The petitioner was subsequently appointed as Principal and posted to Government Senior Secondary School in Dugli, Tehsil Churah, District Chamba, where he has been serving until the present time. He has filed the instant petition seeking a direction from Respondent No. 1 to transfer from a hard area to a soft area/station, citing his age (now 55) and the needs of his family as reasons for the transfer.

An lawyer for the petitioner stated that the petitioner’s wife has a hearing impairment and is receiving treatment at the Rajiv Gandhi Post Graduate Ayurvedic College and Hospital in Paprola, District Kangra, Himachal Pradesh; furthermore, the petitioner’s wife has a Gall Bladder stone and needs proper medication and surgery; however, there is no one at home to care for her because the petitioner’s son works in the private sector in Noida, Uttar Pradesh, and the petition.

JUDGEMNET:

The Court went on to note that the petitioner is, as noted above, a teacher appointed to educate pupils, and that the standards required of a person practising the noble teaching profession must be ideal so that the students may know and practise the best principles of civilised life. It would be tragic if teachers, who are held in high esteem, fell from grace by putting their own needs above those of their students (s).

The Court determined that Principals are almost always older than 55 and can be moved or served anyplace in the State if they were formerly Headmasters. Therefore, the petitioner’s age, which is beyond 55, cannot be used as a basis for rejecting the transfer.

JUDGEMENT REVIEWED BY – HARILAKSHMI

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