NEW SC JUDGEMENT DEFINING THE LIMITATION OF FILING DOMESTIC VIOLENCE CASE

January 30, 2012 //

THIS JUSDMENT REFERING TO THE VARIOUS JUDGEMENTS ( JAPANI SAHOO VS CHANDRASHEKHAR MOHANTY CASE) AND OTHERS AND DEFINING THE LIMITATION PERIOD
VERY USEFUL JUDGEMENT FOR THOSE WHO ARE FACING DOMESTIC VIOLENCE CASE FILED AFTER A LONG PERIOD OF TIME..EVERY LINE OF THIS JUDGEMENT IS WORTH READING
DV LIMITATION

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1635 of 2011
(Arising out of SLP(Crl.) No. 7787 of 2010)

Inderjit Singh Grewal …Appellant

Versus

State of Punjab & Anr. …Respondents

J U D G M E N T
Dr. B.S. CHAUHAN, J.

1. Leave granted.

2. The instant appeal reveals a very sorry state of affair where the wife files a criminal complaint before the competent court to initiate criminal proceedings against her husband alleging that they had obtained decree of divorce by playing fraud upon the court without realising that in such a fact-situation she herself would be an accomplice in the crime and equally responsible for the offence. More so, the appeal raises a substantial question of law as to whether the judgment and decree of a competent Civil Court can be declared null and void in collateral proceedings, that too, criminal proceedings.

3. This criminal appeal arises from the judgment and final order dated 9.8.2010 in Criminal Misc. No. M-29339 of 2009 (O&M) passed by the High Court of Punjab & Haryana at Chandigarh, by which the High Court has dismissed the application filed by the appellant under Section 482 of Code of Criminal Procedure, 1973 (hereinafter called as `Cr.P.C.’) for quashing the complaint No. 87/02/09 dated 12.6.2009 filed by respondent no. 2 under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter called the `Act 2005′).

4. Facts and circumstances giving rise to present case are as under: A. That the appellant and respondent no. 2 got married on 23.9.1998 at Jalandhar as per Sikh rites and from the said wedlock a son, namely, Gurarjit Singh was born on 5.10.1999. The parties to the marriage could not pull on well together because of temperamental differences and decided to get divorce and, therefore, filed HMA Case No. 168 of 19.9.2007 before the District Judge, Ludhiana under 2
Section 13-B of Hindu Marriage Act, 1955 (hereinafter called the `Act 1955′) for dissolution of marriage by mutual consent. In the said case, statements of appellant and respondent no. 2 were recorded on 19.9.2007 and proceedings were adjourned for a period of more than six months to enable them to ponder over the issue. B. The parties again appeared before the court on 20.3.2008 on second motion and their statements were recorded and both of them affirmed that it was not possible for them to live together and, therefore, the learned District Judge, Ludhiana vide judgment and order dated 20.3.2008 allowed the said petition and dissolved their marriage.
C. Respondent no. 2 filed a complaint before Senior Superintendent of Police, Ludhiana against the appellant on 4.5.2009 under the provisions of the Act 2005 alleging that the decree of divorce obtained by them was a sham transaction. Even after getting divorce, both of them had been living together as husband and wife. She was forced to leave the matrimonial home. Thus, she prayed for justice. The said complaint was sent to SP, City-I, Ludhiana for conducting inquiry. The said SP, City-I conducted the full-fledged inquiry and submitted the report on 4.5.2009 to the effect that the parties had been living 3
separately after divorce and, no case was made out against the present appellant. However, he suggested to seek legal opinion in the matter. D. Accordingly, legal opinion dated 2.6.2009 was sought, wherein it was opined that the parties had obtained the divorce decree by mutual consent and the allegations made by respondent no. 2 against the appellant were false and baseless and the purpose of filing the complaint was only to harass the appellant.
E. Respondent no. 2 subsequently filed a complaint under the Act 2005 on 12.6.2009. The learned Magistrate issued the summons to the appellant on the same date. The Magistrate vide order dated 3.10.2009 summoned the minor child for counseling. The appellant, being aggrieved of the order of Ld. Magistrate dated 12.6.2009, filed application dated 13.10.2009 under Section 482 Cr.P.C. for quashing the complaint dated 12.6.2009.
F. In the meanwhile, respondent no. 2 filed Civil Suit on 17.7.2009 in the court of Civil Judge (Senior Division), Ludhiana, seeking declaration that the judgment and decree dated 20.3.2008, i.e. decree of divorce, was null and void as it had been obtained by fraud. The said suit is still pending.
G. Respondent no. 2 also filed application dated 17.12.2009 under Guardians and Wards Act, 1890 for grant of custody and guardianship of the minor child Gurarjit Singh and the same is pending for consideration before the Additional Civil Judge (Senior Division), Ludhiana.
H. Respondent no. 2 on 11.2.2010 also lodged an FIR under Sections 406, 498-A, 376, 120-B of the Indian Penal Code, 1860 (hereinafter called `IPC’) against the appellant and his mother and sister.
I. The High Court vide impugned judgment and order dated 9.8.2010 dismissed the application filed by the appellant. Hence, this appeal.

5. Shri Ranjit Kumar, learned senior counsel appearing for the appellant has submitted that the High Court erred in rejecting the application of the appellant under Section 482 Cr.P.C., as none of the reliefs claimed by the respondent no.2 could be entertained by the criminal court while dealing with the complaint; the complaint itself is time barred, thus, the Magistrate Court could not take cognizance thereof. The complaint has been filed because of malice in order to extract money from the appellant. More so, the plea of fraud alleged 5
by the respondent no.2 in the complaint for obtaining the decree of divorce before the Civil Court as per her own version, succinctly reveals that she herself had been a party to this fraud. The High Court failed to appreciate as to what extent her version could be accepted as she herself being the accomplice in the said offence of fraud committed upon the court. Even if the allegations made therein are true, she is equally liable for punishment under Section 107 IPC. More so, the reliefs claimed by the respondent no. 2 in the civil suit for declaring the decree of divorce as null and void and in another suit for getting the custody of the child referred to hereinabove, would meet her requirements. Thus, the appeal deserves to be allowed.

6. On the contrary, Shri Manoj Swarup, learned counsel appearing for the respondent no.2 has vehemently opposed the appeal contending that decree of divorce is a nullity as it has been obtained by fraud. The relationship of husband and wife between the appellant and respondent no.2 still subsists and thus, complaint is maintainable. The court has to take the complaint on its face value and the allegations made in the complaint require adjudication on facts. The issue of limitation etc. can be examined by the Magistrate Court itself. The appeal lacks merit and is liable to be dismissed. 6

7. We have considered the rival submissions made by learned counsel for the parties and perused the record.

8. Before we proceed to determine the case on merit, it is desirable to highlight the admitted facts of the case:
I. Appellant and respondent no.2 are highly qualified persons. Both of them are employed and economically independent. Appellant is an Assistant Professor and respondent no. 2 is a Lecturer. The appellant is Ph.D and respondent no.2 has registered herself for Ph.D. They are competent to understand the complications of law and other facts prevailing in the case.
II. Both of them got married in year 1998 and had been blessed with a son in year 1999. There was no complaint by respondent no.2 against the appellant of any cruelty, demand of dowry etc. before getting the decree of divorce dated 20.3.2008 by mutual consent. III. The decree of divorce has been obtained under Section 13-B of the Act 1955. Respondent no.2 was examined by the court on first motion on 19.9.2007 wherein she stated, inter-alia, as under: “We are living separately from each other since 23.9.2005. Now there is no chance of our living
together as husband and wife.”
IV. Respondent no.2 was examined in the second motion by the learned District Judge, Ludhiana on 20.3.2008, wherein she stated as under:
“My statement was recorded on 19.9.2007 alongwith the statement of my husband Inderjit Singh Grewal. Six months time was given to us to ponder over the matter but we could not reconcile. One child was born from our wedlock namely Gurarjit Singh Grewal whose custody has been handed over by me to my husband Inderjit Singh Grewal and he shall look after the welfare of the said child. We have settled all our disputes regarding dowry articles and past and future permanent alimony. Now there is nothing left out against each other. A draft of Rs.3,00,000/- ….has been received by me towards permanent alimony and maintenance and in lieu of dowry articles left by me in the matrimonial home. We are living separately since 23.9.2005. After that there is no co-habitation between us. There is no scope of our living together as husband and wife. I will remain bound by the terms and conditions as enshrined in the petition. I have left with no claim against petitioner No.1. Our marriage may be dissolved by passing a decree of divorce by mutual consent.” V. The learned District Judge, Ludhiana granted the decree of divorce dated 20.3.2008 observing as under:
“They have settled all their disputes regarding dowry articles, past and future alimony….They are living separately from each other since 23.9.2005…The petitioners have not been able to reconcile….The petitioners have settled all their disputes regarding dowry, stridhan and past and 8
future permanent alimony….The custody of the son of the petitioners is handed over to Inderjit Singh Grewal by Amandeep Kaur. The petition is
allowed. The marriage between the petitioners is henceforth declared dissolved….”
VI. The complaint dated 4.5.2009 filed by respondent no. 2 before the Senior Superintendent of Police, Ludhiana was investigated by the Superintendent of Police, City-I, Ludhiana. He recorded statements of several neighbours and maid servant working in appellant’s house and submitted the report to the effect that as the husband and wife could not live together, they obtained the decree of divorce by mutual consent. However, the complainant Amandeep Kaur had alleged that she was induced by her husband to get divorce for settling in the United States and it was his intention to kick her out from the house. However, the husband stated that she had been paid Rs.3,00,000/- in the court by draft and Rs.27,00,000/- in cash for which the husband Inderjit Singh Grewal had entered into an agreement to sell his ancestral property. The complainant had not been living with the appellant after the decree of divorce and they were not having physical relationship with each other. It was further suggested in the report that legal opinion may also be taken.
VII. Legal opinion dated 2.6.2009 had been to the effect that the parties had taken divorce by mutual consent due to their differences. The allegation to the extent that they had been living together even after divorce were false and baseless and had been labelled only to harass the appellant.

9. The instant case is required to be considered in the aforesaid factual backdrop.
So far as the complaint dated 12.6.2009 is concerned, there had been allegation of mis-behaviour against the appellant during the period of year 2005. Respondent no. 2 alleged that during that period she had not been treated well by the appellant, thus, she had to take shelter in the house of her parents; all her belongings including the dowry articles were kept by the appellant and his parents. She has further given details how both of them have obtained decree of divorce by mutual consent as they wanted to settle in United States and therefore, they had decided to get divorce on paper so that the appellant may go to U.S.A. and get American citizenship by negotiating a marriage of convenience with some U.S. citizen and divorce her and again re-marry the complainant. She further alleged that even after decree of divorce she had been living with the appellant till 7.2.2009 1
and continued co-habitation with him. They had visited several places together during this period. The child had been forcibly snatched from her by the appellant. Therefore, she was entitled to the custody of the minor child along with other reliefs.

10. The question does arise as to whether reliefs sought in the complaint can be granted by the criminal court so long as the judgment and decree of the Civil Court dated 20.3.2008 subsists. Respondent no.2 has prayed as under:
“It is therefore prayed that the respondent no.1 be directed to hand over the custody of the minor child Gurarjit Singh Grewal forthwith. It is also prayed that the respondent no.1 be directed to pay to her a sum of Rs.15,000/- per month by way of rent of the premises to be hired by her at Ludhiana for her residence. It is also prayed that all the respondents be directed to restore to her all the dowry articles as detailed in Annexure A to C or in the alternative they be directed to pay to her a sum of Rs.22,95,000/- as the price of the dowry articles. Affidavit attached.”
Thus, the reliefs sought have been threefolds:
(a) Custody of the minor son; (b) right of residence; and (c) restoration of dowry articles.

11. It is a settled legal proposition that where a person gets an order/office by making misrepresentation or playing fraud 1
upon the competent authority, such order cannot be sustained in the eyes of the law as fraud unravels everything. “Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law”. It is a trite that “Fraud and justice never dwell together” (fraus et jus nunquam cohabitant). Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. Fraud and deception are synonymous. “Fraud is an anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine”. An act of fraud on court is always viewed seriously. (Vide: Meghmala & Ors. v. G. Narasimha Reddy & Ors., (2010) 8 SCC 383)

12. However, the question does arise as to whether it is permissible for a party to treat the judgment and order as null and void without getting it set aside from the competent court.
The issue is no more res integra and stands settled by a catena of decisions of this Court. For setting aside such an order, even if void, the party has to approach the appropriate forum. (Vide: State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) & Ors., AIR 1996 SC 906; and Tayabbhai M. 1
Bagasarwalla & Anr. v. Hind Rubber Industries Pvt. Ltd., AIR 1997 SC 1240).

13. In Sultan Sadik v. Sanjay Raj Subba & Ors., AIR 2004 SC 1377, this Court held that there cannot be any doubt that even if an order is void or voidable, the same requires to be set aside by the competent court.

14. In M. Meenakshi & Ors. v. Metadin Agarwal (dead) by Lrs. & Ors., (2006) 7 SCC 470, this Court considered the issue at length and observed that if the party feels that the order passed by the court or a statutory authority is non-est/void, he should question the validity of the said order before the appropriate forum resorting to the appropriate proceedings. The Court observed as under:-
“It is well settled principle of law that even a void order is required to be set aside by a competent Court of law, inasmuch as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not non-est. An order cannot be declared to be void in collateral proceedings and that too in the absence of the authorities who were the authors thereof.” (Emphasis added)
Similar view has been reiterated by this Court in Sneh Gupta v. Devi Sarup & Ors., (2009) 6 SCC 194.
From the above, it is evident that even if a decree is void ab initio, declaration to that effect has to be obtained by the person aggrieved from the competent court. More so, such a declaration cannot be obtained in collateral proceedings.

15. Respondent no.2 herself had been a party to the fraud committed by the appellant upon the civil court for getting the decree of divorce as alleged by her in the impugned complaint. Thus, according to her own admission she herself is an abettor to the crime. A person alleging his own infamy cannot be heard at any forum as explained by the legal maxim “allegans suam turpetudinem non est audiendus”. No one should have an advantage from his own wrong (commondum ex injuria sua memo habere debet). No action arises from an immoral cause (ex turpi cause non oritur action). Damage suffered by consent is not a cause of action (volenti non fit injuria). The statements/allegations made by the respondent no.2 patently and latently involve her in the alleged fraud committed upon the court. Thus, she made herself disentitled for any equitable relief. 1

16. The offence of abetment is complete when the alleged abettor has instigated another or engaged with another in a conspiracy to commit offence. (Vide: Faguna Kanta Nath v. The State of Assam, AIR 1959 SC 673; and Jamuna Singh v. State of Bihar AIR 1967 SC 553). If more than one person combining both in intent and act, commit an offence jointly, each is guilty, as if he has done the whole act alone. Offence has been defined under Section 40 IPC and Section 43 IPC defines illegality. Making false statement on oath before the court is an offence under Section 191 IPC and punishable under Section 193 IPC.

17. While granting the decree of divorce, the statement of respondent no.2 had been recorded in the first as well as in the second motion as mentioned hereinabove. Period of more than 6 months was given to her to think over the issue. However, she made a similar statement in the second motion as well.

18. As per the statutory requirement, the purpose of second motion after a period of six months is that parties may make further efforts for reconciliation in order to save their marriage. There is also obligation 1
on the part of the court under Section 23(2) of the Act 1955 to make every endeavour to bring about a reconciliation between the parties. In Jagraj Singh v. Birpal Kaur, AIR 2007 SC 2083, this Court held that conjugal rights are not merely creature of statute but inherent in the very institution of marriage. Hence, the approach of a court of law in matrimonial matters should be “much more constructive, affirmative and productive rather than abstract, theoretical or doctrinaire”. The court should not give up the effort of reconciliation merely on the ground that there is no chance for reconciliation or one party or the other says that there is no possibility of living together. Therefore, it is merely a misgiving that the courts are not concerned and obligated to save the sanctity of the institution of marriage.

19. In Smt. Sureshta Devi v. Om Prakash, AIR 1992 SC 1304, this Court held that mere filing the petition for divorce by mutual consent does not authorise the court to make a decree for divorce. The interregnum waiting period from 6 to 18 months is obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The court must be satisfied about the bona 1
fides and the consent of the parties for the reason that court gets jurisdiction to make a decree for divorce only on mutual consent at the time of enquiry. The consent must continue to decree nisi and must be valid subsisting consent when the case is heard. Thus, withdrawal of consent can be unilateral prior to second motion. The Court further observed:
“The ‘living separately’ for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation of petition, the parties must have been living separately. The expression ‘living separately’, connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The. parties may be living in different houses and yet they could live as husband and wife. What seems
to be necesssary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. The second requirement that they ‘have not been able to live together’ seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved.” (Emphasis added)

20. For grant of divorce in such a case, the Court has to be satisfied about the existence of mutual consent between the parties on some 1
tangible materials which demonstrably disclose such consent. (Vide: Hitesh Bhatnagar v. Deepa Bhatnagar, AIR 2011 SC 1637).
21. Respondent no.2, who did not change her stand in the second motion and obtained a sham decree of divorce as alleged by her asked the criminal court to sit in appeal against the judgment and decree of the competent Civil Court. The complaint was filed before the Magistrate, Jalandhar while the decree of divorce had been granted by the District Judge, Ludhiana i.e. of another district. Therefore, it is beyond our imagination as under what circumstances a subordinate criminal court can sit in appeal against the judgment and order of the superior Civil Court, having a different territorial jurisdiction.

22. In the facts and circumstances of the case, the submission made on behalf of respondent no.2 that the judgment and decree of a Civil Court granting divorce is null and void and they continued to be the husband and wife, cannot be taken note of at this stage unless the suit filed by the respondent no.2 to declare the said judgment and decree dated 20.3.2008 is decided in her favour. In view thereof, the evidence adduced by her particularly the record of the telephone calls, photographs attending a wedding together and her signatures in school 1
diary of the child cannot be taken into consideration so long as the judgment and decree of the Civil Court subsists. On the similar footing, the contention advanced by her counsel that even after the decree of divorce, they continued to live together as husband and wife and therefore the complaint under the Act 2005 is maintainable, is not worth acceptance at this stage.

23. In D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469, this Court considered the expression “domestic relationship” under Section 2(f) of the Act 2005 placing reliance on earlier judgment in Savitaben Somabhai Bhatiya v. State of Gujarat & Ors., (2005) 3 SCC 636 and held that relationship “in the nature of marriage” is akin to a common law marriage. However, the couple must hold themselves out to society as being akin to spouses in addition to fulfilling all other requisite conditions for a valid marriage.
The said judgments are distinguishable on facts as those cases relate to live-in relationship without marriage. In the instant case, the parties got married and the decree of Civil Court for divorce still subsists. More so, a suit to declare the said judgment and decree as a nullity is still pending consideration before the competent court. 1

24. Submissions made by Shri Ranjit Kumar on the issue of limitation, in view of the provisions of Section 468 Cr.P.C., that the complaint could be filed only within a period of one year from the date of the incident seem to be preponderous in view of the provisions of Sections 28 and 32 of the Act 2005 read with Rule 15(6) of The Protection of Women from Domestic Violence Rules, 2006 which make the provisions of Cr.P.C. applicable and stand fortified by the judgments of this court inJapani Sahoo v. Chandra Sekhar Mohanty, AIR 2007 SC 2762; and Noida Entrepreneurs Association v. Noida & Ors., (2011) 6 SCC 508.

25. In view of the above, we are of the considered opinion that permitting the Magistrate to proceed further with the complaint under the provisions of the Act 2005 is not compatible and in consonance with the decree of divorce which still subsists and thus, the process amounts to abuse of the process of the court. Undoubtedly, for quashing a complaint, the court has to take its contents on its face value and in case the same discloses an offence, the court generally does not interfere with the same. However, in the backdrop of the factual matrix of this case, permitting the court to proceed with the complaint would 2
be travesty of justice. Thus, interest of justice warrants quashing of the same.
26. The appeal succeeds and is allowed. The impugned judgment and order dated 9.8.2010 is hereby set aside. Petition filed by the appellant under Section 482 Cr.P.C. is allowed. Complaint No. 87/02/09 pending before the Magistrate, Jalandhar and all orders passed therein are quashed.
Before parting with the case, we clarify that respondent no.2 shall be entitled to continue with her other cases and the court concerned may proceed in accordance with law without being influenced by the observations made herein. The said observations have been made only to decide the application under Section 482 Cr.P.C. filed by the appellant.

(P. SATHASIVAM)
(Dr. B.S. CHAUHAN)
New Delhi
August 23, 2011

Categories Uncategorized

IMP JUDGEMENT DEFINING LIMITATION PERIOD FOR CASES

January 30, 2012 //

Japani Sahoo vs Chandra Sekhar Mohanty on 27 July, 2007
Author: C Thakker
Bench: C Thakker, T Chatterjee
CASE NO.:

Appeal (crl.) 942 of 2007

PETITIONER:

JAPANI SAHOO

RESPONDENT:

CHANDRA SEKHAR MOHANTY

DATE OF JUDGMENT: 27/07/2007

BENCH:

C.K. THAKKER & TARUN CHATTERJEE

JUDGMENT:

J U D G M E N T

CRIMINAL APPEAL NO. 942 OF 2007

ARISING OUT OF

SPECIAL LEAVE PETITION (CRL) NO. 4174 OF 2006

C.K. THAKKER, J.

1. Leave granted.

2. An important and interesting question of law has been raised by the appellant in the present appeal which is directed against the judgment and order passed by the High Court of Orissa on June 20, 2006 in Crl. M. C. No. 5148 of 1998. By the said order, the High Court quashed criminal proceedings initiated against the respondent- accused for offences punishable under Sections 294 and 323 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’).

3. Brief facts of the case are that the appellant is a complainant who is inhabitant of village Damana under Chandrasekharpur Police Station. He had constructed many shops on his land on the side of the main road of Chandrasekharpur Bazar from which he was earning substantial amount by way of rent. It is alleged by the complainant that the accused was, at the relevant time, Inspector of Police at Chandrasekharpur Police Station and was aware that the complainant was receiving good amount of income from shop rooms erected by him.

4. According to the complainant, on February 2, 1996, a Constable of Chandrasekharpur Police Station came to his house and informed him that he was wanted by Officer-in-charge of the Police Station (Bada Babu) at 9 p.m. with monthly bounty. It was alleged by the complainant that even prior to the above incident, he was repeatedly asked by the accused to pay an amount of Rs.5,000/- per month as illegal gratification, but he did not oblige the accused. At about 9.30 p.m. on February 2, 1996, the complainant went to Chandrasekharpur Police Station where the accused was waiting for him anxiously to extract money. As soon as the complainant entered the Police Station, the accused abused him by using filthy language. The complainant was shocked. The accused pushed him as a result of which he fell down and sustained bodily pain. The accused also threatened the complainant that if the latter would not pay an amount of Rs.5,000/- by next morning, the former would book him in serious cases like ‘NDPS’ and dacoity. The complainant silently returned home. On the next day, he went to his lawyer and narrated the incident. His lawyer advised him to lodge a complaint before a competent Court instead of lodging FIR against the accused. Accordingly, on February 5, 1996, the appellant filed a complaint being ICC Case No.45 of 1996 in the Court of Sub Divisional Judicial Magistrate (SDJM), Bhubaneswar against the respondent-accused for commission of offences punishable under Sections 161, 294, 323 and 506, IPC.

5. As stated by the appellant, the SDJM examined witnesses produced by the appellant-complainant between March 29, 1996 and July 24, 1996. The matter was adjourned from time to time. Ultimately, on August 8, 1997, the learned Magistrate on the basis of statement of witnesses, took cognizance of the complaint filed by the complainant and issued summons fixing December 19, 1997 for appearance of accused observing inter alia that on the basis of the statements recorded, prima facie case had been made out for commission of offences punishable under Sections 294 and 323, IPC.

6. According to the appellant, the summons was served on the respondent-accused but he did not remain present. After more than one year of issuance of summons, non-bailable warrant was issued by the learned Magistrate on September 23, 1998. The accused thereafter surrendered on November 23, 1998. He, however, filed a petition in the High Court of Orissa on November 20, 1998 under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) for quashing criminal proceedings contending, inter alia, that no cognizance could have been taken by the Court after the period of one year of limitation prescribed for the offences under Sections 294 and 323, IPC and the complaint was barred by limitation. A prayer was, therefore, made by the accused to set aside order dated August 8, 1997 as also order of issuance of non- bailable warrant dated September 23, 1998 by quashing criminal proceedings.

7. A counter was filed by the complainant asserting that admittedly, the complaint was filed by him in the Court of SDJM within three days of the incident i.e. the incident took place on February 2, 1996 and the complaint was filed on February 5, 1996. There was, therefore, no question of the complaint being barred by limitation. According to the complainant, the question of limitation should be considered on the basis of an act of filing complaint; and not an act of taking cognizance by the Court. It was submitted that two acts, viz. (i) act of filing complaint and (ii) act of taking cognizance are separate, distinct and different. Whereas the former was within the domain of the complainant, the latter was in the exclusive control of the Court. The accused, according to the complainant, was labouring under the misconception that the ‘countdown’ begins from the date of taking cognizance by the Court and not from the date of instituting a complaint by the complainant. It was, therefore, submitted that the complaint was within time and should be decided on merits.

8. The High Court, in the order impugned in the present appeal, held that the date relevant and material for deciding the bar of limitation under the Code was the date of taking cognizance by the Court. Since the offences under Sections 294 and 323 were punishable for six months and one year respectively, cognizance thereof ought to have been taken within one year of the commission of offences. Cognizance was admittedly taken on August 8, 1997, i.e. after more than one year of the commission of offences and as such, it was barred by limitation under Section 468 of the Code. The learned Magistrate had not condoned delay by exercising power under Section 473 of the Code and hence, the complaint was liable to be dismissed on the ground of limitation. The proceedings were accordingly quashed. The complainant has questioned the legality of the order passed by the High Court.

9. We have heard the learned counsel for the parties.

10. The learned counsel for the appellant contended that the High Court committed an error of law in holding that the complaint filed by the complainant was barred by limitation. According to him, when the complaint was filed within three days from the date of incident complained of, the learned Magistrate was wholly justified in proceeding with the said complaint treating it within the period of limitation. It was stated that the complainant produced his witnesses who were examined between March 29, 1996 and July 24, 1996 and after taking into consideration the statements of those witnesses and after application of mind, the learned Magistrate took cognizance of offences and issued summons under Sections 294 and 323, IPC. It was also submitted that provisions of Section 468 must be read reasonably by construing that the action must be taken by the complainant of filing a complaint or taking appropriate proceedings in a competent Court of Law. Once the complainant takes such action, he cannot be penalized or non-suited for some act/omission on the part of the Court in not taking cognizance. It was submitted that taking of cognizance was within the domain of the Magistrate and not within the power, authority or jurisdiction of the complainant and the act of Court cannot adversely or prejudicially affect a party to a litigation. It was also submitted that the respondent- accused abused his position and misused his powers and, by administering threat and intimidating the complainant, wanted to extract money by resorting to illegal means. The complainant, therefore, by proceeding in a recognized legal mode, instituted a complaint and there was no reason for the High Court to abruptly terminate the proceedings half-way without entering into merits of the matter. It was, therefore, submitted that the appeal deserves to be allowed by setting aside the order passed by the High Court and by directing the learned Magistrate to decide the matter on merits.

11. The learned counsel for the respondent- accused, on the other hand, supported the order passed by the High Court. He submitted that the bar imposed by the Code is against ‘taking cognizance’ and not filing complaint. The High Court properly interpreted Section 468, applied to the facts of the case and held that since cognizance was taken by the Court after one year, the provision of law had been violated and the complaint was barred by limitation. No fault can be found against such an order and the appeal deserves to be dismissed.

12. Before we proceed to deal with the question, it would be appropriate if we consider the relevant provisions of law. Chapter XXXVI (Sections 466-473) has been inserted in the Code of Criminal Procedure, 1973 (new Code) which did not find place in the Code of Criminal Procedure, 1898 (old Code). This Chapter prescribes period of limitation for taking cognizance of certain offences. Section 467 is a ‘dictionary’ provision and defines the phrase ‘period of limitation’ to mean the period specified in Section 468 for taking cognizance of an offence. Sub-section (1) of Section 468 bars a Court from taking cognizance of certain offences of the category specified in sub-section (2) after expiry of the period of limitation. It is material and may be quoted in extenso. Section 468. Bar to taking cognizance after lapse of the period of limitation.(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be (a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

one year but not exceeding three years.

(3) For the purpose of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.

13. Section 469 declares as to when the period of limitation would commence. Sections 470-471 provide for exclusion of period of limitation in certain cases. Section 472 deals with ‘continuing’ offences. Section 473 is an overriding provision and enables Courts to condone delay where such delay has been properly explained or where the interest of justice demands extension of period of limitation.

14. The general rule of criminal justice is that “a crime never dies”. The principle is reflected in the well- known maxim nullum tempus aut locus occurrit regi (lapse of time is no bar to Crown in proceeding against offenders). The Limitation Act, 1963 does not apply to criminal proceedings unless there are express and specific provisions to that effect, for instance, Articles 114, 115, 131 and 132 of the Act. It is settled law that a criminal offence is considered as a wrong against the State and the Society even though it has been committed against an individual. Normally, in serious offences, prosecution is launched by the State and a Court of Law has no power to throw away prosecution solely on the ground of delay. Mere delay in approaching a Court of Law would not by itself afford a ground for dismissing the case though it may be a relevant circumstance in reaching a final verdict.

15. In Assistant Collector of Customs, Bombay & Anr. v. L.R. Melwani & Anr., (1969) 2 SCR 438 : AIR 1970 SC 962, this Court stated:

“This takes us to the contention whether the prosecution must be quashed because of the delay in instituting the same. It is urged on behalf of the accused that because of the delay in launching the same, the present

prosecution amounts to an abuse of the

process of the Court. The High Court has repelled that contention. It has come to the conclusion that the delay in filing the complaint is satisfactorily explained. That apart, it is not the case of the accused that any period of limitation is prescribed for filing the complaint. Hence the court before which the complaint was filed could not have thrown out the same on the sole ground that there has been delay in filing it. The question of delay in filing a complaint may be a

circumstance to be taken into

consideration in arriving at the final

verdict. But by itself it affords no ground for dismissing the complaint. Hence we see no substance in the contention that the prosecution should be quashed on the ground that there was delay in instituting the complaint”. (emphasis supplied)

16. At the same time, however, ground reality also cannot be ignored. Mere delay may not bar the right of the ‘Crown’ in prosecuting ‘criminals’. But it also cannot be overlooked that no person can be kept under continuous apprehension that he can be prosecuted at ‘any time’ for ‘any crime’ irrespective of the nature or seriousness of the offence. “People will have no peace of mind if there is no period of limitation even for petty offences”.

17. The Law Commission considered the question in the light of legal systems in other countries and favoured to prescribe period of limitation for initiating criminal proceedings of certain offences.

18. In the Statement of Objects and Reasons, it had been observed;

“There are new clauses prescribing

periods of limitation on a graded scale for launching a criminal prosecution in certain cases. At present there is no period of limitation for criminal prosecution and a Court cannot throw out a complaint or a police report solely on the ground of delay although inordinate delay may be a good ground for entertaining doubts about the truth of the prosecution story. Periods of limitation have been prescribed for criminal prosecution in the laws of many countries and Committee feels that it will be desirable to prescribe such periods in the Code as recommended by the Law Commission.”

19. The Joint Committee of Parliament also considered the following as sufficient grounds for prescribing the period of limitation;

(1) As time passes the testimony of witnesses becomes weaker and weaker because of lapse of memory and evidence becomes more and more uncertain with the result that the danger of error becomes greater.

(2) For the purpose of peace and repose, it is necessary that an offender should not be kept under continuous apprehension that he may be prosecuted at any time particularly because with multifarious laws creating new offences many persons at sometime or other commit some crime or the other. People will have no peace of mind if there is no period of limitation even for petty offences.

(3) The deterrent effect of punishment is impaired if prosecution is not launched and punishment is not inflicted before the offence has been wiped off the memory of persons concerned. (4) The sense of social retribution which is one of the purposes of criminal law loses its edge after the expiry of long period.

(5) The period of limitation would put pressure on the organs of criminal prosecution to make every effort to ensure the detection and punishment of the crime quickly. (vide Report, dated December 4, 1972; pp. xxx-xxxi)

20. It is thus clear that provisions as to limitation have been inserted by Parliament in the larger interest of administration of criminal justice keeping in view two conflicting considerations;

(i) the interest of persons sought to be prosecuted (prospective accused);

(ii) and organs of State (prosecuting agencies).

21. In State of Punjab v. Sarwan Singh, (1981) 3 SCR 349 : AIR 1981 SC 1054, this Court stated: “The object which the statutes seek to

subserve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution of India. It is, therefore, of the utmost importance that any prosecution, whether by the State or a private complainant must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation”.

22. Bearing in mind the above fundamental principles, let us examine the rival contentions and conflicting decisions on the point.

23. Admittedly in the instant case, the offence was alleged to have been committed by the accused on February 2, 1996 and complaint was filed on February 5, 1996. It was punishable under Sections 294, 323, 161 read with 506, IPC. It is not in dispute that the learned Magistrate took cognizance of an offence punishable under Sections 294 and 323, IPC on August 8, 1997. Concededly, the period of limitation for an offence punishable under Sections 294 and 323 is six months and hence, it was barred under Section 468 of the Code if the material date is taken to be the date of congnizance by the Magistrate.

24. The learned counsel for the parties drew our attention to decisions of various High Courts as also of this Court. From the decisions cited, it is clear that at one time, there was cleavage of opinion on interpretation of Section 468 of the Code. According to one view, the relevant date is the date of filing of complaint by the complainant. As per that view, everything which is required to be done by the complainant can be said to have been done as soon as he institutes a complaint. Nothing more is to be done by him at that stage. It is, therefore, the date of filing of complaint which is material for the purpose of computing the period of limitation under Section 468 of the Code.

25. According to the other view, however, the law places an embargo on Court in taking cognizance of an offence after lapse of period of limitation and hence, the material date is the date on which the Magistrate takes cognizance of offence. If such cognizance is taken after the period prescribed in sub-section (2) of Section 468 of the Code, the complaint must be held to be barred by limitation.

26. Let us consider some of the decisions on the point.

27. In Jagannathan & Ors. v. State, 1983 Crl.LJ 1748 (Mad), an occurrence took place on March 2, 1981. Investigation was completed by May 6, 1981 and the Magistrate took cognizance for offences punishable under Sections 448, 341 and 323, IPC on March 12, 1982 after the expiry of period of limitation prescribed under clause (b) of sub-section (2) of Section 468 of the Code.

28. Dismissing the complaint on the ground of limitation, a single Judge of the High Court of Madras observed;

“Therefore, when the punishments provided for these offences are one year and less, the cognizance of the offences ought to have been taken within a period of one year from the date of the offences. Indisputably the trial Court has taken cognizance of the offences beyond the statutory period of limitation of one year. On that ground, the entire proceeding in C.C. 78 of 1982 on the file of the Court below is quashed.”

29. In Court on its own motion v. Sh. Shankroo, 1983 Crl. LJ 63 (HP), the offence in question alleged to have been committed by the accused was punishable under Section 33 of the Forest Act, 1927 of illicit felling of trees. The offence was punishable with imprisonment for a term which may extend to six months or with fine which may extend to five hundred rupees or with both. It was said to have been committed by the accused on March 26, 1979, but the challan was presented in the Court on August 11, 1980, i.e. after a period of one year. The Court held that the challan ought to have been filed within one year and since it was not done, “the Court had no jurisdiction to take cognizance of the offence”. The proceedings were, therefore, ordered to be dropped.

30. In Shyam Sunder Sarma v. State of Assam & Ors, 1988 Crl. LJ 1560 (Gau), the Court held that cognizance of offence ought to be taken within the period of limitation. In Shyam Sunder, the offence in question was punishable under Sections 448, 427, 336 and 323 read with 34, IPC. It was alleged to have been committed on May 28, 1974. The matter was submitted before the Magistrate on June 11, 1974. But after the investigation, the police submitted the charge-sheet on December 8, 1978 and process was issued by the Magistrate on January 2, 1979. It was held by the Court that the cognizance could not be said to have been taken on June 11, 1974 when the matter was submitted to the Magistrate, but only on January 2, 1979 when the process was issued. It was clearly barred by limitation and since the offence was not a “continuing offence” within the meaning of Section 472 of the Code, prosecution was barred by limitation.

31. In Bipin Kalra v. State, 2003 Crl LJ (NOC) 51 (Del), the High Court held that valid cognizance in respect of an offence punishable under Section 323, IPC could be taken within one year ‘from the date of commission of offence’. Cognizance could not be taken after lapse of that period.

32. In Dr. Harihar Nath Garg v. State of Madhya Pradesh, (2003) 3 Crimes 412 (MP), the offence with which the Court was concerned was punishable under Section 491, IPC. The incident was of June 27, 1996 and charge-sheet was filed on January 17, 1997, i.e. after a period of six months. It was held to be barred by limitation and the proceedings were quashed.

33. In Dandapani & Ors. v. State by Sub-Inspector of Police, Tiruvannamalai Town, (2002) 1 Crimes 675 (Mad), offences punishable under Sections 147, 148, 325, 427, 323 and 324, IPC had been committed by the accused on February 1, 1999. The case was registered on the same day. Cognizance was taken by the Magistrate on February 11, 2000 for an offence of affray punishable under Section 160, IPC. It was held that prosecution was barred by limitation and was liable to be quashed. Referring to an earlier decision in ARU v. State, 1993 L.W. (Cri) 127, the Court observed that the investigating agency and the prosecuting authority must be aware of the Law of Limitation and its link to cognizance contemplated under Section 468 of the Code and they should perform their duties diligently.

34. There are, however, several decisions wherein the courts have taken the view that the relevant date for the purpose of deciding the period of limitation is the date of filing of complaint or initiation of proceedings and not of taking cognizance by a Magistrate or a Court.

35. The leading decision on the point is Kamal H. Javeri & Anr. v. Chandulal Gulabchand Kothari & Anr. of the High Court of Bombay reported in 1985 Crl. LJ 1215 (Bom). In that case, a complaint was filed for an offence punishable under Section 500, IPC within the period of limitation, but the process was issued by the Metropolitan Magistrate after the prescribed period of limitation. The Court was called upon to consider and interpret Sections 468, 469 and 473 of the Code. The Court examined the relevant provisions of the Code and observed;

The Limitation Act prescribes the limitation for taking action in the Court of law and if the action is taken after the expiry of the period prescribed under the Limitation Act, the remedy is said to be barred. The same principle would also apply while considering the question of limitation provided under Section 468 of the Cr. P.C. I may give an illustration to demonstrate how the submission of Shri Vashi in connection with the interpretation of Section 468, will lead to illogical situation and disastrous result. It is also well settled that a party can take action on the last date of the limitation prescribed under the Act. (1) Suppose a complaint is filed on the last day of limitation prescribed under the Act and if on that date the Magistrate is on leave and/or otherwise unable to hear the party and/or apply his mind to the complaint on that date then naturally his complaint will have to be held barred by limitation if arguments of Shri Vashi are to be accepted.

(2) Suppose a complaint is filed quite in advance before the expiry of the period of limitation and if the Magistrate in his discretion postpones the issue of process by directing an investigation under Section 202, Cr. P.C. and if that, investigation is not completed within the prescribed period of limitation, naturally the Magistrate shall not be able to apply his mind and take cognizance and/or issue the process until report Under Section 202 of the Code is received and in that event the complaint will have to be dismissed on the ground that the Court cannot take cognizance of an offence after the expiry of the period of limitation from the date of offence. There could be several such situations. The complaint although filed within limitation but the Magistrate due to some or other reasons beyond his control could not apply his mind and take cognizance of the complaint and/or could not issue the process within the prescribed period of limitation as provided under Section 468 of the Code, then the complaint will have to be dismissed in limine. So also if the Magistrate takes cognizance after the period prescribed under Section 468 of the Code the said order of taking cognizance would render illegal and without jurisdiction. In such contingencies can the complainant be blamed who has approached the Court quite within limitation prescribed under the Act but no cognizance could be taken for the valid and good reasons on the part of the Magistrate and should the complainant suffer for no fault on his part. This could not be the object of the framers of the provisions of Section 468, Cr. P.C.

36. After referring to several decisions, the Court held that the limitation prescribed under Section 468 of the Code should be related to the filing of complaint and not to the date of cognizance by the Magistrate or issuance of process by the Court.

37. In Basavantappa Basappa Bannihalli & Anr. v. Shankarappa Marigallappa Bannihalli, 1990 Crl LJ 360 (Kant), a complaint was filed within ten days of the occurrence, but cognizance was taken by the Magistrate after the period of limitation prescribed by the Code. Following Kamal Javeri, the Court held that the relevant date would be date of filing complaint and not of taking cognizance by the Magistrate for deciding the bar of limitation.

38. In Anand R. Nerkar v. Smt. Rahimbi Shaikh Madar & Ors., 1991 Crl. LJ 557 (Bom), the High Court held that the relevant date for deciding the period of limitation is the date of prosecution of complaint by the complainant in the Court and not the date on which process is issued. It was observed that various sections of the Code make it clear that before taking cognizance of a complaint, the Magistrate has to consider certain preliminary issues, such as, jurisdiction of court, inquiry by police, securing appearance of accused, etc. It, therefore, necessarily follows, observed the Court, that the material date is not the date of issuance of process, but the date of filing of complaint. Subsequent steps after the filing of the complaint, such as, examination of witnesses, consideration of case on merits, etc. are by the court. Moreover, taking cognizance or issuance of process depends on the time available to the court over which the complainant has no control. It would, therefore, be wholly unreasonable to hold that a complaint even if presented within the period of limitation would be held barred by limitation merely because the Court took time in taking cognizance or in issuing process.

39. In Zain Sait v. Intex-Painter, etc., 1993 Crl. LJ 2213 (Ker), the Court held that the crucial date for computing period of limitation would be date of filing of complaint. Limitation under Section 468 of the Code has to be reckoned with reference to date of complaint and not with reference to date of taking cognizance. It was also observed that there could be a case where a complaint is filed on the last day of limitation and on account of inconvenience or otherwise of the court, the sworn statement of the complainant could be recorded on a later date and the Magistrate takes cognizance after the expiry of limitation. If the date of cognizance is taken as the date for determining the period of limitation, it would be penalizing the party for no fault of his. Such a construction cannot be placed on Section 468 of the Code. [See also Malabar Market Committee v. Nirmala, (1988) 2 Ker LT 420]

40. In Labour Enforcement Officer (Central) Cochin, v. Avarachan & Ors., 2004 Crl. LJ 2582 (Ker), the same High Court held that starting point of limitation is the date when the complaint is presented in the Court and not the date on which cognizance is taken. If the initial presentation of the complaint is within the period of limitation prescribed by the Code, it cannot be dismissed as barred by limitation and proceedings cannot be dropped.

41. In Hari Jai Singh & Anr. v. Suresh Kumar Gupta, 2004 Crl LJ 3768 (HP), it was held that the period of limitation should be counted from the date of presentation of complaint and not from the date of issuance of process by the Magistrate. In that case, defamatory news was published on May 31, 1995 and a complaint was presented on May 14, 1998, well within three years prescribed for the purpose. Process was, however, issued by the trial Magistrate on November 12, 1998, i.e. after three years. It was held by the Court that the complaint could not be dismissed on the ground of limitation.

42. The Court said;

The words “A Magistrate taking cognizance of an offence on complaint shall examine on oath the complainant and the witnesses present” evidently provides the manner in which the Magistrate taking cognizance on the complaint is to proceed to take preliminary evidence of the complainant on the basis of which he is to determine whether process against the accused is to be issued or not. Therefore, with reference to the context it cannot be held for the purpose of Section 468 of the Code that the Magistrate invariably takes cognizance of offences only when he decides to issues process against the accused under Section 204 of the Code. Therefore, for all intents and purposes of Section 468 of the Code, a Court must be deemed to have taken cognizance on a criminal complaint at the stage of presentation of the complaint to the Court and its proceedings therewith as provided under Section 200 of the Code. To hold contrary, will lead to injustice and defeat the provisions of the Code intended to promote the administration of criminal justice. It cannot be disputed that after the presentation of the complaint the Magistrate has to examine the complainant and his witnesses or postpone the issue of process and inquire into the case himself or direct an investigation to be made by the police officer or by such other person as he thinks fit for the purposes of deciding whether or not there is sufficient ground for proceeding. These processes in a given case are likely to take time and are dependent on the time available with the Magistrate or the person who has been directed to investigate the allegations made in the complaint and early conclusion of these processes is not within the power and control of the complainant. Therefore, it would be unreasonable to hold that a complaint even if presented within the period of limitation but the process against the accused is not issued by the Magistrate within the period of limitation, the Court shall be debarred from taking cognizance of an offence. Therefore, it will be rational and reasonable to hold that the period of limitation is to be determined in view of the date of presentation of the complaint and not with regard to the date when the process is ordered to be issued by the Magistrate against the accused under Section 204 of the Code.

43. We may now refer to some of the decisions of this Court. The first in point of time was Surinder Mohan Vikal v. Ascharaj Lal Chopra, (1978) 2 SCC 403. In that case a complaint under Section 500, IPC was filed on February 11, 1976. It was alleged that the accused had committed an offence of defamation on March 15, 1972. A petition was, therefore, filed by the accused in the High Court under Section 482 of the Code for quashing proceedings on the ground that the complaint was barred by limitation. Upholding the contention and observing that the complaint was time-barred, the Court observed; “But, as has been stated, the complaint under Section 500, IPC was filed on February 11, 1977, much after the expiry of that period. It was therefore not permissible for the Court of the Magistrate to take cognizance of the offence after the expiry of the period of limitation.” (emphasis supplied)

44. It is thus clear in that case the complaint itself was filed after the expiry of period of limitation which was held barred under Section 468 of the Code.

45. In Rashmi Kumar (Smt.) v. Mahesh Kumar Bhada, (1997) 2 SCC 397 : JT 1996 (11) SC 175, a complaint was filed by the wife against her husband on September 10, 1990 for an offence punishable under Section 406, IPC. It was alleged in the complaint that she demanded from the respondent-husband return of jewellery and household articles on December 5, 1987, but the respondent refused to return stridhana to the complainant-wife and she was forced to leave matrimonial home. The complaint was admittedly within the period of three years from the date of demand and refusal of stridhana by the respondent-husband. The complaint was held to be within time and the matter was decided on merits.

46. In State of H.P. v. Tara Dutt & Anr., (2000) 1 SCC 230 : JT 1999 (9) SC 215, this Court held that in computing the period of limitation where the accused is charged with major offences, but convicted only for minor offences, the period of limitation would be determined with reference to major offences.

47. Special reference may be made to Bharat Damodar Kale & Anr. v. State of A.P., (2003) 8 SCC 559 : JT 2003 Supp (2) SC 569. This Court there considered the scheme of the Code and particularly Section 468 thereof and held that the crucial date for computing the period of limitation is the date of filing of complaint and not the date when the Magistrate takes cognizance of an offence. In Bharat Damodar, a complaint was filed by Drugs Inspector against the accused for offences punishable under the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954. The complaint was lodged in the Court on March 3, 2000 in respect of offence detected on March 5, 1999. The period of limitation was one year. The Magistrate took cognizance of the offence on March 25, 2000. Now, if the date of complaint was to be taken into consideration, it was within time, but if the date of cognizance by the Magistrate was the material date, admittedly it was barred by time. The Court considered the relevant provisions of the Code, referred to Rashmi Kumar and held the complaint within time observing that the material date for deciding the period of limitation was the date of filing of complaint and not the date of taking cognizance by the Magistrate.

48. The Court observed;

“On facts of this case and based on the arguments advanced before us we consider it appropriate to decide the question whether the provisions of Chapter XXXVI of the Code apply to delay in instituting the prosecution or to delay in taking cognizance. As noted above according to learned counsel for the appellants the limitation prescribed under the above Chapter applies to taking of cognizance by the concerned court therefore even if a complaint is filed within the period of limitation mentioned in the said Chapter of the Code, if the cognizance is not taken within the period of limitation the same gets barred by

limitation. This argument seems to be inspired by the Chapter-Heading of Chapter XXXVI of the Code which reads thus : “Limitation for taking cognizance of certain offences”. It is primarily based on the above language of the Heading of the Chapter the argument is

addressed on behalf of the appellants that the limitation prescribed by the said Chapter applies to taking of cognizance and not filing of complaint or initiation of the prosecution. We cannot accept such argument because a

cumulative reading of various provisions of the said Chapter clearly indicates that the limitation prescribed therein is only for the filing of the complaint or initiation of the prosecution and not for taking cognizance. It of course prohibits the court from taking

cognizance of an offence where the complaint is filed before the court after the expiry of the period mentioned in the said Chapter. This is clear from Section 469 of the Code found in the said Chapter which specifically says that the period of limitation in relation to an offence shall commence either from the date of the offence or from the date when the offence is detected. Section 471 indicates while

computing the period of limitation, time taken during which the case was being diligently prosecuted in another court or in appeal or in revision against the offender should be excluded. The said Section also provides in the Explanation that in computing the time

required for obtaining the consent or sanction of the Government or any other authority should be excluded. Similarly, the period during which the court was closed will also have to be excluded. All these provisions indicate that the court taking cognizance can take cognizance of an offence the complaint of which is filed before it within the period of limitation prescribed and if need be after excluding such time which is legally

excludable. This in our opinion clearly indicates that the limitation prescribed is not for taking cognizance within the period of limitation, but for taking cognizance of an offence in regard to which a complaint is filed or prosecution is initiated beyond the period of limitation prescribed under the Code. Apart from the statutory indication of this view of ours, we find support for this view from the fact that taking of cognizance is an act of the court over which the prosecuting agency or the complainant has no control. Therefore a complaint filed within the period of limitation under the Code cannot be made infructuous by an act of court. The legal phrase “actus curiae neminem gravabit” which means an act of the court shall prejudice no man, or by a delay on the part of the court neither party should suffer, also supports the view that the legislature could not have intended to put a period of limitation on the act of the court of taking cognizance of an offence so as to defeat the case of the complainant.

(emphasis supplied)

49. The learned counsel for the appellant-accused, no doubt, submitted relying on the italicized portion quoted above, that the Court was not right in observing that the argument of the accused was based on and inspired by the ‘Chapter Heading’ of Chapter XXXVI of the Code which reads “Limitation for taking cognizance of certain offences”. The counsel submitted that the Court proceeded to decide the point primarily on the basis of the argument advanced by the accused that the limitation prescribed by the ‘Chapter Heading’ applied to taking of cognizance and not filing of complaint, which was not correct. He submitted that apart from title (Chapter Heading), Section 468 itself places bar and puts embargo on taking cognizance of an offence by a Court. It expressly provides and explicitly states that “No court shall take cognizance of an offence” Bharat Damodar, thus, submitted the learned counsel, is per incuriam and is not binding upon this Court. The counsel, therefore, submitted that in that case the matter may be referred to a larger Bench.

50. We are unable to uphold the contention. We are equally not impressed by the argument of the learned counsel for the accused that the decision in Bharat Damodar is per incuriam. We have gone through the said decision. We have also extracted hereinabove paragraph 10 wherein the contention of the accused had been dealt with by this Court and negatived. It is true that in that case, the Court observed that taking clue from Chapter Heading (Chapter XXXVI : Limitation for taking cognizance of certain offences), an argument was advanced that if cognizance is not taken by the Court within the period prescribed by Section 468(2) of the Code, the complaint must be held barred by limitation. But, it is not true that this Court rejected the said argument on that ground. The Court considered the relevant provisions of the Code and negatived the contention on ‘cumulative reading of various provisions’. The Court noted that so far as cognizance of an offence is concerned, it is an act of Court over which neither the prosecuting agency nor the complainant has control. The Court also referred to the well-known maxim “actus curiae neminem gravabit” (an act of Court shall prejudice none). It is the cumulative effect of all considerations on which the Court concluded that the relevant date for deciding whether the complaint is barred by limitation is the date of the filing of complaint and not issuance of process or taking of cognizance by Court.

51. We are in agreement with the law laid down in Bharat Damodar. In our judgment, the High Court of Bombay was also right in taking into account certain circumstances, such as, filing of complaint by the complainant on the last date of limitation, non availability of Magistrate, or he being busy with other work, paucity of time on the part of the Magistrate/Court in applying mind to the allegations levelled in the complaint, postponement of issuance of process by ordering investigation under sub-section (3) of Section 156 or Section 202 of the Code, no control of complainant or prosecuting agency on taking cognizance or issuing process, etc. To us, two things, namely; (1) filing of complaint or initiation of criminal proceedings; and (2) taking cognizance or issuing process are totally different, distinct and independent. So far as complainant is concerned, as soon as he files a complaint in a competent court of law, he has done everything which is required to be done by him at that stage. Thereafter, it is for the Magistrate to consider the matter, to apply his mind and to take an appropriate decision of taking cognizance, issuing process or any other action which the law contemplates. The complainant has no control over those proceedings. Because of several reasons (some of them have been referred to in the aforesaid decisions, which are merely illustrative cases and not exhaustive in nature), it may not be possible for the Court or the Magistrate to issue process or take cognizance. But a complainant cannot be penalized for such delay on the part of the Court nor he can be non suited because of failure or omission by the Magistrate in taking appropriate action under the Code. No criminal proceeding can be abruptly terminated when a complainant approaches the Court well within the time prescribed by law. In such cases, the doctrine “actus curiae neminem gravabit” (an act of Court shall prejudice none) would indeed apply. [Vide Alexander Rodger v. Comptoir D'Escompte, (1871) 3 LR PC 465]. One of the first and highest duties of all Courts is to take care that an act of Court does no harm to suitors. The Code imposes an obligation on the aggrieved party to take recourse to appropriate forum within the period provided by law and once he takes such action, it would be wholly unreasonable and inequitable if he is told that his grievance would not be ventilated as the Court had not taken an action within the period of limitation. Such interpretation of law, instead of promoting justice would lead to perpetuate injustice and defeat the primary object of procedural law.

52. The matter can be looked at from different angle also. Once it is accepted (and there is no dispute about it) that it is not within the domain of the complainant or prosecuting agency to take cognizance of an offence or to issue process and the only thing the former can do is to file a complaint or initiate proceedings in accordance with law. If that action of initiation of proceedings has been taken within the period of limitation, the complainant is not responsible for any delay on the part of the Court or Magistrate in issuing process or taking cognizance of an offence. Now, if he is sought to be penalized because of the omission, default or inaction on the part of the Court or Magistrate, the provision of law may have to be tested on the touchstone of Article 14 of the Constitution. It can possibly be urged that such a provision is totally arbitrary, irrational and unreasonable. It is settled law that a Court of Law would interpret a provision which would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconstitutional by adopting rule of ‘litera legis’. Connecting the provision of limitation in Section 468 of the Code with issuing of process or taking of cognizance by the Court may make it unsustainable and ultra vires Article 14 of the Constitution.

53. In view of the above, we hold that for the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by a Court. We, therefore, overrule all decisions in which it has been held that the crucial date for computing the period of limitation is taking of cognizance by the Magistrate/Court and not of filing of complaint or initiation of criminal proceedings.

54. In the instant case, the complaint was filed within a period of three days from the date of alleged offence. The complaint, therefore, must be held to be filed within the period of limitation even though cognizance was taken by the learned Magistrate after a period of one year. Since the criminal proceedings have been quashed by the High Court, the order deserves to be set aside and is accordingly set aside by directing the Magistrate to proceed with the case and pass an appropriate order in accordance with law, as expeditiously as possible.

55. Appeal is accordingly allowed

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CASE DEFINING THE LIMITATION OF PERIOD IN WHICH CASE CAN BE FILED….IMP JUDGEMENT

January 30, 2012 //

Japani Sahoo vs Chandra Sekhar Mohanty on 27 July, 2007
Author: C Thakker
Bench: C Thakker, T Chatterjee
CASE NO.:

Appeal (crl.) 942 of 2007

PETITIONER:

JAPANI SAHOO

RESPONDENT:

CHANDRA SEKHAR MOHANTY

DATE OF JUDGMENT: 27/07/2007

BENCH:

C.K. THAKKER & TARUN CHATTERJEE

JUDGMENT:

J U D G M E N T

CRIMINAL APPEAL NO. 942 OF 2007

ARISING OUT OF

SPECIAL LEAVE PETITION (CRL) NO. 4174 OF 2006

C.K. THAKKER, J.

1. Leave granted.

9. We have heard the learned counsel for the parties.

(2) The period of limitation shall be (a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

one year but not exceeding three years.

15. In Assistant Collector of Customs, Bombay & Anr. v. L.R. Melwani & Anr., (1969) 2 SCR 438 : AIR 1970 SC 962, this Court stated:

prosecution amounts to an abuse of the

circumstance to be taken into

consideration in arriving at the final

17. The Law Commission considered the question in the light of legal systems in other countries and favoured to prescribe period of limitation for initiating criminal proceedings of certain offences.

18. In the Statement of Objects and Reasons, it had been observed;

“There are new clauses prescribing

19. The Joint Committee of Parliament also considered the following as sufficient grounds for prescribing the period of limitation;

20. It is thus clear that provisions as to limitation have been inserted by Parliament in the larger interest of administration of criminal justice keeping in view two conflicting considerations;

(i) the interest of persons sought to be prosecuted (prospective accused);

(ii) and organs of State (prosecuting agencies).

21. In State of Punjab v. Sarwan Singh, (1981) 3 SCR 349 : AIR 1981 SC 1054, this Court stated: “The object which the statutes seek to

22. Bearing in mind the above fundamental principles, let us examine the rival contentions and conflicting decisions on the point.

26. Let us consider some of the decisions on the point.

28. Dismissing the complaint on the ground of limitation, a single Judge of the High Court of Madras observed;

42. The Court said;

44. It is thus clear in that case the complaint itself was filed after the expiry of period of limitation which was held barred under Section 468 of the Code.

48. The Court observed;

(emphasis supplied)

55. Appeal is accordingly allowed

Categories Uncategorized

women forged salary slip of husband caught

January 30, 2012 //

as per the news in TOI a woman is caught forging sa;lary slip of her husband
below is the news

NEW DELHI: A woman found herself on the wrong side of the law when in a bid to get her husband pay the desired alimony she allegedly forged his salary slip. Her attempt, however, fell flat with a trial court ordering registration of FIR against her.

“Considering the facts and circumstances of the present case, I am of the opinion that prima facie commission of cognizable offence is made out and police investigation is necessary for ascertaining the role of the accused in making and filing the forged document in the court of law,” Metropolitan Magistrate Manish Khurana said while directing the SHO of Prashant Vihar police station to register an FIR under “appropriate sections of law against the wrongdoer”.

The court’s order came on a petition filed by the husband, seeking issuance of direction to the police to register an FIR against his wife for submitting forged documents before court. He alleged that while seeking maintenance, his estranged wife filed a doctored salary certificate, which stated that he was earning a gross salary of Rs 52,000 per month.

He claimed that it was forged and that he never worked in the company whose salary certificate was submitted.

His counsel Jagmohan Singh also said that when it was enquired from the company about the issuance of such a salary slip, they were told that he never worked with the company. The court said the woman has committed the serious crime of filing the forged document before the court of law and a police probe is required to find out how she procured, forged and filed the aforesaid certificate.

The court asked the cops to submit a copy of the FIR before court within one week and fixed the matter for hearing for April 17, 2012.

After going through the record, the judge said: “In this case, as per the preliminary enquiry conducted by the police, the impugned salary certificate, which is allegedly filed by the woman, is found forged. Further, she has filed the same in the court of law to obtain the monetary benefit and the police investigation in this case is required to ascertain the role of the accused in making and filing the forged document in the court of law.”

for more details plz visit the link

http://timesofindia.indiatimes.com/city/delhi/Woman-wanted-alimony-forged-hubbys-salary-slip/articleshow/11679328.cms

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Recomendation Of Allahabad HC on arrest in 498A case and to follow 41A

December 18, 2011 //

eLegalix – Allahabad High Court Judgment Information System (Judgment/Order in
Text Format)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 46
Case: Criminal Misc. Writ Petition No. 17410 of 2011
Petitioner: Shaukin
Respondent: State of UP and others
Petitioner counsel: Mrs. Tabassum Hashimi, Ashwani Kumar Srivastava
Respondent counsel: Government Advocate
Hon’ble Amar Saran, J.
Hon’ble Kalimullah Khan, J.
1.A personal affidavit of the DGP, U.P. dated 11.10.11 has been filed and this Court is pleased to note that in compliance of our earlier order dated 15.9.11. the DGP, U.P. has issued a circular dated 3.10.11 addressed to all the regional IGs/ DIGs/ SSPs/SPs in-charge of all districts and departmental heads of other police units to strictlyenforce the newly introduced amendments, viz. sub-section 41(1)(b) and section 41 A Cr.P.C and the directions contained in the order of this Court dated 15.9.11 in Cr. Misc Writ Petiton No. 17410 of 2011, Shaukeen v State and order dated 23.9.11 in Cr. Misc. Writ Petition No. 18661/ 2011, Ram Abhilash and others v State.
2.It was also pointed out in the circular that the investigating officers who file counter-affidavits before the High Court do not have any knowledge about these provisions and how they are to be applied.
3.The following observations in the order dated 15.9.11 have been quoted in the DGP’s circular: “Let a copy of this order be forwarded to the DGP, U.P. within one week by the registry. The DGP may circulate this order to all police stations and investigating officers in U.P. with directions to ensure strict and honest compliance with the provisions of sections 41(1)(b) and 41 A Cr.P.C and to refrain from routinely arresting persons wanted in cases punishable by imprisonment up to 7 years, unless in particular cases the exceptional circumstances enumerated in section 41(1)(b) Cr.P.C. exist, after recording his reasons for arrest. Let the DGP submit his compliance reportof this direction within three weeks.”
4.Annexure 2 to the DGP’s affidavit in compliance of our dated 15.9.11 also contains the following endorsement from all 72 districts in U.P.: “जनपद / थाना 􀃨तर पर आदेश का अनुपालन कड़ाई से 􀇑कया जा रहा है”
5.The directions were issued by the DGP’s circular dated 3.10.11 to the subordinate police officials to clarify that ordinarily the police shall not immediately arrest accused persons wanted in matters punishable with imprisonment upto 7 years. This limitation was subject to the exceptions mentioned in the aforesaid amended sections.
6.By the present order we proceed to explain the import and meaning of the amended provisions 41(1)(b) and 41 A Cr.P.C, and to give some illustrations where accused could be arrested straightaway on the lodging of the FIR,and other illustrations where immediate arrests may not be needed, because we think that in many cases the police is still routinely proceeding to arrest accused persons even if they are involved in offences punishable with up to 7 years imprisonment, in contravention of the express terms of sections 41(1)(b) or 41 A Cr.P.C.
7.It would be useful to extract the material provisions, sections 41(1)(b) and 41 A, which have been introduced by Act No. 5 of 2009, with effect from 1.11.2010 and also section 170(1) of the Code of Criminal Procedure, here :
41. When police may arrest without warrant. — (1) Any police officer may without an order from a Magistrate and
without a warrant, arrest any person –
(a)——————
(b) against whom a reasonable complaint has been made, or credible information has been received, or a
reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:-
(i) the police office has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
(ii) the police office is satisfied that such arrest is necessary–
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(C) to prevent such person from causing the evidence of the offence to disappear or tampering with such
evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured,
and the police officer shall record while making such arrest, his reasons in writing.
Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest. -
41 A. Notice of appearance before police officer- (1) The police officer shall in all cases, where the arrest of a person is not required under the provisions of sub-section(1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received,or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of the person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself,the police officer may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the offence mentioned in the notice.
170. Cases to be sent to Magistrate when evidence is sufficient. -(1) If, upon an investigation under this Chapter,it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed.
8.The import of the said provisions is that normally where an accused has been named in the FIR, and the
offence is punishable with upto 7 years imprisonment, the arrest of the accused may not be necessary at the initial stage and his attendance may be secured by issuing a notice to him to appear before the police officer under section 41 A Cr.P.C. In such cases it would be advisable to arrest the accused only after sufficient evidence of his involvement in the crime has been collected and the charge sheet needs to be submitted. Under section 170(1) Cr.P.C. it has been provided that on completion of investigation if sufficient evidence has been collected the accused shall be forwarded in custody to the Magistrate concerned, unless he has been released on bail (if the offence was bailable), in which event security may be taken for his appearance before the Magistrate. This practice of not arresting the accused straightaway and arresting them only after sufficient evidence has been collected is normally followed by the CBI, and CB (CID) in their investigations.
9.Where however the accused has not been named in the FIR, or at the time when the co-accused have been
picked up, for example in a case of vehicle theft or recovery of other stolen goods, or where the co-accused has been arrested while committing a crime, and he names another accused as also having participated in the crime,whose custodial interrogation may be necessary and the police officer is of the opinion that the disclosure furnishes credible information or gives rise to reasonable suspicion for inferring that this accused whose arrest is sought could also be involved, or there are chances that such an accused would abscond or not respond to a notice under section 41A to appear, looking to the nature of the crime and the background of the particular accused, these maybe appropriate cases where immediate arrests may be needed. Likewise where the accused whose arrest is sought appears to be habitually engaged in committing crimes or appears to be participating in some organized crimes, and there is probability of the accused repeating the offence, these would also be circumstances where it may be necessary to arrest such accused without delay.
10.However in a case under section 498 A IPC where the wife subject to violence has gone back to her “maika” following the violence, it may not be necessary in a particular case to immediately arrest the husband and other family members who have been made accused in the FIR until adequate evidence has been collected, as she is unlikely to encounter violence when she is away from her “sasural.” In E.C. Act offences again where the licences of a ration card dealer named in the FIR has been suspended, he may not have any opportunity to again indulge in blackmarketing or to commit a new offence under the E.C. Act. Here too arrests can be deferred until sufficient evidence to submit a charge sheet has been collected, when he needs to be produced before the trial court. But where the dealer is trying to obtain affidavits from ration card holders and it appears that he is trying to win over witnesses, then it may be open to the police to arrest him straight away. We have mentioned these examples as illustrations for situations where arrests may or not be immediately needed and they are by no means exhaustive.
11.It is with the objective of striking a balance on the need to provide the Constitutional protection from arbitrary arrest guaranteed under Article 21 and the restraint on arrests for offences punishable with imprisonment up to 7 years, subject to certain exceptions as provided for under section 41(1)(b) Cr.P.C. and the need of the police to carry out its investigation without interference, that we have refrained from passing blanket orders staying the arrests of the accused in all such cases.
12.But we do expect the police officer to record reasons in a bona fide and honest manner, why it has become necessary to arrest the accused in a particular case punishable with imprisonment with upto 7 years. The police officer should not mechanically and routinely write down in the case diary that there is likelihood of the accused running away, or presume that the accused would not respond to the notice to appear under section 41 A Cr.P.C, or that he would tamper with the evidence, unless there are strong reasons with concrete material for taking such a view, and this satisfaction along with the concrete reasons for taking the view need to be spelt out clearly in the case diary before the accused is arrested.
13.Thus strong reasons are needed for arresting an accused with respectable antecedents, who is an income tax payee with roots in the community, and a permanent abode, no history of earlier abscondance or non-cooperation with the police and who is not likely to tamper with the evidence or to again commit a crime unless he is immediately arrested.
14.The propriety, honesty and genuiness of the reasons given for arrests in particular cases punishable with imprisonment up to seven years and whether they conform to the requirements of sections 41(1)(b) and 41 A Cr.P.C. therefore need to be strictly monitored by the superior officers, i.e. C.O.s/ S.P.s/SSPs or DIGs in the districts, as has been emphasized in the DGP’s circular dated 3.10.11. We make it clear that in the event that this Court finds that the accused who are wanted in cases punishable with up to 7 years imprisonment are being arrested in a routine and mechanical matter, without the existence of the conditions necessary for arresting them as mentioned in sections 41(1)(b) and 41 A Cr.P.C. this Court will have no hesitation in summoning the concerned police officers or even the superior police officers and they may even have to face contempt charges. For persistent unwarranted arrests in such matters in violation of the provisions of sections 41(1)(b) and 41 A and the
DGP’s circular dated 3.10.11. we may even recommend disciplinary action against such errant police officers to the DGP, U.P.
15.Section 167(1) of the Code of Criminal Procedure also requires production of the case diary before the
Magistrate before whom the accused is produced for remand.
16.Section 167(1) reads thus:
167. Procedure when investigation cannot be completed in twenty-four hours. —-(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter presecribed relating to the case, and shall at the same time forward the accused to such Magistrate.
17.As rightly pointed out in Bir Bhadra Pratap Singh v D.M., Azamgarh, 1959 Cri.L.J 685 the forwarding of case diary entries under section 167(1) Cr.P.C. is not an empty formality, and the Magistrate is not simply to “rubber stamp” the prayer of the police officer seeking remand of the accused, but he is to apply his judicial mind to satisfy himself that the requirements of law are met when the police produces an accused for remand. At the time of granting the remand we expect the Magistrate to examine the case diary for satisfying himself whether the police officer’s reasons for immediate arrest in the cases punishable with imprisonment upto 7 years was held by him in a bona fide manner and whether the reasons for remand are restricted to the pre-conditions for arrest mentioned in the newly introduced sections 41(1)(b) and 41 A Cr.P.C. The Magistrate needs to closely examine as to how the police officer could reach a conclusion that unless the accused was arrested he would repeat the offence, or why without arrest the investigation could not proceed, or whether the particular accused was as a matter of fact likely to cause the evidence to disappear, or would tamper with the evidence, or the accused would try and
influence witnesses, or without arrest the particular accused would not appear in Court. These opinions of the police officer are to be based on concrete material and cannot be the mere ipse dixit of the officer. If he finds that no genuine reasons which accord with the requirements of sections 41(1)(b) and 41 A exist the Magistrate may even refuse to grant remand to the accused, and allow the accused to be released on a personal bond with a direction to appear before the competent court or before the police when called upon to do so, with or without security.
18.There would be no impediment in the Magistrate remanding the accused to judicial custody at later stages as authorized under section 41(1)(b)(ii)(e) and section 170(1) Cr.P.C. when the accused is produced before the Magistrate and the case diary shows that sufficient evidence for submitting a charge sheet has been collected.Needless to mention that in case the accused has already secured bail, then the police officer would be disentitled to arrest an accused person for seeking his remand because the charge sheet is to be submitted. The accused could then be summoned to appear by the Magistrate taking cognizance of the offence in exercise of powers under section 204 Cr.P.C.
19.If accused who are required in cases punishable with upto 7 years sentence are not routinely arrested by the police, or are granted bail by the lower court itself, without any undue delay in disposing of their bail applications, and in appropriate cases the facility of releasing the accused on interim bails on personal bonds pending consideration of their regular bails with or without security with a direction to appear when required is also extended to them, as has been laid down in the Apex Court Court in Lal Kamlendra Pratap Singh V State of U.P., (2009) 4 SCC 437, the Full Bench in Amaravati and another v State of U.P., 2005 Cri.L.J. 755, and the Division Bench in Sheoraj Singh @ Chuttan v State of U.P. and others, 2009(65) ACC 781, considerable time of the High Court could be spent more productively in hearing single judge and two judge appeals, or bails in grave matters. At present we find that most of the High Court single and division benches on the criminal side are engaged in considering an inordinately large number of applications for bail, applications under section 482 Cr.P.C., and
Division Bench criminal writ petitions in such matters punishable with imprisonment up to 7 years, which could easily be dealt with by the Magistrates and Sessions Courts.
DIRECTIONS:
20.We therefore direct the Magistrates that when accused punishable with upto 7 years imprisonment are
produced before them remands may be granted to accused only after the Magistrates satisfy themselves that the application for remand by the police officer has been made in a bona fide manner and the reasons for seeking remand mentioned in the case diary are in accordance with the requirements of sections 41(1)(b) and 41 A Cr.P.C. and there is concrete material in existence to substantiate the ground mentioned for seeking remand. Even where the accused himself surrenders or where investigation has been completed and the Magistrate needs to take the accused in judicial custody as provided under section 170(1) and section 41(1)(b)(ii)(e) Cr.P.C,prolonged imprisonment at this initial stage, when the accused has not been adjudged guilty may not be called for, and the Magistrates and Sessions Courts are to consider the bails expeditiously and not to mechanically refuse the same, especially in short sentence cases punishable with upto 7 years imprisonment unless the allegations are grave and there is any legal impediment in allowing the bail, as laid down in Lal Kamlendra Pratap Singh V State of U.P., (2009) 4 SCC 437, and Sheoraj Singh @ Chuttan v State of U.P. and others, 2009(65) ACC 781. The facility of releasing the accused on interim bail pending consideration of their regular bails may also be accorded by the Magistrates and Sessions Judges in appropriate cases.
21.The Magistrate may also furnish information to the Registrar of the High Court through the District Judge, in case he is satisfied that a particular police officer has been persistently arresting accused in cases punishable with upto 7 year terms, in a mechanical or mala fide and dishonest manner, in contravention of the requirements of sections 41(1)(b) and 41 A, and thereafter the matter may be placed by the Registrar in this case, so that appropriate directions may be issued to the DGP to take action against such errant police officer for his persistent default or this Court may initiate contempt proceedings against the defaulting police officer.
22.The District Judges should also be directed to impress upon the remand Magistrates not to routinely grant remands to police officers seeking remand for accused if the pre-conditions for granting the remands mentioned in sections 41(1)(b) and 41 A Cr.P.C. are not disclosed in cases punishable with 7 year terms, or where the police officer appears to be seeking remand for an accused in a mala fide manner in the absence of concrete material. The issue of compliance with sections 41(1)(b) and 41 A Cr.P.C and the directions of this Court in this regard may also be discussed in the monthly meetings of the District Judges with the administration and the superior police officials.
23.We are also of the view that the Registrar General may issue a circular within a period of one month with directions to the Sessions Courts and Magistrates to monitor and oversee the applications for remand sought by the arresting police officers and to comply with the other directions mentioned herein above.
24.The DGP, U.P. is directed to send a status report with better particulars by the next listing as to the extent to which arrests are only being effected in cases punishable with upto 7 years imprisonment strictly in accordance with the conditions mentioned in sections 41(1)(b) and 41 A Cr.P.C. We are not satisfied by the mechanical incantation of the words by the police of 72 U.P. districts: “जनपद / थाना 􀃨तर पर आदेश का अनुपालन कड़ाई से 􀇑कया जा रहा है.”
25.As already indicated above we are of the view that by routinely mentioning in the case diary that a particular condition referred to in sections 41(1)(b) or 41 A Cr.P.C. has been met for seeking police remand, would not provide adequate reason for effecting the arrest. The DGP is also directed to circulate the present order to all subordinate police officers.
26.We are also of the view that the UP Legal Services Authority be directed to bring out pamphlets for distribution in the legal literacy camps etc., or even issue news paper announcement with headings such as “सात साल तक क􀈧 सजा पाने वाले अिभयु􀆠􀉉 को राहत,” informing the public that henceforth accused wanted in cases punishable with upto 7 years imprisonment would get relief and not be routinely arrested because of the recent amendment to the Code of Criminal Procedure, which has been enforced from 1.11.2010.
27.Let a copy of this order be sent to the DGP, U.P., Member Secretary, U.P. SLSA and District Judges in all districts of U.P. for compliance and communication to all the concerned judicial magistrates before whom the accused are produced for remand by the police officers within ten days.
28.Let a copy of this order be also furnished to the learned Government Advocate forthwith.
29.Let a compliance report be submitted by the DGP, U.P., Member Secretary, U.P. SLSA and District Judges by the next listing. The said authorities may also indicate the difficulties if any, faced in complying with the aforesaid directions.
List on 14.12.2011.
Dated: 11.10.2011
Ishrat
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Categories Uncategorized

Recomendations and Strong Views of Allahabad HC in case for arrest and compoundability in 498A

December 18, 2011 //

Allahabad HC has given strong stand that arrest should be made only in rare cases and it has asked to make this LAW compoundable atleast. Also first the mediation in court mediation cell should be done. If then if police feels that it should arrest the person should tell the husband and his family to obtain bail.

varous other suggestions are given.plz read this below judgement care fully

eLegalix – Allahabad High Court Judgment Information System (Judgment/Order in Text Format)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Deputy Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 46

Case :- CRIMINAL MISC. WRIT PETITION No. – 3322 of 2010

Petitioner :- Re: In The Matter Of Matrimonial Disputes

Respondent :- State Of U.P. & Others

Petitioner Counsel :- P.N. Gangwar

Respondent Counsel :- Govt. Advocate,Abhay Raj Singh,Pankaj Naqvi

Hon’ble Amar Saran,J.

Hon’ble Shyam Shankar Tiwari,J.

On 8.8.2011, there was an extensive hearing in this case when Ms. Leena Jauhari, Secretary (Home),

Government of U.P. Lucknow, Smt. Poonam Sikand, Additional L.R and Tanuja Srivastava, I.G.( Public

Grievances), Ms. G. Sridevi, Secretary, U.P. State Legal Services Authority, Sri Ashok Mehta, Organising

Secretary, Allahabad High Court, Mediation and Conciliation Centre, Sri Pankaj Naqvi, Sister Sheeba Jose

Advocates on behalf of the intervenor ‘Sahyog,’ Sri D.R. Chaudhary, learned Government Advocate and Sri

Bimlendu Tripathi, learned A.G.A appeared and were heard at length.

An affidavit has also been filed on behalf of the Director General of Police on 10.8.2011. Another affidavit wasalso filed on behalf of Special Secretary (Home), U.P. on 12.8.2011. An application was also moved by the intervenor ‘Sahyog.’This Court appreciates the positive contributions and suggestions of all the aforesaid advocates and other State officials and that this pro bono litigation is being taken up in the right non-adversarial spirit, with the aim to ensure that wherever allegations are not very grave, in order to save families, and children and indeed the institution of marriage, an effort be first made for reconciling matrimonial disputes by mediation before steps can be taken for prosecuting offenders, if they are called for. In Preeti Gupta v. State of Jharkhand, AIR 2010 SC 3363 the learned members of the bar have been reminded of their noble profession and their noble tradition and of their responsibility to ensure that the social fibre of family life is preserved by desisting from over-implicating all in-laws and their relations as accused persons in 498-A IPC reports, and from filing exaggerated reports. They are also to make an endeavour to bring about amicable settlements to this essentially human problem. It has also been

rightly pointed out in Sushil Kumar Sharma v Union of India, AIR 2005 SC 3100 (para 18) whilst upholding the vires of section 498-A IPC, that it should be ensured that complaints are not filed with oblique motives by unscrupulous litigants so that a “new legal terrorism” is not unleashed, and that the well-intentioned provision is not misused.

In Kans Raj v State of Punjab, AIR 2000 SC 2324, it has been held that there is a tendency in cases of 498-A IPC and 304 B IPC to rope in a large number of in-laws of the victim wife, and not only the husband. In para 5 of the law report it has been observed: “….In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case.”

Specifically as a result of the interaction and suggestions which emerged after a dialogue with the Advocates and officials, this Court requires to formulate its opinion on the following points:

1.Whether registration of an FIR is mandatory once an aggrieved woman or the eligible family members as specified under section 198A Cr.P.C approaches the police station giving information that an offence under section 498A IPC or allied provisions such as under section 􀀀 D.P. Act or under section 406 I.P.C have been committed by the husband or other in-laws and their relations.

2.Should the concerned police officers immediately proceed to arrest the husband and other family members of the husband whenever such an FIR is lodged.

3.Can a distinction be made between the cases where arrest is immediately necessary and other cases where arrest can be deferred and an attempt be first made for bringing about mediation between the parties.

4.What is the appropriate place where mediation should be conducted.

5.Should a time frame be laid down for concluding the mediation proceedings.

6.Who should be the members of the mediation cell in the district.

7.What is the procedure to be followed by the police when a report of a cognizable offence under section 498A IPC or allied provisions is disclosed.

8.Is training of mediators desirable and who should conduct the training?

9.Should the offence under Section 498A be made compoundable and what steps the State Government may take in this direction.

Discussions on the points requiring formulation by the Court.

1. Whether registration of an FIR is mandatory?

Section 154 of the Code of Criminal Procedure mandates that when any information regarding information of a cognizable offence is given orally to the officer in charge of the Police Station, he is required to reduce it in writing and to enter it into the general diary. The said provision gives no option to the concerned Police Officer to refuse to lodge the F.I.R. once information of a cognizable offence is given to the police officer. In paragraph No. 30 and 31 in State of Haryana and others Vs. Bhajan Lal, 1992 Cri. L.J. 527, it has been laid down that section 154 (1) of the Code provides that whenever an information is given that a cognizable offence has been committed, the Police Officer cannot embark upon an inquiry to ascertain as to whether the information was reliable or genuine or refuse to register the case on that ground. The officer in charge of the Police Station is statutorily obliged to register the case and then to proceed with the investigation, if he even has reason to suspect the commission of an offence.

(2) Whether arrest of husband and family members mandatory once FIR is lodged

It is noteworthy that section 154 Cr.P.C. which deals with the powers of investigation and the necessity of lodging an FIR when a cognizable offence only speaks of “information relating to the commission of a cognizable offence” given to an officer. No pre-condition, as pointed out above, is placed under this provision for first examining whether the information is credible or genuine. In contrast section 41(1)((b) Cr.P.C dealing with the powers of the police to arrest without a warrant from a Magistrate requires the existence of a “reasonable complaint,” or “credible information” or “reasonable suspicion” of the accused being involved in a cognizable offence as preconditions for effecting his arrest.

The two provisos to section 157 also speak of two exceptions when investigation (and consequent arrest) may not be necessary. These two situations are:

(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;

(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. However in such situations the police officer is to mention in his report the reasons for not investigating the case. In the second case, where a police officer is of the opinion that there is no sufficient ground for investigating a matter, he is to also inform the informant of his decision. The proviso (b) to section 157 (1) Cr. P. C. has been discussed in paragraphs No. 53 and 54 in Bhajan Lal (supra). The law report clarifies that clause (b) of the proviso permits a police officer to satisfy himself about the sufficiency of the grounds even before entering on an investigation. However, at that stage, the satisfaction that on the allegations, a cognizable offence warranting investigation is disclosed, has only to be based on the F.I.R. and other materials appended to it, which are placed before the Police Officer. Therefore, if it appears to the Police Officer that the matrimonial dispute between the spouses is either not of a grave nature or is the result of a conflict of egos or contains an exaggerated version, or where the complainant wife has not received any injury or

has not been medically examined, he may even desist or defer the investigation in such a case.

Recently by Act No. 5 of 2009, the newly introduced section 41 (1) (b), has been given effect to from 1.11.2010. This sub-section provides that if some material or credible information exists of an accused being involved in a cognizable offence punishable with 7 years imprisonment or less with or without fine, the Police Officer has only to make an arrest, if he is satisfied that such arrest is necessary (i) to prevent such person from committing any further offence, (ii) for proper investigation of the offence; (iii) to prevent such person from causing the evidence of the offence to disappear or tampering with the evidence in any manner; (iv) for preventing such person from making any inducement, threat or promise to a witness to dissuade him from disclosing such facts to the Court or the Police Officer (v) or unless such a person is arrested, he may not appear in the Court when required. This new provision has forestalled any routine arrests simply because a person is said to be involved in a cognizable offence punishable with imprisonment up to 7 years. The arrest is only to be effected if any or all of the five conditions abovementioned are fulfilled. For making or for not making such arrest, the Police Officer has to record

his reasons. In contrast to this provision, under section 41 (1) (ba) such a limitation has not been provided for those cases, where credible information has been received that a person has committed an offence punishable with imprisonment of over 7 years.

A new provision, section 41 A Cr.P.C has also been added by Act No. 5 of 2009 (with effect from 1.11.2010) which gives powers to a Police Officer to issue a notice directing the person against whom a reasonable complainant has been made or credible information or reasonable suspicion exists to appear before him or at any place that he may specify in the notice where the police officer is of the opinion that the arrest is not required under the provisions of section 41(1) Cr.P.C. but the accused is to comply with the notice and he would not be arrested, if he continues to comply with the terms of the notice. However, where the person fails to comply with the notice, the police has all powers to arrest him, unless there is some order of the Court granting him bail or staying his arrest.

Now an offence under section 498A IPC is punishable with imprisonment only up to three years and fine. If there are no injuries on a victim, in our opinion, it constitutes a fit case for the police officer to exercise powers conferred by the newly introduced section 41(1)(b) read with section 41 (A), where instead of straight away arresting the accused, it would be a better option at the initial stage for the police officer to require the said person to appear before him or before the Mediation Centre. As pointed out above section 41 A Cr.P.C. permits calling the person concerned before the police officer himself or to any specified place. Hence a notice can be given to the accused to appear before the mediation centre. This restraint on arrest, and placing of conditions or terms for arrest would also apply a fortiori to the accused family members of the husband of the aggrieved wife.It may be pointed out that if the FIR is immediately registered that will placate the concerns of the aggrieved wife to some extent that action is being taken on her complaint, and it has not been put on the back burner.

(3) Whether distinction possible between cases necessitating immediate arrest, and cases where attempt for mediation should first be made Arrest may be necessitated, if the husband or other in-laws have given a grave beating to the wife endangering her life or where the wife has been subjected to repeated violence or there are any other circumstances of exceptional cruelty against the wife, where future recurrence of violence or cruelty seems likely, or for preventing the husband and his accused family members from trying to browbeat witnesses or to tamper with the course of justice, or for ensuring the presence of the husband or his accused family members at the trial, or for effective investigation. In all other cases, we are of the opinion that an attempt should be first made for bringing about reconciliation between the parties by directing the complainant wife and her natal family members and the husband and other family members to appear before the Mediation Centre when the wife or other eligible relations

under section 198-A Cr.P.C. approaches the police station for lodging the report.

The advantage of not immediately arresting the accused husband and his family members in a trivial case where there appear to be no injuries on the aggrieved wife, is that in sudden matrimonial disputes, because of clash of egos between the wife and her natal family members and the husband and in-laws, the wife’s side at the initial stage usually insists on effecting the arrests of the husband and other in-laws. Once the husband or his family members are arrested, and subsequently bailed out, little motivation remains for the parties to try and resolve their disputes by mediation. This may prove disadvantageous for the wife in the long run who may not have a source of independent livelihood for running her life in the future.

4.Appropriate place where mediation should be conducted.

The officials as well as the learned Government Advocate and other lawyers present unanimously recommended that the Mediation Cell should not be at the police station. The I.G. (Public Grievances) pointed out that the police officer before whom the report is lodged lack proper training for conducting mediations sessions. Also if the police officer refrains from arresting the accused persons pursuant to the wife’s FIR, by attempting to mediate in the dispute between the parties, even if it is a case of no injury, and even where he is only acting in accordance with the general directions of the Court, questions about his integrity are unnecessarily raised. Moreover it is pointed out by the Secretary of the Legal Services Authority that now Mediation or Conciliation Centres have been established in all the District Courts. We, therefore, think that the mediation proceedings should be carried out in the said Mediation Centre.

5.Need for time frame for concluding the mediation proceedings.

The I.G. (Public Grievances) and others present rightly pointed out that a time frame must be laid down for concluding the mediation proceedings as when an aggrieved wife approaches the police for relief, because she has been subjected to cruelty. If the matter is unduly prolonged in the mediation process, the delay could act as a shield to protect the accused from facing the penalty of law, causing frustration and bitterness for the aggrieved wife. Notice should as far as possible be served personally on the accused and the parties should be directed to appear before the Mediation Centre within a week or 10 days of the lodging of the report by the aggrieved wife or family members. Thereafter we think, that as far as possible, the mediation proceedings should be concluded within two months of the first appearance of both the parties before the Mediation Centre.

6.Who should be the members of the mediation cell in the district?

The Mediation Cell in the district should be headed by the Secretary of the Legal Services Authority in the district, (at present, the Civil Judge, Senior Division has been made the Secretary), other panel or retainer lawyers appointed by the District Legal Services Authority, other lawyers, who volunteer for giving free services before the Mediation centre, especially female lawyers should also be made members of the Mediation Cell. It is also desirable to have three or four social workers (especially female) in the Cell. A female police officer of the rank of Dy. S.P. may also be appointed an ex-officio member of the Mediation Cell.

7.Procedure to be followed by the police when a report of a cognizable offence under section 498A IPC or allied provisions is reported

The report regarding commission of cognizable offence under section 498A IPC or other allied sections may be lodged at the concerned police station where the incident takes place or at the ‘Mahila Thana’ especially created in the district for investigation of such cases. The police officer concerned will get the aggrieved woman medically examined for injuries if the same are present. If the report has been lodged at some police station other than the Mahila Thana, the injury report and relevant police papers shall be forwarded to the Mahila Thana for investigation of the case, and in appropriate cases the investigating police officer at the Mahila Thana may refer the matter to the mediation centre in the Civil Court, and direct the complainant to be present at the mediation centre on a fixed date 7 to 10 days thereafter. The accused should as far as possible also be personally given notice to appear before the mediation centre on the date fixed. We would also like the presence of trained social workers (especially female) or legal aid panel lawyers to be present at the Mahila Thana for counselling the aggrieved woman and her family members for first trying to solve their dispute by mediation, when the case is registered at the mahila thana. The notice to the husband and other family members should mention that in cases the husband

or the family members of the aggrieved wife fail to appear on the date fixed or on future dates, as directed by the Mediation Centre or fail to comply with any condition that may be imposed by the police officer or Mediation Centre, steps shall be taken for arresting the accused. The accused husband or other in-laws should be directed to report before the police officer on a date two months after the date of first appearance before the Mediation Centre and inform the Police Officer about the progress in the mediation. The in-charge of the mediation proceeding may also direct the husband or other family members to appear before the Police Officer at an earlier date fixed in case mediation has failed or it has been successfully concluded and the parties concerned shall appear before the Police Officer on the said date. It would also be open to the complainant wife to inform the police officer about the progress (or lack of it) of the mediation process. The notice should also clarify that in case mediation is pronounced as unsuccessful at an earlier date, and information is given by either party or the Mediation centre to the Police Officer, he may require the presence of the accused husband or his relations at an earlier date. If mediation has been successfully concluded, it will be open to the Police Officer to submit a final report in the matter. In cases, where it has not been successfully concluded and the Police Officer is of the view

that arrest may not be necessary in a particular case, he may direct the accused persons to obtain bail from the Competent Court. In case, he is of the opinion that the arrest is necessitated at a subsequent stage, it will be open to the Police Officer to take such accused persons in custody. He should of course record his reason for making the said arrest as provided under section 41 (1) (b) (ii).

8.Necessity of training to mediators.

We endorse the opinion of the intervening lawyers, the learned Government Advocate, Sri Ashok Mehta,

Organizing Secretary of the Mediation Centre of the Allahabad High Court and the Government officials present, including the Secretary of the Legal Services Authority, that training for mediators is a sine qua non for effective mediation. The Organizing Secretary of the Allahabad High Court Mediation Centre (AHMC) and Secretary of the U.P. Legal Services Authority (UPLSA) stated that the centre and authority are prepared to impart training to the mediators. We welcome this offer and direct that there should be co-ordianation between the AHMC and UPLSA for giving effect to this offer. By and by as the State Government is able to create a cadre of trainers for mediation, their services may also be utilised for training mediators in the districts.

We think training is necessary because the responses to our queries from the subordinate district courts reveal the poor success rate in the cases referred by the High Court or where the concerned subordinate court has itself initiated the process of mediation. By contrast the success rate at the Mediation Centre in the Allahabad High Court, which has independent trained mediators (usually lawyers) is much higher. The first requirement for successful mediation is the patience on the part of the mediator, and his willingness to give sufficient time to the contesting parties and especially to the wife to express her bottled up grievances. Thereafter, in a disinterested manner, the mediator should encourage the parties to come up with solutions, giving useful suggestions for bringing about reconciliation, as the mediator cannot impose his solution on the parties.

The guidelines hereinabove have been spelt out by the Court because of the specific request of the officials and lawyers present to spell out the terms of the same, as guidance for the State government (esp. the home department), the Legal Services Authority and the police for issuing appropriate circulars or government orders.

(9) Should offences under section 498-A IPC be made compoundable?

We have received considerable feedback from subordinate judicial authorities that unless the offence under section 498-A IPC is made compoundable, much benefit cannot be derived by trying to bring about mediationbetween the parties. A dilemma then arises before the concerned Court, (which cannot close the trial because the spouses have compromised their dispute) or even before the aggrieved wife, if she decides to settle her dispute with her spouse and in-laws either by agreeing to stay with them or to part amicably, usually after receiving some compensation. Even if she is no more interested in repeatedly visiting the court for prosecuting the accused, in the absence of provisions for compounding the offence, she has willy nilly to perjure by making a false statement that her initial report was untrue or lodged under influence of X or Y. If on the basis of this statement the trial Court acquits the husband and his family members, and the aggrieved wife returns to her matrimonial home, in the cases where she is again maltreated, if she lodges a fresh report, its reliability will be open to question. The Apex Court in Ramgopal v. State of M.P., 2010 SCALE 711 observed that an offence under section 498-A IPC is essentially private in nature, and it should be made compoundable if the parties are willing to amicably settle their dispute. Directions were given to the Law Commission of India to consider the matter and to make appropriate recommendations to the Government to bring about suitable amendments in the statute. In Rajeev Verma v. State of U.P., 2004 Cri.L.J. 2956, which was a decision given by a bench in which one of us (Amar Saran J) was a member, a similar suggestion was made to the Law Commission of U.P. to recommend to the State government to make the offence under section 498-A IPC compoundable with the permission of the Court under section 320 Cr.P.C. The reasons for the suggestion were that such FIRs are often lodged in the heat of the moment, without reflection after a sudden quarrel, and sometimes as a result of wrong advice or influences. But the complaining wife, who usually has no source of independent livelihood (as a key problem in our society is the lack of economic and social empowerment of women) and is unable to provide for herself in the future, may have to suffer later if the relationship with her husband is irrevocably ruptured due to the hasty filing of the criminal case, particularly in view of the fact that the offence is non-compoundable. To meet this situation B.S. Joshi v

State of Haryana, AIR 2003 SC 1386, Manoj Sharma v State, 2008 SC(Suppl) 1171, and Madan Mohan Abbot v State of Punjab, AIR 2008 SC 1969 recommended quashing of the complaint in proceedings under section 482 Cr.P.C or in the writ jurisdiction where the aggrieved wife compounded the offence. In the latter case it was observed that where the dispute is purely personal in nature, (i.e. the element of the offence being a crime against society is secondary), and the wife decides to compound the offence, as there would be little likelihood of conviction, quashing of the offence should not be refused on the hyper-technical view that the offence was noncompoundable “as keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury which the Courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilized in deciding more effective and meaningful litigation”

The following passage in paragraph 12 in G.V. Rao v L.H.V. Prasad, AIR 2000 SC 2474 has been cited with approval in B.S. Joshi:

“There has been an outburst of matrimonial disputes in recent times. The marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a Court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their “cases” in different Courts.” In Rajeev Verma however relying on B.S. Joshi it was mentioned that whilst the trial could be quashed in an application under section 482 Cr.P.C or under Article 226, being a fruitless prosecution where there was little likelihood of conviction as the parties had settled their dispute, but the proper forum for deciding the matter whether the compromise application was voluntary and bona fide or whether it was coerced was the lower court which could decide whether it was a fit case for granting permission to the wife to compound the offence under section 320(2) Cr.P.C. This was only possible if the offence under s. 498-A IPC was made compoundable with the permission of the Court.

A good option for providing recompense to the maltreated woman is “The Protection of Women from Domestic Violence Act, 2005″ which provides for a gamut of civil rights for the aggrieved woman who has entered into a domestic relationship with a man, with or without marriage. Such civil rights include “Protection orders” (section 18) prohibiting the respondent from committing any act of violence, visiting the place of work, operating the common bank locker, making telephonic contact etc. “Residence orders” (section 19), which restrain the respondent from dispossessing a woman from the shared household, or from alienating or renouncing his rights to the property or by directing him to remove himself, or by providing alternate accommodation to the aggrieved woman at the existing level. By providing “monetary reliefs” (sections 20 and 22) by paying for loss of earnings or medical expenses, or loss due to destruction of property by domestic violence, or for maintenance of the woman and her dependent children, or by payment of compensation for causing injuries (including mental torture). “Custody orders” (section 21) for custody of the child to the woman (including visiting rights) for the respondent. Criminal proceedings under this Act have been allowed only as a last resort, under section 31 when the respondent commits a breach of a protection order, or where at the stage of framing charges for breach of the protection order he finds that an offence under section 498-A IPC has also been committed by the respondent. The Act also provides under section 14 for the Magistrate to send a matter for “counselling” before a registered “service provider,” who is qualified to provide counselling in such matters to the contesting parties or to provide shelter etc. to the aggrieved woman. In the counter-affidavit dated 12.8.11 filed on behalf of the Home Secretary, U.P., it has specifically been mentioned that the State government has given its consent to the Union of India to make offences under section 498-A IPC compoundable, and the letter of the Home (Police) Section-9 to the Union Home Ministry dated 4.2.10 has been annexed. Whereas we appreciate this positive attitude of the State government in not objecting to section 498-A IPC being made a compoundable offence. However we find that Andhra Pradesh, by Act 11 of 2003 (w.e.f 1.8.03) has added section 498 A (wrongly described as 494 A) after section 494 in the table in section 320(2) Cr.P.C. and has permitted the woman subjected to cruelty to compound the offence with the permission of the Court, but added a proviso that a minimum period of three months be allowed to elapse from the date of application for compromise before a Court can accept the request, provided any of the parties do not withdraw in the intervening period. The U.P. government may consider bringing out a similar amendment, as it has already expressed its opinion that the offence under section 498-A IPC be made compoundable.

Before parting we must clarify that the Court is of the firm view that acts of cruelty or violence against women have neither ceased, nor have they been reduced, and the special provision for meeting this problem must be retained in the statute book. We quote with approval the view expressed in paragraph 11 of the recent Law Commission of India, Consultation Paper-cum-Questionaire regarding section 498-A of Indian Penal Code:

“While the Commission is appreciative of the need to discourage unjustified and frivolous complaints and the scourge of over-implication, it is not inclined to take a view that dilutes the efficacy of s. 498-A to the extent of defeating its purpose especially having regard to the fact that atrocities against women are on the increase. A balanced and holistic view has to be taken on weighing the pros and cons. There is no doubt a need to address the misuse situations and arrive at a rational solution ? legislative or otherwise.”

List this case on 8.11.2011 before the regular bench to be headed by one of us (Hon’ble Amar Saran J)

The State government through the Chief Secretary, U.P., the Principal Secretary, (Home), U.P., Secretary Law/ L.R. U.P., Director General Police U.P., and Member-Secretary, U.P. Legal Services Authority may issue appropriate guidelines or circulars for laying down a system for proceeding in matters where reports are lodged of commission of offences under section 498 A IPC where immediate arrests may not be necessary, for laying down the appropriate criteria in this regard, and for sending the matters for mediation before the mediation cells in the Civil Courts, in accordance with the aforesaid directions of this Court. The Principal Secretary, (Finance), U.P. may apprise the Court as to the provision for finance for appointing social workers/panel lawyers at the Mahila Thanas, for ensuring that appropriate training is given to the social workers, legal aid lawyers, and concerned police officers for facilitating the mediation process, for making available adequate infrastructure/ manpower at the mediation cells in the Civil Courts, and for meeting expenses on other contingencies. Let the aforesaid authorities submit their compliance reports within 4 weeks. We would also like reports from all the Secretaries of the District

Legal Services Authorities to submit their compliance reports (through the District Judges) for getting the

aforementioned minor matters relating to offences under section 498 A IPC settled through mediation and the difficulties they encounter or forsee in complying with the directions of this Court by the next listing. The State government is also directed to submit its report on the next listing on the suggestion of the Court to take steps for making the offence under section 498-A IPC compoundable with the permission of Court by amending section 320 Cr.P.C in U.P. as has been done in the case of Andhra Pradesh. registrar-General is directed to forward copies of this order within a week to the Chief Secretary, Principal Secretary, (Home), Law Secretary/LR, U.P., Principal Secretary (Finance), U.P., D.G.P., U.P., Member-Secretary, U.P., Legal Services Authority, U.P., Secretaries/ Civil Judges (Senior Division) through District Judges in all districts in U.P., Sri Ashok Mehta, Organizing Secretary, Allahabad High Court, Mediation Centre, Sri Pankaj Naqvi, and Sister Sheeba Jose, Advocates for the intervenors, Government Advocate, U.P. and other advocates and officials present in the hearing on 8.8.11 for information and compliance.

Order Date :- 30.9.2011

HSM

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Actual SC judgement where SC said exemplery cost of 1 lakh should be imposed

November 3, 2011 //

Below is the case where supreme court said exemplery cost of 1 lakh should be imposed.
Thanks to Rahul from chennai for sharingthis judgement on lightening speed basis

http://www.stpl-india.in/SCJFiles/2011_STPL(Web)_931_SC.pdf

this judgement says that for frivoulous case heavy penalty and a reasonalble cost of litigation should be put by courts.

Sanjeev Kumar Jain Vs. Raghubir Saran Charitable Trust

SUPREME COURT OF INDIA
(R.V. RAVEENDRAN & A. K. PATNAIK, JJ.)

SANJEEV KUMAR JAIN
Appellants
VERSUS
RAGHUBIR SARAN CHARITABLE TRUST & ORS.
Respondents
Civil Appeal No.8610 of 2011 [Arising out of SLP(C) No.6285 of 2010]-Decided on 12-10-2011.
Costs
ORDER
R.V. Raveendran, J.-Notice had been issued limited to the question whether a sum of `
45,28,000/- could be awarded as costs in an appeal against a vacating temporary injunction in an
injunction suit. Leave is granted in regard to that aspect only.
2. The appellant is a tenant under the respondents in regard to a first floor unit bearing No.E-67,
Connaught Place, New Delhi. He was also a tenant under the respondents in respect of a
mezzanine floor unit bearing No.E-11 of the said building situated below the first floor tenement.
When he was a tenant of both these portions, the respondents granted permission on 4.7.1986 to
the appellant to put up an internal staircase connecting the mezzanine floor with the first floor.
The respondents initiated proceedings for eviction of the appellant in regard to mezzanine floor
unit and obtained vacant possession thereof. Even after vacating the mezzanine floor unit, the
appellant claimed a right to use the staircase which had been constructed in the mezzanine floor
unit to reach the first floor unit. In that behalf, he filed a suit for permanent injunction to restrain
the respondents from obstructing him from using the said staircase to reach the first floor unit.
Interim protection was given in favour of appellant on 30.12.2003. The said interim order was
vacated on 8.11.2004. Feeling aggrieved, the appellant filed an appeal. The appeal was pending
for nearly six years. During the final hearing of the appeal, the Division Bench appears to have
suggested to the parties that as the dispute was purely a commercial dispute, the party succeeding
in the appeal should be entitled to the litigation expenses from the party who did not succeed.
Both counsel, agreed to the said proposal in principle and the court made the following order on
21.12.2009:
“Arguments heard. Order reserved. Learned counsel for the parties should give to the
Court Master, statement of the total litigation expenses incurred in this appeal only,
within two days.”
In pursuance of it, the parties filed memos indicating the respective expenses incurred in the
appeal. The appellant filed a memo dated 22.12.2009 stating that `25,50,000/- was incurred as
advocates’ fees in the appeal. The respondents filed an affidavit dated 23.12.2009 stating that
`45,28,000/- was spent as advocates’ fees in regard to the appeal. By the impugned judgment
dated 20.1.2010, the Division Bench of the High Court, dismissed the appeal by the appellant.
Taking note of the said memos regarding fees, the High Court awarded to the respondents
`45,28,000/- as costs in respect of the appeal to be paid by the appellant within six months. The
appellant has challenged the said order both on merits and costs. But leave is restricted only to the
question of costs.
3. The only question for consideration is the legality and validity of the order of the High Court
directing the appellant to pay costs of `45,28,000/- to the respondents.
4. The appellant contended that award of such costs by the High Court was erroneous and
contrary to law. The respondents drew our attention to para 20 of the order of the High Court in
which it has been observed that the learned counsel for the parties had agreed for the suggestion
of the Court for litigation costs being payable to the succeeding party by the losing party. The
respondents contended that the award of actual costs incurred in the appeal was by consent of
parties; and the same being a consent order, there was no question of the matter being challenged
by the appellant.
5. On a careful consideration, we find that the impugned order, including the portion regarding
costs, was not a consent order. During hearing on merits, the division bench indicated that the
losing party should pay the `litigation expenses’ relating to the appeal. This is nothing but a
reiteration of what is stated in law, namely section 35 of the Code of Civil Procedure. The
counsel naturally agreed for the suggestion. But there was no consent for `45,28,000/- being
determined or being awarded as costs. There was no assessment of the costs by the Taxing
Officer of the High Court. We may therefore examine whether the award of such costs is contrary
to law.
Relevant provisions of the Code
6. Section 35 of the Code of Civil Procedure, 1908, (for short ‘the Code’) relates to costs and is
extracted below:
“35. Costs. (1) Subject to such conditions and limitations as may be prescribed, and to the
provisions of law for the time being in force, the costs of and incident to all suits shall be
in the discretion of the Court, and the Court shall have full power to determine by whom
or out of what property and to what extent such costs are to be paid, and to give all
necessary directions for the purposes aforesaid. The fact that the Court has no jurisdiction
to try the suit shall be no bar to the exercise of such powers. (2) Where the Court directs
that any costs shall not follow the event, the Court shall state its reasons in writing.”
6.1. Section 35A relates to compensatory costs in respect of false or vexatious claims and is
extracted below:
“35A. Compensatory costs in respect of false or vexatious claims or defenses (1) If any
suit or other proceedings including an execution proceedings but excluding an appeal or a
revision any party objects to the claim of defence on the ground that the claim or defence
or any part of it is, as against the objector, false or vexatious to the knowledge of the
party by whom it has been put forward, and if thereafter, as against the objector, such
claim or defence is disallowed, abandoned or withdrawn in whole or in part, the Court if
it so thinks fit, may, after recording its reasons for holding such claim or defence to be
false or vexatious, make an order for the payment to the object or by the party by whom
such claim or defence has been put forward, of cost by way of compensation. (2) No
Court shall make any such order for the payment of an amount exceeding three thousand
rupees or exceeding the limits of it pecuniary jurisdiction, whichever amount is less:
Provided that where the pecuniary limits of the jurisdiction of any Court exercising the
jurisdiction of a Court of Small Causes under the Provincial Small Cause Courts Act,
1887 (9 of 1887) or under a corresponding law in force in any part of India to which the
said Act does not extend and not being a Court constituted under such Act or law, are less
than two hundred and fifty rupees, the High Court may empower such Court to award as
costs under this section any amount not exceeding two hundred and fifty rupees and not
exceeding those limits by more than one hundred rupees : Provided, further, that the High
Court may limit the amount or class of Courts is empowered to award as costs under this
Section. (3) No person against whom an order has been made under this section shall, by
reason thereof, be exempted from any criminal liability in respect of any claim or defence
made by him. (4) The amount of any compensation awarded under this section in respect
of a false or vexatious claim or defence shall be taken into account in any subsequent suit
for damages or compensation in respect of such claim or defence.”
6.2. Section 35B relates to costs for causing delay and is extracted below :
“35B. Costs for causing delay. –
(1) If, on any date fixed for the hearing of a suit or for taking any step therein, a party to
the suit—
(a) fails to take the step which he was required by or under this Code to take on that date,
or
(b) obtains an adjournment for taking such step or for producing evidence or on any other
ground, the Court may, for reasons to be recorded, make an order requiring such party to
pay to the other party such costs as would, in the opinion of the Court, be reasonably
sufficient to reimburse the other party in respect of the expenses incurred by him in
attending the Court on that date, and payment of such costs, on the date next following
the date of such order, shall be a condition precedent to the further prosecution of–
(a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs,
(b) the defence by the defendant, where the defendant was ordered to pay such
costs. Explanation.–Where separate defences have been raised by the defendants
or groups of defendants, payment of such costs shall be a condition precedent to
the further prosecution of the defence by such defendants or groups of defendants
as have been ordered by the Court to pay such costs.
(2) The costs, ordered to be paid under sub-section (1), shall not, if paid, be included in
the costs awarded in the decree passed in the suit; but, if such costs are not paid, a
separate order shall be drawn up indicating the amount of such costs and the names and
addresses of the persons by whom such costs are payable and the order so drawn up shall
be executable against such persons.”
6.3. Order XXA of the Code provides for costs being awarded in regard to the following six items
enumerated in Rule 1:
“1. Provisions relating to certain items.- Without prejudice to the generality of the
provisions of this Code relating to cots, the Court may award costs in respect of, -
(a) expenditure incurred for the giving of any notice required to be given by law
before the institution of the suit;
(b) expenditure incurred on any notice which, though not required to be given by
law, has been given by any party to the suit to any other party before the
institution of the suit;
(c) expenditure incurred on the typing, writing or printing of pleadings filed by
any party;
(d) charges paid by a party for inspection of the records of the court for the
purposes of the suit;
(e) expenditure incurred by a party for producing witnesses, even though not
summoned through courts; and
(f) in the case of appeals, charges incurred by a party for obtaining any copies of
judgments and decrees which are required to be filed along with the
memorandum of appeal.”
Rule 2 of Order XXA provides that award of costs under this Rule shall be in accordance with
such rules as the High Court may make in this behalf.
Decisions dealing with costs
7. Sections 35 and 35A have been considered recently by this Court in Salem Advocates Bar
Association v. Union of India [2005 (6) SCC 344], Ashok Kumar Mittal Vs. Ram Kumar Gupta
& Anr. [2009 (2) SCC 656] and Vinod Seth Vs. Devender Bajaj & Anr. [2010 (8) SCC 1]. Before
referring to them, we may refer to the principle underlying award of costs stated in Manindra
Chandra Nandi vs. Aswini Kumar Acharjya [ILR (1921) 48 Ca. 427] :
“….We must remember that whatever the origin of costs might have been, they are now
awarded, not as a punishment of the defeated party but as a recompense to the successful
party for the expenses to which he had been subjected, or, as Lord Coke puts it, for
whatever appears to the Court to be the legal expenses incurred by the party in
prosecuting his suit or his defence. * * * The theory on which costs are now awarded to a
plaintiff is that default of the defendant made it necessary to sue him, and to a defendant
is that the plaintiff sued him without cause; costs are thus in the nature of incidental
damages allowed to indemnify a party against the expense of successfully vindicating his
rights in court and consequently the party to blame pays costs to the party without fault.
These principles apply, not merely in the award of costs, but also in the award of extra
allowance or special costs. Courts are authorized to allow such special allowances, not to
inflict a penalty on the un-successful party, but to indemnify the successful litigant for
actual expenses necessarily or reasonably incurred in what are designated as important
cases or difficult and extraordinary cases.”
7.1. In Salem Advocates Bar Association, this Court held:
“Judicial notice can be taken of the fact that many unscrupulous parties take advantage of
the fact that either the costs are not awarded or nominal costs are awarded on the
unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their
own costs. In large number of cases, such an order is passed despite Section 35(2) of the
Code. Such a practice also encourages filing of frivolous suits. It also leads to taking up
of frivolous defences. Further wherever costs are awarded, ordinarily the same are not
realistic and are nominal. When Section 35(2) provides for cost to follow the event, it is
implicit that the costs have to be those which are reasonably incurred by a successful
party except in those cases where the Court in its discretion may direct otherwise by
recording reasons thereof. The costs have to be actual reasonable costs including the cost
of the time spent by the successful party, the transportation and lodging, if any, or any
other incidental cost besides the payment of the court fee, lawyer’s fee, typing and other
cost in relation to the litigation. It is for the High Courts to examine these aspects and
wherever necessary make requisite rules, regulations or practice direction so as to provide
appropriate guidelines for the subordinate courts to follow.”
7.2. In Ashok Kumar Mittal, this Court pointed out that present system of levying meagre costs in
civil matters (or no costs in some matters), is wholly unsatisfactory and does not act as a deterrent
to vexatious or luxury litigation borne out of ego or greed, or resorted to as a `buying-time’ tactic
and that a more realistic approach relating to costs may be the need of the hour. This Court had
also observed that the question whether we should adopt suitably, the western models of
awarding actual and more realistic costs is a matter that requires to be debated and that should
engage the attention of Law Commission of India. This Court also observed:
“One view has been that the provisions of Sections 35 and 35A CPC do not in any way
affect the wide discretion vested in by High Court in exercise of its inherent power to
award costs in the interests of justice in appropriate civil cases. The more sound view
however is that though award of costs is within the discretion of the court, it is subject to
such conditions and limitations as may be prescribed and subject to the provisions of any
law for the time being in force; and where the issue is governed and regulated by Sections
35 and 35A of the Code, there is no question of exercising inherent power contrary to the
specific provisions of the Code. Further, the provisions of Section 35A seems to suggest
that even where a suit or litigation is vexatious, the outer limit of exemplary costs that
can be awarded in addition to regular costs, shall not exceed Rs. 3000/-. It is also to be
noted that huge costs of the order of Rs. Fifty thousand or Rs. One lakh, are normally
awarded only in writ proceedings and public interest litigations, and not in civil litigation
to which Sections 35 and 35A are applicable. The principles and practices relating to levy
of costs in administrative law matters cannot be imported mechanically in relation to civil
litigation governed by the Code.”
7.3. In Vinod Seth, this Court observed as under:
“48. The provision for costs is intended to achieve the following goals:
(a) It should act as a deterrent to vexatious, frivolous and speculative litigations or
defences. The spectre of being made liable to pay actual costs should be such, as to make
every litigant think twice before putting forth a vexatious, frivolous or speculative claim
or defence.
(b) Costs should ensure that the provisions of the Code, Evidence Act and other laws
governing procedure are scrupulously and strictly complied with and that parties do not
adopt delaying tactics or mislead the court.
(c) Costs should provide adequate indemnity to the successful litigant for the expenditure
incurred by him for the litigation. This necessitates the award of actual costs of litigation
as contrasted from nominal or fixed or unrealistic costs.
(d) The provision for costs should be an incentive for each litigant to adopt alternative
dispute resolution (ADR) processes and arrive at a settlement before the trial commences
in most of the cases. In many other jurisdictions, in view of the existence of appropriate
and adequate provisions for costs, the litigants are persuaded to settle nearly 90% of the
civil suits before they come up to trial.
(e) The provisions relating to costs should not however obstruct access to courts and
justice. Under no circumstances the costs should be a deterrent, to a citizen with a
genuine or bonafide claim, or to any person belonging to the weaker sections whose
rights have been affected, from approaching the courts. At present these goals are sought
to be achieved mainly by sections 35,35A and 35B read with the relevant civil rules of
practice relating to taxing of costs.
49. Section 35 of the Code vests the discretion to award costs in the courts. It provides that
normally the costs should follow the event and court shall have full power to determine by whom
or out of what property, and to what extent such costs are to be paid. Most of the costs taxing
rules, including the rules in force in Delhi provide each party should file a bill of cost
immediately after the judgment is delivered setting out:
(a) the court fee paid;
(b) process fee spent;
(c) expenses of witnesses;
(d) advocate’s fee; and
(e) such other amount as may be allowable under the rules or as may be directed by the
court as costs. We are informed that in Delhi, the advocate’s fee in regard to suits the
value of which exceeds Rs.5 lakhs is : Rs.14,500/- plus 1% of the amount in excess of
Rs.5 lakhs subject to a ceiling of Rs.50,000/-. The prevalent view among litigants and
members of the bar is that the costs provided for in the Code and awarded by courts
neither compensate nor indemnify the litigant fully in regard to the expenses incurred by
him.
50. The English Civil Procedure Rules provide that a court in deciding what order, if any, to make
in exercising its discretion about costs should have regard to the following circumstances:
(a) the conduct of all the parties; (b) whether a party has succeeded on part of his case,
even if he has not been wholly successful; and (c) any payment made into court or
admissible offer to settle made by a party which is drawn to the courts attention. ‘Conduct
of the parties’ that should be taken note by the court includes: (a) conduct before, as well
as during, the proceedings and in particular the extent to which the parties followed the
relevant pre-action protocol; (b) whether it was reasonable for a party to raise, pursue or
contest a particular allegation or issue; (c) the manner in which a party has pursued or
defended his case or a particular allegation or issue; and (d) whether a claimant who has
succeeded in his claim, in whole or in part, exaggerated his claim. Similar provisions,
with appropriate modifications may enable proper and more realistic costs being
awarded.
51. As Section 35 of the Code does not impose any ceiling the desired object can be achieved by
the following: (i) courts levying costs, following the result, in all cases (non-levy of costs should
be supported by reasons); and (ii) appropriate amendment to Civil Rules of Practice relating to
taxation of costs, to make it more realistic in commercial litigation.
52. The provision relating to compensatory costs (Section 35A of the Code) in respect of false or
vexatious claims or defences has become virtually infructuous and ineffective, on account of
inflation. Under the said section, award of compensatory costs in false and vexatious litigation, is
subject to a ceiling of Rs.3,000/-. This requires a realistic revision keeping in view, the
observations in Salem Advocates Bar Association (supra). Section 35B providing for costs for
causing delay is seldom invoked. It should be regularly employed, to reduce delay.
53. The lack of appropriate provisions relating to costs has resulted in a steady increase in
malicious, vexatious, false, frivolous and speculative suits, apart from rendering Section 89 of the
Code ineffective. Any attempt to reduce the pendency or encourage alternative dispute resolution
processes or to streamline the civil justice system will fail in the absence of appropriate
provisions relating to costs. There is therefore an urgent need for the legislature and the Law
Commission of India to re-visit the provisions relating to costs and compensatory costs contained
in Section 35 and 35A of the Code.”
8. Though, Section 35 does not impose a ceiling on the costs that could be levied and gives
discretion to the Court in the matter, it should be noted that Section 35 starts with the words
“subject to such conditions and limitations as may be prescribed, and to the provisions of law for
the time being in force”. Therefore, if there are any conditions or limitations prescribed in the
Code or in any rules, the Court, obviously, cannot ignore them in awarding costs.
9. Chapter 11 Part C of the Delhi High Court Rules (`Rules’ for short) deals with award of costs
in civil suits. Chapter XXIII of the said Rules deals with taxation of costs. Rule 1 relates to
appointment of Taxing Officer. Rule 6 provides that advocate’s fee should be taxed on the basis
of a certificate filed under Rule 2 Chapter 5 but not exceeding the scale prescribed in the schedule
to Chapter XXIII. Therefore, the Court could not have awarded costs exceeding the scale that was
prescribed in the schedule to the Rules. Doing so would be contrary to the Rules. If it was
contrary to the Rules, it was also contrary to Section 35 also which makes it subject to the
conditions and limitations as may be prescribed and the provisions of law for the time being in
force. Therefore, we are of the view that merely by seeking a consent of the parties to award
litigation expenses as costs, the High Court could not have adopted the procedure of awarding
what it assumed to be the `actual costs’ nor could it proceed to award a sum of Rs.45,28,000/- as
costs in an appeal relating to an interim order in a civil suit. While we would like to encourage
award of realistic costs, that should be in accordance with law. If the law does not permit award
of actual costs, obviously courts cannot award actual costs. When this Court observed that it is in
favour of award of actual realistic costs, it means that the relevant Rules should be amended to
provide for actual realistic costs. As the law presently stands, there is no provision for award of
`actual costs’ and the award of costs will have to be within the limitation prescribed by section 35.
10. Learned counsel for the respondents submitted that in awarding actual costs, the High Court
was merely following the decision of a three-Judge Bench of this court in Salem Advocates Bar
Association. He drew our attention to para 37 of the said decision (which is extracted in the
judgment of the High Court), in particular, the observation that “costs have to be actual
reasonable costs including the cost of time spent by the successful party, the transportation and
lodging, if any, and any other incidental costs besides the payment of the court fee, lawyer’s fee,
typing and other costs in relation to the litigation.” The High Court has also assumed that the
above observations of this Court in Salem Advocates Bar Association enabled it to award “actual”
costs. The High Court has opened its order with the following words: “The importance of this
decision lies not in any substantial question of law having been decided – indeed, no question of
law was urged before us, only issues touching upon facts. The importance lies in the nature of the
dispute between the parties, which is a purely commercial dispute in which litigation expenses
have touched the sky. In our opinion, the only way in which a successful litigant can be
compensated financially is by awarding actual costs incurred by him in the litigation. The
Supreme Court has recommended this course of action and we think the time has come to give
more than serious weight and respect to the views of the Supreme Court. We have endeavoured to
do just that in this appeal by awarding to the respondents the actual litigation expenses incurred
by them, which is a staggering Rs.45,00,000/.”
We are afraid that the respondents and the High Court have misread the observations of this Court
in Salem Advocates Bar Association. All that this Court stated was that the actual reasonable cost
has to be provided for in the rules by appropriate amendment. In fact, the very next sentence in
para 37 of the decision of this Court is that the High Courts should examine these aspects and
wherever necessary, make requisite rules, regulations or practice directions. What has been
observed by this court about actual realistic costs is an observation requiring the High Courts to
amend their rules and regulations to provide for actual realistic costs, where they are not so
provided. We have noticed that section 35 does not impose a restriction on actual realistic costs.
Such restriction is generally imposed by the rules made by the High Court. The observation in
Salem Advocates Bar Association is a direction to amend the rules so as to provide for actual
realistic costs and not to ignore the existing rules. The decision in Salem Advocates Bar
Association is therefore of no assistance to justify the award of such costs. The Rules permit costs
to the awarded only as per the schedule. Therefore, as the Rules presently stand. Whatever may
be the `actual’ expenditure incurred by a party, what could be awarded as costs is what is
provided in the Rules.
11. There is one more aspect which requires serious consideration. What is the meaning of the
words `actual realistic costs’ assuming that costs could be awarded on such basis? Whether it can
be said that ` 45,28,000/- said to have been incurred (made up of ` 29,73,000/- paid to Mr. S,
Senior Advocate, ` 14,41,000/- paid to Mr. G, Senior Advocate, ` 85,500/- paid to Mr. M,
Advocate, ` 16,750/- paid to Mr. V, Advocate and ` 11,750/- incurred as miscellaneous expenses)
was the `actual realistic cost’ of an appeal against an interim order in a suit for injunction? The
actual realistic cost should have a correlation to costs which are realistic and practical. It cannot
obviously refer to fanciful and whimsical expenditure by parties who have the luxury of engaging
a battery of high-charging lawyers. If the logic adopted by the High Court is to be accepted, then
the losing party should pay the costs, not with reference to the subject matter of the suit, but with
reference to the fee paying capacity of the other side. Let us take the example of a suit for
recovery of ` One lakh. If a rich plaintiff wants to put forth his case most effectively, engages a
counsel who charges ` One lakh per hearing and the matter involves 30 hearings, should the
defendant be made to pay costs of ` 30 lakhs, in a suit for recovery of ` One lakh merely because
it is a commercial dispute? In a matter relating to temporary injunction, merely because the court
adjourns the matter several times and one side engages a counsel by paying more than a lakh per
hearing, should the other side be made to bear such costs? The costs memo filed by the
respondents show that ` 45,28,000/- was paid to four counsel? If a rich litigant engages four
counsel instead of one, should the defendant pay the fee of four counsel? If a party engages five
senior Advocates and five ordinary counsel because he is capable, should the losing party pay the
fees of all these counsel? The appeal came up on several occasions, but the final hearing of the
appeal was only on a few days and other days were mere appearances. Should the losing party
pay for such appearances? If respondents had engaged two senior counsel who charged ` Two
lakhs per appearance, should the other side be made liable to pay ` 1.5 crore as costs?
Even if actual costs have to be awarded, it should be realistic which means what a “normal”
advocate in a “normal” case of such nature would charge normally in such a case. Mechanically
ordering the losing party to pay costs of ` 45,28,000/- in an appeal against grant of a temporary
injunction in a pending suit for permanent injunction was unwarranted and contrary to law. It
cannot be sustained.
12. Though this takes care of the actual dispute between the parties, it is also necessary to refer to
the larger question of costs in civil suits. For this purpose, during the hearing, this Court
requested Dr. Arun Mohan, learned senior counsel to assist as an Amicus Curiae in the matter. In
pursuance of it, Dr. Arun Mohan collected and made available considerable material with
reference to practices relating to levy of costs in several other jurisdictions. We find that the
schemes/processes for assessment of costs in some of the western countries may not be
appropriate with reference to Indian conditions. The process of taxation of costs has developed
into a detailed and complex procedure in developed countries and instances are not wanting
where the costs awarded has been more than the amount involved in the litigation itself. Having
regard to Indian conditions, it is not possible or practical to spend the amount of time that is
required for determination of `actual costs’ as done in those countries, when we do not have time
even to dispose of cases on merits. If the Courts have to set apart the time required for the
elaborate procedure of assessment of costs, it may even lead to an increase in the pendency of
cases. Therefore, we requested Dr. Arun Mohan to suggest ways and means of simplifying costs
procedures to suit Indian conditions so that appropriate suggestions could be made to the
Government. He has put forth several suggestions. Law Commission of India has also intervened
and made several valuable suggestions. Notices were issued to the High Courts to ascertain the
Rules and procedures in force in regard to costs. For convenience, we will refer to Delhi High
Court Rules as the present matter arises from Delhi.
Strict enforcement of Section 35(2) of the Code
13. The discretion vested in the courts in the matter of award of costs is subject to two conditions,
as is evident from section 35 of the Code:
(i) The discretion of the court is subject to such conditions and limitations as may be
prescribed and to the provisions of law for he time being in force (vide sub-section (1)]
(ii) Where the court does not direct that costs shall follow the event, it shall state the
reasons in writing [vide sub-section (2)].
The mandate of sub-section (2) of Section 35 of the Code that “where the Court directs that any
costs shall not follow the event, the Court shall state its reasons in writing” is seldom followed in
practice by courts. Many courts either do not make any order as to costs or direct the parties to
bear their respective costs without assigning or recording the reasons for giving such exemption
from costs. Unless the Courts develop the practice of awarding costs in accordance with Section
35 (that is, costs following the event) and also give reasons where costs are not awarded, the
object of the provision for costs would be defeated. Prosecution and defence of cases is a time
consuming and costly process. A plaintiff/petition/ appellant who is driven to the court, by the
illegal acts of the defendant/respondent, or denial of a right to which he is entitled, if he succeeds,
to be reimbursed of his expenses in accordance with law. Similarly a defendant/respondent who is
dragged to court unnecessarily or vexatiously, if he succeeds, should be reimbursed of his
expenses in accordance with law. Further, it is also well recognised that levy of costs and
compensatory costs is one of the effective ways of curbing false or vexatious litigations.
Section 35A of the Code – Exemplary costs.
14. Section 35A refers to compensatory costs in respect of false or vexatious claims or defenses.
The maximum amount that could be levied as compensatory costs for false and vexatious claims
used to be ` 1,000/-. In the year 1977, this was amended and increased to ` 3,000/-. At present, the
maximum that can be awarded as compensatory costs in regard to false and vexatious claims is `
3,000/-. Unless the compensatory costs is brought to a realistic level, the present provision
authorizing levy of an absurdly small sum by present day standards may, instead of discouraging
such litigation, encourage false and vexatious claims. At present Courts have virtually given up
awarding any compensatory costs as award of such a small sum of ` 3,000/- would not make
much difference. We are of the view that the ceiling in regard to compensatory costs should be at
least `1,00,000/-.
15. We may also note that the description of the costs awardable under Section 35A “as
compensatory costs” gives an indication that is restitutive rather than punitive. The costs awarded
for false or vexatious claims should be punitive and not merely compensatory. In fact,
compensatory costs is something that is contemplated in Section 35B and Section 35 itself.
Therefore, the Legislature may consider award of ‘punitive costs’ under section 35A.
Court fees
16. Though there is a general impression that the court fee regarding litigation is high, in fact, it is
not so. Except in the case of few categories of suits (that is money suits, specific performance
suits etc., and appeals therefrom), where court fee is ad volerem, in majority of the suits/petitions
and appeals arising therefrom, the court fee is a fixed nominal fee. The fixed fees that are
payable, prescribed decades ago have not undergone a change and in many cases, the fixed fee is
not worth the cost of collection thereof.
There is therefore a need for a periodical revision of fixed court fees, that is payable in regard to
suits/petitions/appeals filed in civil courts, High Court, Tribunals and Supreme Court. For
example, in Supreme Court, the maximum court fee payable is only ` 250/-, whether it is a suit or
special leave petition or appeal.
17. A time has come when at least in certain type of litigations, like commercial litigations, the
costs should be commensurate with the time spent by the courts. Arbitration matters, company
matters, tax matters, for example, may involve huge amounts. There is no reason why a nominal
fixed fee should be collected in regard to such cases. While we are not advocating an ad valorem
fee with reference to value in such matters, at least the fixed fee should be sufficiently high to
have some kind of quid- pro-quo to the cost involved. Be that as it may.
Award of Realistic Costs
18. In Salem Advocates Bar Association, this Court suggested to the High Courts that they should
examine the Model Case Flow Management Rules and consider making rules in terms of it, with
or without modification so that a step forward is taken to provide to the litigating public a fair,
speedy and inexpensive justice. The relevant rules therein relating to costs are extracted below:
“Re: Trial Courts So far as awarding of costs at the time of judgment is concerned,
awarding of costs must be treated generally as mandatory in as much as the liberal
attitude of the Courts in directing the parties to bear their own costs had led parties to file
a number of frivolous cases in the Courts or to raise frivolous and unnecessary issues.
Costs should invariably follow the event. Where a party succeeds ultimately on one issue
or point but loses on num- ber of other issues or points which were unnecessarily raised,
costs must be appropriately apportioned. Special reasons must be assigned if costs are not
being awarded. Costs should be assessed according to rules in force. If any of the parties
has unreasonably protracted the proceedings, the Judge should consider exercising
discretion to impose exemplary costs after tak- ing into account the expense incurred for
the purpose of attendance on the adjourned dates. Re: Appellate Courts Awarding of
costs must be treated generally as mandatory in as much as it is the liberal attitude if the
Courts in not awarding costs that has led to frivolous points being raised in appeals or
frivolous appeals being filed in the courts. Costs should invariably follow the event and
reasons must be assigned by the appellate Court for not awarding costs. If any of the
parties have unreasonably protracted the proceedings, the Judge shall have the discretion
to impose exemplary costs after taking into account the costs that may have been imposed
at the time of adjournments.”
19. The costs in regard to a litigation include (a) the court fee and process fee; (b) the advocate’s
fee; (c) expenses of witnesses; and (d) other expenses allowable under the Rules. We have
already referred to the need to revise and streamline the court fee. Equally urgent is the need to
revise the advocate’s fee provided in the Schedule to the Rules, most of which are outdated and
have no correlation with the prevailing rates of fees. In regard to money suits, specific
performance suits and other suits where ad valorem court fee is payable, the Advocate’s fee is
also usually ad valorem. We are more concerned with the other matters, which constitute the
majority of the litigation, where fixed Advocates’ fees are prescribed. In Delhi in regard to any
proceedings (other than suits where the ad valorem court fee is payable), the maximum fee that
could be awarded is stated to be ` 2000 and for appeals of the scale if that is payable to original
suits.
20. The Supreme Court Rules (Second Schedule) prescribes a fee of `2400/- for leading counsel
and `1200/- for Associate Advocate in regard to defended appeals and suits or writ petitions. For
special leave petitions, it is `800/- for leading counsel and `400/- for Advocate-on-Record. It is of
some interest to note that the fee paid to amicus curiae in criminal appeals in Supreme Court and
to the Legal Aid counsel appointed by Supreme Court Legal Services Committee is much higher
than the above scale of fees. There is need to provide for awarding realistic advocates’ fee by
amending the relevant rules periodically. This Court, of course, in several cases has directed
payment of realistic costs. But this Court could do so, either because of the discretion vested
under the Supreme Court Rules, 1966 or having regard to Article 142 of the Constitution under
which this Court has the power to make such orders as are necessary to do complete justice
between the parties.
21. A serious fallout of not levying actual realistic costs should be noted. A litigant, who starts the
litigation, after sometime, being unable to bear the delay and mounting costs, gives up and
surrenders to the other side or agrees to settlement which is something akin to creditor who is not
able to recover the debt, writing off the debt. This happens when the costs keep mounting and he
realizes that even if he succeeds he will not get the actual costs. If this happens frequently, the
citizens will lose confidence in the civil justice system. When a civil litigant is denied effective
relief in Courts, he tries to take his grievances to `extra judicial’ enforcers (that is goons,
musclemen, underworld) for enforcing his claims/right thereby criminalising the civil society.
This has serious repercussions on the institution of democracy.
22. We therefore, suggest that the Rules be amended to provide for `actual realistic costs’. The
object is to streamline the award of costs and simplify the process of assessment, while making
the cost `actual and realistic’. While ascertainment of actuals in necessary in regard to expenditure
incurred (as for example travel expenses of witnesses, cost of obtaining certified copies etc.) in so
far as advocates’ fee is concerned, the emphasis should be on `realistic’ rather than `actual’. The
courts are not concerned with the number of lawyers engaged or the high rate of day fee paid to
them. For the present, the Advocate fee should be a realistic normal single fee.
Costs in Arbitration matters
23. We have referred to the effect of absence of provisions for award of actual costs, on civil
litigation. At the other end of the spectrum is an area where award of actual but unrealistic costs
and delay in disposal is affecting the credibility of an alternative dispute resolution process. We
are referring to arbitration proceedings where usually huge costs are awarded (with reference to
actual unregulated fees of Arbitrators and Advocates).
24. Clause (a) of section 31(8) of Arbitration and Conciliation At, 1996 (`Act’ for short) deals
with costs. It provides that unless otherwise agreed by the parties, the costs of an arbitration shall
be fixed by the arbitral tribunal. The explanation to sub-section (8) of section 31 makes it clear
that `costs’ means reasonable costs relating to (i) the fees and expenses of the arbitrators and
witnesses, (ii) legal fees and expenses, (iii) any administration fees of the institution supervising
the arbitration, and (iv) any other expenses incurred in connection with the arbitral proceedings
and the arbitral award. Clause (b) of section 31(8) of the Act provides that unless otherwise
agreed by parties, the arbitral tribunal shall specify (i) the party entitled to costs, (ii) the party
who shall pay the costs, (iii) the amount of costs or method of determining the amount, and (iv)
the manner in which the costs shall be paid. This shows that what is awardable is not `actual’
expenditure but `reasonable’ costs.
25. Arbitrators can be appointed by the parties directly without the intervention of the court, or by
an Institution specified in the arbitration agreement. Where there is no consensus in regard to
appointment of arbitrator/s, or if the specified institution fails to perform its functions, the party
who seeks arbitration can file an application under section 11 of the Act for appointment of
arbitrators. Section 11 speaks of Chief Justice or his Designate `appointing’ an arbitrator. The
word `appoint’ means not only nominating or designating the person who will act as an arbitrator,
but is wide enough to include the stipulating the terms on which he is appointed. For example
when we refer to an employer issuing a letter of appointment, it not only refers to the actual act of
appointment, but includes the stipulation of the terms subject to which such appointment is made.
The word `appoint’ in section 11 of the Act, therefore refers not only to the actual designation or
nomination as an arbitrator, but includes specifying the terms and conditions, which the Chief
Justice or Designate may lay down on the facts and circumstances of the case. Whenever the
Chief Justice or his Designate appoint arbitrator/s, it will be open to him to stipulate the fees
payable to the arbitrator/s, after hearing the parties and if necessary after ascertaining the fee
structure from the prospective Arbitrator/s. This will avoid the embarrassment of parties having to
negotiate with the Arbitrators, the fee payable to them, after their appointment.
26. This Court in Union of India v. Singh Builders Syndicate – 2009 (4) SCC 523, dealt with
the complaints about the arbitration cost in India:
“20. Another aspect referred to by the appellant, however requires serious consideration.
When the arbitration is by a Tribunal consisting of serving officers, the cost of arbitration
is very low. On the other hand, the cost of arbitration can be high if the Arbitral Tribunal
consists of retired Judge/s.
21. When a retired Judge is appointed as Arbitrator in place of serving officers, the
government is forced to bear the high cost of Arbitration by way of private arbitrator’s fee
even though it had not consented for the appointment of such non-technical non-serving
persons as Arbitrator/s. There is no doubt a prevalent opinion that the cost of arbitration
becomes very high in many cases where retired Judge/s are Arbitrators. The large number
of sittings and charging of very high fees per sitting, with several add-ons, without any
ceiling, have many a time resulted in the cost of arbitration approaching or even
exceeding the amount involved in the dispute or the amount of the award.
22. When an arbitrator is appointed by a court without indicating fees, either both parties
or at least one party is at a disadvantage. Firstly, the parties feel constrained to agree to
whatever fees is suggested by the Arbitrator, even if it is high or beyond their capacity.
Secondly, if a high fee is claimed by the Arbitrator and one party agrees to pay such fee,
the other party, who is unable to afford such fee or reluctant to pay such high fee, is put
to an embarrassing position. He will not be in a position to express his reservation or
objection to the high fee, owing to an apprehension that refusal by him to agree for the
fee suggested by the arbitrator, may prejudice his case or create a bias in favour of the
other party who readily agreed to pay the high fee.
23. It is necessary to find an urgent solution for this problem to save arbitration from the
arbitration cost. Institutional arbitration has provided a solution as the Arbitrators’ fees is
not fixed by the Arbitrators themselves on case to case basis, but is governed by a
uniform rate prescribed by the institution under whose aegis the Arbitration is held.
Another solution is for the court to fix the fees at the time of appointing the arbitrator,
with the consent of parties, if necessary in consultation with the arbitrator concerned.
Third is for the retired Judges offering to serve as Arbitrators, to indicate their fee
structure to the Registry of the respective High Court so that the parties will have the
choice of selecting an Arbitrator whose fees are in their `range’ having regard to the
stakes involved.
24. What is found to be objectionable is parties being forced to go to an arbitrator
appointed by the court and then being forced to agree for a fee fixed by such Arbitrator. It
is unfortunate that delays, high cost, frequent and sometimes unwarranted judicial
interruptions at different stages are seriously hampering the growth of arbitration as an
effective dispute resolution process. Delay and high cost are two areas where the
Arbitrators by self regulation can bring about marked improvement.”
(emphasis supplied)
27. There is a general feeling among consumers of arbitration (parties settling disputes by
arbitration) that ad-hoc arbitrations in India – either international or domestic, are time consuming
and disproportionately expensive. Frequent complaints are made about two sessions in a day
being treated as two hearings for purpose of charging fee; or about a sessions for two hours being
treated as full sessions for purposes of fee; or about non- productive sittings being treated as fully
chargeable hearings. It is pointed out that if there is an arbitral tribunal with three arbitrators and
if the arbitrators are from different cities and the arbitrations are to be held and the Arbitrators are
accommodated in five star hotels, the cost per hearing, (Arbitrator’s fee, lawyer’s fee, cost of
travel, cost of accommodation etc.) may easily run into Rupees One Million to One and half
Million per sitting. Where the stakes are very high, that kind of expenditure is not commented
upon. But if the number of hearings become too many, the cost factor and efficiency/effectiveness
factor is commented. That is why this Court in Singh Builders Syndicate observed that the
arbitration will have to be saved from the arbitration cost.
28. Though what is stated above about arbitrations in India, may appear rather harsh, or as an
universalisation of stray aberrations, we have ventured to refer to these aspects in the interest of
ensuring that arbitration survives in India as an effective alternative forum for disputes resolution
in India. Examples are not wanting where arbitrations are being shifted to neighbouring
Singapore, Kuala Lumpur etc., on the ground that more professionalized or institutionalized
arbitrations, which get concluded expeditiously at a lesser cost, are available there. The remedy
for healthy development of arbitration in India is to disclose the fees structure before the
appointment of Arbitrators so that any party who is unwilling to bear such expenses can express
his unwillingness. Another remedy is Institutional Arbitration where the Arbitrator’s fee is prefixed.
The third is for each High Court to have a scale of Arbitrator’s fee suitably calibrated with
reference to the amount involved in the dispute. This will also avoid different designates
prescribing different fee structures. By these methods, there may be a reasonable check on the
fees and the cost of arbitration, thereby making arbitration, both national and international,
attractive to the litigant public. Reasonableness and certainty about total costs are the key to the
development of arbitration. Be that as it may.
Conclusion
29. In view of the above, the order dated 20.1.2010 of the High Court, to the extent it levies costs
of ` 45,28,000/- on the appellant is set aside and in its place it is directed that the appellant shall
pay the costs of the appeal before the High Court as per Rules plus ` 3000/- as exemplary costs to
the respondents.
30. We suggest appropriate changes in the provisions relating to costs contained as per paras 14
to 29 above to the Law Commission of India, the Parliament and the respective High Courts for
making appropriate changes.
31. As the respondents have succeeded before the High Court and award of such costs was not at
the instance of the respondents, we do not award any costs in this appeal.
32. We place on record our appreciation for the assistance rendered by Dr. Arun Mohan, Amicus
Curiae and Mr. A. Mariarputham, learned senior counsel appearing for Law Commission of
India.

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supreme case suggested to fine 1 lakh rupess for frivolous cases

November 2, 2011 //

Hike false litigation cost to 1L

If Penalty Is Raised By 3,000% Frivolous Pleas Can Be Curbed: SC

Dhananjay Mahapatra TNN

New Delhi: The Supreme Court has suggested a 3000% increase in the exemplary cost to be imposed on a person indulging in frivolous and vexatious litigation saying unless it was hiked from Rs 3,000 to Rs 1,00,000 the system would fail to control false cases being foisted to victimize innocent citizen.
Abench of Justices R V Raveendran and A K Patnaik,in a judgment delivered last month but made available on Tuesday,said At present the courts have virtually given up awarding any compensatory costs as award of such small sum of Rs 3,000 would not make much difference.We are of the view that the ceiling in regard to compensatory costs should be at least Rs 1,00,000.
It referred to Section 35A of the Civil Procedure Code (CPC) which provided for compensatory cost in respect of false or vexatious claims or defences.The maximum amount to be levied on a person indulging in false litigation was amended in the year 1977 from Rs 1,000 to Rs 3,000.
Justice Raveendran,who has since retired,expressed dismay at the cost remaining unamended for last 34 years and said: Unless the compensatory costs is brought to a realistic level,the present provision authorizing levy of an absurdly small sum by present day standards may,instead of discouraging such litigation,encourage false and vexatious claims.
The bench also did not approve the present day tendency with the courts not to award even normal litigation cost,different from exemplary cost,to the litigant who wins a case.Prosecution and defence of cases is a time consuming and costly process.A plaintiff/petition/appellant who is driven to the court,by the illegal acts of the defendant /respondent,or denial of a right to which he is entitled,if he succeeds,to be reimbursed of his expenses in accordance with law.
The court said it was talking of normal litigation cost and it should not be calculated on basis of actual cost of fighting a case.For,a rich person may engage five senior advocates with fees running to lakhs of rupees per day and the other side could not be asked to reimburse such astronomical amounts,it said.
Appreciating the assistance rendered to the court by Dr Arun Mohan and senior advocate A Mariarputham,the bench said there had been a misconception among people that the court fees for litigation were high.It said in Supreme Court the maximum court fee payable was only Rs 250,whether it was a suit or a special leave petition.

TIMES VIEW

We have consistently maintained that the judiciary needs to take a tough stance against frivolous litigation.The Supreme Courts observation should go a long way towards curbing the menace,at least as far as individual litigants are concerned.It remains to be seen whether the much stiffer monetary penalty becomes a serious deterrent also for organizations out to earn cheap publicity.If this too fails to rein them in,the court should think in terms of going beyond just monetary fines for dealing with the problem.That step,however,can wait till the current measure has had a fair trial.

WONDERFULL POST AND WORK BY DHANANJAY MAHAPATRA. .
THANKS TO RAHUL MUKHERJEE FROM CHENNAI TO TELL ME THIS NEWS
THANKS TO TOI FOR THE JUDGEMENT ,SPECIALLY TO DHANANJAY MAHAPATRA
FOR ORIGINAL NEWS PLZ READ AND POST COMMENTS IN

http://lite.epaper.timesofindia.com/getpage.aspx?pageid=11&pagesize=&edid=&edlabel=TOICH&mydateHid=02-11-2011&pubname=&edname=&publabel=TOI

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‘Women protection laws are being misused’

October 29, 2011 //

A wonderful coverage by zeenews. must read for all

“Nagpur: ‘Save Indian Family Foundation’ (SIFF), an NGO, has claimed that over five lakh persons had been harassed by the alleged misuse of various women protection laws including the Anti-dowry Law, Domestic Violence Law and Maintenance Act, even as 22 per cent of total arrested in these cases are women.

Based on the figures provided by the National Crime Records Bureau (NCRB), the NGO that is fighting for the rights of husbands against the alleged misuse of these laws, has claimed that while these laws are increasingly misused by women, many women themselves are falling prey to it, Rajesh Vakharia, a founder member and president of Nagpur Chapter of the Foundation told reporters.

“If a woman files a complaint against her husband, his family members including, his mother, sister, sister-in laws and others, are subject to police action in these cases,” he said.

Another NGO, Children’s Rights Initiative for Shared Parenting (CRISP), founded in year 2008, is working on the issue separation of a child from its parents. CRISP is engaged in highlighting the grievances of men deprived of access to their children.

“A father’s involvement in child care can not be substituted by anyone in the world,” Vakharia said.

The organisation has demanded setting up of special courts to deal with child custody cases and address problems faced by parents barred from visit to children.

“We are a pro-family, pro-life organisation and want to promote family harmony in the society. The group has members from professionals like software engineers, doctors, teachers, businessmen and social workers,” he said.

‘Save Indian Family Foundation’ has sister organizations named ‘All India Mother-in-Law Protection Forum’, ‘All India Forgotten Women Association’ and ‘Mother and Sister Initiatives’ (MASI).
“

http://zeenews.india.com/news/maharashtra/women-protection-laws-are-being-misused_738343.html

plz visit below link for original post

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A OLD MAN FIGHTING FOR HIS DEAD SON TILL SC

October 13, 2011 //

FOLLOWING IS THE NEWS PUBLISHED IN TOI IN TODAYS PUNE EDITION ABOUT A MAN FIGHTING THE DIVORECE CASE FOR HIS SON AFTER HIS SONS DEATH TILL HC
THANKS TO TOI

Man fights dead son’s divorce case

Shibu Thomas TNN

Mumbai: In a unique case, the Bombay High Court has permitted an 80-year-old man to pursue his son’s divorce case despite the death of the latter.
“The father of the original appellant—the husband—will have the right to continue to prosecute this appeal (for divorce) as the legal heir,” Justice AB Chaudhari said, adding that not permitting it would be a violation of natural justice. The judge dismissed the objections of the daughter-in-law, Sheela Bhambare (30), to allowing her father-in-law Gajanan Bhambare to continue with the legal proceedings in the place of his deceased son Nishant. Nishant, a resident of a village in Gondia, had moved the family court seeking divorce on the grounds of desertion and cruelty. The family court dismissed the divorce petition, following which Nishant filed an appeal in the High Court in 2009. Soon after filing the appeal, he passed away. Earlier this year, his father urged the HC to substitute his name for his son’s so that he could fight the unfinished litigation—getting a divorce for Nishant.
Sheela’s lawyers opposed the application, saying that the divorce proceedings were purely a personal cause of action and would abate with the death of her husband. They further argued that the dismissal of the divorce petition was right. However, Bhambare’s lawyers referred to a Supreme Court judgment and contended that the proceedings could go on.
Under the law, when a divorce petition is filed in a family court and one of the spouses dies, the legal proceedings come to a stop. However, the circumstances change when a divorce has been granted by a trial court and an appeal is pending before the HC. In such a situation, the legal heir of the spouse who has died can continue with the litigation, the lawyer said. The reason here is the status of the marriage changes once a decree for divorce is granted. Such proceedings will not abate once the spouse who has obtained divorce from the family court dies. His legal heirs have an interest in ensuring that his wife remains a divorcee and not a widow as she is then not allowed to share with the other heirs the property of her deceased spouse. Justice Chaudhari said the dismissal of Nishant’s divorce petition would continue to operate against his legal heirs if the appeal was not heard and “that obviously would be violative of the principles of natural justice”.
(Names changed to protect the identity of the family.)
THANKS TO TOI FOR PUBLISHING THIS GREAT JUDGEMENT. PLZ VISIT BELOW LINK FOR MORE OR PURCHASE A NEWS PAPER OF TOI PUNE EDITION.
TOI ROCKS

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Bombay HC fines wife Rs 10k for lying in divorce case

October 9, 2011 //

Article published in TOI
MUMBAI: Not being truthful while explaining a delay in challenging her divorce has cost a woman dear in the Bombay high court (HC). Justice Roshan Dalvi directed Mumbai resident Seema Patil to pay Rs 10,000 as damages to her husband Ajit for filing an application to condone the delay by giving false reasons.

The judge set aside a family court order refusing to condone the delay, but said it would be subject to “payment of compensatory costs by the wife to the husband in view of her initial false case”. The HC said if Seema paid the amount within 14 days, her plea against the divorce would be heard by the family court. “If the costs are not paid, the petition will stand dismissed and the decree of divorce will be confirmed,” Justice Dalvi added.

The court said the manner in which the family court dealt with the case, giving it an elaborate hearing, was “incorrect”.

“An application for condoning the delay, whether of 10 or 14 days, does not deserve evidence to be led, issues to be framed, precedents to be considered, reasons to be given and judgment to be pronounced in the detailed manner that the (family court) judge has done, given the enormous arrears of petitions pending in the family court,” the HC said.

Ajit had obtained an ex parte divorce from Seema in June 2007. She filed an application before the Bandra family court against the divorce order and urged the court to forgive the delay in filing the application as she came to know about the order only in June 2009. But the court, on the basis of evidence, found out that Seema would have been made aware of the divorce verdict as early as April 2009. The family court judge dismissed her application, following which Seema moved the HC.

The HC said that while the family court was right in holding that Seema’s pleas were false, the procedure to decide an “innocuous” application seeking condoning of the delay was wrong. The HC reminded the family court judge to follow not only the letter of the law (family court act), but also its spirit.

(The names of the couple have been changed to protect their identities)

for better news and comments plz visit original news link

http://timesofindia.indiatimes.com/city/mumbai/Bombay-HC-fines-wife-Rs-10k-for-lying-in-divorce-case/articleshow/7518189.cms

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‘Murdered’ woman found alive by husband

September 27, 2011 //

dear friends i found this news in NDTV and could not stop crying for the luck and th incapability of the judiciary and police.
only allegation is enough to do the harm to man in murder case also. plz read below

Muzaffarnagar: A 30-year-old woman, who was believed to have been murdered three years ago by her husband, has been found alive, police said.

The woman’s husband Khalid, who was arrested and sent to jail for killing his wife for dowry, was released on bail and went to a local shrine where he found his wife Mussarat Begum begging. He immediately informed the police.

Mussarat had gone missing three years ago after which her family had alleged that she was killed by her husband for dowry.

Officials of the Civil Lines Police Station, which had lodged the case against Khalid, said they were investigating the new development in the case.

courtsey : NDTV
plz visit link :http://www.ndtv.com/article/muzaffarnagar/murdered-woman-found-alive-by-husband-136636?pfrom=home-otherstories

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HC relief for in-laws in domestic violence case

September 21, 2011 //

HC relief for in-laws in domestic violence case

NAGPUR: The Nagpur bench of Bombay high court has stayed notice issued under Domestic Violence (DV) Act, 2005, by JMFC court against a couple accused of alleged ill-treatment of their daughter-in-law. Justice Prasanna Varale also issued a notice to daughter-in-law Mamta Pandey and Maharashtra government directing them to file a reply by September 29. Rajendra Daga was counsel for the petitioners.

According to Daga, Mamta married Arun, son of Mahendra Pratap and Jayanti Pandey, both residents of Chhattisgarh, on June 27, 2007. Mamta alleged that between the period of engagement and marriage, her father had given Rs 7 lakh to her in-laws by way of demand draft as first instalment of dowry. During marriage, 25 tolas of gold were also given to Pandey family.

Arun was serving in Hyderabad where Mamta joined him after marriage. However, relations soon turned sour between married couple over alleged demand of dowry. Arun began ill-treating and harassing respondent’s wife. Arun allegedly even tried to strangulate Mamta.

Mamta’s torture continued till April 6, 2008, when Arun dropped her at her maternal home at Wadi in city apparently over her failure to bring more dowry. For about three years, she resided with her parents. On January 9 this year she filed criminal complaint against Arun and his parents under Section 498A of IPC. In the complaint she demanded a compensation of Rs 25 lakh for ill-treatment and harassment and return of gold given to Pandeys during the marriage. Additionally, she insisted on getting alimony of Rs 20,000 per month.

The JMFC court then issued notices to Arun and his parents that they challenged in the high court. Daga, pleading for Arun’s parents, contended that Mamta never resided with Mahendra Pratap and Jayanti Pandey and neither shared household. Therefore, there was no domestic relationship between Mamta and her in-laws as per Section 2f of Domestic Violence Act. He pointed out that they were related with Mamta just because of Arun. However, there were no specific allegations against them in the complaint.

for more details you may visit the Times of india website at link

http://timesofindia.indiatimes.com/city/nagpur/HC-relief-for-in-laws-in-domestic-violence-case/articleshow/10059936.cms

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Dharna against DV act held on 28th Aug 2011—Pics and synopsis

September 1, 2011 //

Start of people gathering for dharna at around 1 pm, people from nagpur, pune, banglore, hydrabad,mumbai,nasik came.

Then more on the need of the hour to raise our voices is emphasised

Then we moved to the place where dharna in support of ANNA HAZARE was going on, yes the historical Azad Maidan of Mumbai

Banners against the Misuse of Dv act and other gender biased laws we put around the place

Then Amit D started reading the Press Release and explain the purpose of the Dharna

After that press release in Marathi was read

The Organising commity smiling and started the protests

Then some protest and slogans been shown and pampletes were distributed by promise

Atit and virag played a skit to enrich the knowledge

Few speakers like vikas, venu ,jha uncle and jinesh also spoke about the misuse of DV act

Few passer bys joined to understand the facts

Auty also joined us to represent the old age ladies going through the pains of DV act

At last vote of thanks and hope for better activism and future

Categories Uncategorized

My first ever dharna against DV got covered by media

August 29, 2011 //

Friends we did a Dharna on 28th aug 2011 between 2 to 4 pm. more than 50 to 60 people attended this dharna.
It fortunately got covered by TOI. request to plz leave ur comments in TOI web site

Save Indian Family Foundation protests misuse of Domestic Violence Act

NEW DELHI: Anybody can be a victim of domestic violence – be it children, infants, teenagers or senior citizens. They can become victim at the hands of their own blood relatives. Thousands of senior citizens are implicated under Protection of Women from Domestic Violence Act (PWDVA) in India every year and they have to undergo physical and mental trauma.

The PWDVA has become a dreaded act. People are afraid to get their sons married as they know that even if one complaint is filed under this act they will have to spend rest of their lives defending themselves in the court.

There is absence of any guideline that can help determine the amount of maintenance that the estranged spouse can claim under the PWDVA act. This leads to exorbitant claims and protracted litigation.

Therefore a standardized tabulation can help the applicant, respondent and the judiciary.

Members of NGO ‘Save Indian Family Foundation’ are fighting for the rights of the husbands and their families. The will be staging a dharna August 28, between 2pm to 4pm at Azad Maidan against the misuse of Domestic Violence Act (PWDVA 2005).

Following is the list of charter of demands for which they seek amendments to the PWDVA.

Charter of demands:

* The PWDV Act must be abolished with immediate effect or alternatively

* That, the PWDV Act must be amended to be gender-neutral and also provide grounds so that aggrieved men facing violence can also seek protection

* That, the scope of the PWDV Act must be extended beyond the young married women and cover larger segment of aggrieved victims from the society irrespective of their ages & genders.

* That a comprehensive clause be introduced in the PWDV Act to protect the rights of respondents, who could be innocent and being framed for malicious reasons. Such innocent respondents must be compensated if a claim put against them is proved as false and any interim maintenance paid to the applicant in the case must be refunded along with penal interest rate of 12% P.A.

* That, as of now, the PWDV act and the IPC 494, IPC 497 adopts conflicting stand-points on the issue of live-in-relation and hence we seek that either the terms variously describing “live-in relationship” be struck out and removed from the PWDV Act OR the IPC 494 and IPC 497 be declared un-constitutional and any pending cases under those sections be dismissed forthwith.

* That, the trial under the PWDV Act must be made in compliance with the Indian Evidence Act instead of the Criminal Procedure Code, as it is currently implemented.

* That the relief provided to the applicant vide the PWDV act must not rely only upon the statements reported by the Protection Officer in the PO Report., Instead, a conclusive determination must be made only after the judicial due diligence by means such as trial is carried out and conducted in fair manner after both parties have had their say and concluded presenting evidences as necessary.

* That the magistrates be empowered to order perjury and contempt proceedings against the applicant who in attempt to seek relief under the PWDV Act resorts to making false and/or misleading statements in their allegations of domestic violence, cruelty etc. The applicant deliberately making false allegations must be punished regardless of gender.

plz visit link

http://timesofindia.indiatimes.com/city/mumbai/Save-Indian-Family-Foundation-protests-misuse-of-Domestic-Violence-Act/articleshow/9781797.cms

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Peaceful Dhrana against Misuse of PWDVA 2005

August 20, 2011 //

Dear all
let me take this as an opprtunity to tell you that SIF mumbai is going to held a peaceful dharna at azad maidan, on 28th aug 2011 from 2pm to4 pm.
as you all know how this law is totally gender baised and sole testimony of wife is taken as gossple of truth and home, property and allimony is awarded to these wives without even going into probe of the matters where not even an iota of truth exists.

Sif mumbai is taking this initiative to create awareness and bring into notice the pains of the families who are suffering by this misuse

Plz support the cause and come to join at the venue with frnds and families

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लुटेरी दुल्हन गिरोह की दो लड़कियां गिरफ्तार

August 13, 2011 //

friends a gang of girls misusing 498a is caught red handed. this is recent news of navbharat times

http://navbharattimes.indiatimes.com/articleshow/9590152.cms

कानपुर।। शादी करके लोगों को ठगने वाली दो लड़कियों को पुलिस ने गिरफ्तार किया। जब इनसे पूछताछ की गई पता चला कि इनका एक पूरा गिरोह है जो शादी के नाम पर लड़कों को फंसाता है और फिर उनसे पैसे ऐंठता है। पुलिस इस गिरोह के बाकी सदस्यों की तलाश में लगी है।

पुलिस प्रवक्ता ने बताया कि फिरोजाबाद जिले में रहने वाले राजू को दुल्हन दिलवाने के लिए उसके पड़ोस में रहने वाली ममता ने गाजीपुर में रहने वाले अपने बहनोई नंदू के साथ मिलकर 35 हजार रुपये में सौदा तय किया। राजू और उसके कुछ रिश्तेदार पड़ोसी सुरेश के साथ दुल्हन लेने लखनऊ पहुंच गए। नंदू ने 35 हजार रुपए लेकर 2 लड़कियों को दुल्हन बनाकर इनके साथ भेज दिया। लखनऊ से यह लोग बस के जरिए कानपुर के झकरकटी बस स्टेशन पर शुक्रवार शाम को आ गए।

उन्होंने बताया कि शुक्रवार शाम बस स्टेशन पर पहुंचते ही इन दोनों कथित दुल्हनों ने भागने की कोशिश की। दूल्हे राजू ने उन्हें पकड़ना चाहा तो उन्होंने जबरन साथ ले जाने का आरोप लगाकर बस स्टेशन पर मौजूद भीड़ से उसे पिटवा दिया। राजू इस डर से भाग गया कि दुल्हन खरीद कर लाने की पोल न खुल जाए।

हंगामा देखकर झकरकटी बस स्टेशन पर मौजूद पुलिस इन दोनो लड़कियों और राजू के पड़ोसी सुरेश को लेकर बाबूपुरवा पुलिस स्टेशन पहुंची। पूछताछ में पता चला कि बनारस की इन लड़कियों के नाम गीता और अंजलि है। इन दोनों ने बताया कि गाजीपुर में रहने वाला नंदू इन दोनों को शादी के नाम पर भेजता था और लड़कों से पैसा भी वसूल करता था। बाद में ये दोनों लड़के वालों को जबरन भगा लाने के पुलिस केस की धमकी देकर उनसे पैसे वसूलतीं और भाग जाती थीं।

पुलिस के मुताबिक इन दोनों लड़कियों ने बताया कि इससे पहले वे इटावा, आगरा मैनपुरी जैसे कई जिलों के शादी के करने वाले लड़कों को बेवकूफ बनाकर उनसे काफी पैसे लूट चुकी हैं। इन लड़कियों में से गीता एक सिक्युरिटी एजेंसी में सुरक्षा गार्ड है जबकि अंजलि एक ब्यूटी पार्लर में काम करती है। इनके गिरोह में नंदू-ममता समेत कई और लोग भी शामिल हैं। पुलिस ने इन लड़कियों के खिलाफ आईपीसी की धारा 419 और 420 के तहत मामला दर्ज किया है। पुलिस ने बताया कि गिरोह के बाकी सदस्यों की तलाश में पुलिस की टीम गाजीपुर और बनारस भेजी गई है। मामले की जांच की जा रही है।

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NOw, mediators to settle the family disputes

August 10, 2011 //

following is the articale published in DNA navimumbai on 5th aug 2011.
plz read

http://epaper.dnaindia.com/epapermain.aspx?queryed=9&eddate=8%2f5%2f2011

and leave your comments

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what a woman wants ???

August 8, 2011 //

FORWARDED TO ME IN A MAIL

Young King Arthur was ambushed and imprisoned by the monarch of a neighboring kingdom..

The monarch could have killed him but was moved by Arthur’s youth and ideals. So, the monarch offered him his freedom, as long as he could answer a very difficult question. Arthur would have a year to figure out the answer and, if after a year, he still had no answer, he would be put to death.

The question was: *What do women really want? *

Such a question would perplex even the most knowledgeable man. And to young Arthur, it seemed an impossible query. But, since it was better than death, he accepted the monarch’s proposition to have an answer by year’s end.

He returned to his kingdom and began to poll everyone: the princess, the priests, the wise men, and even the court jester. He spoke with everyone, but no one could give him a satisfactory answer.

Many people advised him to consult the old witch, for only she would have the answer. But the price would be high as the witch was famous throughout the kingdom for the exorbitant prices she charged.

The last day of the year arrived and Arthur had no choice but to talk to the witch. She agreed to answer the question, but first he would have to agree to her price.

The old witch wanted to marry Sir Lancelot, the most noble of the Knights of the Round Table, and Arthur’s closest friend! Young Arthur was horrified.

She was hunch-backed and hideous, had only one tooth, smelled like sewage, made obscene noises, etc.

He had never encountered such a repugnant creature in all his life.. He refused to force his friend to marry her and endure such a terrible burden.

But Lancelot, having learnt of the proposal, spoke with Arthur. He said nothing was too big of a sacrifice compared to Arthur’s life. And the reservation of the Round Table. Hence, a wedding was proclaimed and the witch answered.

Arthur’s question thus: ‘What a woman really wants?’

She said, ‘A woman wants to be in charge of her own life.’

Everyone in the kingdom instantly knew that the witch had uttered a great truth, and that Arthur’s life would be spared. And so it was. The neighboring monarch granted Arthur his freedom. And Lancelot and the witch had a wonderful wedding.

The honeymoon hour approached and, Lancelot, steeling himself for a horrific experience, entered the bedroom. But, what a sight awaited him.

The most beautiful woman he had ever seen was sitting by the bed.

The astounded Lancelot asked what had happened. The beauty replied that since he had been so kind to her when she appeared as a witch, she would henceforth become her horrible and deformed self only half the time, and be the beautiful maiden the other half.

‘Which would you prefer?’ She asked him. ‘Beautiful during the day ….

or at night?’

Lancelot pondered the predicament.

During the day he could have a beautiful woman to show off to his friends, but at night, in the privacy of his castle, an old witch!

Or,

Would he prefer having a hideous witch during the day?

But by night a beautiful woman for him to enjoy wondrous moments with?

(If you are a man reading this…) What would YOUR choice be?

(If you are a woman reading this…) What would YOUR MAN’S choice be?

And Lancelot’s choice is given below…

BUT… please make YOUR choice first before you scroll down below…

OKAY?

Knowing the answer the witch gave to Arthur for his question, Sir Lancelot said that he would allow HER to make the choice herself.

Upon hearing this, she announced that she would be beautiful all the time..

Because, he had respected her enough to let her be in charge of her own life.

Now… what is the moral to this story?

. The moral is…

1) There is ‘witch’ in every woman, no matter how innocent she is !

2) If you don’t let a woman have her own way, things are going to get ugly !

So, be careful how you treat a woman and always remember: IT IS EITHER ‘ HER WAY ‘ OR IT IS ‘ NO WAY ‘ !!

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“Hi handsome, my name is rose”

August 6, 2011 //

Dear readers sometimes i getted pissed of by the questions of people asking me ,hey dutta why should i try,what will i gain by going gender biased laws. they will also ask,why always me who should tyr. i will give back one answer, if not me, then who will do? grow up and fight for your own casuse and fight for the comming generations. Be an example to someone to raise your voice against the injustice done to you. donet be sielent and then in old age just curse the bad laws for the injustice done to you. If u have not tried to change the system, you dont have any rights to ask for justice.
The below story was mailed to me by one of my friend.its truely inspiring.If a old lady can hold and fight for her dreams, why cannt we.Plz those who are sleeping,rise and do the needful. The story goes like this

“The first day of college, our professor introduced himself and challenged us to get to know someone we didn’t already know. I stood up to look around when a gentle hand touched my shoulder.

I turned around to find a wrinkled, little old lady beaming up at me with a smile that lit up her entire being..

She said, ‘Hi handsome My name is Rose. I’m eighty-seven years old. Can I give you a hug?’

I laughed and enthusiastically responded, ‘Of course you may!’ and she gave me a giant squeeze..

‘Why are you in college at such a young, innocent age?’ I asked.
She jokingly replied, ‘I’m here to meet a rich husband, get married, and have a couple of kids…’

‘No seriously,’ I asked. I was curious what may have motivated her to be taking on this challenge at her age.

‘I always dreamed of having a college education and now I’m getting one!’ she told me.

After class we walked to the student union building and shared a chocolate milkshake.

We became instant friends. Every day for the next three months we would leave class together and talk nonstop. I was always mesmerized listening to this ‘time machine’ as she shared her wisdom and experience with me..

Over the course of the year, Rose became a campus icon and she easily made friends wherever she went. She loved to dress up and she reveled in the attention bestowed upon her from the other students. She was living it up.

At the end of the semester we invited Rose to speak at our football banquet. I’ll never forget what she taught us. She was introduced and stepped up to the podium. As she began to deliver her prepared speech, she dropped her three by five cards on the floor.

Frustrated and a little embarrassed she leaned into the microphone and simply said, ‘I’m sorry I’m so jittery. I gave up beer for Lent and this whiskey is killing me! I’ll never get my speech back in order so let me just tell you what I know.’

As we laughed she cleared her throat and began, ‘ We do not stop playing because we are old; we grow old because we stop playing.

There are only four secrets to staying young, being happy, and achieving success. You have to laugh and find humour every day. You’ve got to have a dream. When you lose your dreams, you die.

We have so many people walking around who are dead and don’t even know it!

There is a huge difference between growing older and growing up.

If you are nineteen years old and lie in bed for one full year and don’t do one productive thing, you will turn twenty years old. If I am eighty-seven years old and stay in bed for a year and never do anything I will turn eighty-eight.

Anybody! Can grow older. That doesn’t take any talent or ability. The idea is to grow up by always finding opportunity in change. Have no regrets.

The elderly usually don’t have regrets for what we did, but rather for things we did not do. The only people who fear death are those with regrets..’

She concluded her speech by courageously singing ‘The Rose.’

She challenged each of us to study the lyrics and live them out in our daily lives. At the year’s end Rose finished the college degree she had begun all those months ago.

One week after graduation Rose died peacefully in her sleep.

Over two thousand college students attended her funeral in tribute to the wonderful woman who taught by example that it’s never too late to be all you can possibly be.
When you finish reading this, please send this peaceful word of advice to your friends and family, they’ll really enjoy it!

REMEMBER, GROWING OLDER IS MANDATORY. GROWING UP IS OPTIONAL. We make a Living by what we get. We make a Life by what we give.

God promises a safe landing, not a calm passage. If God brings you to it, He will bring you through it.

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Proposal to amend the Dowry Prohibition Act ,1961, Ministry of Women and Child Development, 05-August, 2011

August 5, 2011 //

Source PIB, Delhi
thanks to suresh ji to allow to copy from his blog

the news goes like this

‘Proposal to amend the Dowry Prohibition Act ,1961

The Government of India is mulling over a proposal to review/amend some provisions of Dowry Prohibition Act, 1961.Replying to a question in Lok Sabha today the Minister of Women and Child Development Smt. Krishna Tirath stated that the Government has a proposal for amendment to the Dowry Prohibition Act,1961 to make it more effective and prevent its misuse .The Minister revealed that No complaints/ representations alleging misuse of Dowry Prohibition Act, 1961 have been received. She however informed that, some complaints/ representations regarding alleged harassment of husband and other family members for inflicting cruelty on account of dowry using Section 498A of IPC, have been received.

Smt. Tirath stated that for preventing the misuse of Section 498A of IPC, Government has issued an Advisory to all the State Governments and Union Territory Administrations on 20th October, 2009. They have been advised to comply with the procedures laid down by the Hon’ble Supreme Court and that in cases of matrimonial disputes, the first recourse should be to effect conciliation and mediation between the warring spouses and their families. The recourse to filing charges under Section 498A IPC may be resorted to where such conciliation fails and where there appears a prima facie case under Section 498A and other laws.

“
Though the news look rosy to me but,if it was given in 2009 why was it not implemented.
also which wife/ police actuallytry to settle out disputes?

third,what do they mean by compromise or settlement,i real world it means extorsion from husband.
so was she so insane to say that or do she actually want to extort money.. only god knows..

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live in relations can be kicked out of clutches of dv act

August 4, 2011 //

freinds live in relations can get some releif if it is out of perview of dv act.
plz read below

WITHIN AND WITHOUT
The government is planning to revisit the clause in the Domestic Violence Act that brings women in live-in relationships in its purview, reports Manisha Jain

The Protection of Women Against Domestic Violence Act, which was passed in 2005, has come as a boon to women harassed and beaten by their husbands or other relatives — be it siblings, nephews or parents — within the confines of their homes. Yet six years down the line, the law continues to have some grey areas that have not been addressed.

One of the most contentious aspects of the law is that it brings live-in relationships in its purview. It indicts men if they indulge in physical or mental violence to their live-in female partners. The latter, if they’re tortured or beaten by their partners, are entitled to get succour and protection and even maintenance if they are forced out of their homes.

This provision has been widely criticised as some are of the view that by bringing live-in relationships within its ambit, the law is encouraging people to get into such liaisons, and that, by extension, it is an encouragement to people to commit “immoral” acts.

Another thorny issue is that the law does not specify the length of time a couple needs to be in a relationship to make the woman eligible for maintenance from their estranged partners. So, critics argue, on paper a woman who has been in a live-in relationship for six months would seem to enjoy the same rights as one who has been in such a relationship for several years.

The whole issue has become so thorny that the government is now planning to revisit the clause and perhaps amend the act accordingly. In fact, Krishna Tirath, minister for women and child development, reveals that the live-in provision may be watered down in view of protests from certain sections of society. “Many members of Parliament and NGOs have expressed the view that live-in girlfriends coming in the ambit of the Domestic Violence Act promotes moral impropriety and also raises the hackles of civil society. We do not want to send out wrong signals and have to tread carefully here. We cannot upset the moral fabric of society.”

The minister revealed that a rethink was being carried out on this particular clause of the Domestic Violence Act and that a revised version of it would be presented for discussion soon.

Would this leave live-in relationships entirely out of the DV Act?

“We will have to wait and see,” she replies. “Only after certain vital issues are thrashed out through debate and discussion can we decide that.”

However, women’s activists and other experts in the field feel that a dilution of this provision would be a serious mistake. A senior police officer says, on condition of anonymity, that women are independent and conscious of their rights nowadays and a dilution — or deletion — of this clause would be unjust on women in such relationships.

The Lawyers’ Collective, an organisation that has worked towards formulating the law after intensive discussions with legal luminaries, NGOs and government officials, had taken a realistic view in this regard. It had asserted that live-in relationships were a reality in today’s day and age and that it was necessary to cater to the needs and rights of women in such relationships.

Interestingly, there have been several high court judgments in recent years that recognised the rights of women in live-in relationships. In fact, there may be legal wrangles if such relationships and the individuals involved in them are now removed from the ambit of the Domestic Violence Act.

Some feel that the clause needed to be defined better in the first place. Girija Vyas, former chairperson of the National Commission for Women (NCW), points out that in addition to saying that live-in relationships were a part of modern society, the law should have clarified when the live-in girlfriend could demand maintenance.

In fact, last year the Supreme Court did give its interpretation of the clause in this regard. A bench comprising Justices Markandey Katju and T.S. Thakur said that a couple in a live-in relationship should, among others things, have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time for the woman to be able to claim maintenance.

So what should be an acceptable time frame after which a troubled live-in relationship could come in the purview of the Domestic Violence Act? Vyas declines to offer an answer to that, though. “The issue needs to be debated before I can comment on it,” she says.

Yasmin Brar, acting chairperson of the NCW, also avoids commenting on this clause, saying that it needs to be properly discussed before any decision is taken on it. Tirath reiterates, “This is a very sensitive issue and we do not wish to take any decision in a hurry.”

Others say that the law is fine as it is. A retired police official observes, for example, that since a recent high court judgment had recognised live-in partnerships, a live-in girlfriend has every right to exercise her rights under the DV Act if she is being tortured or beaten.

Indeed, most experts agree that it would be anachronistic to leave live-in relationships out of the purview of the DV Act. A senior official in the women and child development ministry too admits that such relationships are a fact of life today and cannot be wished away. So an effective law against domestic violence would have to include such relationships.

Is the minister for wo- men and child development listening?

Some salient features of the Domestic Violence Act, which covers all domestic relationships, including live-in relationships

Any woman, who is a victim of domestic violence, can get the services of and assistance from police officers, protection officers, shelters and homes. The DV Act also empowers them to file a complaint under Section 498A.

Once the offence is established she can get the following orders from the courts:

• Protection orders to prevent the accused from committing an act of domestic violence at places frequented by the aggrieved.

• Residence orders to ensure that the woman is not alienated or disposed off.

• Monetary relief in case she incurs loss of property and also for the maintenance of the mother and child.

• Compensation orders for injuries incurred.

courtsy/; suresh ji

original post in telegraph newspaper

http://www.telegraphindia.com/1110803/jsp/opinion/story_14326787.jsp

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A guy never wants Sympathy

July 22, 2011 //

Dear friends , off late I have been reading a lot. Where ever,whenever I read something it will be the guys who are at wrong foot. Be it a novel, a movie or a drama. In case the guys are not in the wrong foot they will be always end up getting sympathy for their sacrifices. I mean it feels very embarrassing to think that in today’s world when I do some thing sacrifices of a short it’s never projected to be looked up upon. It will always be either of the two sides of a coin. Either the male will be a ravana or a person poor person. He will never be projected as a person of great values.
People who know about my current life , try to show sympathy. They will always say, buddy pay something and move on. No one will ever say, dear fight the menace out, you are on a right track. WHY?
The answer to this question lies within the Y chromosomes of ours, may be. Atleast it makes us male , so it should be responsible for our other characteristics too. It is this Y chromosome which gave us the right to balance the gender in society. That was the call of nature. But with this also come a weakness. We men are basically hungry for love. Its not the love we make in bed, it’s the love which make us sleep like a child in the laps of our beloved. It’s the peace of love or solace we run every day, every second for. That and only that is what we as man need. And thus comes our weakness.
I always wonder how almost all of us who are facing gender biased laws and who are leading a normal lives , at one point of time or the other have always sided with the women and showed only sympathy for the guys. Have we ever tried to appreciate the sacrifices a man have to make. There will be guys who will sacrifice everything for the love of a girl, and what will he get in return? He will get a salvery. If he wants to break it open, he will be traped in a gender biased case. If he gets acquittal, the society will show sympathy on the family.
After some time a girl whom he loved say 15 years back,will marry him or a girl from neighborhood who knew that he was innocent will marry him.There will be girls who will marry him for money too. In all the cases everyone will show their sympathy and get married. What the fuck………..
He never needed your sympathy. He always needed a partner with whom he can share his agony, his lies, his emotions, his fears, his tears, his frustration. He just wanted a friend who can bear his child.for rest of things he has enough money.why would he care for a girls sympathy.
NOOOOOOOO
I donot want an iota of sympathy. I just want a person who will be beside me in thick and thin. Who will give everything for my happiness.
That’s what a guy want from the world. He donot need sympathy. He ,unlike women, only search for a drop of true love and a lap to sleep with his head on it.
Is that more that what a gut should expect from the world
So think thrice before showing sympathy to a man. We don’t need it
Hope to get lots of criticism as usual. Have a nice week end

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I am a man

July 22, 2011 //

Hi Friend,

Can you say this is not true….? If yes, think about your father / Brothers / lover / husband. :P:P JJJ

I think everyone might have read abt Mom’s, Wife’s and Girl’s…

Its time to learn something abt Men…

Who is a boy / man ?

A boy/man is one of the most beautiful creations of God.

He starts compromising at very tender age. He sacrifices his chocolates for his sister.

Later he sacrifices his love for just a smile on his parents face. He sacrifices his love for his wife and children by working late nights.

He builds their future by taking loans from banks and then repaying them for the life time. Thus he sacrifices full youth for his wife and children without any complain.

Believe me he struggles a lot but still has to hear the music (scolding) of Mother, wife and his boss. Yet every mother, wife and boss tries to have control over him.

Finally his life ends up by compromising for others happiness. He is that creature of God who no one can compete with.

Respect every boy/man in your life. You will never know what he has sacrificed for you.

Just extend your hand when he needs it and you shall receive twice fold love from him.

Enough Of Girls /women / Wife Emotional Mails Now… we Boys also Have Emotions and respect it. PEACE

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I will hold the ray of hope tight

July 19, 2011 //

Dear readers,
Sorry for not writing the blog for such a long time. I was out of the connection due to certain exigencies. Anyways , I am back now. Recently I heard a senior member of a group called SIFF(save Indian family forum) was feeling very low due to certain judgements that her high court has given. I could only suggest her that just hold the ray of hope tight. It came to my mind just on that instant, why did I spoke to her to hold the ay of hope!
It took me days to understand that actually we all are holding our own rays of hope. When my father was admitted recently to hospital due to cardiac arrest and had to undergo a surgery,I ,my family and family friends were hanging with the ray of hope. It was this ray of hope which kept us alive and sailed us through the troubled waters. On that day I understood the meaning of what actually I wanted to conveyed to this senior member.
I know I have been falsely trapped in the gender biased cases. I have two options , either to bend my knees, kneel down and offer a handsome amount to them for settlement and live a little longer and wait for another case to happen on me. Whereas in second option, I can fight with them (of course in court), and may be I have to die or become a prisoner of war. I preferred the latter than the former. Reasons? I have many. But the one I believe is, if I fight I hope that I may win but if I surrender I will never win and this will go as a bullwhip affect and destroy many more families.
We live every day,every nano second holding the ray of hope and start believing that we can still live long. If we stop holding the ray of hope and stop trying to live a long life,I will end up losing.
I never did wrong to my wife. I always respected her, loved her and hoped that she will be a normal wife. Same was the dreams seen by many of you. So what she had broken one dream. So what we lost a few cases. She can take away my monies, my reputation, my friends and my believe, but how much?
I can still earn more,I can built my reputation once again, I found many more true friends after she left me and I have not known the actual picture of beliefs. But she can never take away my aspirations, my thinking, my love and my hopes for a better future. She had already chosen a future for herself, I still have my future in my hands. why would I lose hope to not make it large.
If everybody stops hoping something or the other then the world would come to an end. We have to move ahead in life. She was a bad weather in life, a bad tyre which bursted in between the journey,a bad contraceptive device which failed and a bad friend who couldnot stand with me when I was in her need. That’s all. Do we stop our journey because of any of them? NO. we keep on going. Why? Becoz we hope and we can foresee that a better future is ahead for us. What do we do to the things which turned our trip sour, we just leave them to rot.
Its just this ray of hope which keep us alive. Plz donot let ur grip loose.
Signing off with a hope that you will leave your comments.

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Flash Dharna to protest Law Commission reccomendation to make 498A IPC compoundable

June 29, 2011 //

Guy, ladies,girls,mothers, fathers,bhaiyas ,bhabhis,uncles and kids. we all know how dracorian these 498a law is. we may only be doing our bit now.may be not upto the mark. but banglore people are trying to take a leap forward. they are organizing Flash Dharna to protest Law Commission reccomendation to make 498A IPC compoundable which will increase Legal Extortion and Legal Terror. As you all know that only making compoundable of this offence will make things worse and a real extortion tool in the hands of our beloved bitter halves.
request you to support this cause and spread this message so that this dharna become sucessful.
below is the details

“
NFHS is organizing Flash Dharna to protest Law Commission reccomendation to make
498A IPC compoundable which will increase Legal Extortion and Legal Terror.

If Criminal cases are allowed to be compounded then only rich and mighty people
will compound their cases and there will be no fear of commiting crime.

This will become a mockery of Criminal Justice System.

E.g. a person can do murder and offer “settlement amount” to his relatives.

Venue:Â Town Hall, Bangalore
Â
Timing: 9.30 AM to 11 AM coming saturday – 2nd July

More details will follow….

Please spread this email like fire as we have very less time…”

plz plz plz spread the news to all your freids a, neighbours and relatives

Categories Uncategorized

WHAT’S WRONG ABOUT INDIAN WOMEN?

June 12, 2011 //

Hey hey hey, I am not against any simple , innocent Indian women here. I too have a sister and a mother and respect Indian women. So what bring me to the feeling that there is something wrong about Indian women. Actually there is seriously something somewhere wrong with Indian women. Now why women? You see ,take any culture for instance, peace outside the home is maintained by men and peace in society and home is maintained by women. Though there is peace in the streets, our family courts are flooded with cases of matrimonial disputes. Now some feminists will point finger at me and other men community that and ask is this due to women only? And then they will start their old blabber that women in india are abla nari and all men after they get married become animals. Ya right animals, when there is no crime before marriage and there is peace which prevails in a family and suddenly you see there as soon as the Indian man get married he becomes pervert, greedy, law breaker and a criminal whom these feminist want behind bars. Not only these husbands , but their relatives who were well reputed persons in their respective society all of a sudden become criminals. So there is seriously something wrong with either Indian women or Indian men. As there are lots of lobbies who blind choose to support the so called weaker sex and get away easily be it politicians , judges, lawyers, police , media or even feminists without caring about the flip side of the coin. So I am going to discuss those this things which are there deep inside our actual logical brain and we never openly come out with it,may be due to fear of one thing or the other.
So lets see what went wrong with current generations of women which is leading Indian marriages to a blind date kind of ritual.
So here I go
1. Education: I am not against the education of women. But with education comes exposure to different views of the world. We are fast getting effected by the globalization. Well its good for overall development of a human being be it men or women. But with globalization comes the other weak links of the outside societies too. Say for example, its very easy to stay in a live in, divorce a guy or a girl if we want and cannot stay together in western country. And we try to adopt to this culture but we forget that laws are different in different countries. In india the laws were made thinking that the women are weaker sex and that marriages are for ever. Whereas its not the case with western culture. In one side we say that these educated women are at par with Indian men and on other hand we want reservations for them,alimony for them. When an educated lady claims that she has the right for the child and should solely keep the child then why do we have to give her support. If she was so good to maintain our child then she should be independent and self sufficient to maintain herself too. At one side we are fighting for equal rights of women and in other we are saying that they cannot be equal so we have to give them maintenance though being well educated and highly qualified.so what actually are these Indian women getting by education . they are only becoming literate not educated. As an educated lady will have self dignity and will maintain herself and her family as she used to before marriage. But most of these women who are literate,I will not call them educated,mis uses these laws made for real abala nari who were not knowing about their own rights and cannot think of maintaining themselves.
2. Financial liberty: in good old days there was no financial liberty to women. But with changes in time there comes several changes in the society and indian women started working with shoulder to shoulder with Indian men. And then comes the financial liberty. With financial liberty they started to copy men. The stated drinking,smoking,dating,partying,hookups,flirting and last but not the least getting bored of household chores and marriages. When a rope walker walks in rope he has to balance both the side. Same goes with Indian marriages. When earlier Indian men used to get out of hands they were married off as it was believed that a girl will balance the other side.and it worked perfectly well for generations. But now as both the sides are out of balance it has become very difficult to save marriages. Now a days when a girl goes out of control her parents get her married to a good gentle man. So it’s the financial freedom which everyone thought will bring harmony to the Indian society, brought the disasters of broken marriages. Not only this with this came the ego. Now Indian women cannot even listen to anyone and the word ‘ pati parmeshwar’ had lost its meanings. Now the women know very well that there are no law in india which can punish them in an matrimonial dispute. Also as the sex ratio is dipping sharply,these women knows that they will find easy options to get married again. So they treat the marriages as blind dates. If It works it fine ,otherwise it’s a money minting opportunity for them and that’s the law of our land ,though she may be financially liberate and highly educate.
3. Patience and respect for elders: The third and most important things that is missing in todays women are patience and respect for elders. Th y donot have patience for anything. In a newly married life there are bound to be some frictions. It is just like taming a wild horse. It takes patience. If a woman wants to tame her husband in one day it canoot happen. This wild horse has been like what he is in first night for about a quarter century. You cannot expect him to change in first day it self. It takes years to really tame a animal with brain and personality of his own. Atlast we all see the Indian men do what their wives say. they need some love,you give love and they will do whatever you want. That’s what clever women with patience do. And this is very evident from history. Women who are smart enough to let think their lovers/ husbands thinking that they are in control,had actually controlled their lovers/husbands. So men can be/ are and will be fooled by love. But todays women who misuses the law neither have true love to offer neither they have patience to wait till the animal is tamed. They are fast food generation and want everything very fast. Also they always think about themselves and forget respecting their elders, especially family elders of her husband. Here she loses her second opportunity to tame him. As we all have wild animals inside us and if not tamed and get out of hand, this animal create havocs and fight for freedom. Here is my third reasons for breakage of marriages
Though the list is endless right from greed of todays women (which is ever increasing from the days of our Ramayana where kaikai mata for her greed sent Lord rama to vanvasa to greed of today’s wives to snatch easy money from husband her families) , jealousy from husband to many other aspects of human lives, I feel these are three important factors which had added oil to fire and had become a menance.
If these goes on like this and our law makers donot change these biased laws,then dooms day for Indian society is not far. Think of a society ruled by women with men as sperm doner and an atm machine.
Dooms day is coming

Categories Uncategorized

I too love peace

June 10, 2011 //

Hi readers, welcome to this week’s bonanza. By now those who read my blogs will either have branded me as a mad bull or a crack. You may be thinking that this man is always in fighting mode. He is so arrogant, rude and arrogant .But somewhere I heard that there sometimes comes a player in a game who changes the rule of the game. I am just preparing to follow the same.
I too used to be a nice,hard working common man. My dreams were very small. I just wanted to get married and lead a normal, peaceful, happy married life. I used to read a lot and sometimes used to party in a very calm place with my old pals. I was a peace lover, work full year,take two yearly vacations and then go to a place with my parents or my friends . I used to enjoy the places and my photography. Sometimes I used to write poems too. In all probabilities I was a common boy(man)
Then I got married and within few months got hit by all gender biased laws.I became very sad, depressed. I couldn’t have food for weeks. Every knock in the door used to scare me up. My parents used to be very worried. We were near breakdown. Then one day with the guidance of some angels , I got my anticipatory bail. But police still came to my place to arrest me. I showed them the AB and they told me to come to police station. I was very afraid. I called a SIFF member. And he left all his work and in an hour he was standing with me at police station. I stay in Mumbai and I know in what difficulty he must have faced to reach me. But there he was smiling and standing beside me like a elder brother. I can never forget the strength he gave me that day. My eyes still get filled with gratitude when I remember that moment. He left me for his good and is now settled in a different city. He may have forgotten me and his help. But I still remember every moment of that night. I will not name him here as he is a shy person and always helped everyone anonymously.
He always used to tell me, dear help others and you will feel the satisfaction.
I too love peace. Everyone love peace. But peace doesnot comes as it is. It has some cost. We have to make great sacrifices to obtain and maintain peace. Yes I am against these gender biased law. Yes I am against these women who misuses it.
When some aged man who cannot even walk well, comes and tell us that her Daughter in law is harassing them, when some lady comes and says that was behind bars for a night,when a young boy comes and tell us that he has been accused of having relation with his friend or when a father comes and tell me that bhai I want to meet my daughter but my wife donot allow me to meet and I have to see her from roadside window, what and how should I react.
I am born in a family where we were taught never to take back step. Where we have been taught to call a spade a spade. Never to tell lie, never to harm anyone, make friends and keep enemy closer. So in all I donot know what do the word COMPROMISE mean.
I too want peace. I want to enjoy my freedom and lead a normal life again. But I know whatever I do, until these gender biased laws will be there, I can never be able to lead a normal PEACEFULL live. The weeds whom we call our lovely wedded wives will continue to use these laws.
So lets fight it out for once and for all. Get it corrected. If not for myself atleast for our coming generation. When I will be at my death bed, atleast I will be dying with a smile and satisfaction that I was once part of a great moment and gave a great future to my coming generation. A law and atmosphere which is gender neutral.
So I love PEACE, but to get peace first I have to get the fragments and pieces of the society untied against this gender biased law.
May my soul rest in peace.
Amen.

Categories Uncategorized

COMPROMISE- A NIGHTMARE OR A PRACTICE

June 6, 2011 //

To my reader’s. statutory warning: in case you have gone for compromise/settlement in your cases, plz refrain from reading as it may not be good reading for you

Welcome ,
I often hear about people going for compromise, people asking for the modes and means of compromise. So lets address this very big word.
So what’s a compromise. Compromise is something which we do when we see that agreeing to certain conditions of the opposite and/ or/ may be make the other people also agree to out terms or conditions. So it means that ,I put some conditions and opposite party puts some conditions and we agree to it.
It sounds good ,isn’t it. So you must be baffled by the feeling that,hey why is this gut teaching the things which every people know. We all do compromise in our day to day life.when we go to work,we compromise our temper and feelings for the boss for money. when we go to a shop we compromise with quality/quantity for saving few bucks. So compromise is rampant. So what is harm in doing compromise. Its just a part of trading and somewhere or the other we have to do compromise. So what’s wrong with it? It’s a basic human nature.
No its not the compromise which makes a deal bad. It’s the elements of transaction and nature of dealing which leads to my basic question and difference of a compromise. See actually compromise is nothing but a transaction to get some benefit ,be it monetary/emotionally/sexually/socially or any other. For example a prostitute is also doing compromise to earn her bread. If she donot get a client and she is hungry she reduces her rates and do compromise,else she charges more and the client who is in distress go for compromise to satisfy his gains.
But do we take this as a good compromise and accepted in Indian society. Practically no will be correct answer. So what went wrong. There were every rules of compromise followed. The catch lies in the motive and nature of compromise.
So ,now coming to the point where people say and sometimes advice that even after getting slapped with 498A and DV we should go for compromise, do actually it falls under the perview of compromise. My answer to this is,it depends.
Now I can see lots of people raising their eyebrows. But before going to any conclusion just read the next part.
See in case those who feel that paying to their wives/ listening to their terms/ letting her escape from clutches of law or even doing a zero money settlement is good compromise, they forget the other part of the logic. Those who feel like prostitute, their arrest,harassment, monetary loss, character assassination done by their wives and their in laws can be traded for freedom from cases which they know they can win(no girl will come to you for compromise if she knows she can win the case),then its their choice. They are actually begging their wives ,” honey plz get me free from this case,I will lick whatever u want”. They are not only doing injustice to them, their family,their friends who supported them but also to the present and future generation. How,question yourself you will get the answer.
What you do when you compromise? You set another precedence for the girl and her supporters that,whatever false charges she put on somebody,at last she will be winner. Either she will win the case or she will get money or lastl but not the least there will be a zero settlement with no way she gets punishment for the wrong doings she did on you and your society. She by doing such things you are not only polluting your society but also making a general practice of compromise in the society.
To me these people who do compromise are more dangerous then the 498A wives , as they are setting more and more examples for those who want to file 498A in future. So its not women commission who are responsible for spread of 498A misuse, its we who do compromise who are spreading this. Though there may be some genuine cases who cannot withstand the family pressure or scumb to their own mental trauma’s and chose this way rather then suicide. But still I fell they should try to rethink, do this compromise worth it.
To me compromise is a strict NO NO.

Categories Uncategorized

WHAT PULLS US DOWN

June 1, 2011 //

It has been really long time since i have shared my little brahma gyan with those who read my post.
so today i will be boring u with my understanding which i gained recently,why we have clashes inside our meetings and what effects do we have due to same
1.The Lordship:
this is the first cause of differnece bettween any group. this is what causes friction between the groups and make friends enimies.As a basic nature of human being,we all thrive for power. we always want to be a power centre. As in any group we have to choose some one as the face of the group. But as soon as the face is chosen there starts our jeleousy. We cannot see this man/women in top of the group. we as human being cannot see him getting attention. May be he doesnot know anything what u know,but he is the face of the group and so he should be respected.
But sometimes the power equation changes. the so called face start thinking that he is the lord of the group. He thinks that whatever he says is to be followed.he forgets that he was also the same naive as some of us today. So whatare the symptoms of this disease
A) when group start disrepting the face u will hear following things from fellow members
* are he donot know anything
* he will only blabber but do nothing for the group
* he is always late
* he is boosting himself

B) when Face forgets about his responsibilities, face will tell in group
* i know better than anyone here
* if u donot follow me ,u will cry latter
* i know other Lords/Faces
* people adore me
* people cannot get help if i donot come to help them
* i am the key person

see these sentences are poison catalysts for any chain reactions or a movement.
from here starts a friction between the groups and they try to overpower the face
Its not that they will do something great,but because they have a reason they try to do that.Slowly slowly one of the party wins and movement changes its direction.whether for good or bad nobody knows.but surely we loose some good fighters whom we could have spent on our opponents

Not only people of the group understand the value of the Face but face should also understand his resposibility.
He should be an example to others.not only by his deeds by his character also. he should not only motivate fellow members,but also fight for them,should stand for them.he should never compromise and should led others to the path of sacrifice for the greater cause
there are poeple in every revolution who actually will not practice what they preach.thats wrong.when u tell somebody to fight ,u shouldnot be found sitting with enemies and enjoying the free lunch or doing compromise on his own ground
we all are sufferer and irritated by this draconian laws,but we should never blew our frutration on our fellow members or show our mussles to those who are intelectually or phychologically weeker than us
Stop eyeing for power and help others,u will certainly be more happy at the end of the fight and winning the war

2. Ego
We all have our own ego.but when it comes in between the fellow fighters,we become trecherers. we start hating each other,we try to seperate out. we try to make a seperate group which can satisfy our ego.who loses. We all looses,The revolution looses,as new theories seize to come up,this carries on and on till we are left only with our fool followers,.

in a revolution not only our followers are important but fighters who can show us the correct path is much more important.no war is won single handedly.It has to be mutual effort

I hope if some one keep these two points in find,our frictions in groups will reduce a lot and we will be better diverted to the original goal. so nect time when u are angry with your fellow fighter,plz be sure that u remembers my these points before u part your ways.

keep the revolution alive.
donot divide.
remember, united we stand,divided we fall
signing off AD

Categories Uncategorized

man arrested again in mumbai

May 15, 2011 //

every day we hear about a man or his family getting arrested due to suicide by his wife.
a bad decision taken by wife not only disturbs her parents but also her in laws and husband.
have u ever heard of a girl’s family after suicide tells to police that it was an accedental death or their girl couldnot handle the press of marrige.no they will never say that and will come in to take revenge.
either they do this without thinking/revengefull mind or to cash some money for their loss.

God only knows what they achieve by this
here is the post below
http://epaper.hindustantimes.com/PUBLICATIONS/HT/HM/2011/05/15/ArticleHtmls/Harassed-by-in-laws-husband-woman-ends-life-15052011005009.shtml?Mode=1

Categories Uncategorized

Punjab State Commission for Women (PSCW) accepted that mobiles are also cause of marrriage breakdowns

May 10, 2011 //

At last the Punjab State Commission for Women (PSCW) accepted that talikg to parents essively in early stages of marriage is one of the major causes of marriage breakdown.
Though while excepting this they as usual made it clear that calling excessive though to the girls parents rasies doubt in the minds of in- laws that she is talking to another man.
They also accepted that while circulating the advisory that “girls need to be “very adjustable”".
BUT they forget to mention that girls to unnecessary do nagging to their parents when they are ubable to manage and adjust in their matrimonial homes, leading to early break down of marriages.

special thanks to Satish chopde to inform me about this post.
plz read below

“Snap that mobile link, Punjab panel tells brides
Chandigarh, May 10 (IANS)

Mobiles and marriages? They simply don’t go together even if this is the 21st century, believes the Punjab State Commission for Women (PSCW) that has asked young women to curtail or snap mobile ties with their families to keep their marriages intact.

The PSCW, a statutory body of the Punjab government tasked with safeguarding the interests of women, has issued a list of dos and don’ts on how to keep marriages going smoothly. The formula, aimed only at wives of course, is simple : either limit your conversation or totally cut it, at least during the initial few months.

The advisory, written in Punjabi and issued in the form of a brochure last week, says girls need to be “very adjustable” as mobile phones are seen to be breaking many alliances in Punjab. A bride’s family members, it adds for good measure, should be less interfering if they want her to be happy.

It says a marriage usually takes nearly two years to be successful and brides, during this period, should make adjustments and avoid talking over the mobile. Long conversations, it believes, only makes husbands and her in-laws suspicious.

The women’s panel advisory has provoked a storm of protest with women from all sections of society dismissing it as regressive, glorifying male chauvinism and, at best, a big joke.

“This is a very strange advisory and is no solution to save any marriage. Every relation is built on trust and this advisory is itself planting suspicion in the minds of young men and women,” Neelam Mansingh, eminent theatre personality from Chandigarh, told IANS.
“This advisory suggests that every woman is adulterous and every man is suspicious, which is really weird. This is very regressive and bizarre; the commission should try to evolve some other mechanism to save marriages,” said Mansingh, who teaches at the Indian Theatre department at Panjab University and has directed 35 plays in a career spanning 30 years.

Pankhuri Bhalla, who writes for a city-based fashion magazine and got married six months ago, is equally outraged.

“This advisory is a big joke, simply glorifying male chauvinism. Every day I have to call at least seven-eight people in connection with my stories, but it does not imply that I am having an affair with someone.”

College student Prarthana Gill added: “Advising someone to stop using mobiles or minimizing its use is very illogical. How can it save any marriage? The commission should again look into the advisory.”

Faced with the trenchant criticism of its brochure, sent to welfare offices across the state, the PSCW said it based its advisory on an evaluation of the many cases of harassed women that had come to it.

“Many cases of harassed young women, seeking divorce, have come to us during the past few months. After counselling them and evaluating these cases, we found that mobile phones have emerged as one of the major culprits. Therefore, we have drafted this advisory,” Gurdev Kaur Sangha, chairperson of PSCW, told IANS.

“Girls keep on talking for hours over the mobiles and it leads to suspicion in the minds of their mothers-in-law and husbands. She could be talking to her parents or brother, but her in-laws might think that she is talking to another man. So, we have suggested they minimise, as much as possible, the use of mobiles during initial months of marriage,” stated Sangha, while justifying the advisory.

Sangha added: “Talking over mobile is a very serious issue. Many cases have come to me where boy and his family members think that the girl is talking to another man over the phone and they want divorce. This also led to domestic violence.”

Punjab is also known for its intolerance towards girls and its skewed sex ratio. In the 2011 Census, its sex ratio stood at 893 girls for every 1,000 males. Many cases of honour killings, including killings of young women, have also rocked this state in the past few years.
“

you can also read the original news from the below link

http://www.deccanherald.com/content/160265/snap-mobile-link-punjab-panel.html

Categories Uncategorized

why do we deserve to be a victim of 498a misuse?

May 10, 2011 //

Friends
yes this may be a peculiar question,at a stage when i should have been given u moral support,but no i will not.This is our fight,its not urs ,its not mine.I am not fighting a case against mywife,i am fighting against the misuse. Our law also states that its a fight against the state where your case is running.
every week i come across many simillar cases as yours and mine. The story line is same only actors and their dialouges changes.
So does that mean that mea n that we are the chosen ones ?
does that mean we have to suffer?
does that mean that there is no optons left?
does that means that our life is a gone case?
does that mean that i donot have a life and i simply have to surrender?

NO No NOOOOOOOOO

I am a honest human being,just caught in a bad situation.
somewhere i read a wonderfull story and would like to share that with u all
” once there was a great comedian.so people called him to a village where everyone was very sad.this was a place where everyone is unhappy.so the comedian wen to the stage and saw the public.It was a huge crowd.So he delivered his best joke ever.everyone started laughed their hearts out.he then again repeated the same joke,some people again laughed,he went on repeating his same joke till nobody was laghing.Then he asked the audiance WHEN SAME JOKE CANNOT MAKE U LAUGH MORE THAN ONCE THEN WHY IS SAME SADNESS IS MAKING U CRY EVERY TIME.”

Thats what i am exactly saying.
we are not criminals but we all did some mistakes for which we deserve a false 498a case on us all.

1.we did a big mistake. by marrying to such a family(i am not saying girl intentionally) ,yes in india we get married to a family.most of us never investigated well about the in laws before marriage.

2.we believed our wife more than our friends and relatives.we shared with them our bank details which are not even known to our parents.yes we dis this mistake

3.we loved her so much that we never noticed that she is planning a 498a,that she is planning to make us henpecked husband and we never noticed that she is behaving strangely.

4. we never verified about her background and believed her blindly.

5.we counted her family members as our own family member.

so you now what i mean by why we deserve a 498a case

but there are many more things for which we deserve a misuse of 498a

A) people like u and me bend down to their knees in front of the girl to finish the cases.do u do same if someone do rape/murder/burglery/cheating/false allegations /abuse/manhandling with some one of your family member.no u donot.u fight till u can.if some one come and take away ur house will u simply set back? no u will fight back to getit back.
but we donot have a value for selfrespect,so what if we were in jail for a week,so what the girl has abused the system,so what we were branded” dahej ke bhooke bheriyee”,we just want to settle.
its not abt 1 rupee or 10 lack rupees.

A very good friend of mine asked the other day ,buddy my wife is asking only 4 lakh,should i give her and finish the case.yes buddy go ahead plzzzzzzzz, this is due to u people bending before the wrong demands ,girls are getting dare to file cases against us.

either u do pay and accept that the allegations are true and u a coward, or just fight.i know many will agree wit noth my view,but thats truth.there is no second thought.

B) we still believe and hate the girl.no friends its not,its the law which has provision to be misused.so your fight should be against the cause not the person who is misusing it.she is just another misuser,like we should curd the causes of roberry,but should punish the wrond doers.
just feel this feeling.forgive her but donot forget her.she has done no wrong by invoking a wrong loophole of law to make easy money.stop the misuse first.

hate is also a feeling,donot have any feelings for them.
revege is the only true emotion—– as per shrimad bhagwat Gita.
so the only feeling should be revenge and that too by legally trapping her in the wrong that she has done for u and ur family.

C> there is general feeling that life has come to an end.no we are not criminals,we have a life,we have right to laugh,we have a right to enjoy.be what may.what can she get,a little maintainace,think that u are giving a begger some money to sustain her life.still u will be left with something ,u can grow and earn more.so enjoy,there are other things in this world rather than thinking abt her.make yourself better.

and at last just a line from ravindra nath tagore
“jodi tor daak sune kau na aase tahole akla cholo ray”
meaning; if by listen to u also nobody is comming with u,then go and do it yourself and fight out the battle.
donot lose hope,there are many like u. you are not only a chosen one.do u feel shame to tell your neighbours that the milkman has cheated u by mixing water in milk? so is this case.
this is nothing but a cold and coough which runs a little longer.just chill and enjoy it
” when rape is unevitable,its better to enjoy it’

always remember there is someone like u who is /was/will be in same conditions as u are today.

Categories Uncategorized

NEW SC JUDGEMENT DEFINING THE LIMITATION OF FILING DOMESTIC VIOLENCE CASE

IMP JUDGEMENT DEFINING LIMITATION PERIOD FOR CASES

CASE DEFINING THE LIMITATION OF PERIOD IN WHICH CASE CAN BE FILED….IMP JUDGEMENT

women forged salary slip of husband caught

Recomendation Of Allahabad HC on arrest in 498A case and to follow 41A

Recomendations and Strong Views of Allahabad HC in case for arrest and compoundability in 498A

Actual SC judgement where SC said exemplery cost of 1 lakh should be imposed

supreme case suggested to fine 1 lakh rupess for frivolous cases

‘Women protection laws are being misused’

A OLD MAN FIGHTING FOR HIS DEAD SON TILL SC

Bombay HC fines wife Rs 10k for lying in divorce case

‘Murdered’ woman found alive by husband

HC relief for in-laws in domestic violence case

Dharna against DV act held on 28th Aug 2011—Pics and synopsis

My first ever dharna against DV got covered by media

Peaceful Dhrana against Misuse of PWDVA 2005

लुटेरी दुल्हन गिरोह की दो लड़कियां गिरफ्तार

NOw, mediators to settle the family disputes

what a woman wants ???

“Hi handsome, my name is rose”

Proposal to amend the Dowry Prohibition Act ,1961, Ministry of Women and Child Development, 05-August, 2011

live in relations can be kicked out of clutches of dv act

A guy never wants Sympathy

I am a man

I will hold the ray of hope tight

Flash Dharna to protest Law Commission reccomendation to make 498A IPC compoundable

WHAT’S WRONG ABOUT INDIAN WOMEN?

I too love peace

COMPROMISE- A NIGHTMARE OR A PRACTICE

WHAT PULLS US DOWN

man arrested again in mumbai

Punjab State Commission for Women (PSCW) accepted that mobiles are also cause of marrriage breakdowns

why do we deserve to be a victim of 498a misuse?

calender

498a hita

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