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Criminal proceedings can only be initiated against a public servant based on the recommendation of the administrative enquiry: Delhi High Court.

Case title: Bijendar Singh Vs State & Anr.

Case no.: CRL. A. 292/2020

Decided on: 08.02.2024

Quorum: Hon’ble Justice V. Kameswar Rao, Hon’ble Justice Saurabh Banerjee

 

FACTS OF THE CASE:

The current appeal stems from the order of a special judge of the SC/ST court. The complainant filed an application under sections 4 and 3(2) (vi) and (vii) of the SC/ST Act, as well as sections 217 and 218 of the IPC, against an investigation officer who failed to appear in court for the hearing and also for no arresting the accused. The court ordered to file an FIR against the appellant.

 LEGAL PROVISIONS:

The SC/ST Act’s Section 4 discusses the penalties for public servants who fail to perform their duties.

No inquiry or approval is necessary in order to file a First Information Report (FIR) against any individual, according to Section 18A (1) of the SC/ST Act.  

Section 15A(11)(i) of the SC/ST Act states that it is the State’s duty and responsibility to specify a scheme for providing a free copy of the chargesheet.

APPELLANTS CONTENTION:

The counsel for the appellant argued that the SC/ST Act’s proviso, which states that a public servant may only be booked based on the recommendation of an administrative inquiry, was disregarded and overlooked by the learned special court. It must be acknowledged that at the time the contested order was issued, the learned special court had not yet requested or received any such report, and the contested order was issued without it.

He argued that the complainant’s grievances in the application are completely baseless and would not constitute a violation of the SC/ST Act. The complainant’s complaint that the appellant did not provide a copy of the chargesheet to him is without merit because the non-supply of the chargesheet does not violate any of the provisions of the SC/ST Act alleged by the complainant.

RESPONDENTS CONTENTION:

They contended that the provision in Section 4(2) of the SC/ST Act requiring an administrative inquiry only applies to the stage of framing charges, not the registration of a FIR. Furthermore, Section 4 must be read in conjunction with Section 18A and the overreaching object of the SC/ST Act. As a result, the impugned order of the learned special court cannot be challenged on the basis that it did not follow the procedure outlined in Section 4 because it was for the registration of a FIR rather than the framing of charges.

The counsel further contends that the appellant did not arrest the accused persons in accordance with the law laid down in Arnesh Kumar, but that the appellant failed to consider the recent judgement passed by the Hon’ble Supreme Court in Union of India vs. State of Maharashtra, (2020) 4 SCC 761, which held that where there is no provision for anticipatory bail, arrest must be made. The appellant did not comply with Arnesh Kumar’s requirement to provide reasons for not arresting the accused, which was mandatory.

COURT ANALYSIS AND JUDGMENT:

The court held that, while it is true that the accused has no right to be heard prior to the registration of the FIR, the SC/ST Act is a special act that supersedes the general provisions of Cr.P.C, and the proviso to section 4(2) clearly mandates that charges against public servants be booked only based on the recommendations of the administrative enquiry.

Based on various judgements, the court determined that the appellant, as the IO, has the discretion to arrest or not arrest the accused individuals based on the evidence gathered and the gravity of the offences. Also, once the appellant, who is an IO, files the chargesheet, the Magistrate cannot question the decision not to arrest the accused persons.

The court made it clear that this decision is solely for the purpose of deciding the appeal and will not interfere with the complainant’s case before the learned special court.
The appeal is granted, and any pending applications are resolved in accordance with the terms outlined above.

 

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Written by – Surya Venkata Sujith

 

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Court proceedings will be a disturbance of a happy marriage – Gujarat High Court

TITLE: Vishnubharthi Sureshbharthi Gauswami V state of Gujarat

Decided On-: July19, 2023

10825 of 2021

CORAM: Hon’ble Justice Mr. Sandeep N.Bhatt

INTRODUCTION- This petition was submitted in accordance with Section 482 of the Criminal Procedure Code, 1973, and it seeks that the FIR be quashed and set aside.

FACTS OF THE CASE

The application outlines the brief facts that led to the filing of this case: on June 6, 2020, while the complainant and her children were sleeping, she discovered that her daughter Shilpa, who is 17 years old and 4 months old, was missing. She searched the area for her but was unable to locate her. Since she was in a romantic relationship with the applicant, respondent no. 2 went to his house but it was locked. She then went to the applicant’s house in Ratanpur but he was not there. Afterwards, she visited the applicant’s house in Ratanpur, where she went to meet someone named Chhaganpuri, who mentioned seeing the applicant and the victim together. Based on this information, the complainant filed this complaint.

COURT ANALYSIS AND DECISION

The applicant’s attorney, Mr. Chaudhari, stated that the victim-girl was more than 17 years and 4 months old at the time of the incident; that there had been a love affair between the applicant and the victim; that they were now happily living together; that they had been married according to Hindu rituals on 3.2.2021 and that their marriage had been registered on 4.2.2021; that a child had been born out of wedlock; and that an affidavit to this effect had Accordingly, he claimed that the complaint won’t accomplish anything useful is prayed for to approve this application and toss out the contested FIR as it continues.

Contrarily, learned APP The victim girl was admittedly under the age of 18 at the time of the incident, and even though she is currently living with the applicant, the Court should typically take its time exercising its powers under Section 482 of the Code when a victim girl is living with the applicant. Mr. Jayswal has argued that looking at the offenses, and more specifically, the provisions of the POCSO Act, the application deserves to be dismissed. So he prayed for this application to be rejected.

In light of the aforementioned, continuing the proceedings will serve no useful purpose. On the other hand, it is necessary to avoid any disruption to the victim and applicant’s happy marriage if the proceedings are allowed to continue. This Court cannot ignore the fact that the applicant and the victim girl were wed and that they had a child out of said wedlock. It is right and proper for this Court to exercise its inherent powers under Section 482 of the Code for the primary purpose of the victim’s welfare to ensure her better future.

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Written by-  Steffi Desousa

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Mental Cruelty can never be a ground to initiate proceedings for Vindication of rights: Madras High Court.

TITLE: Chandra Vs. Selvaraj. 

Decided On: July 12, 2023

C.M.S.A(MD)No.15 of 2011
CORAM:  Hon’ble Mr. Justice R.Vijayakumar.

Introduction:

The respondent herein had filed HMOP.No.35 of 2007 on the file of the Additional Subordinate Court, Karur seeking divorce on the ground of cruelty and desertion. The said petition was dismissed by the Trial Court. Challenging the same, the respondent herein had filed CMA(MD).No.2 of 2010 before the District Court, Karur. The First Appellate Judge after re-appreciation of oral and documentary evidence, has allowed the appeal and granted a decree for divorce. Challenging the same, the present Civil Miscellaneous Second Appeal has been filed by the appellant/wife. The appellant herein had got married to the respondent on 14.09.1987. Out of the said wedlock, a son was born to them who is now a major.

Facts:

In the present case, the respondent Husband had filed a petition seeking for divorce from his wife on the grounds of cruelty and desertion before the Additional Subordinate Count Karur. He had alleged that she was leading an adulterous life and even after several requests, had refused to abandon the illicit activities. He said he had purchased an immovable property in the name of his wife out of love and affection and constructed a building after obtaining a loan. He submitted that she, claiming rights over the property, filed a suit for injunction and as a counter blast, he filed a suit for declaration of title and permanent injunction. Though his suit was dismissed, on appeal, it was partly allowed. He also submitted that she had initiated proceedings seeking guardianship of their minor son. He further informed the court that though she had also lodged a complaint alleging that he had claimed dowry, the same was dismissed.

On the other hand, the wife had argued that the immovable property was purchased out of her earnings and the building was also put up using a loan obtained by her and thus her husband had no right over the property. She further contended that the allegations of adultery were completely false. She also claimed that her husband had contracted a second marriage and had been having an adulterous life since 2001 and had deserted her and their minor son without providing any maintenance.

The trial court held that there was no desertion and that filing a criminal case against the husband could not be seen as an incident of cruelty. The court thus dismissed the petition. When the husband filed an appeal, the First appellant court reiterated that the husband had not established his allegation of adultery. However, the court also observed that the attitude of the wife was to harass the husband by filing petitions one after the other. Ruling that though there was no specific cruelty, the court said the husband had suffered mental cruelty due to the complaints lodged against him.

Legal Analysis and Decision:

The high court noted that even after initiation of civil and criminal court proceedings, the wife never left the matrimonial home and it was in fact the husband who had left the matrimonial home and contracted a second marriage. The court also noted that there was no reason established to the effect that he was forced to leave the matrimonial home due to mental cruelty. The court said that the bone of contention between the parties was the property in which he and their son were residing. The court noted that when the appellant court partially decreed the suit to the effect that land belonged to him and building belonged to her, the wife challenged the decree but he had not challenged the same. Thus, the court observed that the husband had conceded the title of wife over the building which would mean that the initial injunction suit by the wife was not without any basis and only for causing mental cruelty.

The court also noted that though an initial criminal proceeding initiated by the wife for bigamy had ended in acquittal, the husband had not disputed the allegation anywhere in the counter or during cross examination. The court added that mere acquittal from the criminal proceedings, could not be taken to mean that the wife had committed mental cruelty, when she had otherwise made out a prima facie case. “Just because he was acquitted from the said criminal proceedings, the proceedings initiated by the wife cannot be branded as a mental cruelty especially when she had made out a prima facie case of the husband contracting a second marriage,” the court said. The court added that the First Appellant Court had erred by blaming the wife for not taking any measures for restitution of conjugal rights when the husband had left the matrimonial home and contracted second marriage. “When the husband had left the matrimonial home and he is residing away and there is an allegation of second marriage on the husband, the wife cannot be blamed for not taking steps to restore the conjugal rights: The First Appellate Court was not right in placing the blame upon the wife for not filing any application for restitution of conjugal rights after amiving at a finding that the husband has miserably failed to prove the allegation of adultery” the court observed.

Conclusion:

This Court is of the considered opinion that the divorce petition lacks pleadings with regard to the mental cruelty, desertion and the deposition of the husband relating to the said allegation do not support the case of the husband. The litigation initiated by the wife is only to protect her property rights and her custody of her son. When the Initiation of such proceedings is for the vindication of her rights, the said proceedings can never be considered to be a ground for mental cruelty. The court observed that the findings of the First Appellate Court that the attitude of the wife was to harass her husband by filing petitions, was not legally sustainable and without any basis. The court thus set aside the same and restored the judgment and decree of the trial court.

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JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.

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