Grant of Maintenance to Wife – A measure of Social Justice

In Chaturbhuj v. Sita Bai, 2007 (Suppl.) ACC 537, it was held as under:

“Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and as held in Ramesh Chander Kaushal v. Veena Kaushal, (1978) 4 SCC 70, falls within Constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat, 2005 (51) ACC 923.

A division bench of Madhya Pradesh High Court in the case of Durga Singh Lodhi v. Prembai and Others, 1990 Cr. L.J. 2065, has held that mere absence of visible means or real estate will not entitle such a person to escape the liability to pay maintenance awarded under section 125(1) as even at the stage of enforcement of the order under Section 125(1), an able bodied healthy person capable of earning, must be subjected to pay maintenance allowance. If, with this visible capacity to earn, he avoids payments, it has to be held that he has so done for no sufficient cause. If such a person avoids to discharge that obligations despite issuance of a distress warrant, he can be sentenced to imprisonment for a term specified in sub – section (3) of Section 125 Cr.PC.

In Shamima Farooqui v. Shahid Khan, (2015) 5 SCC 705, it was held thus:

“A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125, Cr.P.C., it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or beggar.”  Smt. Surbhi Agarwal v. State of U.P., 2017 (98) ACC 471.

Matrimonial Dispute – Casual Reference of Names of Family Members

Mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the house hold in the domestic quarrel taking place in a matrimonial dispute especially if it happens soon after the wedding. Rajendra Sood v. State of U.P., 2017 (98) ACC 521.

Criminal Conspiracy – Proof of

In Mir Nagvi Askari v. CBI, (2009) 15 SCC 643, it was ruled that while drawing an inference from the materials brought on record to arrive at a finding as to whether the charge of criminal conspiracy had been proved or not, it must be borne in mind that a conspiracy is hatched in secrecy and it is difficult, to obtain direct evidence to establish the same.

In Mohd. Amin v. CBI, (2008) 15 SCC 49, it was held as under:

“That for proving a charge of conspiracy, it is not necessary that all the conspirators know each and every detail of the conspiracy so long as they are co-participators in the main object of conspiracy. It is also not necessary that all the conspirators should participate from the inception of conspiracy to its end. If there is unity of object or purpose, all participating at different stages of the crime will be guilty of conspiracy.” Harpal Singh v. State of Punjab, (2017) 1 SCC 734.

Accused – Entitled to Get Copy of FIR

An accused is entitled to get a copy of the first information report at an earlier stage than as prescribed under Section 207 CrPC.

An accused who has reasons to suspect that he has been roped in a criminal case and his name may be finding place in a first information report can submit an application though his representative/agent/pairokar for grant of a certified copy before the police officer concerned or to the Superintendent of Police on payment of such fee which is payable for obtaining such a copy from the court. On such application being made, the copy shall be supplied within twenty four hours.

Once the first information report is forwarded by the police station to the Magistrate concerned or any Special Judge, on an application being filed for certified copy on behalf of the accused, the same shall be given by the court concerned within two working days. The aforesaid direction has nothing to do with the statutory mandate inhered under Section 207 CrPC.

The copies of FIRs, unless the offence is sensitive in nature, like sexual offences, offences pertaining to insurgency, terrorism and of that category, offences under the POSCO Act and such other offences, should be uploaded on the police website, and if there is no such website, on the official website of the State Government, within twenty four hours of the registration of the first information report so that the accused or any person connected with the same can download the FIR and file appropriate application before the court as per law for redressal of his grievances.  Youth Bar Association of India v. Union of India, (2016) 9 SCC 473.

Grant of Bail – Factors to be considered

In Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528, it was held as under:

“The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

  • The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
  • Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
  • Prima facie satisfaction of the court in support of the charge.

The Hon’ble Apex Court in Rajesh Ranjan Yadav v. CBI, (2007) 1 SCC 70, balanced the fundamental right to individual liberty with the interest of the society in the following terms:

“While it is true that Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the court has also to take into consideration other facts and circumstances, such as the interest of the society.”

In Ash Mohammad v. Shiv Raj Singh, (2012) 9 SCC 446, the Hon’ble Apex Court in the same vein had observed that though the period of custody is a relevant factor, the same has to be weighed simultaneously with the totality of the circumstances and the criminal antecedents. That these are to be weighed in the scale of collective cry and desire and that social concern has to be kept in view in juxtaposition to individual liberty, was underlined. Chandrakeshwar Prasad v. State of Bihar, (2016) 9 SCC 443.

Concept of – Fair Trial

The concept of fair trial is not a vagur idea.  It is a concrete phenomenon. It is not rigid and there cannot be any straitjacket formula for applying the same. On occasions it has the necessary flexibility. Therefore, it cannot be attributed or clothed with any kind of rigidity or flexibility in its application. It is because fair trial in its ambit requires fairness to the accused, the victim and the collective at large. Neither the accused nor the prosecution nor the victim which is a part of the society can claim absolute predominance over the other. Once absolute predominance is recognized, it will have the effect potentiality to bring in an anarchical disorder in the conducting of trial defying established legal norm. There should be passion for doing justice but it must be commanded by reasons and not propelled by any kind of vague instigation. It would be dependent on the fact situation; established norms and recognized principles and eventual appreciation of the factual scenario in entirety. There may be cases which may command compartmentalization but it cannot be stated to be an inflexible rule. Each and every irregularity cannot be imported to the arena of fair trial. There may be situations where injustice to the victim may play a vitol role. The centripodal purpose is to see that the injustice is avoided when the trial is conducted. Simultaneously the concept of fair trial cannot be allowed to such an extent so that the systemic order of conducting a trial in accordance with CrPC or other enactments get mortgaged to the whims and fancies of the defence or prosecution. The command of the Code cannot be thrown to winds. In such situation, as has been laid down in many an authority, the Courts have played a significant role. A pleas of fairness cannot be utilized to build castles in Spain or permitted to perceive a bright moon in a sunny afternoon. It cannot be acquiesced to create an organic disorder in the system. It cannot be acceded to manure a fertile mind to usher in the nemesis of the concept of trial as such.

It has been impliedly stated that fair trial should not be kept on its own pedestal. It ought to remain in its desired height but as far as its applicability is concerned, the party invoking it has to establish with the support of established principles. State of Haryana v. Ram Mehar and Others, (2016) 8 SCC 762.

Kidnapping from lawful guardianship – Ingredients

Ingredients of Section 361 Indian Penal Code cannot be satisfied in a case where the minor having attained the age of discretion, alleged to have been taken by the accused person, left her guardian’s protection knowingly (having capacity to know the full import of what she was doing) and voluntarily joins the accused person. In such a case, it cannot be said that the victim has been taken away from the keeping of her lawful guardian.

So as to show an act of criminality on the part of the accused, some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian, is required to be shown. Conclusion might be different in case evidence is collected by the investigating agency to establish that though immediately prior to the minor leaving the guardian’s protection, no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. Vishal Jaiswal v. State of U.P., 2016 (96) ACC 802.