Unity Law College,Rudrapur

24/04/2018

"All birds find the selter during the rain but the eagle avoids the rain by flying above the clouds - problems are common but the attitude makes the difference."
You all Unity Law College meritorious students made the difference, Congratulations and keep it up.
1. Sonia Kaur - B.A.LL.B. VII Sem. - 71.8%
2. Tanisha Setia - B.A.LL.B. IX Sem. - 70.8%
3. Ankur Agarwal - LL.B. III Sem. - 68.2%
4. Manas Agrawal - LL.B. I Sem. - 67.6%
5. Vaishali Chhabra - B.A.LL.B. I Sem. - 67.2%
6. Sony Maria Joseph - LL.B. V Sem. - 66.4%
7. Rajni Rangwal - B.A.LL.B. V Sem. - 66.8%

17/01/2017

Acquittal of husband and his family members in dowry demand case held, is no ground to deny maintenance to the wife and child

High Court of Punjab and Haryana: While deciding upon the challenge to the orders of the Judicial Magistrate Ist Class, Hansi and the Addl. Sessions Judge, Hisar passed in relation to a maintenance petition under Section 12 of the Protection of Women against Domestic Violence Act, 2005, the Bench comprising of Anita Chaudhry, J. held that the acquittal of the petitioner and his family members in dowry demand case is no ground to deny maintenance to the wife and the child.

In the present case the wife had filed a petition under Section 12 of the 2005 Act for maintenance alleging therein that she and her son were unable to maintain themselves after the husband had levelled charges of adultery against her and denied the paternity of the son born out of wedlock, thus claiming compensation, a protection order, residency order and maintenance from the husband. The husband resisted the claim on the ground that the wife had willfully deserted him and that she was a lady of easy virtue and even denied the paternity of the son. He denied the responsibility of the wife and the child. It was claimed that the wife was working in Anganwari and getting Rs. 3000 as salary, besides getting Rs. 750 as pension from the Government. Thereby the husband challenged the legality and validity of the orders passed by the Judicial Magistrate and the Addl. Sessions Judge who allowed the wife’s petition for maintenance.

The Court while examining the contentions of the parties held that the petitioner while averting the chastity of the respondent and the paternity of the son, had produced no material evidence to substitute his plea. The Court pointed out that with such baseless and unproved allegation it was impossible for the respondent to live with the petitioner however the respondent in a bid to restore her married life withdrew the maintenance petition as well as criminal complaint in 2004 but was turned away again from her matrimonial home and was hence living separately since then. The Court further observed that it is not possible for the respondent to cohabit with petitioner in such terrible and unnerving predicaments hence the directions of the learned Magistrate providing for maintenance and residential accommodation to the respondent are just and proper.

While deciding in favor of the respondent and dismissing the appeal the Court held that acquittal of the petitioner and his family members in dowry demand case is no ground to deny maintenance to the wife and the child. The petitioner cannot be absolved of his liability to maintain the wife and the child on this score. The case in hand is required to be decided on the preponderance of probabilities and no strict standard of proof is required to be proved.

Ruling upon the issue of quantum of maintenance payable under Section 12 of the Protection of Women against Domestic Violence Act, 2005, the Court held that since the son has attained majority, he is not legally entitled to claim any maintenance hence the amount of maintenance granted in the order of the Judicial Magistrate and the Sessions Judge has to be adjusted accordingly after deducting half- share of the child in the maintenance amount. [Narender v. Sunita, 2016 SCC OnLine P&H 7608, decided on September 20, 2016]

17/01/2017

HOW TO TAKE ACTION AGAINST POLICE OR MAGISTRATE FOR 498A ARREST WITHOUT FOLLOWING CRPC 41, 41A

Although most of the time I see that the people joining men’s forums are not getting arrested upon 498A FIR, there are a few who have been arrested. I think they are aware of the SC judgment against arbitrary arrest in 498A, but haven’t taken any action against police/magistrate after that. The Arnesh Kumar SC judgment is already blogged here which gives full judgment text of “no automatic arrests in 498A” judgment by Supreme Court on Jul 2, 2014. This post is meant for anyone who got arrested under 498A after Jul 2, 2014, and wants to do something about it.

After the above judgment has come into force, based on my assessment from calls received, the number of arrests under 498A seem to have come down by 70-80% at least. We cannot be sure of the exact statistics until NCRB (National Crime Records Bureau) releases its update of crime statistics which incorporate data after Jul 2014. It’s also possible that in some states like West Bengal, Bihar, Jharkhand, many of the falsely accused don’t call men’s rights helplines, so with lower awareness of citizens’ rights the number of arrests may be more; and also we don’t get to hear about many of those arrests.

Below, I give the main points from SC judgment, and basic scenarios how police may behave after 498A FIR is filed; and how to complain to authorities if you were unjustifiably arrested after filing of IPC 498A case after Jul 2, 2014. Note that it is possible that along with IPC 498A there was another IPC section in complaint which has more than 7 years punishment, so the SC judgment on 498A/7 years limit may not be applicable.

In the Arnesh Kumar SC judgment, the 6 points at end of the judgment give all the steps which police needs to follow in line with CrPC 41 and 41A; those 6 points are reproduced verbatim below:

(1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;

(2) All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

(3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

(4) The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

(5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

(6) Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

Now after the above 6 points, follow the main points (7) and (8) in the Arnesh Kumar SC judgment (the headlines are mine, not part of judgment), which defined what action can be taken against police or magistrate or both of them.

Penal actions on police for arbitrary arrests under IPC 498a (and other offences up to 7 years punishment)

(7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

Penal actions on magistrates for routinely allowing arrests without scrutiny

(8) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

So what you need to do is check if the points (1) to (6) were followed or not fully. If not, then using points (7) and (8) above you can approach senior police or high courts against police and magistrates for action against them. Below is how various combination of scenarios will work out in any 498A case.

Possible scenarios after 498A FIR is filed with respect to police and CrPC 41, 41A

1. Happy scenario of law abiding police: Police follows CrPC 41 and 41A procedures, and sends notice of appearance under CrPC 41A to accused husband/his family. This seems to be happening in most of cases these days. If the accused cooperate, the police cannot do anything except call them maybe couple of times and take their statement etc.

2. Law abiding police, but accused go into hiding: Police follows CrPC 41 and 41A procedures, and sends notice of appearance to accused husband/his family. The accused husband/family lose nerve fearing arrest, and instead of complying with notice, they go absconding trying to get an anticipatory bail in the meantime. As per law (don’t ask me about the CrPC sections, I am not studying to become a lawyer), they can be declared absconders from law. If they get anticipatory bail while absconding, well and good, but if they don’t, then they will have no choice left but appear in front of court and surrender, and hope to get bail same day or else get remanded to judicial custody. In most places, people get bail after 3 days maximum but in few dark corners of India where men’s rights has not penetrated fully, it may happen only after 14-15 days.

3. Police follows oppressive tactics: Police does not follow CrPC 41 and 41A procedures, and arrest husband/family members arbitrarily and without reason, and police has no good evidence to show to court why arresting the accused was necessary. Now when the accused are produced in front of magistrate, the magistrate has to look at the 6 points given above in Arnesh Kumar SC judgment, and if those points were not followed, then point (7) of the judgment can be used against police. The magistrate finds from the records given by police that they did not follow the CrPC 41A procedure, and grants bail to accused, and also orders for departmental action against police personnel. In fact, in order pasted at end of post, the Punjab and Haryana HC has done exactly that and started departmental action against police personnel by following point (7) of judgment.

4. Police oppressive, magistrates sleeping on job: Same scenario as in point 3 above, where police does not follow CrPC 41 and 41A procedures, and arrest husband/family members arbitrarily and without reason, and police has no good evidence to show to court why arresting the accused was necessary. But what happens now is that the magistrate also does not do the job as he is expected to do, and does not check whether police recorded reasons for arrest, and/or whether the reasons recorded for arrest were justified or not. Now in this case, both police and magistrate have failed and they are both liable for penal action against them. Now along with point (7) against police, point (8) against magistrate will also come into play.

How to initiate action against police or magistrate

1. The complaint against police will lie as both a departmental action started by senior police officers, and a contempt of court complaint in high court having jurisdiction over the police station. One should start with departmental action at the least.

2. The complaint against magistrate can be filed to the High court registrar/administrative department of high court having jurisdiction over magistrate’s court.

Lastly, the Arnesh Kumar SC judgment is applicable for all offences with punishment upto 7 years, not just IPC 498a. So its scope is much wider and it is really against arbitrary exercise of power of arrest by police and it’s routine authorisation by judiciary rather than just misuse of 498A.

28/05/2016

24/05/2016

Today is your day. Your mountain is waiting. So get on your way.
- Dr. Seuss

13/05/2016

Say something about this photo

05/05/2016

Passion is energy. Feel the power that comes from focussing on what excites you.
- Oprah Winfrey

27/04/2016

If everything was perfect, you would never learn and you would never grow.
- Beyonce

17/04/2016

A smile is happiness you’ll find right under your nose.
- Tom Wilson

09/04/2016

A dog is the only thing on earth that loves you more than you love yourself.
- Josh Billings

02/04/2016

【 एल.एल.बी. की पढ़ाई 】

प्रोफेसर : "अगर तुम्हें किसी को संतरा देना हो, तो क्या बोलोगे...?

छात्र : "ये संतरा लो...।

प्रोफेसर : नहीं...

एक वकील की तरह बोलो...।

छात्र : मैं हेतराम पुत्र चेतराम निवासी गाँव शिकारपुर, यू०पी० एतद् द्वारा,

अपनी पूरी रुचि व होशो-हवास में और बिना किसी के डर एवंम दबाव में
आए

इस फल, जो कि संतरा कहलाता है,

और जिस पर मैं पूरा मालिकाना हक़ रखता हूँ,

को उसके छिलके, रस, गूदे और बीज सहित आपको देता हूँ

और इसके साथ ही आपको इस बात सम्पूर्ण व बिना शर्त अधिकार भी देता हूँ कि

आप इसे काटने, छीलने, फ्रिज में रखने या खाने के लिये पूरी तरह स्वतंत्र हैं...।

आप यह अधिकार भी रखेंगे कि

आप किसी भी अन्य व्यक्ति को यह फल

इसके छिलके, रस, गूदे और बीज के बिना या उसके साथ दे सकते
हैं..।

मैं घोषणा करता हूं कि

आज से पहले इस संतरे से संबंधित किसी भी प्रकार के वाद विवाद, झगड़े की समस्त जिम्मेदारी मेरी है

और आज के बाद मेरा किसी भी प्रकार से इस संतरे से कोई सम्बन्ध नहीं रह जाएगा...।

प्रोफेसर : प्रभु आपके चरण कहाँ हैं...?😄