Advocate Sachin Shirke

29/04/2018

1. *Lalita Kumari v. State of UP*
:FIR mandatory in cognizable cases

2. *Mohd. Ahmad Khan vs Shah Bano Begum*
:Section 125 of CrPC Secular

3. *D.K. Basu v. State of Bengal*
:SC guidelines relating to rights of the arrested person

4. *Nilabati Bahera v. State of Orissa*
:Compensation in case of unlawful arrest and detention

5. *Sheela Barse v. State of Maharashtra*
:Rights of women relating to arrest

6. *Joginder Kumar v. State of UP*
:SC guidelines relating to rights of the arrested person

7. *Chanmuniya v. Virendra Kumar Singh Kushwaha*
:Right of maintenance in Live-in-Relationships

8. *Shiv Shankar Singh v. State of Bihar*
:Filing of Multiple FIR

9. *Satya Pal Singh v. State of MP*
:Father of deceased victim has right to appeal

10. *State of UP v. Singhara Singh*
:Section 164 by necessary implication prohibits the magistrate from giving oral evidence of the confession made to him

11. *State of Madhya Pradesh v. Rustum*
:Computation of period of 60/90 Days u/s 167 of CrPC

12. *CBI v. Anupam J. Kulkarni*
:Police Remand can not exceed 15 Days

13. *Mubarak Ali v. State of Bombay*
:Offence triable where the act is done

14. *Shakuntala Devi v. State of U.P.*
:Availability of Civil Remedy does not bar filing of a case u/s 200 of CrPC

15. *Dina Nath v. Emperor*
:No summary trial in serious or complicated cases

16. *Surendra Singh v. State of UP*
:Where a Judge who wrote the Judgment dies before it was delivered or pronounced, another Judge can not deliver it

17. *Naresh v. State of UP*
:Alteration of Conviction u/s 302 IPC to one u/s 304 IPC by HC is not justified u/s 362 of CrPC

18. *Ashok Kumar v. UOI*
:Constitutional validity of Section 433-A of CrPC

19. *Rasiklal v. Kishore Khanchand Wadhwani*
:Right to bail u/s 436 in bailable offences is an absolute and indefeasible right

20. *Gurbaksh Singh Sibbia v. State of Punjab*
:SC guidelines relating to anticipatory bail

21. *Jagdish Ram v. State of Rajasthan*
:Quashing of FIR on account of delay

22. *State of MP v. Madan Lal*
:No compromise in R**e cases

23. *Manohar Singh v. State of Rajasthan*
:Compensation to victim of Crime

24. *S.R. Sukumar v. Sunnad Raghuram*
:Amendment in complaint can be done

25. *Siddaharth Vashisht v. State(NCT of Delhi)*
:Cryptic Telephonic Message of a cognizable offence not to be treated as F.I.R

28/04/2018

🌐 *_Presumption of possession over an open land always is deemed to be that of owner and not of a trespasser_*

The concept of possession is an abstract one. The ordinary presumption is that possession follows title. Presumption of possession over an open land always is deemed to be that of the owner and not of a trespasser. An open place of land shall be presumed to be in possession of the owner unless it is proved by the trespasser that he had done some substantial acts of possession over the land which may excite the attention of the owner that he has been dispossessed. As indicated above, an owner of an open land is ordinarily presumed to be in possession of it and this presumption becomes strong in his favour when the defendant fails to establish the ground on which he claims to have come in possession.
The presumption that possession goes with the title is not limited to particular kind of cases where proof of actual possession is impossible on account of nature of the land, such as boundary land, forest land or submerged land. The presumption applies to all kinds of lands. Where plaintiff proves his title, but not any act of possession and the defendant does not prove possession except unnoticed user of small part of land, the presumption that possession follows title will come into play.
Equivalent Citation : AIR 1998 Guj 17

*IN THE HIGH COURT OF GUJARAT*
Second Appeal No. 137 of 1985
Decided On: 10.04.1997

*Navalram Laxmidas Devmurari Vs.Vijayaben Jayvantbhai Chavda*
Hon'ble Judges/Coram:
J.M. Panchal, J.

19/04/2018

Some Useful Citations to help in your 498A case are mentioned below:

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Jurisdiction Citations:

1. Manish Ratan and Ors. Vs State of M.P and Anr. Reported in 2007 volume-1 SCC 262.

2. Y. Abraham Ajith and Others Vs. Inspector of Police, Chennai and Another reported in
2004, SCC Crl-2134.

3. Satvinder Kaur vs. State (Govt. of NCT of Delhi) (1999) 8 SCC 728

4. Bhanu Ram and Ors. Vs State of Rajasthan 7 Anr in CASE NO: Appeal (crl.) 587 of
2008 [arising out of Special Leave Petition (Crl.) No. 79 of 2006).

5. Sonu and Ors Vs Govt. of NCT of Delhi and Anr. in W.P (Crl.). No.1266/2007, Decision
on 10.10.2007.

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Discharge U/s 239 CrPC:

1. State of Karnataka v. L. Muniswamy AIR 1977 SC 1489

2. State of Maharashtra and Ors. v. Som Nath Thapa and Ors. AIR 1996 SC 1744

3. Omwati and Anr Vs. State AIR 2001 SC 1507

4. Kanti Bhadra Shah and Anr. Vs. State of W.B. AIR 2000 SC 522

5. Stree Atyachar Virodhi Parishad Vs. Dilip N. Chartia 1989 (1) SCC 715

6. State of Bihar vs. Ramesh singh AIR 1977 SC 2018

7. Supdt. S. Remembrancer of legal affairs W.B. Vs. Anil Kumar Bhunja- AIR 1989 SC 52

8. Satish Mehra Vs. Delhi Admn. (1996)9 SCC 766

9. State of M.P. v. Mohanlal Soni AIR 2000 SC 2583

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Allegations do not attract Section 498A IPC:

1. State of H.P.V Nikku Ram & Ors 1995 (6) SCC 219

2. V.Bhagat Vs. Mrs.D.Bhagat AIR 1994 SC 710

3. CRIMINAL APPEAL NO. 299 OF 2003 MANJU RAM KALITA vs. STATE OFASSAM

4. Mohd. Hoshan v. State of A.P.; (2002) 7 SCC 414

5. Girdhar Shankar Tawade v. State of Maharashtra, AIR 2002 SC 2078

6. Dr.N.G.Dastane Vs. Mrs.S.Dastane (1975) 2 SCC 326

7. Richhpal Kaur v. State of Haryana and Anr. 1991 (2)

8. Smt. Sarla Prabhakar Waghmare v State of Maharashtra & Ors 1990 (2) RCR 18

9. Shobha Rani v Madhukar Reddy AIR 1998 SC 121

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Material evidence required on demand of dowry:

1) M. Srinivasulu v. State of A.P., AIR 2007 SC 3146,

2) Ran Singh and Anr. Vs. State of Haryana and Anr, Case no. appeal (Crl) 222 of 2008
arising out of SLP (Crl.) No. 3089 of 2006

3) Appasaheb & Anr. v. State of Maharashtra, AIR 2007 SC 763,

4) Shivanand Mallappa Koti v. State of Karnataka, AIR 2007 SC 2314,

5) Sukhram v. State of Maharashtra, AIR 2007 SC 3050,

6) Hira Lal & Ors. v. State (Govt. of NCT), Delhi, AIR 2003 SC 2865.

7) Kaliyaperumal & Anr. v. State of Tamil Nadu, AIR 2003 SC 3828.

17/04/2018

In M. K. Tirupathi Rao VS. D. G. M. Syndicate Bank.. Zonal Office.. Hyd.. reported in 2016 (3) ALT 363 (DB) , Our HC has Ruled on the scope of PRESUMPTION narrated under Sec. 114 R/W Sec. 16 of the Evidence Act.. 1872 as to Service of Notice., and Held as follows : "According to Sec. 14 of Indian Post Office Act.. 1898 r/W Sec. 16 of the Evidence Act , when a registered letter is sent to a person and it is returned by Postman with the endorsement 'ABSENT', the endorsement is a prima facie evidence of taking the said letter to the address of the person noted on the Regd. Cover. In view of the provisions of Sec. 114 Illustration (f) of the Evidence Act and Sec. 27 of General Clauses Act.. 1897 , there is a Presumption that the Addressee Has Received the letter sent by Regd. post. "

08/04/2018

Whether husband is entitled to get property of deceased wife if she had inherited said property from her parents?Posted on02/04/2018 byMyNation Leave a commentIn the High Court of BombayCivil Appellate Jurisdiction(Before Shalini Phansalkar-Joshi, J.)Tarabai Dagdu Nitanwarev.Narayan Keru NitanwareWrit Petition No. 14090 of 2017Decided on January 15, 2018Citation: 2018 SCC OnLine Bom 91 : (2018) 2 Mah LJ 242 : (2018) 2 AIR Bom R 98The Judgment of the Court was delivered byShalini Phansalkar-Joshi, J.:— Heard learned counsel for the petitioners and learned counsel for the respondent.2. Rule.3. Rule returnable forthwith with the consent of both parties and the petition is heard finally.4. By this petition, filed under Article 227 of the Constitution of India, the petitioners are challenging the order dated 28.11.2016, passed by the 2nd Joint Civil Judge Junior Division, Pune, below exh.31. The said application was filed by the petitioners for rejection of the plaint under Order VII Rule 11(d) of Code of Civil Procedure.5. The petitioners are the originals defendants in the suit. It was submitted by them that respondent had filed suit for declaration, partition and injunction in respect of the suit properties claiming that respondent-plaintiff No. 1 is the husband of deceased Sundarabai and plaintiff Nos. 2 to5 are her sons and daughters. According to the petitioners, deceased Sundarabai has died issue-less on 18.6.1962. Plaintiff Nos. 2 to 5 are not born to her, but as admitted byrespondent himself, these children are born from his second wife. In view thereof, it is submitted that as properties were admittedly received by deceased Sundarabai from her parents, neither respondent husband nor plaintiff Nos. 2 to 5 had any shares in the said properties and therefore, there was no cause of action to file suit and hence plaint was liable to be rejected under Order VII Rule 11(d) CPC.6. The trial Court accepted the fact that deceased Sundarbai was not the mother of plaintiff Nos 2 to 5 as they were born from second wife of respondent. The trial Court, therefore, also accepted the fact that plaintiff Nos 2 to 5 cannot claim any share in the suit properties which were admittedlyproperties received by deceased Sundarabai from her parents. Accordingly, trial Court rejected plaint in respect of the claim of plaintiff Nos 2 to 5. However, as regards respondent – the husband of Sundarabai, the trial Court held that the claim raised by him needs adjudication and therefore, application at Exh.31 was allowedpartly.7. The petitioners thereafter preferred application at Exh.40 for review of the said order. The trial Court, however, rejected the said application, elaborating that as apart from the relief of partition, respondent has also claimed the relief of declaration and cancellation of heir-ship certificate granted in Misc. Application No. 6 of 1997, these reliefs need to be decided on merits and require adjudication.8. While challenging this order of the trial Court, the submission of learned counsel for petitioners is that once it is held that plaintiff Nos 2 to 5 are not the children of deceased Sundarabai, then it follows that respondent also cannot have any share in the suit property in view of provisions of section 15(2)(a) of the Hindu Succession Act, 1956.9. As regards the other reliefs which respondent is claiming in respect of the heir-ship certificate issued in Misc. Civil Application No. 6 of 1997 as not binding on him, it is submitted that if respondent is not the legal heir of deceased Sundarabai, he also cannot have any locus to challenge theheir-ship certificate.10. Per contra, learned counsel for respondent has supported the impugned order passed by the trial Court for the reasons stated therein.11. In order to appreciate the rival submissions advanced by learned counsel for petitioners and respondent, in my opinion, it would be necessary to consider the provisions of section 15 of the Hindu Succession Act, which are reproduced, for ready reference, as follows:—“15. General Rule of succession in case of female Hindus-B(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16-(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;(b) secondly, upon the heirs of the husband;(c) thirdly, upon the mother and father;(d) fourthly, upon the heirs of the father; and(e) lastly, upon the heirs of the mother.(2) Notwithstanding anything contained in sub section (1)-(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absenceof any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub section (1) in the order specified therein, but upon the heirs of the father; and(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased sonor daughter) not upon the other heirsreferred to in sub section (1) in the order specified therein, but upon the heirs of the husband.”12. Thus, as per sub section (2) of section 15, notwithstanding anything contained in sub section (1), any property inherited by a female Hindu from her father or mother, shall devolve, in the absence of any son or daughter of the deceased not upon the legalheirs referred in sub section (1) in the order specified therein, but upon the heirs of the father. This provision, thus, clearly excludesthe husband from inheriting the property received by a female Hindu from her parents if she was not having any children or has died issueless.13. In the instant case, admittedly the suit property was received by deceased Sundarabai from her parents and admittedlyplaintiff Nos. 2 to 5 are not her children as they are born to respondent from his second wife. Therefore, it follows that Sundarabai has died issue-less and in such situation, in the absence of her son or daughter, her husband also cannot inherit her property and the property will devolve upon the legal heirs of her father. Respondent being her husband and not the legal heir of her father, cannot get any sharein the property left behind by Sundarabai. Therefore, he has no cause of action to file the suit for partition of Sundarabai’s property. The trial Court should have, hence rejected the plaint not only in respect of plaintiff Nos. 2 to 5 but also in respect of respondent.14. The only ground on which trial Court hassurvived the claim of respondent is that, in addition to claiming the relief of partition in the property left behind by Sundarabai, respondent has also claimed the relief of declaration that heir-ship certificate obtained in Misc. Application No. 6 of 1997 is not binding on his share and secondly forthe relief of injunction restraining petitioners from creating third party interests therein. However, in this respect also, it is not disputed that heir-ship certificate in Misc. Application No. 6 of 1997 is obtained by the legal heirs of the father of deceased Sundarabai. Respondenthas nothing to do with the said certificate, once it is held that he cannot raise any claim in respect of the property left behind by deceased Sundarabai as that property is bound to go to legal heirs of her father. Hence, even in respect of these reliefs also, it has to be held that respondent has no cause of action to file the suit.15. The impugned order passed by the trial Court, holding the suit maintainable qua the respondent needs to be quashed and set aside.16. Accordingly Writ Petition is allowed.17. The impugned order passed by the trial Court holding the suit maintainable qua respondent is quashed and set aside. As a result, the application at Exh.31 filed by the petitioners for rejection of the plaint is allowed against all the plaintiff Nos. 1 to 5. The plaint accordingly stands rejected under Order 7 Rule 11(d) CPC.18. Rule made absolute in above terms.

03/04/2018

2011(3) SCC 545 : Parimal vs Veena @ Bharti : order 9 Rule 13 CPC : while deciding whether there is a sufficient cause or not , Court must bear in mind the object of doing substantial justice to all the parties concerned . Technicalities of law should not prevent the court from doing substantial justice and doing away illegality perpetuated on the basis of judgement impugned before it

02/04/2018

*Contempt of court: Categories, Punishment*

Contempt of court is the offense of being disobedient to or towards the court of law and its officers which can be in any form of behavior that opposes or challenges the authority, justice or dignity of the court. Generally, contempt takes the form of actions which are seen as harmful to the ability of the court to manage justice.

There are two types of contempt of court namely criminal contempt and civil contempt.

1. Civil Contempt

Section 2(b) in the Contempt of Courts Act, 1971

(b) “civil contempt” means willful disobedience to any judgment, decree, direction, order, writ or another process of a court or wilful breach of an undertaking given to a court;

2. Criminal contempt

Section 2(c) in the Contempt of Courts Act, 1971

(c) “Criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which—

(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or

(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;

Judges consider different factors while deciding whether to hold someone in criminal or civil contempt which includes the nature of the fundamental court proceeding and the severity of the behavior of contemnor.

Section 12 in the Contempt of Courts Act, 1971

12. Punishment for contempt of court.—

(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both: —(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both\:" Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court. Explanation.—An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.

(2) Notwithstanding anything contained in any other law for the time being in force, no court shall impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of itself or of a court subordinate to it.

(3) Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit.

(4) Where the person found guilty of contempt of court in respect of any undertaking given to a court is a company, every person who, at the time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of business of the company, as well as the company, shall be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of each such person: Provided that nothing contained in this sub-section shall render any such person liable to such punishment if he proves that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission.

(5) Notwithstanding anything contained in sub-section (4), where the contempt of court referred to therein has been committed by a company and it is proved that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of such director, manager, secretary or other officer.

01/04/2018

*_HEADNOTE IMPORTANT DECISIONS_*

*_01:- Agreement to sell - If buyer does not improperly decline to accept delivery of property, a charge is created over the property for the amount of advance sale consideration - Question as to whether agreement for sale is registered is irrelevant. (2016(1) Civil Court Cases 821 (Kerala)_*

*_02:- Condonation of delay - Delay attributed to moving of file from one Department/officer to the other - Not sufficient explanation for condoning abnormal delay. (2014(1) Apex Court Judgments 200 (S.C.)_*

*_03:- Cruelty - Live in relationship - Accused acquitted as parties had not undergone some sort of ceremonies with the object of getting married and they just started living as man and wife. (2018(1) Criminal Court Cases 166 (Kerala)_*

*_04:- Divorce - Charge of adultery is serious charge and if not proved would constitute cruelty. (2017(1) Civil Court Cases 323 (Delhi)_*

*_05:- Dowry death - Failure to prove cause of death - Accused acquitted. (2014(1) Criminal Court Cases 579 (S.C.)_*

*_06:- FIR - No delay in lodging FIR - Question of its manipulation does not arise. (2016(1) Criminal Court Cases 070 (S.C.)_*

*_07:- Judgment on admission - Suit for possession - Plea of ownership on the basis of registered sale deed - Plea of misrepresentation - Such defence is of no avail till sale and lease documents are declared null and void - Judgment on admission passed. (2018(1) Civil Court Cases 085 (Delhi)_*

*_08:- Maintenance u/s 125 Cr.P.C. - Cannot be denied to wife on the ground that husband has no means of income - Husband is duty bound to maintain his wife and for that he may even work as a labourer or do any other kind of lawful work. (2016(1) Civil Court Cases 694 (J&K)_*

*_09:- Revision - Order of discharge - When such order results in miscarriage of justice, private party or complainant in a case instituted on police report has right to revision against such order. (2018(1) Criminal Court Cases 262 (Gauhati)_*

*_10:- Will - Probate - Limitation - Cause of action commences not from the date of death of testatrix but it is from the date of denial of validity of Will by objectors. (2018(1) Civil Court Cases 051 (Delhi)_*

31/03/2018

*SC:Second Appeal, exercise of Jurisdiction - S.100 of Civil Procedure Code (1908).*

Second appeal - Scope of exercise of jurisdiction - Suit for mandatory injunction for removal of encroachment allegedly made by neighbouring land owner on portion of suit land - High Court did not deal with all substantial questions of law - But provided an arrangement to meet ends of justice and avoid further litigation between parties- Nature of arrangement is such that it would not affect rights of defendants in any manner- Held, it is not necessary for High Court to deal with all substantial questions of law - High Court not exceed it's jurisdiction in making such arrangement._

Case:
*Poonnamma Jagadamma Vs. Narayanan Nair*

Citation:
*2018 ALL SCR 324.*
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30/03/2018

Punishment for murder is death or life imprisonment, Supreme Court [Read judgment]

The Supreme Court today held that the punishment for murder as per Section 302 of Indian Penal code is death or life imprisonment and any punishment less than the life imprisonment is illegal and without the authority of law.

28/03/2018

*SC:Joint family, Tenants-in-common - but still if they are in joint possession of property, the same would vest in all of them, although the certificate may be granted in favour of only one.*

Joint family - Members of, if joint tenants or tenants-in-common - Partition - Non-Mitakshara joint family in S. 2(A)(17) of 1961 Act - Proprietary rights in jointly possessed property - Nature and vesting of - Maintainability of partition suit - Effect of grant of occupancy certificate in favour of only one member.

A joint family under S.2 (A) (17) may consist of a group of persons - Held, thus, they need not be joint tenants - They may be tenants-in-common but still if they are in joint possession of property, the same would vest in all of them, although the certificate may be granted in favour of only one - Hence a partition suit was maintainable in respect of the property in question - Karnataka Land Reforms Act, 1961 (10 of 1962), Ss. 45, 48-A and 2(A)(17).

Case-Thimmappa Rai Vs. Ramanna Rai.

Citation-(2007)14 SCC 63.

Bench Strength -2
Coram: S.B. Sinha and Markandey Katju,JJ.
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