First Information Report and Its Evidentiary Value

First Information Report and Its Evidentiary Value
First Information Report Commonly known as F.I.R is first and foremost important step to set the criminal law in motion. Though the term F.I.R is nowhere mentioned in the code of criminal procedure but information given under Section 154 of Cr.pc is popularly known as F.I.R.          .    Provision of section 154 makes possible that any person aware of the commission of any cognizable offence may give information to the police and may, thereby set the criminal law in motion. Such information is to be given to the officer –in –charge of the police station having jurisdiction to investigate the offence. The information so received shall be recorded in such form and manner as under provided in Section 154.This section is intended to ensure the making of an accurate record of the information given to the police.

An analysis of S.154 brings out the following points:

(1)The information is to be given to an officer in charge of a police station having jurisdiction for investigating the case [S.154 (1)].
(2)If the information is given orally to such officer, it shall be reduced to writing by the officer himself or under his direction [s.154 (1)].
(3)The information .if given in writing, or if reduced to writing as aforesaid, shall be signed by the Informant [S.154 (1)].
(4)The information as taken down in writing shall be read over to the Informant [S.154 (1)]].
(5)The substance of the information is then to be entered by the Police officer in a book kept by him in the prescribed form [S.154 (1)].

This book is called Station Diary or General Diary (S.44 of the Police Act.1861).
(6)The informant then shall forthwith be given a copy of the information as recorded in the aforesaid manner [S.154 (2)].

Refusal on part of police to register F.I.R.

The principal object of the first information report from the point of view of the Informant is to set the criminal law in motion. And the police cannot refuse to register the complaint nor this power be usurped by the magistrate. This object will be defeated if the police officer in charge of the police station refuses to record the information as required by the above stated  provision of S.154(1).

Here S.154(3) comes into picture which provides that if any person is aggrieved by a refusal on the part of the police officer in charge of a police station to record the information ,he may send by post the substance of such information in writing to the Superintendent of police(S.P) concerned. If the Superintendent is satisfied that the information discloses the commission of a cognizable offence, he shall either investigate the case himself or direct an investigation to be made by a subordinate police officer in the manner provided by the code. Sub section (3) of S.154 further provides that such subordinate police officer investigating the offence shall have all the powers of an officer in charge of police station in relation to that offence.

Important case laws:

It is pertinent to note that information to have the status of first information report under S.154 must be information relating to the commission of a cognizable offence and it must not be vague but definite enough to enable the police to start investigation.

            In State of Haryana v/s Bhajan Lal[,AIR 1992 SC 604] it was held that the condition which is sine qua non for recording a FIR is that there must be an information and that information must disclose a cognizable offence .If any information disclosing a cognizable offence is laid before an officer- in –charge of a police station satisfying the requirements of section 154(1),the said police officer has no other option except to enter the substance thereof in the prescribed form that is to say ,to register a case on the basis of such information.

In the case of State of U.P v/s R.K.Srivastava [(1989)4 SCC 59] the Hon’ble Supreme Court observed that ‘if the allegations made in the FIR are taken at  their face value and accepted in their entirety do not constitute an offence ;the criminal proceeding instituted on the basis of such FIR should be quashed.

Where an anonymous telephonic message did not disclose the commission of a cognizable offence, it was held that such a telephonic message could not be held as FIR [Tapinder Singh v/s State (1970)2 SCC 113].

However it has been observed by the Rajasthan High Court in case of Tohal Singh v/s State of Rajasthan,[1989 Cri LJ 1350(Raj HC )]that ,’if the telephonic message has been given to officer in charge of a police station ,the person giving the message is an ascertained one or is capable of being ascertained the information has been reduced into writing as required under S.154 of Cr.Pc and it is faithful record of such information and the information discloses commission of a cognizable offence and is not cryptic one or incomplete in essential details, it would constitute FIR.

                It is important to note that information in respect of cognizable offence must be recorded before the commencement of investigation, but not otherwise. It was held in case ofLachhman v/s State [1973 CriLJ 1658(HP HC)] that if oral information relating to the commission of a cognizable offence is given to the police officer in charge of a police station, but the same is not recorded and the police officer proceeds to the scene of the offences and there records statement of witnesses, none of such statements would amount to FIR because in such a case the real FIR was unrecorded oral information given to the police by the informant.

However in a case wherein though the police officer went to the scene hearing rumours but recorded a statement at the police station ,it was held that in circumstances of the case that statement could be accepted as FIR.[Pattad Amarappa v/s State of Karnataka, AIR 1989 SC 2004]

A statement recorded by the police in respect of a cognizable offence can be considered and used as FIR, if the same is recorded before the commencement of the investigation, but not otherwise. Simply because the statement was the first one recorded by the police in point of time, would not make it FIR if such a statement was recorded after the commencement of the investigation as held in case of S.V.Nadar v/s State of Mysore[(1980)  1 SCC 479]

                   The relative importance of FIR is far greater than that of any other statement recorded by the police during the course of the investigation. Therefore the question, whether a statement is FIR or is one made after the FIR assumes importance. Considering this aspect the Crpc contains adequate safeguards to ensure its accuracy. Thus S.154 requires the FIR to be recorded verbatim in the very language of the informant (as far as possible), to be read over and explained to him, and to be signed by the informant. The section also makes it obligatory that a copy of the FIR is given to the informant. Section 157 of Crpc further requires the investigating officer to send the FIR at once to the magistrate taking cognizance on police report .Hence ,though subsequent interpolations in the FIR are not unknown, nevertheless the aforesaid provisions to a large extent ensure the accuracy of the FIR.    

Evidentiary Value

The evidentiary value of FIR is far greater than that of any other statement recorded by the police during the course of investigation. It is settled principle of law that a FIR is not a substantive piece of evidence, that is to say, it is not evidence of the facts which it mentions. However, its importance as conveying the earliest information regarding the occurrence cannot be doubted.

Though the FIR is not substantive evidence, it can be used to corroborate the informant under S.157 of the Indian Evidence Act, 1872, or to contradict him under S.145 of the said Act, if the Informant is called as a witness at the time of trial as held in case of Hasib v/s State of Bihar [(1972)4SCC 773] It may however, become relevant under S.8 of the Evidence Act.

Married daughters born before 2005 have equal rights on ancestral property

Married daughters born before 2005 have equal rights on ancestral property - Bombay High Court: In a landmark judgment, a full bench comprising of  Mohit Shah CJ, MS Sanklecha and MS Sonak, JJ. held that the daughters alive on September 9, 2005 would be entitled to equal rights in ancestral property. Earlier, a division bench in the case of Vaishali S. Ganorkar vs. Satish Keshavrao Ganorkar 2012 (5) Bom CR 210 had upheld the prospective operation of the  Hindu Succession (Amendment) Act, 2005 which in effect disentitled all daughters born before 9 September 2005 to claim their equal interest in the Joint HUF. A single bench comprising of RG Ketkar, J. disagreed with the decision of the Ganorkar case and concluded that the amended Section 6 had retrospective effect from the date of the enactment of the Principal Act and is applicable to all daughters who are born before or after 2005 as a daughter becomes a coparcener in her own right by  her birth itself.  When the matter was referred to this Court, the Court agreed with the decision of Justice Ketkar.

The Court clarified that in case the coparcener had died before 2005, then the pre-amended law was applicable but by passing of the Amendment Act, 2005 all daughters who are alive ipso facto become coparceners, thus settling the interpretation of the amended Section 6. The Court observed that the only requirement was that when an Act was being sought to be applied, the person concerned must be alive as the Legislature had specifically used the word ‘on and from the commencement of Hindu Succession (Amendment) Act, 2005.  This was done so as to ensure that rights which are already settled are not disturbed by virtue of person claiming as an heir to a daughter who had passed away before the Amendment Act came into force.

The Court also denied the reference of the Sheeladevi judgment, clarifying that  principle laid down  in  Sheeladevi vs. Lalchand  (2006) 8 SCC 581 that the Amendment Act of 2005 is prospective and would have no application where succession opened prior to the Amendment Act of 2005 coming into force, does not militate against the view taken by them. The Amendment Act of 2005 applies to a daughter of coparcener who is born before 9 September 2005 and alive on 9 September 2005, on which date the Amendment Act of 2005 came into force, and obviously there is no dispute about the entitlement of daughter born on or after 9th September 2005. [Badrinarayan Shankar Bhandari vs. Omprakash Shankar Bhandari, Second Appeal No. 566 of 2011, decided on August 14, 2014]

Some Important Judgement on Dishonour of Cheque

🎓🎓 Dishonour of cheque _ Application filed for sending the disputed cheque to the forensic laboratory for determination of the age of ink of handwriting and also the signature _ Only stating that the disputed cheque was a forged one was not enough _ Some specific stand was required to be taken by the petitioner _ No such foundation has been laid by the petitioner _ Application was rightly rejected. (See 2015 (7) LJSOFT (NAG) 85)

Dishonour of cheque _ Authority to file complaint _ Complaint was signed by the then Branch Manager of Appellant-Bank and a Power of Attorney was also produced _ Subsequently on account of his transfer the Bank examined his successor who also had similar Power of Attorney in his favour _ Power of Attorney in favour of erstwhile manager was exhibited when the verification was recorded _ Fact that the said Power of Attorney was not again exhibited during the course of evidence would not be material _ Impugned judgment set aside and the complaint case is restored (See 2015 (7) LJSOFT (GOA) 38)

Dishonour of cheque _ Liability of company _ Personal cheque issued by Managing Director on his personal account _ Person, who draws a cheque on an account maintained by him, for paying the payee, alone attracts liability _ Company and its Directors cannot be made liable u/s 138 _ No necessity of joining the company as an accused or to prove that the respondent was incharge of the affairs of the company _ Respondent is liable u/s 138. (See 2015 (7) LJSOFT (SC) 2)

Dishonour of cheque _ Petitioner is the husband of respondent no.2-accused and is not a party to the litigation _ Bank manager summoned to produce the bank account of the petitioner _ Calling of bank accounts of the strangers not desirable and are not necessary. (See 2015 (7) LJSOFT (GOA) 13)

SOME IMPORTANT DECISIONS REPORTED IN NOVEMBER, 2015

Abatement of suit _ Suit for partition _ Defendant Nos.3 and 5 died during the pendency of suit _ Legal heirs not brought on record by Plaintiff _ Courts below could not have proceeded to decide the matter on its own merits _ Decree passed by the courts below being against the dead persons to some extent cannot be sustained. (See 2015 (11) LJSOFT 103)

Acquisition of land under MID Act _ Applications filed u/s 28-A of L.A. Act seeking re-determination of compensation on the basis of the award of the Court _ Provisions of Section 28-A of L.A. Act would apply to the acquisitions under the MID Act. (See 2015 (11) LJSOFT (NAG) 49)

Appeal against acquittal by victim _ Requirement of obtaining leave is deleted in the wake of right given to the complainant under Section 372 of Cr.P.C. _ However it does not mean that such appeal is automatically admitted for final hearing _ Appeal preferred by the accused against his conviction u/s 374 can also be dismissed summarily after following procedure prescribed u/s 384 of Cr.P.C. (See 2015 (11) LJSOFT (NAG) 80)

Arbitration proceedings _ Interim reliefs _ Facility agreement _ Default in repayment of loan amount _ Petitioner has simplicitor applied for recovery of the money lent and advanced in the claim filed before the arbitrator _ Interim reliefs claimed u/s 9(ii)(d) in respect of the mortgaged property to secure the amount in dispute in the arbitration _ Court can grant interim measures u/s 9(ii)(b), 9(d) and 9(e) even if the property or things are not subject matter of the dispute in arbitration. (See 2015 (11) LJSOFT 28)

Arbitration proceedings _ Reliefs sought by the Multi-state Cooperative Bank for enforcement of the securities for the purpose of recovering the debts would exclusively fall within the jurisdiction of the arbitrator u/s 84 and thus expressly or impliedly barred from the purview of the jurisdiction of the civil court. (See 2015 (11) LJSOFT 136)

Arbitration proceedings _ Service of notice _ Notices sent by the Registered Post A.D. at the last known addresses of the petitioners _ Same have not been returned by the postal authority _ Would amount to a deemed service of such notices and proceedings. (See 2015 (11) LJSOFT 145)

Auction sale of property _ Auction sale of property _ Petitioner claim to be the joint owner of the property mortgaged towards security _ Petitioner not served with a notice before conducting the public auction _ Prima facie there is a clear violation of the provisions of Rules 8 and 9 of the Rules of 2002. (See 2015 (11) LJSOFT (NAG) 104)

Bail _ Grant of _ Robbery _ Only material against the applicant is in the form of statement of co-accused _ Material against the applicant insufficient to establish any role of the applicant in connection with the crime _ Bail granted. (See 2015 (11) LJSOFT (NAG) 173)

Bail _ Grant of _ Two previous applications were rejected by High Court _ Out of 23 persons except the applicant and one other person all others have been released on bail _ Case of applicant is not very different from some of them who have been released on bail _ Though there exists a prima facie case against the applicant but there are no chances of the trial commencing immediately _ Co-accused similarly placed have already been released on bail _ Court is required to maintain uniformity, as far as possible in its approach in such matters _ Bail granted. (See 2015 (11) LJSOFT 172)

Consent decree passed in year 2000 _ Amount determined by the Executing Court was paid by respondent in October, 2012 _ Appellants filed suit in 2014 for recovery of interest for the delay in paying the amounts _ There is a specific averment that the appellants have been deprived of such amount since the year 2003 _ Any cause of action after the consent decree was passed cannot be treated to be a claim which could be raised in the earlier suit _ Averments do not disclose that the suit is barred by the principles of res judicata. (See 2015 (11) LJSOFT (GOA) 34)

Default bail _ Application filed u/s 439(1) of Cr.P.C. _ No prohibition that the accused cannot raise the ground of default bail u/s 167(2) of Cr.P.C. _ Ground of default of the investigating agency to file charge-sheet within the prescribed period can be resorted to in an application filed u/s 439(1) of Cr.P.C. (See 2015 (11) LJSOFT 27)

Dishonour of cheque _ Complaint not signed by the complainant at the time of its presentation _ Unsigned complaint u/s 138 is maintainable and the signature of the complainant is necessary at the time of its verification and statement u/s 20 of Cr.P.C. _ Impugned order setting aside the order issuing process quashed and set aside. (See 2015 (11) LJSOFT (GOA) 12)

Dishonour of cheque _ Offences by companies _ Partnership firm _ No basic averments in the complaint to indicate that on the date of offence the respondent-accused were the partners of the partnership firm and that they were incharge of and responsible for the conduct of the business of the company _ Partnership firm not arrayed as accused and the statutory notice required u/s 138(b) was not served on the partnership firm _ Order of acquittal proper. (See 2015 (11) LJSOFT 4)

Dishonour of cheque _ Typographical error regarding date of intimation _ Order allowing the typographical mistake is in the nature of interlocutory order _ Revision Application against the said order is not maintainable. (See 2015 (11) LJSOFT (GOA) 11)

Dying declaration _ Endorsement of Doctor is not sine- qua non or a must _ What is essential is the satisfaction of the person who records dying declaration, that the declared was in a fit condition to give statement. (See 2015 (11) LJSOFT 89)

Evasion of stamp duty _ Allegation of not showing the market value of the subject property _ Necessary provisions exist u/s 32(A)(5) in the Stamp Act itself to take care of such situation / contingency _ Notice u/s 32(A)(2) of Stamp Act has already been issued to the applicants on 16.6.2010 _ No propriety in initiating the criminal proceeding against the applicants under the provisions of IPC and more so when there does not seem any cogent, concrete and sufficient material available against the applicants in that regard. (See 2015 (11) LJSOFT (AUR) 10)

Eviction proceedings _ Legal heirs _ Upon death of tenant all his legal representatives would be the joint tenants and not tenants in common _ Whether the suit would be hit for non-joining the daughters of deceased would not be the issue in the present lis in view of the Explanation-VI to Section 11 of CPC _ Suit not hit by non-joinder of necessary parties. (See 2015 (11) LJSOFT (AUR) 68)

Eviction proceedings _ Will _ Tenancy can be transferred only to family members of deceased tenant _ Right of tenancy cannot be bequeathed by the tenant by Will in favour of a stranger. (See 2015 (11) LJSOFT 41)

House trespass _ Assault or causing of hurt which is essential ingredient of Section 452 of IPC neither alleged nor proved _ It would be a case of ‘civil trespass’ as distinguished from ‘criminal trespass’ _ Unlawfully taking possession of the property in somebody else’s possession, simplicitor, has not been made an offence punishable under the IPC or any other law. (See 2015 (11) LJSOFT 125)

Illegal gratification _ Laying trap in Court Premises _ Absolutely improper on the part of the Investigating Agency to have laid a trap without seeking a previous permission of the Hon’ble The Chief Justice. (See 2015 (11) LJSOFT 2)

Illegal gratification _ Sanction for prosecution _ No prohibition in law in seeking assistance from office staff or subordinates as long as the responsibility for reading the relevant facts and reaching satisfaction based on such reading is not shifted or transferred to the subordinate staff _ Prosecution ought to have explained that the sanctioning authority either ignored or considered the direction was submitted by the subordinate together with all relevant material for applying his own mind and accordingly reached his satisfaction in the matter _ As no satisfactory explanation has been offered the adverse inference would have be drawn that the sanctioning authority did not apply his mind and that the sanction order was issued mechanically. (See 2015 (11) LJSOFT 100)

Illegal gratification _ Witnesses in trap cases are specifically expected to, and are told to watch the happening of the events including the sequence thereof carefully _ Variations which might be justifiably ignored as not very material or significant in other cases, may not so easily be ignored in trap cases. (See 2015 (11) LJSOFT 2)

Interpretation of statutes _ Proviso is merely an exception to the main provision _ It cannot be read in a manner that would take away the effect of the main provision as the stream cannot rise higher than its source. (See 2015 (11) LJSOFT (NAG) 106)

Matrimonial disputes _ Wife could not have sent the SMSs to the husband during the pendency of the proceedings specially after the parties had tendered the evidence, oral and documentary _ Wife had admitted that she had sent the SMSs to the husband _ Family Court rightly accepted the said SMSs tendered by the husband on record by taking recourse to the provisions of Section 14 of Family Courts Act. (See 2015 (11) LJSOFT (NAG) 51)

Motor accident _ Compensation _ Income tax returns for the year 1996-97 was filed 6 months after the demise of deceased _ No suggestion whatsoever, was put to the witness that the income mentioned in the said ITR had been inflated after the demise of the deceased _ Respondents - claimants were not put to notice of the said ground which is now sought to be raised _ Income mentioned in the said ITR has virtually gone unchallenged _ Said income of the year 1996-97 can be considered. (See 2015 (11) LJSOFT 24)

Opportunity of hearing _ Laying of electricity transmission line _ Section 164 of Electricity Act does not contemplate any hearing and it need not as it is only an enabling section _ No question of any person being affected by authorisation u/s 164 _ Section 164 cannot be said to be bad in law or violative of principle of fairness or even any fundamental freedom to carry on any occupation, business etc. under Articles 14, 21 and 19(1)(g) of the Constitution of India. (See 2015 (11) LJSOFT (NAG) 63)

Order of investigation _ Nothing remains pending before the Magistrate after such order is made _ Magistrate has further nothing to do and the proceeding u/s 156(3) of Cr.P.C. gets terminated _ Order u/s 156(3) is not an interlocutory order but is a final order terminating the proceeding u/s 156(3) and the revision would lie u/s 397 or Section 401 of Cr.P.C. (See 2015 (11) LJSOFT (AUR) 1)

Production of additional document _ Silence of accused _ Accused may simply keep silence in respect of the document which may as well be an expression of his fundamental right under Article 20(3) of the Constitution of India which says that no person accused of any offence shall be compelled to be a witness against himself _ If accused chooses to deny the document or just remains silent in that regard, the document cannot be admitted in evidence and it would be required to be proved in accordance with law, having regard to the right of the accused under Article 20(3) of the Constitution of India (See 2015 (11) LJSOFT 70)

Quashing of criminal proceedings _ Alleged that forged documents of partition has been filed in pending civil proceedings _ Civil Court is yet to adjudicate the same issue about the documents of partition whether they are true or forged _ Allowing the parallel criminal proceedings to continue on the same issue would tantamount to abuse of process of criminal Court as there is likelihood of conflicting and contradictory findings. (See 2015 (11) LJSOFT (AUR) 9)

Quashing of F.I.R. _ Felling of trees _  Offence u/s 8(1) of the 1975 Act is non cognizable _ FIR could not have been registered. (See 2015 (11) LJSOFT 186)

Rape case _ Appreciation of evidence _ Unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration _ Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of “easy virtues” or a women of “loose moral character” can be drawn _ Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason _ She has a right to refuse to submit herself to sexual intercourse to anyone and everyone. (See 2015 (11) LJSOFT 65)

Recording of common evidence _ Matter u/s 125 of Cr.P.C. and any other Civil Petition filed under the Family Court Act can be tried together _ Common evidence can be recorded in the maintenance matter u/s 125 of Cr. P.C. and any other petition that may be divorce or custody or under maintenance and Guardian Wards Act. (See 2015 (11) LJSOFT 33)

Revisional jurisdiction _ Complaint for the offences u/s 403, 406 and 409 of IPC dismissed u/s 203 of Cr.P.C. _ Revisional Court could have remanded the matter for reappreciation of facts and do the needful but no such direction can be given to the Trial Court to issue process u/s 406, 409 r/w 34 of IPC. (See 2015 (11) LJSOFT 16)

Secondary evidence _ Two things are required to be proved; (i) there must be evidence of the existence of the original documents and (ii) there must be evidence of their loss _ Same cannot be proved unless party concerned is permitted to enter the witness box and/or examine the witnesses who are also subjected to cross-examination by adversarials _ Trial court erred in refusing to grant permission to the party to enter the witness box and/or examine the witnesses. (See 2015 (11) LJSOFT (NAG) 21)

Specific performance of contract _ Limitation _ Computation of _ Time taken to pursue a complaint under the Consumer Protection Act can be excluded in terms of Section 14 of the Limitation Act. (See 2015 (11) LJSOFT (GOA) 81)

Specific performance of oral agreement _ Advance rent _ Prohibition in Section 18(3) of Rent Act applies only to amount taken by way of loan for the purpose of financing residential building and not commercial building. (See 2015 (11) LJSOFT 17)

Suit for permanent injunction _ Plaintiff does not claim to be in possession of the suit property _ Serious disputes raised not only regarding description of property but also in respect of identification of properties and Gat Numbers in consolidation proceedings _ Suit simpliciter for grant of prohibitory injunction against the defendant not maintainable. (See 2015 (11) LJSOFT 97)

Suit for specific performance of agreement of flat purchase _ Defendants unilaterally increased the flat price from 70.83 lakhs to 98.28 lakhs showing it as “Agreement Value” _ No oral terms can be admissible in a written contract u/s 91 of Evidence Act _ Plaintiff is not bound by the unilateral modification of contract by defendants. (See 2015 (11) LJSOFT 50)

Tenancy proceedings _ Death of tenant during pendency of proceedings _ Application for bringing his LRs on record was filed within 90 days period of limitation as prescribed by Article 120 of Limitation Act but no order was passed on that application _ Suit does not abate automatically against the deceased defendant unless there is specific order passed by the Court rejecting such application. (See 2015 (11) LJSOFT 43)

Verification fees _ No prohibition under Rule 16 also for deposit of fees by the licensed repairer _ Impugned letters/circulars dated 22.10.2014 and 27.10.2014 quashed and set aside _ Would be open for the Legal Metrology Officer or the officer authorised to accept the fees deposited by the licensed repairer. (See 2015 (11) LJSOFT (AUR) 132)

SOME IMPORTANT JUDGMENTS ON BAIL UPDATED IN SEPT'15

Anticipatory bail _ Grant of _ Economic offences _ Case based on the accounts and documents which can be procured without custodial interrogations _ If the accounts are not properly maintained and the applicants failed to show its proper utilization, then the prosecution is justified _ However the charges are to be proved mainly on the basis of the documents as it is a matter of accounts and utilization of funds _ Considering the nature of the offence custodial interrogation is not required _ Pre-arrest bail granted. (See 2015 (9) LJSOFT 18)

Anticipatory bail _ Grant of _ Principal accused picked up quarrel with his wife and poured kerosene and set her on fire _ Applicant is her sister-in-law with whom the principal accused was having illicit relations _ Said illicit relationship might have been the cause of quarrel between the husband and wife but the act is attributed solely to principal accused and no act is attributed to the applicant _ Interim pre-arrest bail granted. (See 2015 (9) LJSOFT 8)

Anticipatory bail _ Provision is conceptualised under Article 21 of the Constitution which relates to personal liberty _ Expression “may, if it thinks fit” occurring in Section 438(1) gives discretion to the Court to exercise the power in a particular case or not _ Once such a discretion is there merely because the accused is charged with a serious offence may not by itself be the reason to refuse the grant of anticipatory bail if the circumstances are otherwise justified. (See 2015 (9) LJSOFT (SC) 3)

Anticipatory bail _ Cancellation of _ Charge u/s 376 of IPC added only in the year 2014 regarding the allegations of rape pertaining to period which is almost 17 years ago _ Such a charge is added after a long period of time and inaction of the prosecutrix is also a contributory factor _ Investigation is complete and there is no allegation that the appellant may flee the course of justice _ High Court was not justified in cancelling the anticipatory bail. (See 2015 (9) LJSOFT (SC) 3)

Appreciation of evidence _ Sniffer dog evidence _ Evidence of dog tracking is not substantive evidence _ Identification by the sniffer dog will have to be left out of consideration. (See 2015 (9) LJSOFT 102)

Bailable offence _ Police Custody remand _ Action of causing arrest of applicant immediately after conducting second house search panchanama and taking her into police custody is bad in the eyes of Law _ Offence u/s 201 of IPC by itself is a bailable offence _ Extension of P.C.R. by the Magistrate without appreciating the facts was unwarranted and unjustified. (See 2015 (9) LJSOFT 1)

Bail _ Grant of _ Kidnapping and rape _ Boy and girl having an affair and then they eloped and got married _ Offence of rape can be distinguished on the basis of the intention of the accused _ Factors are to be considered. (See 2015 (9) LJSOFT 37)

Bail _ Grant of _ Re-arrest on jumping bail _ Application is being considered by way of indulgence and by way of one last opportunity considering the fact that the applicant is ready to give an undertaking before the trial Court, that he will attend on every hearing of the case and will not seek any adjournment _ Theft is of Rs.4500/-, and that despite his rearrest on 8-1-2015 charge has not been framed in the said case till today _ Bail granted. (See 2015 (9) LJSOFT 121)

Bail _ Grant of _ Murder _ No role attributed to the applicant at the time of identification _ It is expected in the test identification parade that the witness should give reason for identification and mere identification is not sufficient _ There is no other evidence against the applicant and there is no recovery as well _ Bail granted. (See 2015 (9) LJSOFT 33)

Bail _ Grant of _ Attempt to murder _ Applicants-accused No.1 assaulted the complainant thrice on his head with that the wooden plank _ Other applicants assaulted him with fists and kicks _ There are no criminal antecedents _ Incident of assault has taken place suddenly and it is not a pre-meditated crime _ Bail granted. (See 2015 (9) LJSOFT 23)

Bail _ Grant of _ Murder _ Case of single blow of a stick on account of sudden quarrel between the parties and the applicant was not armed with weapon _ It was a sudden fight and the applicant has no antecedents and he in prison since last one year _ Bail granted. (See 2015 (9) LJSOFT 19)

Some important decision

Divorce - If a spouse abuses the other as being born from a prostitute, this cannot be termed as `wear and tear' of family life as it amounts to cruelty and a ground for divorce. (2015(3) Civil Court Cases 104 (S.C.)

Divorce - Re-conciliation - It is duty of family Court to make endeavour for reconciliation - However, failure to make such endeavour will not ipso facto vitiate a decree. (2015(3) Civil Court Cases 192 (Patna)

Divorce by mutual consent - Wife residing abroad, represented through special power of Attorney, her mother - Wife filed affidavit confirming contents of petition - No suspicious circumstances in affidavit - Personal attendance not required - Divorce granted. (2015(3) Civil Court Cases 853 (A.P.)

Documents not produced alongwith written statement can be allowed to be produced at a later stage when those documents are necessary for adjudication of rival claims of parties. (2015(3) Civil Court Cases 429 (P&H)

Domestic Violence - Interim order - A relief which could be granted at the final stage  cannot normally be granted as an interim measure. (2015(3) Civil Court Cases 548 (Kerala) (DB)

Domestic Violence - Law is being used to terrorize husband, his family and distant relatives and this phenomenon has now acquired the name of `Legal Terrorism' and rightly so given the extent of its misuse, particularly against distant relatives of husband. (2015(3) Civil Court Cases 268 (P&H)

Domestic Violence - Protection order - Violation - Anticipatory bail -  Passing a general or vague order result in unfortunate consequences - Anticipatory bail granted. (2015(3) Civil Court Cases 840 (Kerala)

Electricity - Claim for surcharge - Demand of surcharge beyond period of three years is barred by law of limitation - However, claim of surcharge within period of three years of its claim is not barred. (2015(3) Civil Court Cases 315 (Gauhati)

Enhancement of maintenance - Can be either from date of application for from date of order. (2015(3) Civil Court Cases 863 (Rajasthan)

Ex parte ad interim injunction - Restraining interfering with lawful construction - Not such a exigency that ex parte injunction without issuing notice to the opposite party can be granted. (2015(3) Civil Court Cases 380 (A.P.) (DB)

Ex parte decree - Condonation of delay - Court can direct payment of a portion of the decretal amount or the cost, while setting aside ex parte decree or condoning delay. (2015(3) Civil Court Cases 142 (S.C.)

Ex parte decree - Setting aside - Advocate had gone to Bihar to attend to his ailing brother - Lack of proper details and supporting evidence - Application dismissed. (2015(3) Civil Court Cases 323 (Delhi) (DB)

Ex parte injunction order - Violation  - It is always in the larger interest of parties to the Lis to get the main case decided first on its merits as far as possible rather than to pursue their off-shoot proceedings. (2015(3) Civil Court Cases 598 (S.C.)

Extension of time - Can only be when period for doing an act is fixed or granted by Court and not when period is fixed by a provision of CPC or by any other law. (2015(3) Civil Court Cases 659 (J&K)

Extension of time - Earlier remedy sought in Consumer Forum which did not lack jurisdiction - As remedy sought earlier was not in a wrong forum as such S.14 of Limitation Act is not applicable.  (2015(3) Civil Court Cases 460 (P&H)

Guardian - Appointment - An unwed mother can be appointed as guardian of minor child without issuing notice to putative father. (2015(3) Civil Court Cases 698 (S.C.)

Hire purchase agreement - By itself does not amount to sale of property - An agreement of hire purchase cannot be said to be a sale deed. (2015(3) Civil Court Cases 515 (Allahabad)

Insufficiently stamped document - Both original and secondary evidence excluded - No other evidence to prove terms of instrument is also excluded u/s 91 Evidence Act. (2015(3) Civil Court Cases 014 (All.)

Interest - Agreed to be paid 2% per month - Exorbitant - Interested reduced to 9% p.a. (2015(3) Civil Court Cases 798 (Rajasthan)
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ŠJudgment or order obtained by fraud - Court can recall its own order. (2015(3) Civil Court Cases 438 (Bombay)

Jurisdiction - Corporation/Company can be sued at a place having its sole or principal office and where cause of action wholly or in part, arises at place where it has also a subordinate office at such place. (2015(3) Civil Court Cases 678 (S.C.)

Malicious prosecution - An innocent person harassed by police through unjustified incarceration and prosecution, must be compensated. (2015(3) Civil Court Cases 755 (P&H)

Marriage - Marriages performed in secrecy in office of Advocates and Bar Association Rooms, does not amount to solemnization of marriage within meaning of Ss.7 & 7-A of H.M. Act. (2015(3) Civil Court Cases 213 (Madras)

Medical negligence - Compensation - Newly born baby became blind due to gross negligence of Doctors - Compensation of Rs.1.80 crores granted by indicating apportionment of liability in between the State and doctors. (2015(3) Civil Court Cases 557 (S.C.)

Medical negligence - Compensation cannot be calculated by using the multiplier method. (2015(3) Civil Court Cases 557 (S.C.)

Mutation entries do not convey or extinguish any title. (2015(3) Civil Court Cases 278 (S.C.)

Non-production of documents, relied upon, with plaint - Such lapse is curable upon obtaining leave of Court. (2015(3) Civil Court Cases 318 (A.P.)

Notice - Sent by registered post received back with postal endorsement of `refusal' - There is presumption of service of notice unless rebutted - When sendee/addressee denies service of registered letter then onus to produce postman is on him. (2015(3) Civil Court Cases 297 (Allahabad)

Notice u/s 106 TPA - Service of summons in the suit can be held as notice u/s 106 of the Act for terminating tenancy. (2015(3) Civil Court Cases 275 (Delhi)

Part performance - In pursuance of a contract to transfer for consideration, in writing, which though required to be registered, has not been registered, the transferee has no right to remain in possession of the property. (2015(3) Civil Court Cases 399 (Kerala) (DB)

Part performance - Possession - Protected only when possession is delivered under a written agreement to sell and not when possession is delivered under an oral agreement to sell. (2015(3) Civil Court Cases 275 (Delhi)

Party as a witness - Can appear after examination of its witnesses - Subject to the condition that party seeks permission of Court. (2015(3) Civil Court Cases 470 (H.P.)

Party as a witness - Prior permission is required to be taken in case party is to be examined after examination of other witnesses - Even if prior permission of Court is not taken before commencement of trial, it shall be sought at least before the party is examined - Such permission can only be granted by setting out reasons in writing - Breach of the rule be viewed seriously and may result in eschewing the evidence of the parties, if no permission is taken to examine the party after examination of witnesses - This direction will apply in all future cases. (P&H) 495

Pleadings - Amendment - A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of rules of procedure - Court always gives relief to amend the pleading of the party, unless it is satisfied that party applying was acting malafide or that by his blunder he had caused injury to his opponent which cannot be compensated for by an order of cost. (2015(3) Civil Court Cases 332 (S.C.)

Production and marking of documents - Law as to - Analysed - In order to avoid delay in the trial of suit, Court can tentatively mark a document and examine its admissibility and objection raised to it along with pronouncement of judgment. (2015(3) Civil Court Cases 337 (A.P.)

Registration - Power to question right or ownership over the property is beyond the scope of enquiry contemplated under Registration Act - Competency to present a document alone can be disputed - Power to question competency cannot be equated with power to

IMPORTANT DECISIONS

Admissibility of a document - Entirety dependent upon recitals contained in the document - Nomenclature given to the document is not decisive factor - Nature and substance of the transaction has to be determined with reference to the terms of the document. 2015(4) Civil Court Cases 578 (S.C.)

Adverse possession - Question of establishing settled possession does not arise in relation to the properties that already stood cleared of any structures by demolition of whatever stood on the same. 2015(4) Civil Court Cases 625 (S.C.)

Bail - Cancellation and annulment - Cancellation of bail can be on any kind of supervening circumstances or breach of any conditions imposed - Whereas annulment of order of bail is when Court granting bail has failed to take into consideration the relevant material factors which would make the order absolutely perverse and totally indefensible - In the instant case bail granted as many relevant factors not taken into consideration which includes criminal antecedents of accused, which makes the order a deviant one and the inevitable result is lancination of impugned order - Order granting bail set aside. 2015(4) Criminal Court Cases 293 (S.C.)

Illegal gratification - Failure to prove demand of illegal gratification is fatal to prosecution case. 2015(4) Criminal Court Cases 536 (S.C.)

Service - Illegal gratification - Dismissal from service on the basis of departmental enquiry - Acquittal in criminal case does not automatically give right to employee to be reinstated into service. (2015(3) Apex Court Judgments 489 (S.C.)

Service - Promotion cannot be denied on the basis of uncommunicated ACRs. (2015(3) Apex Court Judgments 393 (S.C.)

Service - Temporary employee - Cannot be allowed to continue in service when very purpose for which he was employed does not survive. (2015(3) Apex Court Judgments 500 (S.C.)