High Court

Hierarchy of Trial Courts in India

Court of Session Judge/Additional Assistant Session

Sessions Session Judge Judge

Chief Judicial Magistrate / Judicial

Metropolitan
Magisterial Chief Metropolitan
Court Magistrate / Addl.
Magistrate / Judicial Magistrate IInd
Magistrate Ist Class Class
CJM/CMM
 India

State I State II State....

Sessions Division - I
Sessions Division - Sessions
II Division....

Sub-division I Sub-division II Sub-division..... Sub-division I Sub-division II

 Jurisdiction of Trial Court

Territorial Jurisdiction Trial Jurisdiction Punitive Jurisdiction

As per terrrtiorial division As per Schedule I of the Cr.P.C.

Triable by Court of Session Triable by Court of Magistrate

Session Judge / Additional Session

Judge
CMM/CJM

Assistant Session Judge

MM / J.M.F.C. I

J.M.S.C.
 High Court Any sentence

Punitive Jurisdiction (Power)

S.J./Addl. S.J. Any sentence

Punishment upto 10 yrs. ; fine of any

A.S.J.
amount as per penal law

Punishment up-to 07 yrs., fine of any amount as

CMM/CJM
per penal law

Punishment up-to 03 yrs.; fine of any amount as

M.M./JMFC
per penal law

Punishment up-to 01 yr.; fine of any amount as per

J.M.S.C.
penal law
 High Court – under Constitution of India
 Court of Session
• State Govt. establishes Court of Session (Sec. 9)
• Appointment of Judges by High Court (Sec. 9)
 Court of Judicial Magistrate
• State Govt. establishes Court of Judicial Magistrate (Sec. 11)
• Appointment of judges by High Court (Ss. 11 & 12)
 Court of Metropolitan Magistrate
• State Govt. establishes Court of Metropolitan Magistrate (Sec. 16)
• Appointment of judges by High Court (Ss. 16 & 17)
 Literal meaning: asking question
 Role of magistracy in investigation/inquiry
 Purpose of this investigation/inquiry is to ascertain;
 If there is sufficient evidence against the accused
 It is Magistrate who recommends trial
 Trial is also conducted by the Magistracy
 Germany & France; civil law countries
 Literal meaning:
 Involving people disagreeing with each other
 Investigation is conducted by an independent
investigating agency
 Trial is conducted by another agency
 India, Great Britain; Common Law countries
 Police
Recording first
information
System of Trial Police

Police

Investigation
Either by Magistracy, or under
supervision of Magistracy

Magistracy

Trial

Magistracy
 Inquisitorial Adversarial

Either Magistracy or by
police under
Arrest Police
supervision of
Magistracy
Either Magistracy or by
Testimonial evidence
police under
(Recording statement of Police
supervision of
Collection witnesses)
Magistracy
of
Material evidence Either Magistracy or by
Evidence
(documentary evidences, police under
Police
forensic evidences, other supervision of
material evidences) Magistracy
Either Magistracy or by
Framing
Is there sufficient evidence police under
final Police
against the accused? supervision of
opinion
Magistracy
Magisterial Cognizance N/A Magistracy
Charge or Discharge Magistracy Magistracy
Recording Prosecution
Magistracy Magistracy
Evidence
Trial
Recording Defence Evidence Magistracy Magistracy
Final arguments Magistracy Magistracy
Final judgement Magistracy Magistracy
 Name of the Court
Territorial Jurisdiction (Hierarchy from top to Name of the Judges Judicial Power
bottom)
Chief Justice of India and
India Supreme Court Any sentence
other Judges
Chief Justice of the respective
State or Group of States High Court Any sentence
High Court, and other Judges
Any sentence, but death
Session Judge sentenced needs to be
confirmed by High Court
Session Division Court of Sessions Any sentence, but death
Additional Session Judge sentenced needs to be
confirmed by High Court
Assistant Session Judge Up-to 10 yrs.
Chief Judicial Magistrate Up-to 07 yrs.
Additional Chief Judicial
Court of Magistrate Up-to 07 yrs
Magistrate
Sub-division (though there is no such
Judicial Magistrate First Class Up-to 03 yrs.
name given to these courts)
Judicial Magistrate Second
Up-to 01 yr.
Class
 India
(Supreme Court)

Uttar Pradesh State - 2

(High Court of Allahabad) (High Court)

S.D. - II
Gautam Budh Nagar Session
Division (Court of Session - S.D. -
II)
(Court of Session - Gautam
Budh Nagar

Knowledge Park Sub-division Noida Sub-division

(Court of Magistrate - (Court of Magistrate - Noida)
Knowledge Park)

JFMC, Alpha JFMC, Gamma JMFC, Chi-phi

& & &
Police Station - Police Station - Police Station -
Sector Alpha Sector Gamma Sector Chi-Phi
 India Supreme Court

State High Court

Court of Sessions Court of Sessions

Session
Session Division Session Judge Session Judge
Division
(Non-Metropolitan
Addl. Session Judge (Metropolitan Addl. Session Judge
Areas)
Areas)
Asst. Session Judge Asst. Session Judge

Court of Magistrate Court of Magistrate

Chief
Chief Judicial
Metropolitan
Magistrate Sentence
Magistrate Sentence of 07 yrs.
of 07 yrs.
Sub-division Sub-division
(Non-Metropolitan Addl. C.J.M. (Metropolitan Addl. C.M.M.
Areas) Areas)
Sentence
J.M.F.C.
of 03 yrs.
Metropolitan
Sentence of 03 yrs.
Magistrate
Sentence
J.M.S.C.
of 01 yr.
 Registration of FIR @ P.S. - Sector Alpha

I.O. @ P.S. will reach to the JMFC,

Knowledge Park

Charge-sheet Report to JMFC, Knowledge

Park

Matter reaches to Trial Court

Court of Magistrate Court of Session

Court of Appeal Court of Appeal

(Court of (High Court)
Session)
 Adversarial System Inquisitorial System
Magistracy
Independent Agency -  Either by the Magistrate /Judge
Investigation
Police Or
 By the police under supervision
of the Magistrate /Judge

Prosecution Prosecution Agency Prosecution Agency

Trial Magistracy Magistracy

 Legislature

Three
instrumentalities
of State

Judiciary Executive
 Investigation
Agency

Three
instrumentalities
of Criminal Justice
Administration

Prosecution
Magistracy Agency
 Offence: Sec. 2(n)
o An act or omission punishable under law
 Bailable offence: Sec. 2 (a)
o Offence shown as bailable under Sch. I
 Non-bailable offence: Sec. 2 (a)
o Offence other than bailable offence
 Cognizable offence: Sec. 2 (c)
o Offence in which police officer can arrest without magisterial warrant
 Non-cognizable offence: Sec. 2 (l)
o An offence in which police officer can‘t arrest without magisterial
warrant
 Inquiry: Sec. 2 (g)
o Every inquiry, other than trial, by magistrate
 Investigation: Sec. 2 (h)
o Proceedings by Police Officer or by person authorized by the
Magistrate
o This person must be other than the Magistrate
o Purpose of these proceedings should be to ‗collect evidence‘
 Summons case: Sec. 2 (w)
o A case which is not warrant case
 Warrant case: Sec. 2 (x)
o Case relating to offence punishable above 2yrs., including offence
punishable with death sentence
 Public Prosecutor: Sec. 2 (u)
o Any person appointed u/s 24, including any person directing under
instructions of the P.P.
 Victim: Sec. 2 (wa)
o A person who has suffered loss or injury
o This loss or injury is caused by reason of act or omission by a person
o This person is charged with for causing loss or injury to the victim
o It includes legal heir of the victim

 Does it mean that, till the person is not charged, person suffering loss or
injury is not victim?
 Statement of alleged facts
o It may answer to: ‗wh‘ family, i.e., what (description of victim,
description of accused), when, where, how, & why?
o It must answer to: what (it is not necessary that the information
describes who is the victim &/or who is the accused),

o Rest of the ‗wh‘ will be investigated & answered by the police

o What, when, where & how cater to ‗actus reus‘ & ‗mens-rea‘; and Why
caters to ‗motive‘
 It‘s not necessary that the information has mention of offence;
 But it must have mention of actus-reus;
 Statement of facts including ‗what happened‘ and one or the other
statement of facts is called ‗information‘

 Examples of statements as Information:

 Mr. A to police officer:

i. My neighbour has stabbed his wife; (answers to what has happened)

ii. Someone killed my neighbour;

iii. Someone killed someone else near my residence;

iv. My neighbour had done something with his wife;

v. My neighbour has done something with his wife, she is calling for

help

vi. My neighbour has some personal enmity with his tenant, I am sure

that he has done something with his tenant;

vii.My neighbour has some personal enmity with his tenant, I am sure

that he has done something with his tenant because tenant is not

seen for last few days;

 Information will be
Police Control Diary Entry by
forwarded to the
Room Duty Officer
Police Station

Telephonic

Diary Entry by
Police Station Duty Officer

Diary Entry by
Oral Information
Duty Officer
Information
In-person Police Station

Written Diary Entry by

Information Duty Officer

Auto-generated Diary Entry by

Written
Virtual World Police Station registration of Duty Officer
Information
complaint
 Tab for theft, stolen, Auto-generated Diary Entry by
motor-vehicle, etc. F.I.R. Duty Officer

Pre-determined
offence specific
tabs,
Auto-generated
Auto- Tab for other complaint (this is Diary entry by
generated offences neither F.I.R. nor Duty Officer
System N.C.R.

No pre- Auto-generated
determined complaint (this is Diary Entry by
offence- neither F.I.R. nor Duty Officer
Information specific tabs N.C.R.)
via On-line
Mode

Other than auto-generated

System, e.g., social media Diary-entry by
platform, email to authority Duty Officer
concerned
 Sec. 154. Information in cognizable cases.
1. Every information relating to the commission of a cognizable offence, if given orally
to an officer in charge of a police station, shall be reduced to writing by him or under
his direction, and be read over to the informant; and every such information, whether
given in writing or reduced to writing as aforesaid, shall be signed by the person
giving it, and the substance thereof shall be entered in a book to be kept by such
officer in such form as the State Government may prescribe in this behalf.
Provided that if the information is given by the woman against whom an offence under
section 326A, section 326B, section 354, section 354A, section 354B, section 354C, section 354D,
section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of
the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, then such
information shall be recorded, by a woman police officer or any woman officer:
 Provided further that—
(a) in the event that the person against whom an offence under section 354, section 354A, section 354B,
section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E
or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, is
temporarily or permanently mentally or physically disabled, then such information shall be recorded by a
police officer, at the residence of the person seeking to report such offence or at a convenient place of such
person‘s choice, in the presence of an interpreter or a special educator, as the case may be;
(b) the recording of such information shall be video-graphed;
(c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause
(a) of sub-section (5A) of section 164 as soon as possible.

 2. A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to
the informant.
3. Any person aggrieved by a refusal on the part of an officer in charge of
a police station to record the information referred to in subsection (1)
may send the substance of such information, in writing and by post, to
the Superintendent of Police concerned who, if satisfied that such
information discloses the commission of a cognizable offence, shall
either investigate the case himself or direct an investigation to be
made by any police officer subordinate to him, in the manner provided
by this Code, and such officer shall have all the powers of an officer in
charge of the police station in relation to that offence.
 The important issue which arises for consideration in the
referred matter is whether ―a police officer is bound to
register a First Information Report (FIR) upon receiving any
information relating to commission of a cognizable offence
under Section 154 of the Code of Criminal Procedure, 1973
(in short ‗the Code‘) or the police officer has the power to
conduct a ―preliminary inquiry‖ in order to test the veracity
of such information before registering the same?‖
 Facts:
• Lalita Kumari, a minor, was kidnapped;
• Father filed complaint @ P.S., no action was taken;
• Father approached the S.P., F.I.R. was got registered; still no action was
taken;
• Father filed writ of Habeas Corpus on 11.05.08;
 Interim Order by two judges Bench:
• If steps are not taken to register F.I.R. – complainant can move
magistrate
• Notice issued to the Centre, DGPs of state police, Commissioners of Police
 Further opinion of the two judges Bench:
• Referred the matter to larger (three judges) Bench on 16th September, 2008
• Contrary opinion of different two judges Bench on the question of ‗binding
value behind registering the F.I.R.‘
• One set of judgements (State of Haryana v. Bhajan Lal – 1990, Ramesh
Kumari v. N.C.T. of Delhi – 2006, Prakash Singh Badal v. State of Punjab –
2007) says it carries binding value
• The other set of judgements (P. Sirajuddin v. State of Madras – 1970, Sevi v.
State of Tamil Nadu – 1981, Shashikant v. C.B.I. – 2007, Rajinder Singh
Katoch v. Chandigarh Administration – 2007) says it does not carry binding
value
• Hence, matter was referred to the CJI to refer this question to larger Bench
 In 2012, the three judges Bench framed following questions of constitutional law and
referred the matter to Constitution Bench:
I. Whether immediate non-registration of F.I.R. leads to scope for manipulation by the
police which affects the right of the victim/complainant to have complaint immediately
investigated upon allegations being made?
II. Whether in cases where the complaint/information does not clearly disclose the
commission of a cognizable offence but the F.I.R. is compulsorily registered, then does
it infringe the rights of an accused?
Answers:
I. Did not answer the first question except saying: registering the F.I.R. lessens the
possibility of ante-date;
II. If discretion, option or latitude is allowed to the police, it can have serious
consequences on the law & order; it can adversely affect rights of the victim, right to
equality;
 Answer to IInd question:
• There are sufficient safeguards in the Code that protect
liberty of an individual in case of registration of false F.I.R.;
• Sec. 154 was drafted keeping in mind interests of the victim
and the society;
• Investigation & prosecution – duties of the State
• For cognizable offences – duty is casted upon the police to
take action, i.e., register F.I.R. and to conduct investigation
 Other ancillary questions in the case:
 What was legislative intent?
• No qualifying word is prefixed with the ‗information‘ as have been
used in Sec. 41(1)(a) or Sec. 41(1)(g)
• Reasonable complaint or credible information – not prefixed or
suffixed in Sec. 154
• Reasonableness or credibility of information is not a condition
precedent to register F.I.R.
 Why contents in F.I.R. be relied more than contents of G.D.?
I. Registration of F.I.R. is mandatory
a. If information discloses commission of cognizable offence
b. No preliminary inquiry is permissible in such situation
II. If information does not disclose commission of cognizable offence
a. It indicates necessity for inquiry, preliminary inquiry may be
conducted
b. To ascertain whether cognizable offence is DISCLOSED or NOT
c. If preliminary inquiry discloses commission of cognizable offence,
then registration of F.I.R. is must
III. If preliminary inquiry does not disclose commission of offence and
complaint is closed
Copy of the same be supplied to the complainant within one week
IV. Action be taken against erring police officer who don‘t register the F.I.R.
V. Scope of preliminary inquiry
Not to verify the veracity or otherwise of the information received
Only to ascertain whether information reveals any cognizable offence or not
It must be completed within 07 days
VI. All information leading to registration of F.I.R. must be mandatorily
reflected in the G.D.
VII. Cases in which preliminary inquiry may be conducted will depend on facts &
circumstances of each case; category of cases in which preliminary inquiry
may be conducted are:
 Matrimonial disputes / family disputes
 Commercial offences
 Medical negligence case (Jacob Mathew v. State of Punjab, 2005)
 Corruption cases (P. Sirajuddin v. State of Madras, 1970)
 Cases where there is abnormal delay/laches in initiating criminal
prosecution, e.g., over 3 months delay in reporting matter without
satisfactory explanation for delay
VIII. The aforesaid are only illustrations and not exhaustive conditions
 Art. 21 ensures ‗due process‘ before any restriction is imposed on ‗right to life &
liberty‘ of an individual
 Scope of discretion of police u/s 154:
o Does information contain actus-reus?
o Is actus-reus an offence?
o If yes, under which penal law?
o Reliability / credibility / reasonability / justifiability – beyond scope of
discretion of the police
 Does this (taking away discretion to test reliability / credibility / reasonability /
justifiability) render Sec. 154 mechanism process-less?
 Facts:
◦ 17th October, 1990 – information received at Calcutta
◦ 17th October, 1990 – information recorded in G.D.
◦ 17th October, 1990 – C.B.I. team left Calcutta for Nagpur
◦ 18th October, 1990 – accused intercepted by C.B.I. in Nagpur
◦ 18th – 19th October, 1990 – investigation conducted by C.B.I. in Nagpur
◦ 20th October, 1990 – F.I.R. registered in Calcutta by the C.B.I.
◦ Criminal Revision before H.C. against F.I.R. – 1990
◦ H.C. order (F.I.R. quashed) – 1992
◦ Appeal before S.C. by C.B.I. – 1992
◦ Judgement by the S.C. - 2003
 Information recorded at G.D.:
―G.D. Entry NO. 681 of 17.10.90 of C.B.I., S.P.E., A.C.B., Calcutta, 11.30 hrs.
Information received from a reliable source indicate that Shri Tapan Kumar Singh,
Director (Personnel), Eastern Coalfields Limited, Santorai, West Bengal is an out and
out corrupt official and is in habit of demanding and accepting illegal gratifications.
Information further revealed that he demanded and accepted huge cash to the tune of
Rs. 1 lakh approximately which he would be carrying with him while going to Nagpur
by Geetanjali Express on 17.10.90. He would be boarding train at TATA. The matter
was discussed with the D.I.G., CBI Calcutta and it was decided to verify the information
by intercepting him enroute and to take other follow up actions, if necessary.
……..continued
……….continued
Since there is no time for further verification into the matter, I am
leaving for Nagpur for Geetanjali Express today (17.10.90) scheduled
to start from Howrah at 13.10 hrs. with a team of C.B.I. officers
comprising of Inspector, S.R. Majumdar, Inspector, R.K. Sarkar,
Inspector, S.N. Bhattacharjee and Inspector, S.K. Dasgupta, this is as
per provision of Section 157 of the Cr.P.C.
Sd/ - T.K. Sangyal
S.P., C.B.I., S.P.E., A.C.B., Calcutta”
 Further facts:
◦ C.B.I. team intercepted Mr. Tapan @ Nagpur railway station
◦ Personal search was conducted of Mr. Tapan
◦ His residential flat in Nagpur was searched
◦ Huge cash was recovered
◦ C.B.I. team came back to Calcutta on 20.10.90 and registered F.I.R. u/s 13(2)
r.w. Sec. 13(1)(a) of the Prevention of Corruption Act, 1988.
◦ Mr. Tapan filed revision petition before Calcutta H.C. seeking quashing of
proceeding, quashing of investigation, quashing of G.D. entry, and returning
money seized by the C.B.I. team
 Arguments of the accused before the H.C.:

i. G.D. entry did not disclose commission of any cognizable offence; hence,

C.B.I. had no authority to investigate the matter

ii. Since, investigation was illegal, search & seizure was also illegal

iii. Failure of C.B.I. team to record in writing ‗the ground for belief that the

things necessary for the purpose of investigation may be found at the place

of search; it vitiates the search & seiszure

iv. Information received prior to investigation may be distinguished from

information received during investigation

v. After conducting partial investigation, police officer can‘t go back and

record the F.I.R.; such F.I.R. is illegal

 Arguments of the C.B.I.:
i. G.D. entry was not the F.I.R.; Information recorded on 20th October,
was the F.I.R.
Action taken post G.D. entry (17th October) and prior to F.I.R. (20th
October) was merely preliminary inquiry
ii. Sec. 157 was mentioned incorrect in the G.D.; mere incorrect
mentioning of Section will not vitiate the C.B.I. proceedings
iii. Search & seizure is permissible during preliminary inquiry that takes
place prior to investigation
 Order of the H.C.

i. G.D. did not disclose commission of cognizable offence

ii. Information contains vague allegations

iii. It says ‗accused is out and out corrupt official and was in the habit of demanding &

accepting illegal gratifications‘ – such statement does not disclose commission of

offence

iv. It further says ‗accused has demanded and accepted huge cash‘ – it has not been

stated from whom he had demanded & accepted huge cash

v. Neither there was mention that ‗demand and accepting huge cash‘ was for rendering

any service or disservice to any person

vi. Hence, information recorded in G.D. did not disclose commission of cognizable offence
 Further order of the H.C.:
VII. Since, G.D. did not disclose commission of cognizable offence; further act /
investigation was illegal
VIII.What was done by the C.B.I. was not P.I., but it was investigation as was mentioned
in the G.D. that the team has proceeded u/s 157 of the Code
IX. Argument of the C.B.I. that it was mistakenly mentioned is not tenable as it is not
acceptable that officer of rank of S.P. commits such mistake
X. It is admitted law that G.D. may be considered as F.I.R., but the C.B.I. had registered
the F.I.R. on 20th October, hence, G.D. can‘t be treated as F.I.R.
XI. The whole proceedings of the C.B.I. were illegal in eyes of the law
XII.G.D. entry was quashed, F.I.R. was quashed, investigation was declared
vitiated, cash & articles seized were ordered to be returned to Mr. Tapan
 C.B.I., in appeal before the S.C., had questioned the correctness of finding of the
H.C. on one question of fact, i.e., ‗G.D. did not disclose commission of cognizable
offence‘
 C.B.I. argued that:
‗even if their pleading that they had conducted P.I. during 17th – 20th October is
not accepted, G.D. may be treated as F.I.R. because it discloses commission of
cognizable offence‘
 Now, the most important questions before the S.C. was:
I. Did information in G.D. disclose commission of cognizable offence?
II. Which of the two entries, 17th October or 20th October, will be considered
the F.I.R.?
 Answer of the S.C. to question of fact (Did G.D. disclose commission…..?)
i. F.I.R. is not encyclopaedia which must disclose all facts and details
ii. Informant may lodge a report about the commission of offence though
he may not know name of the victim or the assailant
iii. Informant may not know how the occurrence took place
iv. First informant need not to be an eye witness
v. Police officer need to have mere suspicion, he need not to be convinced
or satisfied on commission of offence
vi. Police officer need to be satisfied about truthfulness of the information
that he will get to know only during investigation
vii. If information does not contain all the details, he will find out all those
details during investigation
VIII. The true test is: whether the information gives a reason to suspect the commission
of cognizable offence?
IX. If yes, he has no option but to ‗record the information‘
X. In given case, the H.C. erred as the information was not as vague as the H.C. had
pointed out
XI. There were specific allegations against Mr. Tapan that he has demanded and
accepted Rs. 1 lakh by way of illegal gratification
XII. The allegation that Mr. Tapan was out & out corrupt official gives a reason to
suspect that cognizable offence was committed
XIII. Supreme Court did not answer the IInd question and allowed the C.B.I. to
investigate further
Whether the information gives a reason to suspect the commission of cognizable
offence?
 Premise: there is information on actus (set of facts) + law has declared certain
actus to be offence + law has declared certain offences to be cognizable offence
 Answer on ‗actus‘ will precede the answer on ‗offence‘

 What do Tapan Kumar Singh + Lalita Kumari say?

i. Be sure on ‗actus‘ & ‗offence‘ both?
ii. Be sure on ‗actus‘, though not on ‗offence‘?
iii. Be sure on ‗offence‘ though not on ‗actus‘?
 Is it a shirt?
◦ Premise: there is a dress; there is something which is called shirt;
 Is the white-one a shirt?
◦ Premise: there is something which is called shirt; there is colour which is white
 Is the shirt white?
◦ Premise: As above
 Is it white shirt?
◦ Premise: As above

What is the doubt (reason to suspect) in above & following questions?

 Has actus been committed?
◦ Premise: someone has knowledge of set of facts, people seldom does certain kind of
acts
 Has offence been committed?
◦ Premise: someone has knowledge of actus, law declares certain actus to be an offence
i. Is it shirt?

Doubt is: if it is shirt or not

ii. Is the white-one a shirt?

It is sure that its of white colour, but it is not sure if it‘s a shirt or something else

iii. Is the shirt white?

It is sure that it‘s a shirt, but the doubt is on its colour

iv. Is it white shirt?

It is sure that it‘s a shirt, but colour is not sure

v. Has actus been committed?

It is not sure if actus has been committed or not, hence, no question of actus been ‗offence‘ or not

vi. Has offence been committed?

It is sure that actus has been committed, but doubt is: is it offence or not
 Is general-diary / daily diary / station diary condition precedent for

registration of F.I.R.?

o Refer Para 111.viii of Lalita Kumari:

o Since the General Diary/Station Diary/Daily Diary is the record of all

information received in a police station, we direct that all

information relating to cognizable offences, whether resulting in

registration of FIR or leading to an inquiry, must be mandatorily and

meticulously reflected in the said Diary and the decision to conduct a

preliminary inquiry must also be reflected, as mentioned above.

 Lokayukta Police in State of Karnataka conducted preliminary inquiry under
Prevention of Corruption Act against few individuals
 No entry was made in G.D. on ground: secret information was received
 Report was submitted to Dy.S.P. who ordered for registration of F.I.R.
 Accused challenged F.I.R. + preliminary inquiry on ground of ‗non-recording
entry in G.D.‘
 H.C. of Karnataka – preliminary inquiry conducted by the Lokayukta Police
violates the mandate of Lalita Kumari, i.e., entry be made in the G.D. before
F.I.R. be registered
 Supreme Court – over-ruled judgement of the High Court
 What is the scope of ‗information‘ in F.I.R.?
 What is the scope & extent of ‗information‘ which is suffice to record the F.I.R.?
 What if investigation is conducted post-G.D., but pre-F.I.R.?
 Can F.I.R. be registered after recording Sec. 161 statement?
 What if the information is ‗cryptic‘ on the face of it, will Sec. 154 carry binding value?
 Can G.D. be considered F.I.R.? If yes, under what facts & circumstances?
 What if information recorded in the G.D. and information recorded in the F.I.R. does
not match?
 Can IInd F.I.R. be registered on the basis of same information which was recorded
earlier?
 Sec. 154

Reason to suspect commission of offence (Sec. 157)

Sec. 91 Sec. 311-A

Sec. 165 Sec. 41 Sec. 164 Sec. 169
Sec. 160 &
Sec. 161

Sec. 54 (duy) Sec. 53 (power)

 Sec. 157: Procedure for investigation -

1) If, from information received or otherwise, an officer in charge of a police station has
reason to suspect the commission of an offence which he is empowered
under section 156 to investigate, he shall forthwith send a report of the same to a
Magistrate empowered to take cognizance of such offence upon a police report and
shall proceed in person, or shall depute one of his subordinate officers not being
below such rank as the State Government may, by general or special order, prescribe
in this behalf, to proceed, to the spot, to investigate the facts and circumstances of
the case, and, if necessary, to take measures for the discovery and arrest of the
offender:
a) Provided that—
when information as to the commission of any such offence is given against any person by name and the case
is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a
subordinate officer to make an investigation on the spot;
 b) if it appears to the officer in charge of a police station that there is no sufficient
ground for entering on an investigation, he shall not investigate the case.
[Provided further that in relation to an offence of rape, the recording of statement
of the victim shall be conducted at the residence of the victim or in the place of her
choice and as far as practicable by a woman police officer in the presence of her
parents or guardian or near relatives or social worker of the locality.]
2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section
(1), the officer in charge of the police station shall state in his report his reasons for
not fully complying with the requirements of that subsection, and, in the case
mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to
the informant, if any, in such manner as may be prescribed by the State Government,
the fact that he will not investigate the case or cause it to be investigated.
 Topic : Right Against Self-Incrimination
(Case Law on Art. 20(3), Sec. 161 & Sec. 162)

By
Dr. Madhuker Sharma
Symbiosis Law School, NOIDA
Facts:
 2.20 am on 30.04.99: D.D. entry @ P.S. Mehrauli

 “Shooting incident took place at Qutub Colonnade”

 D.D. handed over to S.I. Sharad + Ct. Meenu; they left for crime
spot
 One more copy handed over to S.I. Sunil + Ct. Subhash; they also
left for crime spot
 One more D.D. entry: the S.H.O. left for crime spot
 When the first team (S.I. Sharad) reached; victim was taken to
Ashlok hospital;
 S.I. Sharad remained there, S.I. Sunil went to the hospital
 S.I. met Ms. Beena Ramani who told him to inquire from Mr. Shyan
Munshi

 S.I. Sunil recorded statement of Mr. Shyan Munshi at

hospital
 S.I. Sunil forwarded Tehrir to Ct. Subhash who went to P.S.
 4 am on 30.04.99, F.I.R. u/s 307 was registered
 The victim was taken to the Apollo hospital
 S.I. Sunil came back to the spot with Mr. Shyan Munshi
 S.I. Sunil recorded supplementary statement of Mr. Shyan
Munshi
 5.45 am: S.I. Sunil received information that the victim has
died
 Charge-sheet submitted; trial began and concluded;
 Trial court acquitted the accused
 High Court convicted the accused
 Appeal before Supreme Court by the accused
 Statement of Mr. Shyan Munshi Examination in-chief of Mr. Shyan
(@ 3.40 am) Munshi
 A gentleman with white tea-shirt came
 A gentleman with white tea-shirt came
there. He asked the waiter to serve him
there. He asked the waiter to serve him
two drinks. The waiter did not pay
two drinks. The waiter did not pay attention to that gentleman and became
attention to that gentleman and became busy in cleaning up. Jessica was also
busy in cleaning up. Jessica was also there on the other side of the counter
there on the other side of the counter and she told the gentleman that the
party was over and there was no alcohol
and she told the gentleman that the
to be served. At that time, that
party was over and there was no alcohol
gentleman took out a pistol from the
to be served. At that time, that dub of the pant and fired a shot in the
gentleman took out a pistol from the air.
dub of the pant and fired a shot in the  There was another gentleman on the
air. other side of the counter, who fired a
shot at Jessica Lal and she fell down.
That gentleman was also wearing light
colored clothes.”
 Since the present statement about “another gentleman”

who fired a shot at Jessica Lal and she fell down was not

the one earlier made to the Police, after getting permission

from the Court, the public prosecutor cross-examined him.

 Mr. Shyan Munshi stood with his statement given before

the Court.
 Which of the two statements should be treated as
basis for registration of F.I.R.?
I. G.D. recorded @ 02.20 am on the basis of
telephonic messages of Mr. Rohit Bal?
II. Statement of Mr. Shyan Munshi as recorded by
S.I. Sunil?
 Real question for the defence was to get statement
of Mr. Shyan Munshi as Sec. 161 statement so it
could be hit by Sec. 162
 Sec. 157, Indian Evidence Act: Former statements of
witness may be proved to corroborate later testimony as to
same fact.
◦ In order to corroborate the testimony of a witness, any
former statement made by such witness relating to the
same fact, at or about the time when the fact took place,
or before any authority legally competent to investigate
the fact, may be proved.
 Supreme court:
“case on hand the telephonic message did not give any
details of the offence or accused and the same was a vague
information.
Cryptic telephonic messages not giving the particulars of the
offence or accused are bereft of any details made to the
police only for the purpose of getting the police at the scene
of offence.
Cryptic telephonic messages could not be treated as FIR as
their object only is to get the police to the scene of offence
and not to register the FIR.”
 The said intention can also be clearly culled out from a
bare reading of Section 154 of the Criminal Procedure Code
which states that the information, if given orally, should be
reduced in writing, read over to the informant, signed by
the informant and a copy of the same be given free of cost
to the informant.
 In the case on hand, the object of persons sending the
telephonic messages including PW-70 Rohit Bal was only to
bring the police to the scene of offence and not to register
the FIR.
 S.C. did not consider ‘G.D. @ 2.20 am on the basis
of telephonic messages of Mr. Rohit Bal as F.I.R.’
and considered it as mere information
 S.C. considered statement of Mr. Shyan Munshi as
‘information for purpose of Sec. 154’ which means
this statement was exempted from application of
Sec. 162
 Now, statement of Mr. Shyan Munshi is admissible
as per Sec. 157, Indian Evidence Act
 Ram Swaroop – in front of his house, music performance

was going on

 Bankey and Asa Ram – two police informers were

attending the music performance

 Bharat Singh – was also attending the music performance;

 The accused arrived and fired shots

 Both the informers survived, two other persons were killed

 Bharat Singh was also killed

 During trial, eye witness gave following statements:
◦ There was lantern where music performance was
going on
◦ The accused rolled over the dead bodies and
scrutinized them
◦ The face of Bharat Singh resembled Asa Ram
 Neither of the above three statements was there in
Sec. 161 statement of this P.W.
 The Defense Counsel pointed that there was contradiction (omission in Sec.

161 statement) and asked following questions:

◦ Did you state to the Investigating Officer that the gang rolled the dead

bodies of Nathi, Saktu and Bharat Singh and scrutinised them and did you

tell him that the face of Asa Ram resembled with that of the deceased

Bharat Singh ?

◦ Did you state to the Investigating Officer about the presence of the gas

lantern ?

 The Sessions judge disallowed the questions and on account of this order

similar questions were not put to the other eye witnesses.

 The Sessions judge convicted the accused u/s 302 and sentenced them to

death.

 The convicted appealed to the High Court

 The convicted pleaded before the H.C.;

◦ The eye-witnesses be summoned; defense be allowed to cross-

examine them with the same questions that were disallowed by

the trial judge

 Appeal was dismissed by the High Court and it was held:

◦ The ‘omission in Sec. 161 statements of the PWs amount to

contradiction’

◦ There were other evidences that show that accused had come

close to the eye-witness and eye-witness had un-mistakenly

opportunity of identifying the accused in the light of the full

moon

◦ No prejudice had been caused to the convicted by the

disallowance of the cross examination in r/o omission

 S.C. held:

o Omissions did not amount to contradictions

o Sessions judge was right in disallowing cross-

examination

o All omissions in regard to important features of the

incident which were expected to be included in the

statement made before the police, should be

treated as contradictions
 Statements not reduced to writing by the police officer cannot be used for

contradiction;

 Though a particular statement is not expressly recorded, a statement that

can be deemed to be part of that expressly recorded can be used for

contradiction, not because it is an omission strictly so-called but because it

is deemed to form part of the recorded statement; Such a fiction is

permissible by construction only in the following three cases:

◦ (1) When a recital is necessarily implied from the recital or

recitals found in the statement ;

 Illustration: Sec.

 Sec. 161 statement says: Mr. X saw Mr. A stabbing Mr. B

 Trial statement of Mr. X says: he saw Mr. A and Mr. C stabbing B at

the same point of time;

 In the statement before the police the word " only " can be

implied, i.e., the witness saw A only stabbing B;

(2) A negative aspect of a positive recital in a statement;

Illustration:

Sec. 161 statement says: Mr. X saw that a dark man

stabbed Mr. B

Trial testimony of Mr. X says: he saw that a fair man had

stabbed Mr. B;

The earlier statement must be deemed to contain the recital

not only that the culprit was a dark complexioned man but

also that be was not of fair complexion;

(3) When the statement before the police and that before the Court

cannot stand together;

Illustration:

Sec. 161 statement says: Mr. X says that Mr. A after stabbing Mr. B

ran away by a northern lane

Trial testimony says: immediately after stabbing Mr. B, Mr. A ran

away towards the southern lane;

As he could not have run away towards the northern lane as well as

towards the southern lane, if one statement is true, the other must

necessarily be false.

The aforesaid examples are not intended to be exhaustive but only

illustrative.
 Sec. 161 (1) Any police officer making an investigation under this Chapter,
or any police officer not below such rank as the State Government may, by
general or special order, prescribe in this behalf, acting on the requisition of
such officer, may examine orally any person supposed to be acquainted with
the facts and circumstances of the case.
 Sec. 161 (2) Such person shall be bound to answer truly all questions
relating to such case put to him by such officer, other than questions the
answers to which would have a tendency to expose him to a criminal charge
or to a penalty or forfeiture.

 Art. 20 (3) No person accused of any offence shall be compelled to be a

witness against himself
 F.I.R. under P.C.A. was registered against Ms. Satpathy (former

C.M. of Orissa)

 She was served notice u/s 160 by the Police

 She was given long list of questions in writing

 She refused to answer them taking refuge under Art. 20 (3) of the

Constitution

 Dy.S.P. (Vigilance) filed complaint u/s 179 of the I.P.C. against

Ms. Satpathy

 It was filed before Sub. Div. Judicial Magistrate who took

cognizance and issued summons to Ms. Satpathy to appear

 Ms. Satpathty moved H.C. under Art. 226; petition was dismissed

 H.C. gave certificate under Art. 132 (1) allowing her to appeal the

S.C.
 Whether the tendency to expose a person to criminal
charge embrace answers which have an in-culpatory
impact in other criminal cases?
 Does ‘any person’ supposed to be acquainted in Sec.
161 include accused as well, or it includes ‘accused’
only?
 When does an answer acquire confessional status
u/s 27 of the Indian Evidence Act?
 Does ‘accused’ under Art. 20 (3) include ‘suspect’?
 When does ‘right to remain silent’ become
enforceable?
 Do ‘testimonial compulsion obtaining specimen
writing and thumb impression from accused’ and
‘statement of accused in Police custody used in
evidence’ contravene constitutional guarantee
Constitution of India, Art. 20(3)?
 Section 73 of the Indian Evidence Act empowers the
court to, obtain specimen writing or signature and
finger impressions of an accused person for purposes
of Comparison.
 Sections 5 and 6 of the Identification of Prisoners Act
empower a Magistrate to obtain the photograph or
measurements of an accused person.
 Section 27 of the Indian Evidence Act permits the
reception in evidence of statements made by an
accused person in police custody which lead to a
discovery.
 Accused was charged u/s . 302, read with Sec. 34 of the
I.P.C + Sec. 19 of Indian Arms Act
 The Trial Court found sentenced him to imprisonment for
life under s. 302, read with s. 34 of the I.P.C. and to a term
of two years rigorous imprisonment for the offence under
the Arms Act.
 At the trial the identification of the respondent, as one of
the two alleged culprits, was the most important question
to be decided by the Court.
 Besides other evidence, the prosecution adduced in
evidence a chit alleged to be in his handwriting and said to
have been given by him.
 In order to prove that CHIT was in the handwriting of the

respondent, the police had obtained from him, during the

investigation, three specimen handwritings of his on three

separate sheets

 The disputed document, i.e., CHIT was compared with the

admitted handwritings by the Handwriting Expert whose

evidence was to the effect that they are all writings by the

same person.
 The accused person has been convicted by the Courts

below under ss. 380 and 457 of the I.P.C., as also under.

s.19(f) of the Indian Arms Act.

 A shop in Hissar in Punjab was burgled.

 In the course of the burglary four double-barrelled guns,

one single-barrelled gun and a rifle were stolen.

 During his interrogation by the police, accused is alleged to

have given the information that out of the arms stolen

from the shop at Hissar he had buried one 22 bore rifle,

two 12 bore double barrelled gun; and one 18 single-

barrelled gun at a certain place.

 It is alleged that as a consequence of the information thus

given by the accused and on his pointing out the exact

location where these buried articles could be found, the

rifles and guns were actually recovered.

 During the investigation the police had taken possession of

certain glass panes and phials from the burgled shop which

bore some palm and finger impressions.

 In order to compare the impressions on those glass panes

and phials with those of the accused the investigation

police officer got the impressions of the palms and fingers

of the accused taken in the presence of a Magistrate.

 There was no infringement of Art. 20 (3) of the Constitution in

compelling an accused person to give his specimen handwriting or

signature, or impressions of his thumb, fingers, palm or foot to the

investigating officer or under orders of a court for the purposes of

comparison.

 Sec. 27 of the Indian Evidence Act did not offend Art. 20(3) unless

compulsion was used in obtaining the information.

 Compulsion was not inherent in the receipt of information from an

accused person in the custody of a lice officer; it will be a question

of fact in each case to be determined by the court on the evidence

before it whether compulsion had been used in obtaining the

information.
 As per opinion of C.J. Sinha, J. Imam, J. Gajendragadkar, J. Subba

Rao, J. Wanchoo, J. Raghubar Dayal, J. Rajagopala Ayyangar and

J. Mudholkar: (Five points of the above named Judges)

i. Guarantee under Art. 20 (3) includes not only oral testimony

given in court or out of court but also statements in writing

which incriminate the maker when figuring as an accused

person;

ii. Words "to be a witness" in Art. 20(3) do not include the giving

of thumb impression or impression of palm, foot or fingers or

specimen writing or exposing a part of the body by an accused

person for identification;

iii. "self-incrimination" means conveying information based upon
the personal knowledge of the given and does not include the
mere mechanical process of producing documents in court
which do not contain’ any statement of the accused based on
his personal knowledge;
iv. In order to come within the prohibition of Art. 20(3) the
testimony must be of such a character that by itself it should
have the tendency to incriminate the accused;
v. To avail of the protection of Art. 20(3) the person must have
stood in the character of an accused person at the time he
made the statement.
 J. S. K. Das, J. Sarkar and J. Das Gupta (four points of judges)

i. The protection afforded by Art. 20(3) is not merely in respect of

testimonial compulsion in the court room but extends also to

compelled testimony previously obtained from the accused.

ii. The words "to be a witness" in Art. 20(3) mean,, to furnish

evidence" and cannot be confined to imparting personal

knowledge; such evidence can be furnished through lips or by

production of a thing or of a document or in other modes.

iii. An accused person furnishes evidence when he gives his

specimen handwriting or impressions of his fingers or palm or

foot.
iv. But in doing so the accused does not furnish evidence against
himself as by themselves these specimens or impressions do not
incriminate or even tend to incriminate the accused and he
cannot be said to be compelled "to be a witness against himself “
when he is compelled to give the specimen or impression.
 F.I.R. registered against Kathi David Raju u/s 465, 468, 471, &

420

 Allegation was accused has submitted fake caste-certificate at

some govt. corporation

 Police sought magisterial order from Addl. Junior Civil Judge to

get D.N.A. test of the accused with his mother & two brothers

 Order was passed which was challenged before H.C. u/s 482 of

the Code

 High Court had dismissed the application which was challenged

before the Supreme Court

 Should there be any ground for the police before it seeks D.N.A.

test on the accused?

 Does ‘collecting voice sample’ violate
constitutional protection given under Art. 20
(3)?
 Can a Magistrate pass order authorizing the
investigating agency to collect voice sample
even in absence of any statutory provision?
 Can ‘collecting voice sample’ be brought
within the ambit of ‘other tests’ as provided
u/s 53 of the Code?
 Whether the involuntary administration of the impugned

techniques (NARCO/Brain Mapping/Polygraph Examination/etc.) violate

the `right against self-incrimination' enumerated in Article 20(3)

of the Constitution?

◦ Whether the investigative use of the impugned techniques

creates a likelihood of incrimination for the subject?

◦ Whether the results derived from the impugned techniques

amount to ‘testimonial compulsion’ thereby attracting the bar of

Article 20(3)?

 Whether the involuntary administration of the impugned

techniques is a reasonable restriction on `personal liberty' as

understood in the context of Article 21 of the Constitution?

 Involuntary administration of certain scientific techniques, namely

narcoanalysis, polygraph examination and the Brain Electrical

Activation Profile (BEAP) test for the purpose of improving

investigation efforts in criminal cases.

 It involves tensions between the desirability of efficient

investigation and the preservation of individual liberties.

 Ordinarily the judicial task is that of evaluating the rival

contentions in order to arrive at a sound conclusion.

 However, the present case is not an ordinary dispute between

private parties.

 It raises pertinent questions about the meaning and scope of

fundamental rights which are available to all citizens.

 It will assist the investigation to gather evidence where it

is difficult to collect the evidences

 It will strengthen the investigation process

 Code says that every person shall cooperate with

investigation agencies

 These tests cause no bodily harm

 These softer methods are better than ‘third degree torture’

 Information collected through these tests don’t fall within

the meaning of ‘testimonial compulsion’

 ‘Verbal revelation’ made during these tests don’t extract
Art. 20 (3) because subject is not aware if information is
‘inculpatory’ or ‘exculpatory’
 Narcoanalysis technique, polygraph examination and the
BEAP test have not been expressly enumerated, they could
be read in by examining the legislative intent.
 Emphasis was placed on the phrase `and such other tests'
to argue that the Parliament had chosen an approach
where the list of `modern and scientific techniques'
contemplated was illustrative and not exhaustive.
 The scientific validity of the impugned techniques are not entirely

reliable

 In the context of criminal cases, the reliability of scientific evidence bears

a causal link with several dimensions of the right to a fair trial

◦ Such as the requisite standard of proving guilt beyond reasonable

doubt and

◦ the right of the accused to present a defence

 Investigators could obtain statements from individuals by threatening

them with the possibility of administering either of these tests.

 The person being interrogated could possibly make self-incriminating

statements on account of apprehensions that these techniques will

extract the truth.

 Parliament was well aware of the impugned techniques at

the time of the 2005 amendment and consciously chose

not to include them in the amended Explanation to Sec. 53,

Sec. 53-A, & Sec. 54 of the Code

 It was reasoned that this choice recognised the distinction

between testimonial acts and physical evidence.

 While bodily substances such as blood, semen, sputum,

sweat, hair and fingernail clippings can be readily

characterised as physical evidence,

 the same cannot be said for the techniques in question.

 Invoked the rule of `ejusdem generis' which is used in the

interpretation of statutes.

 This rule entails that the meaning of general words which follow

specific words in a statutory provision should be construed in light

of the commonality between those specific words.

 In the present case, the substances enumerated are all examples

of physical evidence.

 Hence the words `and such other tests' which appear in the

Explanation to Ss. 53, 53-A, & 54 of the Code should be construed

to include the examination of physical evidence but not that of

testimonial acts
 Results of the impugned tests should be treated as

testimonial acts for the purpose of invoking the right

against self-incrimination.

 The phrase `and such other tests' [which appears in the

Explanation to Ss. 53, 53-A, & 54 of the Code] should be

read so as to confine its meaning to include only those

tests which involve the examination of physical evidence.

 In pursuance of this line of reasoning, rule of `ejusdem

generis‘ is applicable
 Explanation to said Sections of the Code does not
enumerate certain other forms of medical examination that
involve testimonial acts, such as psychiatric examination
among others.
 Amendment to this provision was informed by a rational
distinction between the examination of physical
substances and testimonial acts.
 Though the impugned techniques have not been expressly
enumerated in the Code there is no statutory prohibition
against them either.
 It is a clear case of silence in the law.
 Furthermore, in circumstances where an individual

consents to undergo these tests, there is no dilution of Art.

20 (3)

 Results obtained from tests such as polygraph examination

and the BEAP test should also be treated as `personal

testimony', since they are a means for `imparting personal

knowledge about relevant facts'.

 Results obtained through the involuntary administration of

either of the impugned tests come within the scope of

`testimonial compulsion', thereby attracting the protective

shield of Art. 20 (3)

 Law does provide for some restrictions on `personal liberty' in the
routine exercise of police powers.
 The Code empowers the police to arrest, detention, interrogation,
search and seizure.
 A fundamental premise of the criminal justice system: police &
judiciary are empowered to exercise a reasonable degree of coercive
powers
 Hence, power of the Court to order a person who is under arrest to
undergo a medical examination also provides for the use of `force as is
reasonably necessary‘
 ‘Personal liberty' does not grant rights in the absolute sense
 Validity of restrictions placed on the same needs to be evaluated on
the basis of criterion such as `fairness, non- arbitrariness, and
reasonableness'.
 Judicial understanding of privacy stressed on the protection of the

body and physical spaces from intrusive actions by the State

 Criminal procedural law as well as evidence law mandates

interference with physical privacy through statutory provisions

that enable arrest, detention, search and seizure among others,

◦ But the same cannot be the basis for compelling a person `to

impart personal knowledge about a relevant fact'.

The theory of interrelationship of rights mandates that the right

against self-incrimination should also be read as a component of

`personal liberty' under Art. 21

Hence, our understanding of the `right to privacy' should account

for its intersection with Art. 20 (3)

 Furthermore, the `rule against involuntary confessions' as

embodied in Ss. 24, 25, 26 & 27 of the Evidence Act, 1872

seeks to serve both the objectives of reliability as well as

voluntariness of testimony given in a custodial setting.

 A conjunctive reading of Articles 20(3) and 21 of the

Constitution along with the principles of evidence law

leads us to a clear answer.

 We must recognise the importance of personal autonomy

in aspects such as the choice between remaining silent and

speaking.
 An individual's decision to make a statement is the product
of a private choice and
There should be no scope for any other individual to
interfere with such autonomy, especially in circumstances
where the person faces exposure to criminal charges or
penalties.
 Subjecting a person to the impugned techniques in an
involuntary manner violates the prescribed boundaries of
privacy.
 Forcible interference with a person's mental processes is
not provided for under any statute and it most certainly
comes into conflict with the `right against self-
incrimination'.
 Whether the act of forcibly subjecting a person to any of the
impugned techniques constitutes `cruel, inhuman or degrading
treatment‘?
 How to ensure parity between the procedural safeguards that are
available to the prosecution and the defence?
 If we were to permit the compulsory administration of any of the
impugned techniques at the behest of investigators, there would
be no principled basis to deny the same opportunity to defendants
as well as witnesses.
 Compulsory administration of the impugned techniques violates

the `right against self- incrimination‘

◦ Because the underlying rationale of the said right is to ensure

the reliability as well as voluntariness of statements that are

admitted as evidence.

◦ Art. 20 (3) and Sec. 161 (2) protects accused persons, suspects

as well as witnesses who are examined during an investigation

 Test results cannot be admitted in evidence if they have been

obtained through the use of compulsion

 Art. 20 (3) protects an individual's choice between speaking and

remaining silent, irrespective of whether the subsequent

testimony proves to be inculpatory or exculpatory

 Art. 20 (3) aims to prevent the forcible `conveyance of personal knowledge
 Results obtained from each of the impugned tests bear a `testimonial'
character and they cannot be categorised as material evidence
 Forcing an individual to undergo any of the impugned techniques violates
the standard of `substantive due process' which is required for restraining
personal liberty
 Such a violation will occur irrespective of whether these techniques are
forcibly administered during the course of an investigation or for any other
purpose since the test results could also expose a person to adverse
consequences of a non-penal nature.
 These techniques cannot be read into the statutory provisions which enable
medical examination during investigation in criminal cases, i.e. the
Explanation to Ss. 53, 53-A, & 54 of the Code of Criminal Procedure, 1973.
 compulsory administration of any of these techniques is an
unjustified intrusion into the mental privacy of an
individual.
 It would also amount to `cruel, inhuman or degrading
treatment' with regard to the language of evolving
international human rights norms.
 Placing reliance on the results gathered from these
techniques comes into conflict with the `right to fair trial'.
 Invocations of a compelling public interest cannot
justify dilution of constitutional rights such as the `right
against self-incrimination'.
 No individual should be forcibly subjected to any of the techniques

in question, whether in the context of investigation in criminal

cases or otherwise.

 Doing so would amount to an unwarranted intrusion into personal

liberty.

 However, these tests can be done the voluntary in the context of

criminal justice, provided that certain safeguards are in place

 Even when the subject has given consent to undergo any of these

tests,

Results by themselves cannot be admitted as evidence because

the subject does not exercise conscious control over the responses

during the administration of the test.

 However, any information or material that is subsequently

discovered with the help of voluntary administered test results

can be admitted, in accordance with Sec. 27 of the Evidence Act,

1872.

The End
 Topic : Arrest

By
Dr. Madhuker Sharma
Symbiosis Law School, NOIDA
1. When is a person said to be under arrest ?
2. Are the terms 'custody' and 'arrest' synonymous ?
3. Are the customs officials vested with powers under the Customs
Act, 1962 to detain any person for any period and at any place
for the purpose of an inquiry, interrogation or investigation ?
4. Will the detention of a person by the customs officers for the
purpose of inquiry, interrogation or investigation, amount to an
'arrest' of the said person ?
5. Is detention of a person by the customs officers for the purpose
of inquiry or interrogation or investigation beyond 24 hours
without producing him before a Magistrate, violative of Article
22 of the Constitution of India ?
 Word 'arrest', when used in its ordinary and natural sense, means
the apprehension or restraint or the deprivation of one's personal
liberty.
 The question whether the person is under arrest or not, depends
not on the legality of the arrest, but on whether he has been
deprived of his personal liberty to go where he pleases.
 When used in the legal sense in the procedure connected with
criminal offences, an arrest consists:
◦ Taking into custody of another person
◦ Under authority empowered by law,
◦ For the purpose of holding or detaining him to answer a criminal
charge or of preventing the commission of a criminal offence.
 The essential elements to constitute an arrest in the above sense
are:
◦ There must be an intent to arrest under the authority
◦ Accompanied by a seizure or detention of the person in the
manner known to law
◦ Which is so understood by the person arrested.
 In this connection, a debatable question that arises for our
consideration is:
◦ Whether the mere taking into custody of a person by an
authority empowered to arrest would amount to 'arrest' of that
person and whether the terms 'arrest' and 'custody' are
synonymous?
 In Emperor v. Lallu Bachji, 1919-20 Cri LJ 391 : (AIR 1919
Bom. 39). It has been pointed out that:
◦ The English common law rule is that except in case of
submission, arrest of a person consists of the actual
seizure or touching of the body of a person with a view
to his detention and that this rule would no doubt be
followed in India, although there is no express authority
on the subject.
 Art. 22. Protection against arrest and detention in certain
cases
1. No person who is arrested shall be detained in custody
without being informed……………
2. Every person who is arrested and detained in custody
shall be produced before the nearest magistrate……..
 Sec. 57. Person arrested not to be detained more than twenty-four

hours.—

No police officer shall detain in custody a person arrested

 Sec. 436. In what cases bail to be taken.

1. When any person other than a person accused of a non-bailable

offence is arrested or detained

 Sec. 437. When bail may be taken in case of non-bailable

offence.—

1. When any person accused of, or suspected of, the commission

of any non-bailable offence is arrested or detained

 Sec. 439. Special powers of High Court or Court of Session regarding bail.—

◦ 1. A High Court or Court of Session may direct,—

 (a) that any person accused of an offence and in custody be released

on bail
 Sec. 167. Procedure when investigation cannot be completed in twenty-four
hours.—
1. Whenever any person is arrested and detained in custody, and it
appears that the investigation cannot be completed within the period of
twenty-four hours fixed by section 57, and there are grounds for
believing that the accusation or information is well-founded, the officer
in charge of the police station or the police officer making the
investigation, if he is not below the rank of sub-inspector, shall forthwith
transmit to the nearest Judicial Magistrate a copy of the entries in the
diary hereinafter prescribed relating to the case, and shall at the same
time forward the accused to such Magistrate.
2. The Magistrate to whom an accused person is forwarded under
this section may, whether he has or has not jurisdiction to try
the case, from time to time, authorise the detention of the
accused in such custody as such Magistrate thinks fit,
 Provided that—
 (a) the Magistrate may authorise the detention of the accused
person, otherwise than in custody of the police, beyond the
period of fifteen days, if he is satisfied that adequate grounds
exist for doing so, but no Magistrate shall authorise the
detention of the accused person in custody under this
paragraph for a total period exceeding………….
 What if accused resists the arrest?

Irrespective of the accused be a man or a woman

Resists the endeavour to arrest Attempts to evade arrest

P.O. or Private Person may use all necessary Same as in Ist case.
means to effect arrest

Can't cause death in any circumtance

Exception:
offence is punishable with death sentence
or life imprisonment
 Arrest warrant was issued against Mr. Kanji in r/o offence

u/s 307

 Mr. Gajender Singh (Head-Constable) went to arrest Mr.

Kanji

 Mr. Badariya (father of Mr. Kanji) helped Mr. Kanji to get

free from hold of Mr. Gajender

 Mr. Gajender and Mr. Badariya had scuffle, both suffered

injuries

 Mr. Badariya died and Mr. Gajender was tried & convicted

u/s 304-II

 Can Mr. Gajender take protection u/s 46(3) of the Code?

 Mr. Joginder Kumar (Adv.) was called upon by the S.S.P. at

his office

 Mr. Joginder reached @ 10 am on 07.01.94 with his

brothers

 Brothers were asked to leave and were told that Mr.

Joginder will be set free by evening after some inquiry

 One of the brother sent telegram (apprehension of fake

encounter) @ 1 pm to the C.M.

 Mr. Joginder was kept in custody @ P.S. (Masuri) on night

of 07.01.94
 08.01.94: family was told to contact the S.S.P.

 09.01.94: family was informed that Mr. Joginder was taken to un-

disclosed location

 11.01.94: Writ of Habeas-Corpus filed before S.C.; and notice

served to the S.S.P.

 14.01.94: S.S.P. appeared and informed the S.C.:

◦ Mr. Joginder Kumar was never arrested; he was merely

detained;

◦ Since he was merely detained, he was not produced before the

M.M. as per mandate of Sec. 57

◦ He was enquired, he co-operated and is now released

 Was Mr. Joginder Kumar ever arrested?

 Mr. Amarjeet Singh, brother of Mr. Niranjan Singh (Adv.)

was on way to Shirdi (Maharashtra) on his truck

 He was intercepted by 10 police officers, including Mr.

Prabhakar in jurisdiction of Police Station Ahmed Nagar

(Maharashtra)

 He was removed from the truck, tied with rope on a tree

and was shot down

 Since no action was taken against the police officers, Mr.

Niranjan filed complaint u/s 200 of the Code before the

M.M., Ahmed Nagar

 Magisterial inquiry u/s 202 – complainant & his witnesses

were examined
 Magisterial inquiry u/s 202 – complainant & his witnesses

were examined

 Warrant issued against accused police officers

 Police officers evaded arrest, they neither surrendered

 Accused applied for bail without surrendering themselves;

bail was denied by the M.M.

 M.M. put stay on arrest warrant allowing the accused

officers to seek bail from the Court of Session

 Accused police officers appeared before the Court of

Session

 Bail taken by the Court of Session which was challenged

before the High Court

 High Court dismissed the revision filed by Mr. Niranjan

 Now, Mr. Niranjan was before the S.C. under Art. 136

 Ground of Mr. Niranjan:

 Accused police officers were not in custody because they

were never arrested, hence, bail u/s 439 of the Code could

not be taken

 What is ‘custody’? What is the scope & ambit of ‘custody’

u/s 439 of the Code?

 (State of Haryana v. Dinesh Kumar) + (Lalit Kumar & Anr. v. State

of Haryana) = (State of Haryana & Ors. v. Dinesh Kumar & Anr.)

State of Haryana v. Dinesh Kumar

 Mr. Dinesh Kumar had applied @ Haryana Police for

the post of Constable-Driver

 Column XIII in application form: Have you ever been

arrested?

 Column XIV in application form: Have you ever been

convicted?
 Mr. Dinesh replied in ‘NO’ in both the columns

 Mr. Dinesh was selected; during verification it was found:

◦ An F.I.R. was filed against Mr. Dinesh in 1994

◦ He was arrested and was acquitted in 1998

 He was denied appointment

 He filed departmental appeal before the D.G.P., Haryana

which was rejected

 He filed writ before Punjab & Haryana High Court

 Petition was allowed with instructions to the Haryana

Police to appoint him

 State of Haryana approached S.C. under Art. 136

 Lalit Kumar & Anr. v. State of Haryana
 Mr. Lalit Kumar & Mr. Bhupinder Singh had also applied for
the said post and were selected
 They both had answered said columns in ‘NO’
 During verification, it was found:
◦ Two different F.I.Rs were registered under two different
police stations
◦ They were arrested and were acquitted later on
 They both were denied appointment
 They both filed Writ before the Punjab & Haryana High
Court
 Their petition was dismissed
 They filed S.L.P. before the Supreme Court
 Arguments of Mr. Dinesh Kumar, Mr. Lalit Kumar, & Mr. Bhupinder
Singh
◦ They were never arrested
◦ They did not appear before the police
◦ They themselves went to the Magistrate with their advocates
◦ They were given bail without being taken into custody
 Questions before the Supreme Court:
 Whether the manner in which the petitioners appeared
before the Magistrate and were released without being
taken into custody be termed as ‘arrest’ for the purpose of
query under Col. XIII?
 Concept of ‘arrest’ and ‘custody’ in criminal case.

 What if the first question had been:

◦ Whether the manner in which the petitioners appeared
before the Magistrate and were released without being
taken into custody be termed as ‘arrest’ for the purpose
of arrest under Code?
Topic : Investigation to Framing of
Charge

By
Dr. Madhuker Sharma
Symbiosis Law School, NOIDA
Topic : Charge – Content & Alteration

By
Dr. Madhuker Sharma
Symbiosis Law School, NOIDA
 Defined u/s 2 (b) of the Code
 Trial Court’s cognizance against the accused
◦ i.e., it is the accused who has committed the offence
◦ This decision is taken by the trial court on seeing the
evidence prima-facie
 It’s a statement of the trial court stating that ‘accused has
been charged u/s………of……(name of penal law)’
 With framing of charge, trial of the accused begins
 What shall be content of the ‘charge’ is laid down u/s 211
to 213 of the Code
 Sec. 216 empowers the trial court to alter the charge
 It includes: altering (changing offence from one head to
other head), adding new charge, or deleting any existing
charge
◦ Accused was charged u/s 376; fresh charge u/s 302
were added;
◦ Accused was charged u/s 302 & u/s 376; during trial,
sexual intercourse could not be established;
◦ Trial court can delete charge u/s 376
◦ Accused was charged for rape; it may be altered to gang-
rape
 This power can be exercised by the Court of Appeal / Court
of Revision as well
 Implication of such change in the ‘charge’?
 What about the trial? Can it be continued? Or it will
necessarily be discontinued?
 What about the status of evidence recorded?
 As per Sec. 216 (3):
◦ If it is not prejudiced to the accused or to the
prosecution, trial court may continue with the trial
considering the altered charge as to be the original
charge
◦ It means, if it is prejudiced to the accused or to the
prosecution, then trial should not be continued; it should
be re-tried
 E.g.:
◦ Accused was tried for Sec. 354 offence;
◦ Charges have been altered to Sec. 376 offence;
◦ Case should be retried because both offences are not
similar in ‘nature’; also, Sec. 376 may lead to higher
punishment in comparison to Sec. 354 offence;
◦ Hence, it must be re-tried;
◦ But, it will not vitiate the proceedings conducted till date
in Sec. 354 offence;
 E.g.:
Accused was tried for burglary;
Charge was reframed to theft;
Both the offences are of similar nature;
It will lead to lower punishment than the punishment prescribed
for burglary, if accused is convicted;
It is not necessary to re-start the trial;
Trial court may continue the trial for offence of theft

 Whether ‘change in charge’ has been prejudicial to either of the

party, accused or the prosecution, will always be a question of
fact; it will be answered accordingly.
 If more than one offence is committed in the same transaction,
then all such offences shall be tried together
 Same transaction means: there must have some connect on
‘purpose/motive/intent’ between & among all such offences
◦ E.g.: purchasing illegal make pistol for killing someone; it
includes two offences, (i) purchase of illegal make pistol, & (ii)
killing
Since purpose of the Ist offence was to commit iind offence,
both fall in same transaction
◦ E.g.: Mr. A committed rape; after one yr., he kidnapped the
victim for getting F.I.R. registered; both offences fall in same
transaction
 If more than one person have been involved in same transaction,
then all accused shall be tried together
 Same transaction means: there must have some connect on
‘purpose/motive/intent’ between & among all such offences
◦ E.g.: Mr. A committed kidnap of Mr. B as money was given by
Mr. C, and Mr. C killed Mr. B; it includes two offences, (i) kidnap
of Mr. B by Mr. A, & (ii) killing of Mr. B by Mr. C.
◦ E.g.: Mr. A kidnapped Mr. B for ransom; ransom money was
delivered to Mr. C with his knowledge; Mr. A & Mr. C will be tried
together
Topic: Inherent Powers of the
High Court u/s 482 of the Code

By
Dr. Madhuker Sharma
Inherent Powers of the High Court u/s 482 of the Code
Sec. 482: Saving of inherent powers of High Court.
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to
make such orders as may be necessary to give effect to any order under this Code, or to prevent
abuse of the process of any Court or otherwise to secure the ends of justice.

Lets deconstruct Sec. 482 in following phrase:

i. Nothing in this Code shall be deemed to limit or affect
ii. The inherent powers of the High Court to make such orders
iii. Necessity of such order
 To give effect to any order under this Code
 To prevent abuse of the process of any court
 To secure the ends of justice
Inherent Powers of the High Court u/s 482 of the Code
 Nothing in this Code shall be deemed to limit or affect:
 Anything contrary shall not be presumed against power of the H.C.
o It means that, in order to restrain the H.C. from passing any order:
o Either there should be expressed restriction, or
o Such power is given to any other Court
 It further means, if any provision in the Code restricts the H.C. from passing any order,
or exercising any power, H.C. can’t do the same in the name of ‘inherent power’ u/s
482’
 It further means, if there is no expressed provision in the Code empowering the H.C.
to do this or that, H.C. can pass such order in the name of ‘inherent power u/s 482’
o Provided such power is not given to any other Court as well
o It means, wherever the Code is silent, H.C. can exercise its power u/s 482
 ‘Nothing in this Code shall be deemed to limit or affect’
…..continued
 E.g., in case of ‘quashing of F.I.R.,
 There is no expressed provision which empowers the H.C. to quash the F.I.R.,
 Neither there is any provision in the Code which restrains the H.C. from
quashing the F.I.R.,
 Also, there is no provision in the Code which empowers any other Court to
quash the F.I.R.
 Now, silence of the law shall not be deemed (interpreted) to restrict the
‘inherent power of the H.C. u/s 482’
 It means that the H.C. shall be deemed to have power to quash the F.I.R.
 ‘Nothing in this Code shall be deemed to limit or affect’
…..continued
 E.g., in case of ‘taking cognizance of offence’,
 There is no expressed provision which empowers the H.C. to take cognizance
of offence,
 Neither there is any provision in the Code which restrains the H.C. from
taking cognizance of offence,
 But, Sec. 190 of the Code empowers the M.M. / J.M.F.C. to take cognizance
of the offence,
 Now, there is no silence of the law;
 It shall not be deemed (interpreted) to empower the ‘inherent power of the
H.C. u/s 482’
 It means that the H.C. shall not be deemed to have power to take
cognizance of offence
 ‘Nothing in this Code shall be deemed to limit or affect’
…..continued
 E.g., in case of ‘transfer of case from jurisdiction of one H.C. to another H.C.’
 There is no expressed provision which empowers the H.C. to pass such
order,
 Neither there is any provision in the Code which restrains the H.C. from
passing such order,
 But, Sec. 406 of the Code empowers the S.C. to pass such order,
 Now, there is no silence of the law,
 It shall not be deemed (interpreted) to empower the ‘inherent power of the
H.C. u/s 482’ to pass such order,
 It means that the H.C. can’t ‘transfer a case from jurisdiction of one H.C. to
jurisdiction of another H.C.’
Inherent Powers of the High Court u/s 482 of the Code

 Necessity of such order

 To give effect to any order under this Code, or
 To prevent abuse of the process of any court, or
 To secure the ends of justice
 Only ‘restriction’ on power of the H.C. u/s 482 has been laid down herein
above;
 It will always be ‘question of fact’ that ‘has there been any abuse of the
process of any court’, or ‘will, not passing an order u/s 482, lead to
failure in delivery of justice’
 Case Law - References
 Can H.C. exercise Sec. 482 power in r/o an order which is ‘interlocutory’?

 Ordinarily, a High Court will not interfere at an interlocutory stage of criminal

proceeding in a subordinate court

 But HC is under an obligation to interfere if there is harassment of any person

(Indian citizen) by illegal prosecution.

 It would also do so when there are any exceptional or extraordinary reasons

for doing so.

 The Supreme Court, in Madhu Limaye v. Maharashtra:
o "Nothing in the Code, not even Section 397 can affect the amplitude of the inherent
power preserved in Section 482. Where the impugned interlocutory order clearly
brings about a situation which is an abuse of the process of the court then for the
purpose of securing the ends of justice, interference by the High Court is absolutely
necessary and nothing contained in Section 397 (2) can limit or affect the exercise of
the inherent power of the High Court".
 Case Law - References
 The SC, further, in Madhu Limaye v. Maharashtra, has held
that the following principles would govern the exercise of
inherent jurisdiction of the HC:
 Power is not to be resorted to, if there is specific provision in
code for redress of grievances of aggrieved party;
 It should be exercised sparingly to prevent abuse of process of
any Court or otherwise to secure ends of justice;
 It should not be exercised against the express bar of the law
engrafted in any other provision of the code.
 Case Law - References

 What is scope & ambit of power of the H.C. u/s 482 to quash the criminal
proceedings or the F.I.R.?
 Ref.: State of Haryana v. Bhajan Lal (1992 Supp.(1) SCC 335)
 The Supreme Court summarized the legal position by laying the following
guidelines to be followed by High Courts in exercise of their inherent powers
to quash a criminal complaint:
o Where the allegations made in the first information report or the
complaint, even if they are taken at their face value and accepted in
their entirety do not prima facie constitute any offence or make out a
case against the accused.
 Case Law – References
State of Haryana v. Bhajan Lal….continued
o Where the allegations in the first information report and other
materials, if any, accompanying the FIR do not disclose a cognizable
offence, justifying an investigation by police officers under Section
156(1) of the Code except under an order of a Magistrate within the
purview of Section 155(2) of the Code.
o Where the allegations made in the FIR or complaint and the evidence
collected in support of the same do not disclose the commission of any
offence and make out a case against the accused.
o Where the allegations in the FIR do not constitute a cognizable offence
but constitute only a non-cognizable offence, no investigation is
permitted by a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
 Case Law – References
State of Haryana v. Bhajan Lal….continued

o Where the allegations made in the FIR or complaint are so absurd and

inherently improbable on the basis of which, no prudent person can ever

reach a just conclusion that there is sufficient ground for proceeding

against the accused.

o Where there is an express legal bar engrafted in any of the provisions of

the Code or the concerned Act (under which a criminal proceeding is

instituted) to the institution and continuance of the proceedings and/or,

where there is a specific provision in the Code or the concerned Act,

providing efficacious redress for the grievance of the aggrieved party.

 Case Law – References
State of Haryana v. Bhajan Lal….continued

o Where a criminal proceeding is manifestly attended with mala fide

and/or where the proceeding is maliciously instituted with an ulterior

motive for wreaking vengeance on the accused and with a view to spite

him due to private and personal grudge.

(State of Haryan v. Bhajan Lal……concluded)

 Case Law – References
Is there any limitation on powers of the H.C. when it exercises Sec. 482?

 Inherent jurisdiction of the High Court under Section 482 is very wide,

 It has to be exercised sparingly, carefully and with caution and only when such

exercise is justified by the tests specifically laid down in the section itself.

 It is to be exercised to do real and substantial justice for the administration of

which alone, courts exist.

 This view has been taken by the Hon'ble SC in many of its judgments including

Monica Kumar v. State of Uttar Pradesh.

 In a proceeding under section 482, the High Court will not enter into any finding

of facts, particularly when the matter has been concluded by concurrent finding of

facts of two courts below.

 Case Law – References
 R.P. Kapoor v. State of Punjab
 Limit on power of the H.C. when it exercises Sec. 482
 The Supreme Court held:
o Inherent power of the High Court cannot be invoked in regard to
matters which are directly covered by specific provisions in the
Cr.P.C.
o It can be exercised only when no other remedy is available and
not where a specific remedy is provided by the statute.
o If an effective alternative remedy is available, the High Court will
not exercise its powers under this section, specially when the
applicant may not have availed of that remedy.
 Case Law – References
• In R.P. Kapoor v. State of Punjab, Hon'ble Supreme court went on to limit
the powers of the Hon'ble High Court within the ambit of the Cr.P.C. It
was held, "Inherent power of the High Court cannot be invoked in regard
to matters which are directly covered by specific provisions in the
Cr.P.C.".

• It is well settled that the inherent powers under section 482 can be
exercised only when no other remedy is available to the litigant and NOT
where a specific remedy is provided by the statute. If an effective
alternative remedy is available, the High Court will not exercise its
powers under this section, specially when the applicant may not have
availed of that remedy.
 Law of Crimes III – Cr.P.C. II
(Sem. VI – BA/BBA-LLB)

Topic: Limitation on Inherent Power

of the H.C.
(State of Madhya Pradesh v. Man Singh, 2011)
By
Dr. Madhuker Sharma
Symbiosis Law School, Noida
 Limitation on Inherent Power of the H.C.
 Can the High Court deal petition under Sec. 482 in a
matter which is already disposed-off by it in
revision?
 Can the High Court alter the sentencing order by
exercising inherent powers of Sec. 482?

(State of Madhya Pradesh v. Man Singh, 2011)

 Limitation on Inherent Power of the H.C.
Sec. 482: Saving of inherent powers of High Court.
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to
make such orders as may be necessary to give effect to any order under this Code, or to prevent
abuse of the process of any Court or otherwise to secure the ends of justice.

Lets deconstruct Sec. 482 in following phrase:

i. Nothing in this Code shall be deemed to limit or affect
ii. The inherent powers of the High Court to make such orders
iii. Necessity of such order
 To give effect to any order under this Code
 To prevent abuse of the process of any court
 To secure the ends of justice
 Case Law – References
Is there any limitation on powers of the H.C. when it exercises Sec. 482?

 Inherent jurisdiction of the High Court under Section 482 is very wide,

 It has to be exercised sparingly, carefully and with caution and only when such

exercise is justified by the tests specifically laid down in the section itself.

 It is to be exercised to do real and substantial justice for the administration of

which alone, courts exist.

 This view has been taken by the Hon'ble SC in many of its judgments including

Monica Kumar v. State of Uttar Pradesh.

 In a proceeding under section 482, the High Court will not enter into any finding

of facts, particularly when the matter has been concluded by concurrent finding of

facts of two courts below.

 Case Law – References
 R.P. Kapoor v. State of Punjab
 Limit on power of the H.C. when it exercises Sec. 482
 The Supreme Court held:
o Inherent power of the High Court cannot be invoked in regard to
matters which are directly covered by specific provisions in the
Cr.P.C.
o It can be exercised only when no other remedy is available and
not where a specific remedy is provided by the statute.
o If an effective alternative remedy is available, the High Court will
not exercise its powers under this section, specially when the
applicant may not have availed of that remedy.
 Case Law – References
 In R.P. Kapoor v. State of Punjab, Hon'ble Supreme court went on to limit
the powers of the Hon'ble High Court within the ambit of the Cr.P.C. It
was held, "Inherent power of the High Court cannot be invoked in regard
to matters which are directly covered by specific provisions in the Cr.P.C.".
 It is well settled that the inherent powers under section 482 can be
exercised only when no other remedy is available to the litigant and NOT
where a specific remedy is provided by the statute. If an effective
alternative remedy is available, the High Court will not exercise its
powers under this section, specially when the applicant may not have
availed of that remedy.
 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 410 OF 2011

STATE OF MADHYA PRADESH …APPELLANT(S)

Versus

MAN SINGH …RESPONDENT(S)

JUDGMENT

Deepak Gupta, J.

Whether a Judge of the High Court can exercise powers

under Section 482 of the Code of Criminal Procedure, 1973 (for

short ‘CrPC’) to alter the sentence which has been passed by the

High Court itself is the issue involved in this appeal.

2. The respondent, Man Singh was prosecuted for having

committed offences punishable under Sections 468, 471 and 419

Signature Not Verified

Digitally signed by
CHARANJEET KAUR
Date: 2019.11.04

of Indian Penal Code, 1860 (for short ‘IPC’). The allegation

17:09:52 IST
Reason:

1
against him was that he had used a transfer certificate of one

Kalu Singh and forged the certificate to show that it bore his

name and date of birth. Using this certificate, he had procured

appointment to the post of Buffalo Attendant in the Veterinary

Department. The trial court convicted the accused for the

offences punishable under Sections 468, 471 and 419 IPC. On

the issue of sentence, it was specifically urged before the trial

court that benefit of Probation of Offenders Act, 1958 (for short

‘the Act’) may be given to the respondent, Man Singh. The trial

court came to the conclusion that the accused had got service on

the basis of forged documents depriving a deserving unemployed

person of getting such employment and, therefore, according to

the trial court, this is not a fit case to grant probation.

Accordingly, the trial court imposed punishment under various

provisions of IPC for different offences but essentially the accused

was to undergo rigorous imprisonment for one year and was to

pay a total fine of Rs.2000/­.

3. The accused­respondent, Man Singh filed an appeal. The

Sessions Judge dismissed the appeal. On the issue of sentence

he found that the accused had been dealt with leniently and

2
refused to interfere with the sentence. A criminal revision was

filed in the High Court. The High Court affirmed the conviction

but reduced the substantive sentence from one year to the period

already undergone and enhanced the fine to Rs.10,000/­.

4. The accused­respondent, Man Singh deposited the fine and

then filed a petition under Section 482 of CrPC praying that the

fine had been deposited and since he is in Government job, he

may be granted benefit of the Act. The learned Judge, without

giving any other reasons, directed as follows:­

“After having heard learned counsel for the parties,

prayer is allowed and the benefit of Probation of
Offenders Act is extended to the petitioner for the
purpose that the sentence, which has already undergone
would not affect service career of the petitioner.
With the aforesaid observations petition stands disposed
of C.C. today.”

This order is challenged before us. At the outset, we note that

the manner in which the learned Judge entertained the petition

under Section 482 CrPC is highly improper and uncalled for.

There is no power of review granted to the Courts under CrPC.

As soon as the High Court had disposed of the original revision

petition, upheld the conviction, reduced the sentence to the

3
period already undergone and enhanced the fine, it became

functus officio and, as such, it could not have entertained the

petition under Section 482 CrPC for altering the sentence.

5. It is well settled law that the High Court has no

jurisdiction to review its order either under Section 362 or under

Section 482 of CrPC1. The inherent power under Section 482

CrPC cannot be used by the High Court to reopen or alter an

order disposing of a petition decided on merits 2. After disposing

of a case on merits, the Court becomes functus officio and Section

362 CrPC expressly bars review and specifically provides that no

Court after it has signed its judgment shall alter or review the

same except to correct a clerical or arithmetical error 3. Recall of

judgment would amount to alteration or review of judgment

which is not permissible under Section 362 CrPC. It cannot be

validated by the High Court invoking its inherent powers 4.

6. We have, therefore, no doubt in our mind that the High

Court had no power to entertain the petition under Section 482

CrPC and alter the sentence imposed by it. We may also add that
1 State of Kerala v. M.M. Manikantan Nair, (2001) 4 SCC 752
2 State Rep. by D.S.P., S.B.C.I.D., Chennai v. K.V. Rajendran & Ors., 2009 CriLJ 355 SC
3 Hari Singh Mann v. Harbhajan Singh Bajwa & Ors. (2001) 1 SCC 169
4 Sooraj Devi v. Pyare Lal & Anr., AIR 1981 SC 736

4
the manner in which the probation has been granted is not at all

legal. The trial court had given reasons for not giving benefit of

probation. When the High Court was deciding the revision

petition against the order of conviction, it could have, after calling

for a report of the Probation Officer in terms of Section 4 of the

Act, granted probation. Even in such a case it had to give

reasons why it disagreed with the trial court and the first

appellate court on the issue of sentence. The High Court, in fact,

reduced the sentence to the period already undergone meaning

thereby that the conviction was upheld and sentence was

imposed. After sentence had been imposed and served and fine

paid, there was no question of granting probation.

7. Another error is that the order quoted hereinabove has been

passed in violation of the provisions of Section 4 of the Act which

mandates that before releasing any offender on probation of good

conduct, the Court must obtain a report from the Probation

Officer and can then order his release on his entering bonds with

or without sureties, to appear and receive sentence when called

upon during such period, not exceeding three years, or as the

Court may direct, and in the meantime to keep peace and good

5
behaviour. The proviso to sub­section (1) of Section 4 clearly

provides that Court cannot order release of such an offender

unless it is satisfied that the offender or his surety has a fixed

place of abode or regular occupation in the place over which the

Court can exercise jurisdiction. Sub­section (2) lays down that

before making any order under sub­section (1), the Court shall

take into consideration the report of the Probation Officer. This

Court in a number of judgments has held that before passing an

order of probation, it is essential to obtain the report of the

Probation Officer concerned. Reference in this behalf may be

made to M.C.D. v. State of Delhi & Anr.5

8. In the present case, on 03.01.2011, the counsel for the

accused­respondent sought an adjournment on the ground that

the accused proposes to file a special leave petition (SLP) against

the order passed in criminal revision petition upholding his

conviction. That SLP was filed but dismissed on 28.01.2011.

Once that SLP has been dismissed, we cannot grant any relief to

the accused­respondent.

5 AIR 2005 SC 2658

6
9. We are also constrained to observe that the High Court in

its order directed that the sentence which the accused has

already undergone, would not affect his service career. We fail to

understand under what authority the High Court could have

passed such an order. Even in a case where the High Court

grants benefit of probation to the accused, the Court has no

jurisdiction to pass an order that the employee be retained in

service. This Court in State Bank of India & Ors. v. P.

Soupramaniane6 clearly held that grant of benefit of probation

under the Act does not have bearing so far as the service of such

employee is concerned. This Court held that the employee

cannot claim a right to continue in service on the ground that he

was released on probation. It was observed:

“The release under probation does not entitle an

employee to claim a right to continue in service. In fact
the employer is under an obligation to discontinue the
services of an employee convicted of an offence involving
moral turpitude. The observations made by a criminal
court are not binding on the employer who has the liberty
of dealing with his employees suitably.”

10. In the present case the accused obtained a job on the basis

of forged documents. Even if he was to be given benefit of the

Act, then also he could not retain his job because the job was
6 AIR 2019 SC 2187

7
obtained on the basis of forged documents. We are constrained

to observe that the High Court passed the order in a mechanical

and pedantic manner without considering what are the legal

issues involved.

11. In view of the above discussion, the appeal is allowed and

the order of the High Court is set aside. Pending application(s), if

any, stand(s) disposed of.

…………………………….J.
(Deepak Gupta)

……………………………..J.
(Aniruddha Bose)

New Delhi
November 04, 2019

8
Topic: Inherent Powers of the
High Court u/s 482 of the Code

By
Dr. Madhuker Sharma
Inherent Powers of the High Court u/s 482 of the Code
Sec. 482: Saving of inherent powers of High Court.
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to
make such orders as may be necessary to give effect to any order under this Code, or to prevent
abuse of the process of any Court or otherwise to secure the ends of justice.

Lets deconstruct Sec. 482 in following phrase:

i. Nothing in this Code shall be deemed to limit or affect
ii. The inherent powers of the High Court to make such orders
iii. Necessity of such order
 To give effect to any order under this Code
 To prevent abuse of the process of any court
 To secure the ends of justice
Inherent Powers of the High Court u/s 482 of the Code
 Nothing in this Code shall be deemed to limit or affect:
 Anything contrary shall not be presumed against power of the H.C.
o It means that, in order to restrain the H.C. from passing any order:
o Either there should be expressed restriction, or
o Such power is given to any other Court
 It further means, if any provision in the Code restricts the H.C. from passing any order,
or exercising any power, H.C. can’t do the same in the name of ‘inherent power’ u/s
482’
 It further means, if there is no expressed provision in the Code empowering the H.C.
to do this or that, H.C. can pass such order in the name of ‘inherent power u/s 482’
o Provided such power is not given to any other Court as well
o It means, wherever the Code is silent, H.C. can exercise its power u/s 482
 ‘Nothing in this Code shall be deemed to limit or affect’
…..continued
 E.g., in case of ‘quashing of F.I.R.,
 There is no expressed provision which empowers the H.C. to quash the F.I.R.,
 Neither there is any provision in the Code which restrains the H.C. from
quashing the F.I.R.,
 Also, there is no provision in the Code which empowers any other Court to
quash the F.I.R.
 Now, silence of the law shall not be deemed (interpreted) to restrict the
‘inherent power of the H.C. u/s 482’
 It means that the H.C. shall be deemed to have power to quash the F.I.R.
 ‘Nothing in this Code shall be deemed to limit or affect’
…..continued
 E.g., in case of ‘taking cognizance of offence’,
 There is no expressed provision which empowers the H.C. to take cognizance
of offence,
 Neither there is any provision in the Code which restrains the H.C. from
taking cognizance of offence,
 But, Sec. 190 of the Code empowers the M.M. / J.M.F.C. to take cognizance
of the offence,
 Now, there is no silence of the law;
 It shall not be deemed (interpreted) to empower the ‘inherent power of the
H.C. u/s 482’
 It means that the H.C. shall not be deemed to have power to take
cognizance of offence
 ‘Nothing in this Code shall be deemed to limit or affect’
…..continued
 E.g., in case of ‘transfer of case from jurisdiction of one H.C. to another H.C.’
 There is no expressed provision which empowers the H.C. to pass such
order,
 Neither there is any provision in the Code which restrains the H.C. from
passing such order,
 But, Sec. 406 of the Code empowers the S.C. to pass such order,
 Now, there is no silence of the law,
 It shall not be deemed (interpreted) to empower the ‘inherent power of the
H.C. u/s 482’ to pass such order,
 It means that the H.C. can’t ‘transfer a case from jurisdiction of one H.C. to
jurisdiction of another H.C.’
Inherent Powers of the High Court u/s 482 of the Code

 Necessity of such order

 To give effect to any order under this Code, or
 To prevent abuse of the process of any court, or
 To secure the ends of justice
 Only ‘restriction’ on power of the H.C. u/s 482 has been laid down herein
above;
 It will always be ‘question of fact’ that ‘has there been any abuse of the
process of any court’, or ‘will, not passing an order u/s 482, lead to
failure in delivery of justice’
 Case Law - References
 Can H.C. exercise Sec. 482 power in r/o an order which is ‘interlocutory’?

 Ordinarily, a High Court will not interfere at an interlocutory stage of criminal

proceeding in a subordinate court

 But HC is under an obligation to interfere if there is harassment of any person

(Indian citizen) by illegal prosecution.

 It would also do so when there are any exceptional or extraordinary reasons

for doing so.

 The Supreme Court, in Madhu Limaye v. Maharashtra:
o "Nothing in the Code, not even Section 397 can affect the amplitude of the inherent
power preserved in Section 482. Where the impugned interlocutory order clearly
brings about a situation which is an abuse of the process of the court then for the
purpose of securing the ends of justice, interference by the High Court is absolutely
necessary and nothing contained in Section 397 (2) can limit or affect the exercise of
the inherent power of the High Court".
 Case Law - References
 The SC, further, in Madhu Limaye v. Maharashtra, has held
that the following principles would govern the exercise of
inherent jurisdiction of the HC:
 Power is not to be resorted to, if there is specific provision in
code for redress of grievances of aggrieved party;
 It should be exercised sparingly to prevent abuse of process of
any Court or otherwise to secure ends of justice;
 It should not be exercised against the express bar of the law
engrafted in any other provision of the code.
 Case Law - References

 What is scope & ambit of power of the H.C. u/s 482 to quash the criminal
proceedings or the F.I.R.?
 Ref.: State of Haryana v. Bhajan Lal (1992 Supp.(1) SCC 335)
 The Supreme Court summarized the legal position by laying the following
guidelines to be followed by High Courts in exercise of their inherent powers
to quash a criminal complaint:
o Where the allegations made in the first information report or the
complaint, even if they are taken at their face value and accepted in
their entirety do not prima facie constitute any offence or make out a
case against the accused.
 Case Law – References
State of Haryana v. Bhajan Lal….continued
o Where the allegations in the first information report and other
materials, if any, accompanying the FIR do not disclose a cognizable
offence, justifying an investigation by police officers under Section
156(1) of the Code except under an order of a Magistrate within the
purview of Section 155(2) of the Code.
o Where the allegations made in the FIR or complaint and the evidence
collected in support of the same do not disclose the commission of any
offence and make out a case against the accused.
o Where the allegations in the FIR do not constitute a cognizable offence
but constitute only a non-cognizable offence, no investigation is
permitted by a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
 Case Law – References
State of Haryana v. Bhajan Lal….continued

o Where the allegations made in the FIR or complaint are so absurd and

inherently improbable on the basis of which, no prudent person can ever

reach a just conclusion that there is sufficient ground for proceeding

against the accused.

o Where there is an express legal bar engrafted in any of the provisions of

the Code or the concerned Act (under which a criminal proceeding is

instituted) to the institution and continuance of the proceedings and/or,

where there is a specific provision in the Code or the concerned Act,

providing efficacious redress for the grievance of the aggrieved party.

 Case Law – References
State of Haryana v. Bhajan Lal….continued

o Where a criminal proceeding is manifestly attended with mala fide

and/or where the proceeding is maliciously instituted with an ulterior

motive for wreaking vengeance on the accused and with a view to spite

him due to private and personal grudge.

(State of Haryan v. Bhajan Lal……concluded)

 Case Law – References
Is there any limitation on powers of the H.C. when it exercises Sec. 482?

 Inherent jurisdiction of the High Court under Section 482 is very wide,

 It has to be exercised sparingly, carefully and with caution and only when such

exercise is justified by the tests specifically laid down in the section itself.

 It is to be exercised to do real and substantial justice for the administration of

which alone, courts exist.

 This view has been taken by the Hon'ble SC in many of its judgments including

Monica Kumar v. State of Uttar Pradesh.

 In a proceeding under section 482, the High Court will not enter into any finding

of facts, particularly when the matter has been concluded by concurrent finding of

facts of two courts below.

 Case Law – References
 R.P. Kapoor v. State of Punjab
 Limit on power of the H.C. when it exercises Sec. 482
 The Supreme Court held:
o Inherent power of the High Court cannot be invoked in regard to
matters which are directly covered by specific provisions in the
Cr.P.C.
o It can be exercised only when no other remedy is available and
not where a specific remedy is provided by the statute.
o If an effective alternative remedy is available, the High Court will
not exercise its powers under this section, specially when the
applicant may not have availed of that remedy.
 Case Law – References
• In R.P. Kapoor v. State of Punjab, Hon'ble Supreme court went on to limit
the powers of the Hon'ble High Court within the ambit of the Cr.P.C. It
was held, "Inherent power of the High Court cannot be invoked in regard
to matters which are directly covered by specific provisions in the
Cr.P.C.".

• It is well settled that the inherent powers under section 482 can be
exercised only when no other remedy is available to the litigant and NOT
where a specific remedy is provided by the statute. If an effective
alternative remedy is available, the High Court will not exercise its
powers under this section, specially when the applicant may not have
availed of that remedy.
 Law of Crimes III – Cr.P.C. II
(Sem. VI – BA/BBA-LLB)

Topic: Limitation on Inherent Power

of the H.C.
(State of Madhya Pradesh v. Man Singh, 2011)
By
Dr. Madhuker Sharma
Symbiosis Law School, Noida
 Limitation on Inherent Power of the H.C.
 Can the High Court deal petition under Sec. 482 in a
matter which is already disposed-off by it in
revision?
 Can the High Court alter the sentencing order by
exercising inherent powers of Sec. 482?

(State of Madhya Pradesh v. Man Singh, 2011)

 Limitation on Inherent Power of the H.C.
Sec. 482: Saving of inherent powers of High Court.
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to
make such orders as may be necessary to give effect to any order under this Code, or to prevent
abuse of the process of any Court or otherwise to secure the ends of justice.

Lets deconstruct Sec. 482 in following phrase:

i. Nothing in this Code shall be deemed to limit or affect
ii. The inherent powers of the High Court to make such orders
iii. Necessity of such order
 To give effect to any order under this Code
 To prevent abuse of the process of any court
 To secure the ends of justice
 Case Law – References
Is there any limitation on powers of the H.C. when it exercises Sec. 482?

 Inherent jurisdiction of the High Court under Section 482 is very wide,

 It has to be exercised sparingly, carefully and with caution and only when such

exercise is justified by the tests specifically laid down in the section itself.

 It is to be exercised to do real and substantial justice for the administration of

which alone, courts exist.

 This view has been taken by the Hon'ble SC in many of its judgments including

Monica Kumar v. State of Uttar Pradesh.

 In a proceeding under section 482, the High Court will not enter into any finding

of facts, particularly when the matter has been concluded by concurrent finding of

facts of two courts below.

 Case Law – References
 R.P. Kapoor v. State of Punjab
 Limit on power of the H.C. when it exercises Sec. 482
 The Supreme Court held:
o Inherent power of the High Court cannot be invoked in regard to
matters which are directly covered by specific provisions in the
Cr.P.C.
o It can be exercised only when no other remedy is available and
not where a specific remedy is provided by the statute.
o If an effective alternative remedy is available, the High Court will
not exercise its powers under this section, specially when the
applicant may not have availed of that remedy.
 Case Law – References
 In R.P. Kapoor v. State of Punjab, Hon'ble Supreme court went on to limit
the powers of the Hon'ble High Court within the ambit of the Cr.P.C. It
was held, "Inherent power of the High Court cannot be invoked in regard
to matters which are directly covered by specific provisions in the Cr.P.C.".
 It is well settled that the inherent powers under section 482 can be
exercised only when no other remedy is available to the litigant and NOT
where a specific remedy is provided by the statute. If an effective
alternative remedy is available, the High Court will not exercise its
powers under this section, specially when the applicant may not have
availed of that remedy.
 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 410 OF 2011

STATE OF MADHYA PRADESH …APPELLANT(S)

Versus

MAN SINGH …RESPONDENT(S)

JUDGMENT

Deepak Gupta, J.

Whether a Judge of the High Court can exercise powers

under Section 482 of the Code of Criminal Procedure, 1973 (for

short ‘CrPC’) to alter the sentence which has been passed by the

High Court itself is the issue involved in this appeal.

2. The respondent, Man Singh was prosecuted for having

committed offences punishable under Sections 468, 471 and 419

Signature Not Verified

Digitally signed by
CHARANJEET KAUR
Date: 2019.11.04

of Indian Penal Code, 1860 (for short ‘IPC’). The allegation

17:09:52 IST
Reason:

1
against him was that he had used a transfer certificate of one

Kalu Singh and forged the certificate to show that it bore his

name and date of birth. Using this certificate, he had procured

appointment to the post of Buffalo Attendant in the Veterinary

Department. The trial court convicted the accused for the

offences punishable under Sections 468, 471 and 419 IPC. On

the issue of sentence, it was specifically urged before the trial

court that benefit of Probation of Offenders Act, 1958 (for short

‘the Act’) may be given to the respondent, Man Singh. The trial

court came to the conclusion that the accused had got service on

the basis of forged documents depriving a deserving unemployed

person of getting such employment and, therefore, according to

the trial court, this is not a fit case to grant probation.

Accordingly, the trial court imposed punishment under various

provisions of IPC for different offences but essentially the accused

was to undergo rigorous imprisonment for one year and was to

pay a total fine of Rs.2000/­.

3. The accused­respondent, Man Singh filed an appeal. The

Sessions Judge dismissed the appeal. On the issue of sentence

he found that the accused had been dealt with leniently and

2
refused to interfere with the sentence. A criminal revision was

filed in the High Court. The High Court affirmed the conviction

but reduced the substantive sentence from one year to the period

already undergone and enhanced the fine to Rs.10,000/­.

4. The accused­respondent, Man Singh deposited the fine and

then filed a petition under Section 482 of CrPC praying that the

fine had been deposited and since he is in Government job, he

may be granted benefit of the Act. The learned Judge, without

giving any other reasons, directed as follows:­

“After having heard learned counsel for the parties,

prayer is allowed and the benefit of Probation of
Offenders Act is extended to the petitioner for the
purpose that the sentence, which has already undergone
would not affect service career of the petitioner.
With the aforesaid observations petition stands disposed
of C.C. today.”

This order is challenged before us. At the outset, we note that

the manner in which the learned Judge entertained the petition

under Section 482 CrPC is highly improper and uncalled for.

There is no power of review granted to the Courts under CrPC.

As soon as the High Court had disposed of the original revision

petition, upheld the conviction, reduced the sentence to the

3
period already undergone and enhanced the fine, it became

functus officio and, as such, it could not have entertained the

petition under Section 482 CrPC for altering the sentence.

5. It is well settled law that the High Court has no

jurisdiction to review its order either under Section 362 or under

Section 482 of CrPC1. The inherent power under Section 482

CrPC cannot be used by the High Court to reopen or alter an

order disposing of a petition decided on merits 2. After disposing

of a case on merits, the Court becomes functus officio and Section

362 CrPC expressly bars review and specifically provides that no

Court after it has signed its judgment shall alter or review the

same except to correct a clerical or arithmetical error 3. Recall of

judgment would amount to alteration or review of judgment

which is not permissible under Section 362 CrPC. It cannot be

validated by the High Court invoking its inherent powers 4.

6. We have, therefore, no doubt in our mind that the High

Court had no power to entertain the petition under Section 482

CrPC and alter the sentence imposed by it. We may also add that
1 State of Kerala v. M.M. Manikantan Nair, (2001) 4 SCC 752
2 State Rep. by D.S.P., S.B.C.I.D., Chennai v. K.V. Rajendran & Ors., 2009 CriLJ 355 SC
3 Hari Singh Mann v. Harbhajan Singh Bajwa & Ors. (2001) 1 SCC 169
4 Sooraj Devi v. Pyare Lal & Anr., AIR 1981 SC 736

4
the manner in which the probation has been granted is not at all

legal. The trial court had given reasons for not giving benefit of

probation. When the High Court was deciding the revision

petition against the order of conviction, it could have, after calling

for a report of the Probation Officer in terms of Section 4 of the

Act, granted probation. Even in such a case it had to give

reasons why it disagreed with the trial court and the first

appellate court on the issue of sentence. The High Court, in fact,

reduced the sentence to the period already undergone meaning

thereby that the conviction was upheld and sentence was

imposed. After sentence had been imposed and served and fine

paid, there was no question of granting probation.

7. Another error is that the order quoted hereinabove has been

passed in violation of the provisions of Section 4 of the Act which

mandates that before releasing any offender on probation of good

conduct, the Court must obtain a report from the Probation

Officer and can then order his release on his entering bonds with

or without sureties, to appear and receive sentence when called

upon during such period, not exceeding three years, or as the

Court may direct, and in the meantime to keep peace and good

5
behaviour. The proviso to sub­section (1) of Section 4 clearly

provides that Court cannot order release of such an offender

unless it is satisfied that the offender or his surety has a fixed

place of abode or regular occupation in the place over which the

Court can exercise jurisdiction. Sub­section (2) lays down that

before making any order under sub­section (1), the Court shall

take into consideration the report of the Probation Officer. This

Court in a number of judgments has held that before passing an

order of probation, it is essential to obtain the report of the

Probation Officer concerned. Reference in this behalf may be

made to M.C.D. v. State of Delhi & Anr.5

8. In the present case, on 03.01.2011, the counsel for the

accused­respondent sought an adjournment on the ground that

the accused proposes to file a special leave petition (SLP) against

the order passed in criminal revision petition upholding his

conviction. That SLP was filed but dismissed on 28.01.2011.

Once that SLP has been dismissed, we cannot grant any relief to

the accused­respondent.

5 AIR 2005 SC 2658

6
9. We are also constrained to observe that the High Court in

its order directed that the sentence which the accused has

already undergone, would not affect his service career. We fail to

understand under what authority the High Court could have

passed such an order. Even in a case where the High Court

grants benefit of probation to the accused, the Court has no

jurisdiction to pass an order that the employee be retained in

service. This Court in State Bank of India & Ors. v. P.

Soupramaniane6 clearly held that grant of benefit of probation

under the Act does not have bearing so far as the service of such

employee is concerned. This Court held that the employee

cannot claim a right to continue in service on the ground that he

was released on probation. It was observed:

“The release under probation does not entitle an

employee to claim a right to continue in service. In fact
the employer is under an obligation to discontinue the
services of an employee convicted of an offence involving
moral turpitude. The observations made by a criminal
court are not binding on the employer who has the liberty
of dealing with his employees suitably.”

10. In the present case the accused obtained a job on the basis

of forged documents. Even if he was to be given benefit of the

Act, then also he could not retain his job because the job was
6 AIR 2019 SC 2187

7
obtained on the basis of forged documents. We are constrained

to observe that the High Court passed the order in a mechanical

and pedantic manner without considering what are the legal

issues involved.

11. In view of the above discussion, the appeal is allowed and

the order of the High Court is set aside. Pending application(s), if

any, stand(s) disposed of.

…………………………….J.
(Deepak Gupta)

……………………………..J.
(Aniruddha Bose)

New Delhi
November 04, 2019

8
Topic : Bail (Including Anticipatory Bail)

By
Dr. Madhuker Sharma
Symbiosis Law School, NOIDA
 Bail is always taken, not given
 Bail = release of accused
 Bond = document signed by accused or accused &
surety
 Surety = person who ensures presence of the accused
before the investigation / trial
 Bond = Bail bond (if it is signed by accused + surety
both)
 Bond = Personal bond (if it is signed only by accused)
 Security = money that will be forefeited in case of
failure of accused to comply with the conditions of bail
 FORM No. 45

BOND AND BAIL-BOND FOR ATTENDANCE BEFORE OFFICER IN CHARGE OF POLICE STATION OR COURT

[See sections 436, 2[436A,] 437, 3[437A,] 438 (3) and 441]

I, (name), of (place), having been arrested or detained without warrant by the Officer in charge of police

station (or having been brought before the Court of ), charged with the offence of , and required to give

security for my attendance before such Officer of Court on condition that I shall attend such Officer or

Court on every day on which any investigation or trial is held with regard to such charge, and in case

of my making default herein, I bind myself to forfeit to Government the sum of

rupees
Dated, this day of , 19 .

(Signature)

I hereby declare myself (or we jointly and severally declare ourselves and each of us) surety (or

sureties) for the above said (name) that he shall attend the Officer in charge of police station or the

Court of on every day on which any investigation into the charge is made or any trial on such charge is

held, that he shall be, and appear, before such Officer or Court for the purpose of such investigation or to

answer the charge against him (as the case may be), and, in case of his making default herein, I

hereby bind myself (or we, hereby bind ourselves) to forfeit to Government the

sum of rupees
Dated, this day of , 19 .

(Signature)
 Proviso clause of Sec. 167 (2):

 Magistrate may order of detention of accused beyond fifteen days

◦ If he is satisfied that adequate grounds exist for doing so

 No Magistrate shall authorise the detention of the accused for a

total period exceeding:

◦ Ninety days, where the investigation relates to an offence

punishable with death, imprisonment for life or imprisonment

for a term of not less than ten years;

◦ Sixty days, where the investigation relates to any other offence,

 Once the said period expires in respective case, accused shall be

released on bail if he is prepared to and does furnish bail

 Explanation I: Accused shall be detained in custody so long as he

does not furnish bail.

 Few important aspects of Sec. 167 (2)
◦ Accused must express his willingness to be released on
bail
◦ It could be via ‘filing bail application’ or via ‘oral
statement’ given to the Court
◦ Statutory duty of the Magistrate to remind the accused of
his ‘right to bail’
◦ Police-report must not have been filed
◦ If police-report has been filed, and even if matter is
under further investigation, accused is not entitled to
this bail
 Case-laws: Uday Mohan Lal Acharya v. State of Maharashtra
(2001); Sanjay Dutt v. State through C.B.I. (1994); Hitendra
Vishnu Thakur v. State of Maharashtra (1994)
 Maximum period of detention for an under-trial prisoner
 During investigation, inquiry or trial
 Accused has undergone detention for a period extending
one-half of the maximum period of imprisonment specified
 Accused shall be released by the Court on his personal
bond with or without sureties:
◦ Provided that the Court may order the continued
detention of such person for a period longer than one-
half of the said period or release him on bail instead of
the personal bond with or without sureties
Sec. 436. In what cases bail to be taken.—
 Person other than a person accused of a non-bailable
offence is arrested or detained without warrant by an
officer in charge of a police station,
◦ Not applicable in case where accused is arrested under
warrant
 Appears or is brought before a Court,
 Prepared at any time while in the custody of such officer or
at any stage of the proceeding before such Court to give
bail
 Such person shall be released on bail:
◦ Provided that such person is indigent, Such officer or Court shall
discharge him on his executing a bond without surety
Can Court u/s 437 or u/s 439 order for production of person who is arrested u/s 41 and
24 hrs. have not yet expired?
Case law discussion will follow in next
PPT.
Topic : Bail / Anticipatory Bail (Case-Laws)

By
Dr. Madhuker Sharma
Symbiosis Law School, NOIDA
 Mr. Sibbia was a former minister

 Corruption charges registered against him

 Anticipatory bail application filed before Punjab &

Haryana High Court

 Application rejected on ground: Mr. Sibbia is a man

of status, he may run away

 Appeal before S.C.

 S.C. allowed the appeal

 Questions answered by the H.C.

 What if the police has reasonable claim to secure

incriminating material from the person, should power of

Sec. 438 be exercised by the court?

◦ No, the court should not exercise this power in such

situation.

 Should Sec. 438 power be exercised in cases of offences

punishable with life/death?

◦ No, this power should not be exercised, unless

allegations seem baseless or false

 Under what facts & circumstances, Sec. 438 should not be

exercised?

◦ Larger public interest; session trial offences; corruption

at higher rung of executive

 How the court should satisfy that allegations are malafide?

◦ Court must satisfy itself on the basis of material

presented before it
 Questions before the S.C.
 Should the court u/s 438 ask the applicant to seek regular bail u/s
437 or u/s 439?
 Does ‘anticipatory bail provision’ overlap power of police to
investigate / arrest?
 Should the court u/s 438 leave the matter upon the trial court to
decide upon u/s 437?
 Is F.I.R. a pre-condition for seeking anticipatory bail application?
 Can anticipatory bail application be sought post-registration of
F.I.R.?
 Can blanket order of anticipatory bail be passed by the court?
 Can Sec. 437 conditions be used in r/o Sec. 438?
 Arguments of the Appellant

◦ Power u/s 438 is not limited to contingency

◦ Power to exercise Sec. 438 should be left to discretion of

court on the basis of facts & circumstances

◦ It amounts to deprivation of personal liberty

◦ Un-necessary restriction should not be imposed

◦ Validity of Sec. 438 must be examined by ‘test of fairness

which is implicit in Art. 21’.

 Should the court u/s 438 ask the applicant to seek regular bail

u/s 437 or u/s 439?

◦ No, the court should not ask so

 Does ‘anticipatory bail provision’ overlap power of police to

investigate / arrest?

◦ No, anticipatory bail provision does not overlap police power

 Should the court u/s 438 leave the matter upon the trial court

to decide upon u/s 437?

◦ No, the court u/s 438 should not leave the matter upon the

trial court to decide upon custody of the accused u/s 437

 The applicant must show that he has "reason to believe" that he
may be arrested for a non-bailable offence.
 The use of the expression "reason to believe" shows that the
belief that the applicant may be so arrested must be founded on
reasonable grounds.
 Section 438(1) cannot be invoked on the basis of vague and
general allegations, as if to arm oneself in perpetuity against a
possible arrest.
 If an application for anticipatory bail is made to the High Court or
the Court of Session it must apply its own mind to the question
and decide whether a case has been made out for granting such
relief.
 It cannot leave the question for the decision of the Magistrate
concerned under Section 437 of the Code, as and when an
occasion arises. Such a course will defeat the very object of
Section 438.
 Filing of a First Information Report is not a condition precedent to the
exercise of the power under Section 438.
 Anticipatory bail can be granted even after an F.I.R. is filed, so long as
the applicant has not been arrested.
 Provisions of Section 438 cannot be invoked after the arrest of the
accused.
 Blanket order of anticipatory bail should not generally be passed.
 Direction should not issue under Section 438(1) to the effect that the
applicant shall be released on bail "whenever arrested for whichever
offence whatsoever.
 Blanket order = an order which serves as a blanket to cover or protect
any and every kind of allegedly unlawful activity, in fact any
eventuality, likely or unlikely regarding which, no concrete information
can possibly be had.
 Political rivalry between two groups during pre-election
days in Maharashtra
 Leader of one political party killed by workers of
another political party
 Allegation of ‘instigation’ on one leader of the political
party belonging to the accused killers
 Gap of 08 days between instigation and alleged murder
 Anticipatory bail application filed by said leader rejected
by Bombay High Court
 Appeal before Supreme Court – appeal allowed
 Post Sibbia and pre-Sidharama, S.C. in following judgements had

given contrary opinion to Sibbia’s judgement:

◦ Salauddin Abdulsamad Shaikh v. State of Maharashtra

◦ K. L. Verma v. State and Another

◦ Adri Dharan Das v. State of West Bengal

◦ Sunita Devi v. State of Bihar and Another

 Two-Judge Bench in Naresh Kumar Yadav v. Ravindra Kumar

(2008):

◦ Power exercisable under section 438 Cr.P.C. is somewhat

extraordinary in character and it should be exercised only in

exceptional cases

 In Sidharam, it was declared per-incuriam in light of Sibbia’s

judgement
 The society has a vital interest in grant or refusal of bail

◦ Because every criminal offence is the offence against the State

 The order granting or refusing bail must reflect perfect balance

between the conflicting interests

◦ Sanctity of individual liberty and the interest of the society

 The law of bails dovetails two conflicting interests

◦ Requirements of shielding the society from the hazards of those

committing crimes and potentiality of repeating the same crime

while on bail, and

◦ Absolute adherence of the fundamental principle of criminal

jurisprudence regarding presumption of innocence of an

accused until he is found guilty and the sanctity of individual

liberty
 Discretion vested with the court u/s 438 Cr.P.C. should be

exercised with caution and prudence

 It is unnecessary to travel beyond this discretion

 This discretion should be subject to:

◦ Wide power and discretion conferred by the legislature

to a rigorous code of self-imposed limitations.

 Mr. Amarjeet Singh, brother of Mr. Niranjan Singh (Adv.)

was on way to Shirdi (Maharashtra) on his truck

 He was intercepted by 10 police officers, including Mr.

Prabhakar in jurisdiction of Police Station Ahmed Nagar

(Maharashtra)

 He was removed from the truck, tied with rope on a tree

and was shot down

 Since no action was taken against the police officers, Mr.

Niranjan filed complaint u/s 200 of the Code before the

M.M., Ahmed Nagar

 Magisterial inquiry u/s 202 – complainant & his witnesses

were examined
 Magisterial inquiry u/s 202 – complainant & his witnesses

were examined

 Warrant issued against accused police officers

 Police officers evaded arrest, they neither surrendered

 Accused applied for bail without surrendering themselves;

bail was denied by the M.M.

 M.M. put stay on arrest warrant allowing the accused

officers to seek bail from the Court of Session

 Accused police officers appeared before the Court of

Session

 Bail taken by the Court of Session which was challenged

before the High Court

 High Court dismissed the revision filed by Mr. Niranjan

 Now, Mr. Niranjan was before the S.C. under Art. 136

 Ground of Mr. Niranjan:

 Accused police officers were not in custody because they

were never arrested, hence, bail u/s 439 of the Code could

not be taken

 What is ‘custody’? What is the scope & ambit of ‘custody’

u/s 439 of the Code?

 Questions before the S.C.:
◦ Under which provision of the Code, the A.C.M.M.
should have send Mr. Dalmia to P.C. or J.C. when
he was produced for the first time?
◦ Was the police-report against Mr. Dalmia too
though he was never arrested?
◦ Was magisterial cognizance a cognizance of
offence or cognizance against Mr. Dalmia too?
Criminal Procedure Code
(Sem. IX)

Topic: Trial Procedure

 Trial

Sessions Court Trial Magisterial Trial

Warrant Case / Warrant Summons

Summons Case Case Case

Magisterial
Police Report Case Complaint Case

Chap. XVIII Chap. XIX-A Chap. XIX-B Chap. XX

 Trial (Procedure)

Magisterial Trial Magisterial Trial Magisterial Trial

Sessions Trial
(Warrant - P/R) (Warrant - M/C) (Summons Case)

P.E. (Sec.
244)

Framing of Charge Stage Sec. 225 to Sec. 228 Ss. 239 & 240 Sec. 246 Sec. 251

Question from the accused:

Sec. 228 (2) No expressed
Plead Guilty? or Trial? Sec. 240 (2) Sec. 246 (2)
provision (Sec. 251)

Conviction on Plead Guilty Sec. 229 Sec. 241 Sec. 246 (3) Sec. 252

Prosecution Evidence Sec. 230 & Sec. 231 Sec. 242 Sec. 254

Acquittal Sec. 232 N/A N/A N/A

Defense Evidence Sec. 233 Sec. 243 Sec. 247 Sec. 254

No expressed No expressed
Final Arguments Sec. 234 provision provision Sec. 254 + 255
(Sec. 248) (Sec. 248)
Criminal Procedure Code
(Sem. IX)

Topic: Trial Procedure

 Trial

Sessions Court Trial Magisterial Trial

Warrant Case / Warrant Summons

Summons Case Case Case

Magisterial
Police Report Case Complaint Case

Chap. XVIII Chap. XIX-A Chap. XIX-B Chap. XX

 Trial (Procedure)

Magisterial Trial Magisterial Trial Magisterial Trial

Sessions Trial
(Warrant - P/R) (Warrant - M/C) (Summons Case)

P.E. (Sec.
244)

Framing of Charge Stage Sec. 225 to Sec. 228 Ss. 239 & 240 Sec. 246 Sec. 251

Question from the accused:

Sec. 228 (2) No expressed
Plead Guilty? or Trial? Sec. 240 (2) Sec. 246 (2)
provision (Sec. 251)

Conviction on Plead Guilty Sec. 229 Sec. 241 Sec. 246 (3) Sec. 252

Prosecution Evidence Sec. 230 & Sec. 231 Sec. 242 Sec. 254

Acquittal Sec. 232 N/A N/A N/A

Defense Evidence Sec. 233 Sec. 243 Sec. 247 Sec. 254

No expressed No expressed
Final Arguments Sec. 234 provision provision Sec. 254 + 255
(Sec. 248) (Sec. 248)
 General Rules – Examination of Accused / Witness and / Cross-examination of Witness
• Applicable Sections –
• Sec. 272 to Sec. 281 (process of examination and recording the examination)
• Power to examine:
• Court –
• Sec. 311
• Prosecution –
• Sec. 230 (Sessions trial);
• Sec. 242 (Warrant case by Magistrate on P/R;
• Sec. 244 (Warrant case on M/C);
• Sec. 254 (Summons case)
• Defense –
• Sec. 233 (Sessions trial);
• Sec. 243 (Warrant case by Magistrate on P/R;
• Sec. 247 (Warrant case on M/C);
• Sec. 254 (Summons case)
 Administration
of Oath Signature of the
Process of
Examinati Cross- Statement is Witness /
Examinati (Exception: Sec. on in- examinatio read-over to accused and of
on of 313 chief n the witness the Trial Court
Witness examinatioin of Judge
the accused)
 In case of witness
In case of
(Summons Case -
accused
Memorandum of
Examinati Examination Record of (MM - substance)
Recordin on / / Cross- the Court memo of
g of the Cross- examination (in Final the sub-
Documen examinati in language document stance) (Warramt case:
language
t on in Q/A that witness narrative or in q/a
of the
format understands format)
court) (CMM/CoS -
q/a
format ) (CoS - narrative or
q/a format)
Code of Criminal Procedure
(Summary Trial)

Dr. Madhuker Sharma

(Lloyd Law College, Greater Noida)
• Power to try case summarily
• The CJM / CMM (Sec. 260)
• MM/JMFC (if empowered by the High Court) – Sec. 260
• JMSC (if empowered by the High Court) – Sec. 261
• Only in cases that are punishable with fine or with imprisonment of up-to 06
months
• Cases that can be tried summarily (Sec. 260)
• Offences punishable up-to 02 yrs.
• Theft, including concealment of property of theft – provided value of the
property is up-to Rs. 2000/-
• House-trespass u/s 454 & 456
• Offence u/s 504, u/s 506
• Abetment or attempt in r/o above offences
• Trial Procedure in Summary Case Trial – Sec. 262 (1)
• As case is tried in a summons case
• Charge-stage – stating substance of charge to the accused – Sec. 251
• Formal framing of charge is not necessary, trial court judge may
frame charge formally, i.e., argument on charge
• Asking for plead guilty – Sec. 251
• Conviction on plead guilty – Sec. 252
• Prosecution evidence (if not convicted u/s 252) – Sec. 254
• Defense evidence – Sec. 254
• Acquittal or conviction – Sec. 255
• Record of the case
• as per contents mentioned in Sec. 263
• Language of the record –
• in language of the court – Sec. 265
• Judgement of the case – Sec. 264
• Restriction on sentencing
• not more than 03 months – Sec. 262 (2)
Topic : Magisterial Inquiry

By
Dr. Madhuker Sharma
Symbiosis Law School, NOIDA
 Following points have not been mentioned in the flow-chart:
◦ Magisterial power to transfer the matter to another Magistrate u/s 192 is
available at any stage as soon as the M.M. finds that the matter is beyond his
jurisdiction to take cognizance
 It could be because of the fact that the matter was beyond territorial
jurisdiction of the Magistrate; or
 It could be because of the fact that the Magistrate was not empowered by
the law to take cognizance
◦ Magisterial power to dismiss the complaint u/s 203 will arise only after
inquiry / investigation is complete
 It means, once inquiry / investigation of Sec. 202 (1) is complete,
Magistrate may dismiss the complaint without summoning the accused;
 This is similar to Magistrate not taking cognizance u/s 190 when regular
investigation (via Ss. 154/155) was conducted and Sec. 173 Report is
submitted
 If accused was already summoned, then he would be set free from
accusation;
 This is similar to discharge
Topic: Appeal & Revision

By
Dr. Madhuker Sharma
 Appeal & Revision
 What is under challenge?
 Appeal: final verdict of the court
 Revision: final order, not final verdict of the court
o Exception: if there is no appeal under the Code, then final
verdict can be challenged through revision
 Procedural Mechanism?
 Appeal: Sec. 384 & Sec. 385
 Revision: Sec. 397 r.w. Sec. 384 & Sec. 385
Similar procedural mechanism in both the cases.
 Appeal & Revision
 Remedial Mechanism (under Cr.P.C.)
 Appeal: Sec. 386
 Revision: if C.O.R. is C.O.S., Sec. 397 r.w. Sec. 401 & Sec.
386; If C.O.R. is H.C., Sec. 401 r.w. Sec. 386
 Remedial Mechanism (under Constitution)
 Appeal: Art. 132, Art. 134, & Art. 136
 Revision: No ‘revision’ provided under the Constitutional
mechanism
 Appeal & Revision
 Judicial Forum:
 Appeal: Court of Sessions / H.C. / S.C.
 Revision: Court of Sessions or H.C.
 Appellate Forums (Cr.P.C.)
Trial @ Magistrate Court
M.M. / C.M.M.

Conviction Appeal against order of: Appeal Against Order of:

Conviction + Sentencing Sentencing

Acquittal

Complainant in
By the Accused By the Accused By the State By the State
complainant case

u/s 378

u/s 374 u/s 374 u/s 377 Cog. + Non- u/s 378
Any other
bailable
offence

Appeal @
Appeal @ C.O.S. Appeal @ C.O.S. Appeal @ C.O.S. Appeal @ H.C. Appeal @ H.C.
C.O.S.
 Appellate Forums (Cr.P.C.)
Trial Court : Court of Session

Sessions Judge / Addl. S.J. A.S.J.

Appeal Against Order of: Appeal Against Order of:

Conviction + Acquittal Conviction + Acquittal

Sentencing Sentencing
Sentencing Sentencing

Appeal Appeal Appeal

Appeal by Appeal by Appeal by Appeal by Appeal by Complainant in
by the by the by the
Accused Accused the State Accused Accused complainant case
State State State

u/s 374 u/s 374 u/s 377 u/s 378 u/s 374 u/s 374 u/s 377 u/s 378 u/s 378

Appeal @
Appeal @ C.O.S.
C.O.S. (up-to
(up-to 07 yrs.)
07 yrs.)
Appeal @ Appeal Appeal @ Appeal Appeal
Appeal @ H.C. Appeal @ H.C.
H.C. @ H.C. H.C. @ H.C. @ H.C.
Appeal @ H.C. Appeal @
(more than 07 H.C. (more
yrs.) than 07 yrs.)
 Law of Crimes III – Cr.P.C. II
(Sem. VI – BA/BBA-LLB)

Topic: Revision u/s 397

(Sethuraman Case & Amar Nath Case)
By
Dr. Madhuker Sharma
Symbiosis Law School, Noida
 Powers of the High Court u/s 397 of the Code
397. Calling for records to exercise powers of revision.
1) The High Court or any Sessions Judge may call for and examine
the record of any proceeding before any inferior Criminal Court
situate within its or his local jurisdiction for the purpose of
satisfying itself or himself as to the correctness, legality or
propriety of any finding, sentence or order,- recorded or
passed, and as to the regularity of any proceedings of such
inferior Court, and may, when calling for such record, direct
that the execution of any sentence or order be suspended, and
if the accused is in confinement, that he be released on bail or
on his own bond pending the examination of the record.
 Powers of the High Court u/s 397 of the Code

Explanation.- All Magistrates whether Executive or Judicial,

and whether exercising original or appellate jurisdiction, shall
be deemed to be inferior to the Sessions Judge for the
purposes of this sub- section and of section 398.
2) The powers of revision conferred by sub- section (1) shall not
be exercised in relation to any interlocutory order passed in
any appeal, inquiry, trial or other proceeding.
3) If an application under this section has been made by any
person either to the High Court or to the Sessions Judge, no
further application by the same person shall be entertained by
the other of them.
 Powers of the High Court u/s 397 of the Code
 The High Court or any Sessions Judge may
 Call for, and
 Examine the record of any proceeding before any
inferior Criminal Court
o Situate within its or his local jurisdiction
 For the purpose of
o Satisfying itself or himself
o As to the correctness of any finding, sentence, or
order, or
o Legality or propriety of any finding, sentence, or
order, or
o Regularity of any proceedings
 Powers of the High Court u/s 397 of the Code
 Direct that
 The execution of any sentence or order be suspended,
and
 If the accused is in confinement,
 He be released on bail or on his own bond
 The powers of revision shall not be exercised
 In relation to any interlocutory order
 Passed in any appeal, inquiry, trial or other proceeding
 If an application under this section has been made by any
person either to the High Court or to the Sessions Judge,
 No further application by the same person shall be
entertained by the other of them.
 Powers of the High Court u/s 397 of the Code
 What is ‘interlocutory order’?
 Does not hit Art. 21 of any person
 It is not necessary that such person should be party to
the case;
 It is purely of administrative in ‘nature’;
 In case of any over-lap, object of the order in question
should be considered to decide if such order is
interlocutory or not.

 Can High Court entertain ‘interlocutory order’ while

exercising its inherent power?
 1

“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.486-487 OF 2009

(Arising out of SLP (Crl.) No. 2688-89 of 2005)

Sethuraman …. Appellant

Versus

Rajamanickam …. Respondent

JUDGMENT

V.S. SIRPURKAR, J.

1. Leave granted.

2. In these appeals, the common order passed by the Learned Single

Judge of the Madras High Court in three Criminal Revisions, is in

challenge. By the instant order, the Learned Single Judge set aside the

three orders passed by the Trial Court dated 26.7.2004 in Crl.M.P. No.

3057 of 2004 in C.C. No. 216 of 2003 and dated 1.4.2004 in Crl.M.P. Nos.

4184 and 4185 of 2004 in C.C. No. 215 of 2003, and allowed those

Crl.M.Ps. Shortly stated, the appellant herein had filed a criminal complaint
 2

under Section 200 of the Code of Criminal Procedure (hereinafter referred

to as ‘Cr.P.C.’ for short), complaining therein that a cheque signed by the

respondent and given for returning the amount of Rs.2 lakhs, which was a

loan, was bounced and inspite of the notice given thereafter, the accused

(respondent herein) had failed to return the money. A Trial ensued on the

basis of this complaint and the complainant (appellant herein) was

examined as a first witness for the prosecution on 24.8.2004. He was

cross-examined also. On 20.9.2004, the respondent herein filed

applications under Section 91 Cr.P.C. and Section 311 Cr.P.C., seeking

directions to produce the Bank Pass Books, Income Tax Accounts and the

L.D.S. deposit receipts of the appellant, as also for recalling him for cross-

examination. This was objected to by a Reply dated 24.9.2004. The Court

passed an order on 1.10.2004, rejecting the applications made by the

respondent/accused. The respondent/accused filed Criminal Revisions

before the High Court under Section 397 Cr.P.C. and the High Court, by

the impugned common order, proceeded to allow the same. It is this order,

which has fallen for consideration before us in these appeals.

3. Very strangely, the High Court did not even issue notice to the

appellant/complainant, on the spacious ground that the production of the

documents, which was sought for by the accused, would cause no

prejudice to the appellant/complainant. We fail to understand this logic.

After all, if the documents in possession of the appellant/complainant,

which were his personal documents, sought for by the accused and the
 3

production of which was rejected by the Trial Court, and which were

ordered to be produced by the High Court, at least a hearing should have

been given to the appellant/complainant. He could have shown, firstly, that

no such documents existed or that there was no basis for the production of

those documents, particularly, in view of the fact that he was not even

cross-examined in respect of those documents. On this ground, the order

of the High Court would have to be set aside.

4. Secondly, what was not realized was that the order passed by the

Trial Court refusing to call the documents and rejecting the application

under Section 311 Cr.P.C., were interlocutory orders and as such, the

revision against those orders was clearly barred under Section 397(2)

Cr.P.C. The Trial Court, in its common order, had clearly mentioned that

the cheque was admittedly signed by the respondent/accused and the only

defence that was raised, was that his signed cheques were lost and that

the appellant/complainant had falsely used one such cheque. The Trial

Court also recorded a finding that the documents were not necessary. This

order did not, in any manner, decide anything finally. Therefore, both the

orders, i.e., one on the application under Section 91 Cr.P.C. for production

of documents and other on the application under Section 311 Cr.P.C. for

recalling the witness, were the orders of interlocutory nature, in which case,

under Section 397(2), revision was clearly not maintainable. Under such

circumstances, the learned Judge could not have interfered in his revisional
 4

jurisdiction. The impugned judgment is clearly incorrect in law and would

have to be set aside. It is accordingly set aside. The appeals are allowed.

………………………………………….J.
[Tarun Chatterjee]

………………………………………….J.
[V.S. Sirpurkar]

New Delhi
March 18, 2009
5
 Amar Nath And Others vs State Of Haryana & Others on 29 July, 1977

Supreme Court of India

Amar Nath And Others vs State Of Haryana & Others on 29 July, 1977
Equivalent citations: 1977 AIR 2185, 1978 SCR (1) 222
Author: S M Fazalali
Bench: Fazalali, Syed Murtaza
PETITIONER:
AMAR NATH AND OTHERS.

Vs.

RESPONDENT:
STATE OF HARYANA & OTHERS

DATE OF JUDGMENT29/07/1977

BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
UNTWALIA, N.L.

CITATION:
1977 AIR 2185 1978 SCR (1) 222
1977 SCC (4) 137
CITATOR INFO :
APR 1978 SC 47 (6,10,15)
E 1980 SC 962 (6,44,64,66,67,68,99,102,103,1
RF 1992 SC 604 (96,97)

ACT:
Code of Criminal Procedure, 1973-Ss. 397 and 482-Scope of.
Interlocutory order--What is-Order compelling persons to
face trial Without proper application of mind by the
Magistrate-If an interlocutory order.

HEADNOTE:
In the F.I.R. filed by the complainant, a number of persons,
including the appellants, were mentioned as participants in
a murder. On perusal of the final report submitted by the
Police, the Judicial Magistrate set them at liberty. The
complainant's revision petition against the order of the
Judicial Magistrate was dismissed by the Additional Sessions
Judge whereupon the complainant filed a regular complaint
before the Judicial Magistrate against all the accused,
including the appellants. When this complaint was dismissed
by the Judicial Magistrate, the complainant went in revision
before the Sessions Judge who remanded the case to the
Judicial Magistrate for further enquiry. The Judicial
Magistrate then straightaway issued summons to the

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 Amar Nath And Others vs State Of Haryana & Others on 29 July, 1977

appellants.
Dismissing the appellant's petition under ss. 397 and 482 of
the Code of Criminal Procedure, 1973, for quashing the order
of the Judicial Magistrate, the High Court held that the
Judicial Magistrate's order being an interlocutory order, a
revision to the High Court was barred by s. 397(2) and that
since the revision was barred, the Court could not take up
the case under s. 482 of the Code.
Allowing the appeal and remanding the case to the High
Court,
HELD : The impugned order of the Judicial Magistrate could
not be said to be an interlocutory order and does not fall
within the mischief of s. 397(2) and, therefore, a revision
against this order was fully competent under s. 397(1) or
under s. 482 of the Code because the scope of both the
sections in a matter of this kind is more or less the same.
[229H]
1. Where a revision to the High Court against the order of
the Subordinate Judge is expressly barred under s. 397(2)
the inherent powers contained in s. 482 would not be
available to defeat the bar contained in s. 397(2). Section
482 contains, inherent powers of the Court and does not
confer any new powers but preserves the powers which the
High Court already possessed. A harmonious construction of
ss. 397 and 482 would lead to the conclusion that, where a
particular order is expressly barred under s. 397(2) and
cannot be the subject of revision by the High Court, the
provisions of s. 482 would not apply. It is well settled
that the inherent powers of the Court can ordinarily be
exercised when there is no express provision on the subject-
matter. Where there is an express provision, barring a
particular remedy, the Court cannot resort to the exercise
of inherent powers. [224G-H]
2. The term "interlocutory order" is a term of well-known
legal significance which has been used in various statutes.
Decided cases have laid down that interlocutory orders to be
appealable must be those which decide the rights and
liabilities of the parties concerning a particular aspect.
The term "interlocutory order" in s. 397(2) has, been used
in a restricted sense and not in any broad and artistic
sense. It merely denotes orders of a purely interim or
temporary nature which do not decide or touch the important
rights or liabilities of the parties. Any order which
substantially affects the right of the accused, or decides
certain rights of the parties cannot be said to be an
interlocutory order so as to bar a revision to the High
Court against that order, because that would be against the
very object which formed the basis for insertion of this
provision in s. 397 of the Code. For instance, orders
summoning witnesses, adjourning cases, passing
2 23
orders for bail, calling for reports and such other steps in
aid of the pending proceeding, may no doubt amount to

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 Amar Nath And Others vs State Of Haryana & Others on 29 July, 1977

interlocutory orders against which no revision would lie

under s. 397(2) of the Code. But orders which are matters
of moment and which affect or adjudicate the rights of the
accused or a particular aspect of the trial cannot be said
to be interlocutory orders so as to be outside the purview
of the revisional jurisdiction of the High Court. [227D-G]
Central Bank of India v. Gokal Chand A.I.R. 1967 S.C. 799,
800, Mohan Lal Magan Lal Thacker v. State of Gujarat, [1968]
2 S.C.R. 685, Baldevdas v. Filmistan Distributors (India)
Pvt. Ltd., A.I.R. 1970 S.C. 406, Standard Glass Beads
Factory and Anr. v. Shri Dhar & Ors., A.I.R. 1960 All'. 692,
Union of India v. Khetra Mohan Banerjee, A.I.R. 1960 Cal.
190, Gokal Chand v. Sanwal Das & Others, A.I.R. 1920 Lah.
326, Begum Aftab Kamani v. Shri Lal Chand Khanna, A.I.R.
1969 Delhi 85 and Har Parshad Wali and Anr. v. Naranjan Nath
Matoo and others, A.I.R. 1959 J & K 139 referred to.
In the instant case, the impugned order cannot be said to be
an interlocutory order which could not be revised by the
High Court under s. 397(1) and (2) of the Code. By virtue
of the order of the Judicial Magistrate, as affirmed by the
Additional Sessions Judge, the appellants acquired a
valuable right of not being put on trial unless a proper
order was made against them. The complaint made for the
second time was dismissed by the Judicial Magistrate on
merits; in revision the Sessions Judge ordered further
enquiry and the Judicial Magistrate straightaway summoned
the appellants, which meant that they were to be put on
trial. With the passing of the impugned order, proceedings
started and the question of the appellants being put on
trial arose. Undoubtedly, this was a valuable right which
the appellants possessed and which was denied to them by the
impugned order. It cannot, therefore, be said that the
appellants were not prejudiced or that any right of theirs
was not involved by that order. The impugned order was,
therefore, one of moment to the appellants involving a
decision regarding their rights. Compelling the appellants
to face a trial without proper application of mind by the
Magistrate, cannot be held to be an interlocutory matter but
one which decided a serious question as to the rights of the
appellants. [229C-D]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 124 of 1977.

Appeal by Special Leave from the Judgment and Order dated 14-2-77 of the Punjab and Haryana
High Court in Crl. Misc. Petition No. 6070 of 1976.

D. Mookerjee and D. N. Mukherjee, for the Appellants.

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 Amar Nath And Others vs State Of Haryana & Others on 29 July, 1977

Anand Prakash and S. C. Patel, for Respondent No. 2 The Judgment of the Court was delivered by
FAZAL ALI, J.-This appeal by special leave involves an important question as to the interpretation,
scope, ambit and connotation of the word "interlocutory order" as appearing In sub S. (2) of S. 397
,of the Code of Criminal Procedure 1973. For the purpose of brevity, we shall refer to the Code of
Criminal Procedure-, 1898 as "the 1898 Code,", to the Code of Criminal Procedure, 1898 as
amended in 1955 as "the 1955 Amendment" and to the Code of Criminal Procedure, 1973 as "the
1973 Code". The appeal arises in the following circumstances.

An incident took place in village Amin on April 23, 1976 in the course of which three persons died
and F.I.R. No. 139 dated April 22 4 23, 1976 was filed at police station Butana, District Karnal at
about 5-30 P.M. The F.I.R. mentioned a number of accused persons in including the appellants as
having participated in the occurrence which resulted in the death of the deceased.The police, after
holding investigations, submitted a charge-sheet against the other accused persons except the
appellants against whom the police opined that no case at all was made out as no, weapon was
recovered nor was there any clear evidence about the participation of the appellants. The police thus
submitted its final report under s. 173 of the 1973 Code insofar as the appellants were concerned.
The report was placed before Mr. B. K. Gupta the Judicial Magistrate, 1st.Class, Karnal, who after
perusing the same set the appellants at liberty after having accepted the report. It appears that the
complainant filed a revision petition before the Additional Sessions Judge, Karnal against the order
of the Judicial Magistrate, 1st Class, Karnal releasing the appellants, but the same was dismissed on
July 3, 1976. The informant filed a regular complaint before the Judicial Magistrate, 1st Class, on
July 1, 1976 against all the 11 accused including the appellants. The, teamed Magistrate, after having
examined the complainant and going through the record, dismissed the, complaint as he was
satisfied that no case was made out against the appellants. Thereafter the complainant took up the
matter in revision before the Sessions Judge, Karnal, who this time accepted the revision petition
and remanded the case to the Judicial Magistrate for further enquiry. On November 15, 1976, the
learned Judicial Magistrate, on receiving the order of the Sessions Judge, issued summons to the,
appellants straightaway. The appellants then moved the High Court under s. 482 and s. 397 of the
1973 Code for quashing the order of the Judicial Magistrate mainly on the ground that the
Magistrate had issued the summons in a mechanical manner without applying his judicial mind to
the facts of the case. The High Court dismissed the petition in limine and refused to entertain it on
the ground that as the order of, the Judicial Magistrate dated November 15, 1976 summoning the
appellants was an interlocutory order, a revision to the High Court was barred by virtue of sub s. (2)
of s. 397 of the 1973 Code. The learned Judge further held that as the revision was barred, the Court
could not take up the case under s. 482 in order. to quash the very order of the Judicial Magistrate
under s. 397(1) of the 1973 Code. Otherwise the very object of s. 397(2) would be defeated.

While we fully agree with the view taken by the learned Judge that where a revision to the High
Court against the order of the Subordinate Judge is expressly barred under sub-s. (2) of S. 397 of the
1973 Code the inherent powers contained in s. 482 would not be available to defeat the bar
contained in s. 397(2). Section 482 of the 1973 Code contains the inherent powers of the Court and
does not confer any 'new powers but preserves the powers which the High Court already possessed.
A harmonious construction of ss. 397 and 482 would lead to the irresistible conclusion that where a
particular order is expressly barred under s. 397(2) and cannot be the subject of revision by the

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 Amar Nath And Others vs State Of Haryana & Others on 29 July, 1977

High Court, then to such a case the provisions of s. 482 would not apply. It is well settled that the
inherent powers of the, Court can ordinarily be exercised when there is no express provision on the
subject-matter. Where there is an express provision, barring a particular remedy, the Court cannot
resort to the exercise of inherent powers. So far as the second plank of the view of the learned Judge
that the order of the Judicial Magistrate in the instant case was' an interlocutory order is concerned,
it is a matter which merits serious consideration. A history of the criminal legislation in India would
manifestly reveal that so far as the Code of Criminal Procedure is concerned both in the 1898 Code
and 1955 Amendment the widest possible powers of, revision had been given to the High Court
under ss. 435 and 439 of those, Codes. The High Court could examine the propriety of any
order-whether final or interlocutory-passed by any Subordinate Court in a criminal matter. No
limitation and restriction on the powers of. the High Court were placed. But this Court as also the
various High Courts in India, by a long course of decisions, confined the exercise of revisional
powers only to cases where the impugned order suffered from any error of law or any legal infirmity
causing injustice or prejudice to the accused or was manifestly foolish or perverse. These.
restrictions were placed by the case law, merely as a rule of prudence rather than a rule of law and in
suitable cases the High Courts had the undoubted power to interfere with the impugned order even
on facts. Sections 435 and 439 being identical in the 1898 Code and 1955 Amendment insofar as
they are relevant run, thus "435(1) The High Court or any Sessions Judge or District Magistrate or
any Sub-divisional Magistrate empowered by the State Government in this behalf, may call ,for and
examine the record of any proceeding before any inferior Criminal Court situate within the local
limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness,
legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of
any proceedings of such inferior Court..............

"439.(1) In the case of any proceeding the record of which has been called for by itself or which has
been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its
discretion, exercise any of the powers conferred on a Court of appeal by section 423, 426, 427 and
428 or on a Court by section 338, and may enhance the, sentence; and, when the Judges composing
the Court of revision are equally divided in opinion, the case shall be disposed of in manner
provided by section 429.

(2) No order under this section shall be made to the prejudice of the, accused unless he has had an
opportunity of being heard either personally or by pleader in his own defence."

In fact the only rider that was put under S. 439 was that where the Court enhanced the sentence the
accused had to be given an opportunity of. being heard.

The concept of an interlocutory order qua the revisional jurisdiction of the High Court, therefore,
was completely foreign to the earlier Code. Subsequently it appears that there had been large
number of arrears and the High Courts were flooded with revisions of all kinds against interim or
interlocutory orders which led to enormous delay in the disposal of cases and exploitation of the
poor accused by the affluent prosecutors. Some times interlocutory orders caused harassment to the
accused by unnecessarily protracting the trials. It was in the background of these facts that the Law
Commission dwelt on this aspect of the matter and in the 14th and 41st Reports submitted by the

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 Amar Nath And Others vs State Of Haryana & Others on 29 July, 1977

Commission which formed the basis of the 1973 Code the said Commission suggested revolutionary
changes to be made in the powers of the High Courts. The recommendations of the Commission
were examined carefully by the Government, keeping in view, the following basic' considerations

(i) an accused person should get a fair trial in accordance with the accepted principles of natural
justice;

(ii) every effort should be made to avoid delay in investigation and trial which is harmful not only to
the individuals involved but also to society; and

(iii) 'the procedure should not be complicated and should, to the utmost extent possible, ensure fair
deal to the poorer sections of the community."

This is clearly mentioned, in the Statement of Objects and Reasons accompanying the 1973 Code.
Clause (d) of Paragraph 5 of the Statement of Objects and Reasons-runs thus :

"the, powers of revision against interlocutory orders are being takken away, as it has
been found to be one of the main contributing factors in the delay of disposal of
criminal cases Similarly, replying to the debate in the Lok Sabha on sub-clause (2) of
Clause 397, Shri Ram Niwas Mirdha, the Minister concerned, observed as follows :

"It was stated before the Select Committee that a large number of appeals against
interlocutory orders are filed with the result that the appeals got delayed
considerably. Some of the more notorious cases concern big business persons. So,
this new provision was also welcomed by most of the witnesses as well as the Select
Committee........... This was a well-thought out measure so we do not want to delete
it".

22 7 Thus it would appear that s. 397(2) was incorporated in the 1973 Code with the avowed purpose
of cutting out delays and ensuring that the accused persons got a fair trial without much delay and
the procedure was not made complicated. Thus the paramount object in inserting this new provision
of sub- s. (2) of s. 397 was to safeguard the interest of the accused.

Let us now proceed to interpret the provisions of s. 397 against the historical background of these
facts. Sub- section (2) of s. 397 of the 1973 Code may be extracted thus :

"The powers of revision conferred by Sub- section (1) shall not be exercised in
relation to any interlocutory order passed ;in any appeal, inquiry, trial or other
proceeding."

The main question which falls for determination in this appeal is as to, the what is the connotation
of the term "interlocutory order" as appearing in sub-s. (2) of s. 397 which bars any revision of such
an order by the High Court. The term "interlocutory order" is a term of well-known legal
significance and does not present any serious diffident. It has been used in various statutes

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 Amar Nath And Others vs State Of Haryana & Others on 29 July, 1977

including the Codeof Civil Procedure, Letters Patent of the High Courts and other like statutes. In
Webster's New World Dictionary "interlocutory" has been defined as an order other than final
decision. Decided cases have laid down that interlocutory orders to be appealable must be those
which decide 'the rights and liabilities of the parties concerning a particular aspect. It seems to, us
thatthe term "interlocutory order" in s. 397(2) of the 1973 Code has beenused in a restricted sense
and not in any broad or artistic sense.It merely denotes orders of a purely interim or temporary
nature which do not decide or touch the important rights, or the liabilities of the parties. Any order
which substantially affects the, right of the accused, or decides certain rights of the parties cannot be
said to be an interlocutory order so as to bar a revision to the High Court against that order, because
that would be against the very object which formed the basis for insertion of this particular
provision in s. 397 of the, 1973 Code. Thus, for instance, orders summoning witnesses, adjourning
cases, passing orders for bail, calling for reports and such other steps in aid of the pending
proceeding, may no doubt amount to interlocutory orders against which no revision would lie under
s. 397 (2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate
the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so
as to be. outside the purview of the revisional jurisdiction of the High Court. In Central Bank of
India v. Gokal Chand(1) this Court while describing the incidents of an interlocutory order, observed
as follows "In the context of s. 38(1), the words "every order of the Controller made under this Act",
though very wide, do not include interlocutory orders, which are. merely procedural (1) A.I.R. 1967
S.C. 799, 800.

and do not affect the rights or liabilities of the parties. In a pending proceeding the Controller, may
pass many interlocutory orders under ss. 36 and 37, such as orders regarding the summoning of
witnesses, discovery, production and inspection of documents, issue of a commission for
examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a
document or the relevancy of a question. All these interlocutory orders are steps taken towards the
final adjudication and for assisting the parties in the prosecution of their case in the pending
proceeding; they regulate the procedure only 'and do not affect any right or liability of the parties."

The aforesaid decision clearly illustrates the nature and incidents of 'an interlocutory order and the
incidents given by this Court constitute sufficient guidelines to interpret the connotation of the.
word "interlocutory order" as appearing in sub-s. (2) of s. 397 of the 1973 Code. Similarly in a later
case in Mohan Lal Magan Lal Thacker v. State of Gujarat(1) this Court pointed out that the finality of
an order could not be judged by co-relating that order with the controversy in the complaint. The
fact that the controversy still remained alive was irrelevant. In that case this Court held that even
though it was an interlocutory order, the order was a final order. Similary in Baldevdas v. Filmistan
Distributors (India) Pvt. Ltd. (2) while interpreting the import of the words "case decided"
appearing in S. 115 of the. Code of Civil Procedure, this Court observed as follows:

"A case may be said to be decided, if the Court adjudicates for the purposes of the suit
some right or obligation of the parties in controversy;"

Apart from this it would appear that under the various provisions of the Letters Patent of the High
Courts in India, an appeal lies to a Division Bench from an order passed by a Single Judge and some

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 Amar Nath And Others vs State Of Haryana & Others on 29 July, 1977

High Courts have held that even though the order may appear to be an interlocutory one where it
does decide one of the aspect of the rights of the parties it is, appealable. For instance, an order of a
Single Judge granting a temporary injunction was held by a Full Bench of Allahabad High Court in
Standard Glass Beads Factory and Anr.v. Shri Dhar & Ors. (3) as not being an interlocutory order
having decided some rights of the parties and was, therefore, appealable. To, the same, effect are the
decisions of the Calcutta High Court in Union of India v. Khetra Mohan Banerjee(4), of the Lahore
High Court in Gokal Chand v. Sanwal Das and others;(5) of the Delhi High Court (1) [1968] 2 S.C.R.
685.

(2) A.I.R. [1970] S.C. 406.

(3) A.I.R. [1960] All. 692.

(4) A.I.R. [1960] Cal. 190.

(5) A.I.R. [1920] Lah. 326.

in Begum Aftab Zamani v. Shri Lal Chand Khanna(1) and of the Jammu & Kashmir High Court in
Har Parshad Wali and Anr. v. Naranjan Nath Matoo and others(2).

Applying the aforesaid tests, let us now see whether the order impugned in the instant case can be
said to be an interlocutory order as held by the High Court. In the first place, so far as the appellants
are concerned, the police had submitted its final report against them and they were released by the
Judicial Magistrate. A revision against that order to the Additional Sessions Judge preferred by the
complainant had failed. Thus the appellants, by virtue of the order of the Judicial Magistrate as'
affirmed by the Additional Sessions Judge ,acquired a valuable right of not being put on trial unless
a proper order was made against them. Then came the complaint by respondent No. 2 before the
Judicial Magistrate which was also dismissed ,on merits. The Sessions Judge in revision, however,
set aside the order dismissing the complaint and ordered further inquiry. The Magistrate on
receiving the order of the Sessions Judge summoned the appellants straightaway which meant that
the appellants were to, be put on trial. So long as the Judicial Magistrate had not passed this order,
no proceedings were started against the appellants, nor were ,any such proceedings pending against
them. It was only with the passing of the impugned order that the proceedings started and the
question of the appellants being put up for trial arose for the first time. This was undoubtedly a
valuable right which the appellants possessed and which was being denied to them by the impugned
order. It cannot, therefore, be said that the appellants were not at all prejudiced, ,or that any right of
theirs was not involved by the impugned order. It is difficult to hold that the impugned order
summoning the appellants straightaway was merely an interlocutory order which could not be
revised by the High Court under sub-ss. (1) and (2) of s. 397 of the 1973 Code. The order of the
Judicial Magistrate 'summoning the appellants in the circumstances of the present case, particularly
having regard to what had preceded, was undoubtedly a matter of moment, and a valuable right of
the appellants had been taken away by the Magistrate's passing an order prima facie in a mechanical
fashion without applying his mind. We are, therefore, satisfied that the order impugned was one
which was a matter of moment and which did involve a decision regarding the rights of the

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 Amar Nath And Others vs State Of Haryana & Others on 29 July, 1977

appellants. If the appellants were not summoned, then they could not have faced the trial at all, but
by compelling the appellants to face a trial without proper application of mind cannot be held to be
an interlocutory matter but one which decided a serious question as to the rights of the appellants to
be put on trial.

For these reasons, the order of the Judicial Magistrate, 1st Class, Karnal dated November 15, 1976
cannot be said to be an interlocutory order and does not fall within the mischief of sub-s. (2) of s.
397 of the 1973 Code and is not covered by the same. That being the posi-

(1) A.I.R. 1969 Delhi 85.

(2) A.I.R. 1959 J. & K. 139.

tion, a revision against this order was fully competent under S. 397(1) or under s. 482 of the same
Code, because the scope of both these sections in a matter of this kind is more or less the same.

As we propose to remand this case to the High Court to decide the revision on merits, we refrain
from making any observation regarding the merits of the case. The appeal is, therefore, allowed, the
order of the High Court dated February 14, 1977 refusing to entertain the revision petition of the
appellants is 'set aside. The High Court is directed to admit the revision petition filed by the
appellants and to decide it on merits in accordance with the law.

P.B.R.

Appeal allowed.

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Topic: Appeal – Constitutional
Remedies

By
Dr. Madhuker Sharma
 Appeal – Art. 132
From any judgement / decree / final order of the H.C.
(it may be civil matter or it may be criminal matter)

It is subject to Certificate required to have been issued by the H.C.

This certificate may be issued by the H.C. as per Art. 134-A

H.C. certifies that the case involves substantial question of law as to interpretation of
Constitution

Either of the two parties can file this appeal before the Supreme Court on the
ground that such question is decided wrongly by the H.C.

Q.: What if an issue, as to interpretaiton of Constitution, is answered by the S.C.,

can H.C. frame its opinion that the issue is decided wrongly?
 Appeal – Art. 134
From any judgement / final order / sentence of the H.C. in criminal
matter

If the H.C. has reversed the acquittal passed by the court therein below, and has awarded
death sentence;
It means, if the H.C. has reversed the acquittal passed by the court therein below and has
awarded life imprisonment or any other imprisonment, then Art. 134 can't be filed;
OR
If the H.C. has withdrawn the trial from the trial court and has awarded the death sentence;
OR
If the H.C. has given certificate under Art. 134-A stating that 'the case is fit for appeal to the
Supreme Court

Q.: Does it mean that, when the H.C., as trial court, has awarded life imprisonment
or any other imprisonment, there is no 'right to appeal' to the convict under Art.
134?
 Certificate under Art. 134-A
Certificate under Art. 134-A

H.C., while passing or making a judgement, decree, final order, or

sentence

On an application moved by
On its own motion OR
either of the party

Immediately after passing or making

judgement, decree, order, sentence

H.C. may issue certificate under Art. 132 &

134
 Special Leave Petition (Appeal) – Art. 136

Notwithstanding anything contained in Chap. IV of the Constitution

It's discretion of the Supreme Court to grant Special Leave to Appeal

Appeal against any judgement, decree, determination, sentence or order in any

matter or any cause;

Order, judgement, decree, determination, sentence may have been passed by

any court or any tribunal

Q.: Can order / judgement of trial court be challenged through Art.

136 even if there lies appeal under Cr.P.C. in given case?
Topic : Magisterial Inquiry

By
Dr. Madhuker Sharma
Symbiosis Law School, NOIDA
 Following points have not been mentioned in the flow-chart:
◦ Magisterial power to transfer the matter to another Magistrate u/s 192 is
available at any stage as soon as the M.M. finds that the matter is beyond his
jurisdiction to take cognizance
 It could be because of the fact that the matter was beyond territorial
jurisdiction of the Magistrate; or
 It could be because of the fact that the Magistrate was not empowered by
the law to take cognizance
◦ Magisterial power to dismiss the complaint u/s 203 will arise only after
inquiry / investigation is complete
 It means, once inquiry / investigation of Sec. 202 (1) is complete,
Magistrate may dismiss the complaint without summoning the accused;
 This is similar to Magistrate not taking cognizance u/s 190 when regular
investigation (via Ss. 154/155) was conducted and Sec. 173 Report is
submitted
 If accused was already summoned, then he would be set free from
accusation;
 This is similar to discharge
Dear Students
Take notice of the lecture of 11 th December wherein I had kept the following question on hold:
Does mandate of Sec. 57 of the Code apply on arrest / detention made u/s 151 of the Code?
Ans.: No, mandate of Sec. 57 is not applicable in case of arrest made u/s 151 for reason of
provisions laid down under Art. 22 of the Constitution. Cl. 3 of Art. 22 says that Art. 22 (2)
is not applicable if a person is arrested under any prevention detention law. It means the
person is not bound to be produced within 24 hrs. of his arrest.
Also take notice of the judgement attached mentioned & attached herein below.
1. Rajender Singh Pathania & Ors vs State of NCt Of Delhi & Ors (Supreme Court
of India, decided on 12 August, 2011)
2. Ahmed Noormohmed Bhatti vs State Of Gujarat And Ors on 16 March, 2005
3. Pranab Chatterjee v. State of Bihar & Anr. (Supreme Court of India, decided
on 13th October, 1970)
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5

CASE NO.:
Appeal (crl.) 109 of 2001

PETITIONER:
Ahmed Noormohmed Bhatti

RESPONDENT:
State of Gujarat and Ors.

DATE OF JUDGMENT: 16/03/2005

BENCH:
N. Santosh Hegde & B.P. Singh & S.B. Sinha

JUDGMENT:
JUDGMENT

B.P. SINGH, J.

The petitioner herein filed a petition before the High Court of Gujarat at
Ahmedabad under Article 226 of the Constitution of India and Section 482 of
the Code of Criminal Procedure. In his petition, the petitioner prayed for
quashing of the criminal proceedings initiated against him on the
complaints of respondents 5, 6 and 7. He also prayed in the said petition
for a declaration that Section 151 of the Code of Criminal Procedure is
unconstitutional and ultra vires. The High Court by its impugned judgment
and order dated 4th April, 1996 in Special Criminal Application No. 95 of
1996 rejected the petition holding that there was no ground to hold that
Section 151 of the Code of Criminal Procedure was unconstitutional and
further there was no ground to quash the proceedings initiated against the
petitioner in which process has been issued.

So far as the challenge to Section 151 of the Code of Criminal Procedure is

concerned the High Court has noticed the fact that the prayer for declaring
the provision as unconstitutional is not supported by factual assertions
and the writ petition lacked specific averments and allegations of fact on
the basis of which it was contended that the provision was ultra vires and
unconstitutional. However, the High Court considered the arguments
addressed before it and rejected the same holding that the powers conferred
upon the police authorities under Section 151 of the Code of Criminal
Procedure were well defined, and guidelines for their exercise are also
found in the provision so as to save it from the charge of being either
arbitrary or unreasonable. The detention under Section 151 of the Code of
Criminal Procedure was only for a limited period of 24 hours for the
purpose mentioned therein and the said provision, therefore, offended no
provision of the Constitution. So far as the criminal proceedings pending
against the petitioner are concerned, they were sought to be challenged on
the ground of being mala fide, an abuse of the process of Court and being
untrue and unfounded. The High Court after considering the facts of the
case came to the conclusion that having regard to the principles laid down
by this Court in State of Haryana v. Bhajan Lal: [1992] Suppl. 1 SCC 335 no
case was made out for quashing the aforesaid proceedings.

We may only notice a few facts which are necessary for the disposal of this
petition. As urged before us by the counsel for the petitioner, on 11th
December, 1995 a complaint was made by respondent No. 5 to Dy.
Superintendent of Police, Kutch-Bhuj regarding an incident which took place
on 9th December, 1995. In connection with that incident statements were
recorded on 13th December, 1995. It is alleged that on 16th December, 1995
the petitioner was detained by the Inspector of Police, Bhuj, respondent
No. 4, under Section 151 of the Code of Criminal Procedure. However, he was
produced before the Magistrate and a Chapter Proceeding under Sections 107
& 116(3) of the Code of Criminal Procedure was initiated against him on the
basis of the complaint of respondent No. 5. It is also not in dispute that
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5
FIR No. 100/1996 dated 9th January, 1996 has been recorded against the
petitioner alleging commission of offences punishable under Sections 504,
506 and 507 of the Indian Penal Code on the complaint of respondent No. 6.
Similarly a First Information Report was lodged by respondent No. 7 against
the petitioner on 30th December, 1995 alleging commission of offences
punishable under Sections 506 (2), 507 and 114 of Indian Penal Code. On the
basis of the First Information Reports lodged by the persons concerned, the
police has investigated the cases and taken necessary steps in the matters,
and it was stated before us that the Magistrates concerned have taken
cognizance and issued process in those cases.

Section 151 appears under Chapter XI of the Code of Criminal Procedure

which relates to preventive action of the police. Sub-section (1) thereof
empowers a police officer to arrest, without orders from a Magistrate and
without a warrant, a person designing to commit any cognizable offence.
Section further requires that such an arrest should be made only if it
appears to such police officer that the commission of the offence cannot be
otherwise prevented. Sub-section (2) of Section 151 of the Code of Criminal
Procedure places a limitation on the period of detention by providing that
no person arrested under sub-section (1) shall be detained in custody for a
period exceeding 24 hours from the time of his arrest, unless his further
detention is required or authorized under any other provisions of this Code
or any other law for the time being in force.

A mere perusal of Section 151 of the Code of Criminal Procedure makes it

clear that the conditions under which a police officer may arrest a person
without an order from a Magistrate and without a warrant, have been laid
down in Section 151. He can do so only if he has come to know of a design
of the person concerned to commit any cognizable offence. A further
condition for the exercise of such power, which must also be fulfilled, is
that the arrest should be made only if it appears to the police officer
concerned that the commission of the offence cannot be otherwise prevented.
The Section, therefore, expressly lays down the requirements for the
exercise of the power to arrest without an order from a Magistrate and
without warrant. If these conditions are not fulfilled and, a person is
arrested under Section 151 of the Code of Criminal Procedure, the arresting
authority may be exposed to proceedings under the law. Sub-section (2) lays
down the rule that normally a person so arrested shall be detained in
custody not for a period exceeding 24 hours. It, therefore, follows that in
the absence of anything else, on expiry of 24 hours, he must be released.
The release, however, is not insisted upon only when his further detention
is required or authorized under any other provision of the Code or of any
other law for the time being in force. It, therefore, follows that if
before the expiry of 24 hours of detention it is found that the person
concerned is required to be detained under any other provision of the Code
of Criminal Procedure, or of any other law for the time being in force, he
may not be released and his detention may continue under such law or such
provision of the Code. The detention thereafter is not under Section 151 of
the Code of Criminal Procedure but under the relevant provision of the Code
or any other law for the time being in force as the case may be. Section
151, therefore, only provides for arrest of a person to prevent the
commission of a cognizable offence by him. The provision by no stretch of
imagination can be said to be either arbitrary or unreasonable or
infringing upon the fundamental rights of a citizen under Articles 21 and
22 of the Constitution of India.

In Joginder Kumar v. State of U.P. and Ors : [1994] 4 SCC 260 this Court
observed : -
‘‘8. The horizon of human rights is expanding. At the same time, the crime
rate is also increasing. Of late, this Court has been receiving complaints
about violation of human rights because of indiscriminate arrests. How are
we to strike a balance between the two?

9. A realistic approach should be made in this direction. The law of arrest

is one of balancing individual rights, liberties and privileges, on the one
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5
hand, and individual duties, obligations and responsibilities on the other;
of weighing and balancing the rights, liberties and privileges of the
single individual and those of individuals collectively; of simply deciding
what is wanted and where to put the weight and the emphasis; of deciding
which comes first - the criminal or society, the law violator or the law
abider; of meeting the challenge which Mr. Justice Cardozo so forthrightly
met when he wrestled with a similar task of balancing individual rights
against society’s rights and wisely held that the exclusion rule was bad
law, that society came first, and that the criminal should not go free
because the constable blundered...’’

This Court laid down certain requirements in Joginder Kumar (supra) for
effective enforcement of the fundamental rights inherent in Articles 21 and
22(1) of the Constitution of India which require to be recognized and
scrupulously protected. The requirements laid down are as follows : -

‘‘1. An arrested person being held in custody is entitled, if he so

requests to have one friend, relative or other person who is known to him
or likely to take an interest in his welfare told as far as is practicable
that he has been arrested and where he is being detained.

2. The police officer shall inform the arrested person when he is

brought to the police station of this right.

3. An entry shall be required to be made in the diary as to who was

informed of the arrest. These protections from power must be held
to flow from Articles 21 and 22(1) and enforced strictly.

It shall be the duty of the Magistrate, before whom the arrested person is
produced, to satisfy himself that these requirements have been complied
with’’.

In D.K. Basu v. State of West Bengal, [1997] 1 SCC 416 this Court has
issued requirements to be followed in all cases of arrest and detention
till legal provisions are made in that behalf as preventive measures. The
requirements laid down are : -

‘‘(1) The police personnel carrying out the arrest and handling the
interrogation of the arrestee should bear accurate, visible and clear
identification and name tags with their designations. The particulars of
all such police personnel who handle interrogation of the arrestee must be
recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee
shall prepare a memo of arrest at the time of arrest and such memo
shall be attested by at least one witness, who may either be a
member of the family of the arrestee or a respectable person of the
locality from where the arrest is made. It shall also be
countersigned by the arrestee and shall contain the time and date
of arrest.

(3) A person who has been arrested or detained and is being held in
custody in a police station or interrogation centre or other lock-
up, shall be entitled to have one friend or relative or other
person known to him or having interest in his welfare being
informed, as soon as practicable, that he has been arrested and is
being detained at the particular place, unless the attesting
witness of the memo of arrest is himself such a friend or a
relative of the arrestee.

(4) The time, place of arrest and venue of custody of an arrestee

must be notified by the police where the next friend or relative of
the arrestee lives outside the district or town through the Legal
Aid Organisation in the District and the police station of the area
concerned telegraphically within a period of 8 to 12 hours after
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5
the arrest.

(5) The person arrested must be made aware of this right to have
someone informed of his arrest or detention as soon as he is put
under arrest or is detained.

(6) An entry must be made in the diary at the place of detention

regarding the arrest of the person which shall also disclose the
name of the next friend of the person who has been informed of the
arrest and the names and particulars of the police officials in
whose custody the arrestee is.

(7) The arrestee should, where he so requests, be also examined at

the time of his arrest and major and minor injuries, if any present
on his/her body, must be recorded at that time. The ‘‘Inspection
Memo’’ must be signed both by the arrestee and the police officer
effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by a

trained doctor every 48 hours during his detention in custody by a
doctor on the panel of approved doctors appointed by Director,
Health Services of the State or Union Territory concerned.
Director, Health Services should prepare such a panel for all
tehsils and districts as well.

(9) Copies of all the documents including the memo of arrest,

referred to above, should be sent to the Illaqa Magistrate for his
record.

(10) The arrestee may be permitted to meet his lawyer during

interrogation, though not throughout the interrogation.

(11) A police control room should be provided at all district and

State headquarters, where information regarding the arrest and the
place of custody of the arrestee shall be communicated by the
officer causing the arrest, within 12 hours of effecting the arrest
and at the police control room it should be displayed on a
conspicuous notice board.’’

These requirements are in addition to the constitutional and statutory

safeguards and do not detract from various directions given by the Courts
from time to time in connection with the safeguarding of the rights and
dignity of the arrestee. This Court has also cautioned that failure to
comply with the requirements aforesaid, shall apart from rendering the
official concerned liable for departmental action, also render him liable
to be punished for Contempt of Court.

Counsel for the petitioner submitted that such requirements must be laid
down in the case of an arrest under Section 151 of the Code of Criminal
Procedure. Counsel for the respondents conceded that the requirements laid
down in Joginder Kumar (supra) and D.K. Basu (supra) apply also to an
arrest made under Section 151 of the Code of Criminal Procedure . As we
have noticed earlier, Section 151 of the Code of Criminal Procedure itself
makes provision for the circumstances in which an arrest can be made under
that Section and also places a limitation on the period for which a person
so arrested may be detained. The guidelines are inbuilt in the provision
itself. Those statutory guidelines read with the requirements laid down by
this Court in Joginder Kumar (supra) and D.K. Basu (supra) provide an
assurance that the power shall not be abused and in case of abuse, the
authority concerned shall be adequately punished. A provision cannot be
held to be unreasonable or arbitrary and, therefore, unconstitutional,
merely because the authority vested with the power may abuse his authority.
Since several cases of abuse of authority in matters of arrest and
detention have come to the notice of this Court, this Court has laid down
the requirements which have to be followed in all cases of arrest and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5
detention.

We, therefore, find no substance in the contention that Section 151 of the
Code of Criminal Procedure is unconstitutional and ultra vires the
constitutional provisions.

The next question is whether any interference by this Court is called for
in the criminal proceedings pending against the petitioner. As we have
noticed earlier, these proceedings have been initiated by private persons,
namely respondents 5 to 7. So far as the police authorities are concerned,
namely respondents 2 to 4, they are performing the statutory duties
enjoined upon them. Those proceedings are not motivated by any personal
animosity of the police officials concerned. The proceedings have been
initiated on complaints made by private persons under the law and the
proceedings are pending before the Courts which have jurisdiction to deal
with them. The High Court has examined the matter and has come to the
conclusion that those proceedings do not deserve to be quashed under
Article 226 of the Constitution of India or under Section 482 of the Code
of Criminal Procedure. We entirely agree with the High Court.

We find no merit in this appeal and the same is accordingly dismissed.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1582 OF 2011

(Arising out of SLP(Crl.) No.1773 of 2008)

Rajender Singh Pathania & Ors. …

Appellants

Vs.

State of N.C.T. of Delhi & Ors. … Respondents

With

CRIMINAL APPEAL NO. 1583 OF 2011

(Arising out of SLP(Crl.) No.5702 of 2008)

JUDGMENT

Dr. B.S. CHAUHAN, J.

1. Leave granted in both the matters.

2. These appeals have been preferred against the same judgment

and order dated 25.2.2008 passed by the High Court of Delhi in Writ

Petition (Crl.) No.264 of 2007 by which the High Court has quashed

the criminal case registered against respondent nos. 3 and 4; directed

Central Bureau of Investigation (hereinafter called ‘CBI’) to investigate

the case in respect of the allegations made by the said respondents

against the appellant nos. 2 to 4; and awarded a compensation of

Rs.25,000/- each to the said respondents for wrongful confinement.

3. FACTS:

A. On 3.2.2007, Constable Virender Kumar, Head Constable

Krishan Singh and Constable Jai Kumar, appellant nos. 2 to 4

respectively while patrolling in the area found that Sanjeev Kumar

Singh and Dalip Gupta, respondent nos.3 and 4 respectively were

fighting with each other in an intoxicated condition. The said

appellants tried to pacify them but in vein. After realising that they

were in drunken condition the aforesaid appellants took both the said

respondents to the hospital for medical examination wherein they

misbehaved with the Doctor and other staff of the hospital. After

medical examination, it was opined that both the said respondents had

taken alcohol.

B. The said respondents were booked under Sections 107/151 of the

Code of Criminal Procedure, 1973 (hereinafter called ‘Cr.P.C.’) and

were produced before the Special Executive Magistrate (hereinafter

called ‘the Magistrate’) on 4.2.2007. The Magistrate issued show

2
cause notice as to why they should not be ordered to execute personal

bond of Rs.5,000/- each with a surety in the like amount for

maintaining peace for a period of one year. The said respondents could

not furnish the bonds and thus, the Magistrate sent both of them to

judicial custody. The said respondents furnished the bond of

Rs.15,000/- each on the next day, i.e., 5.2.2007 and were released.

C. The said respondents filed Criminal Writ Petition No.264 of

2007 on 19.2.2007 before the High Court of Delhi praying mainly for

quashing of the proceedings under Sections 107/151 Cr.P.C. and

further asked to initiate criminal proceedings against the appellant

nos.2 to 4 and award them compensation for illegal detention. The writ

petition came for hearing on 26.2.2007. The standing counsel

appearing for the State took notice on behalf of all the respondents in

the writ petition. The High Court directed the police authorities to

submit the status report. The appellant no.1 after making an inquiry in

the case submitted the status report on 10.7.2007. The petition was

heard on 31.10.2007 and has been allowed vide judgment and order

dated 25.2.2008. Hence, these appeals.

4. Shri P.P. Malhotra, learned Additional Solicitor General

appearing for the State of NCT Delhi and Shri Pradeep Gupta, learned

3
counsel appearing for the appellants, have submitted that both the said

respondents had been under the influence of liquor and were fighting

with each other at a public place, thus, there was danger of breach of

peace and tranquillity. Appellant nos.2 to 4 tried to pacify them but the

said respondents did not pay any heed. They had been booked under

Sections 107/151 Cr.P.C. and produced before the Magistrate on the

next day. The Magistrate after completing legal formalities directed

that they may be released on furnishing the bonds to the tune of

Rs.5,000/- each with a surety in the like amount. The said respondents

were not in a position to submit the bail bonds on the said date and

thus, could not be released on 4.2.2007. However, on the next day,

they submitted the bail bonds voluntarily for a sum of Rs.15,000/-

each, and thus, they were released. Factual averments made in the writ

petition were totally false.

Appellants had not been served personal notices and had no

opportunity to defend themselves. The order impugned has been passed

in flagrant violation of the principle of natural justice. Such a petty

matter does not require to be investigated by the CBI. Token

compensation to the tune of Rs.25,000/- has been awarded to each of

4
the said respondents without determining the factual controversy.

Hence, the appeals deserve to be allowed.

5. On the contrary, the learned counsel appearing for the

respondent nos. 3 and 4 has opposed the appeals contending that the

appellants had violated fundamental rights of the contesting

respondents and detained them in jail without any justification,

therefore, the matter is required to be investigated by the CBI or some

other independent investigating agency. Token compensation has

rightly been awarded by the High Court. The appeals lack merit and are

liable to be dismissed.

6. We have considered the rival submissions made by learned

counsel for the parties and perused the record.

7. In the writ petition, admittedly, altogether there were seven

respondents, including the present appellants and the Magistrate who

had passed the order under Sections 107/151 Cr.P.C. Record of the

case reveals that the matter was listed for the first time on 26.2.2007

and the learned standing counsel for the State accepted notice on

behalf of all the seven respondents therein. Most of the respondents

before the writ court had been impleaded by name in personal capacity

5
making allegations of exceeding their powers and abusing their

positions. There is nothing on record to show that the standing counsel

had any communication with persons against whom allegations of mala

fide had been alleged, particularly, appellant nos. 2 to 4 and the learned

Magistrate, respondent no.5 herein. Thus, none of them had an

opportunity of appearing before the High Court. We do not find any

force in the submission made by learned counsel appearing for the

original writ petitioners that as the State had been representing all of

them, there was no need to hear each and every individual.

Undoubtedly, the judgment and order impugned in these appeals has

been passed in flagrant violation of the principles of natural justice and,

thus, liable to be set aside solely on this ground.

8. The status report had been submitted before the High Court after

having proper investigation, stating that the writ petitioners had been

under the influence of alcohol and been abusing, threatening and

quarrelling each other at the public place. The police personnel could

not control them. When they were taken to the hospital for medical

check up they were found intoxicated, and they misbehaved with the

doctor and staff of the hospital also. It had been brought to the notice of

the High Court that Sanjeev Kumar - respondent no. 3, had been

6
threatening the police officials that his cousin Shri Aushutosh Kumar

was a Metropolitan Magistrate in Tis Hazari Courts, Delhi and he

would teach them a lesson for ever. It was further pointed out that Shri

Aushutosh Kumar, MM, Tis Hazari Courts, Delhi from his mobile No.

9868932336 had a talk with appellant no.1-Rajender Singh Pathania,

SHO, PS Samaipur Badli, at 10.00 P.M. on his mobile No.

9810030663 for more than three minutes on 3.2.2007. The Magistrate

had passed the release order of the said respondents, however, they

could not be released because they failed to furnish the personal bond

with a surety in the like amount. The High Court while passing the

order did not consider it proper to have an investigation on the material

facts regarding demand of bribe to the tune of Rs.500 from the writ

petitioners or regarding the mis-behaviour of the said respondents with

the doctor and staff of the hospital. The medical report reveals that

they were intoxicated. The relevant part of the medical report dated

3.2.2007 made at 8.00 p.m. in Babu Jagjivan Ram Memorial Hospital,

Jahangirpuri, Delhi reads as under:

“Smell of alcohol ++

Patient had been irritating and misbehaving with

the doctor and staff”

7
9. No further investigation or inquiry had been conducted on the

charge of abusing, threatening and quarrelling by the writ petitioners

with each other. Though the High Court reached the conclusion that

the said respondents had been kept behind the bar for one day resulting

into violation of their fundamental rights, without realising that since

they failed to furnish bonds, no other option was available and they

were sent to judicial custody in view of the order of the Magistrate. If

the writ petitioners were aggrieved of the same, they could have

challenged the same by filing appeal/revision. We failed to understand

under what circumstances the writ petition has been entertained for

examining the issue of illegal detention, particularly, in a case where

there was a justification for keeping them in judicial custody.

10. The High Court reached the conclusion that in spite of the fact

that the Magistrate passed the order to furnish the bonds of Rs.5,000/-

each, the bonds had been accepted for Rs.15,000/-. There is nothing

on record to show that any of writ petitioners had raised the grievance

before the Magistrate enhancing the amount of personal bonds. In fact,

the said writ petitioners themselves voluntarily submitted bonds for

Rs.15,000/- and therefore, no illegality could be found on that ground.

8
11. The judgment and order impugned herein shocked our judicial

conscience as under what circumstances such a petty incident was

considered by the High Court to be a fit case to be referred to the CBI

for investigation.

12. This very Bench recently in Disha v. State of Gujarat & Ors.,

JT (2011) 7 SC 548, while relying upon earlier judgments of this

Court in Ashok Kumar Todi v. Kishwar Jahan & Ors., JT (2011) 3

SC 50; and Narmada Bai v. State of Gujarat, JT (2011) 4 SC 279,

came to the conclusion that for directing the CBI to hold the

investigation the court must be satisfied that the opposite parties are

very powerful and influential persons or the State authorities like top

police officials are involved and the investigation has not proceeded

with in proper direction or it has been biased. In such an eventuality, in

order to do complete justice a direction to the CBI to investigate the

case can be issued.

13. In the instant case, the grievance of the writ petitioners basically

had been against the two Constables and one Head Constable. It was

not a case where it could be held that the State authorities were

9
interested or involved in the incident. Thus, in our opinion, it was not a

fit case where investigation could be handed over to the CBI.

It is not only in the instant case that the High Court has

directed CBI to investigate but it is evident from the other connected

cases which have been heard along with these appeals and are being

disposed of by separate order, that on the same day i.e. 25.2.2008 the

same Hon’ble Judge directed CBI enquiry in another paltry case under

Sections 107/151 Cr.P.C. Further on 28.2.2008 CBI enquiry was

directed in another case also under Sections 107/151 Cr.P.C.. Thus, it

is evident that the High Court has been passing such directions in a

most casual and cavalier manner considering that each and every

investigation must be carried out by some special investigating agency.

14. The object of the Sections 107/151 Cr.P.C. are of preventive

justice and not punitive. S.151 should only be invoked when there is

imminent danger to peace or likelihood of breach of peace under

Section 107 Cr.P.C. An arrest under S.151 can be supported when the

person to be arrested designs to commit a cognizable offence. If a

proceeding under Sections 107/151 appears to be absolutely necessary

to deal with the threatened apprehension of breach of peace, it is

1
incumbent upon the authority concerned to take prompt action. The

jurisdiction vested in a Magistrate to act under Section 107 is to be

exercised in emergent situation.

15. A mere perusal of Section 151 of the Code of Criminal Procedure

makes it clear that the conditions under which a police officer may

arrest a person without an order from a Magistrate and without a

warrant have been laid down in Section 151. He can do so only if he has

come to know of a design of the person concerned to commit any

cognizable offence. A further condition for the exercise of such power,

which must also be fulfilled, is that the arrest should be made only if it

appears to the police officer concerned that the commission of the

offence cannot be otherwise prevented. The Section, therefore,

expressly lays down the requirements for exercise of the power to

arrest without an order from a Magistrate and without warrant. If these

conditions are not fulfilled and, a person is arrested under Section 151

Cr.P.C., the arresting authority may be exposed to proceedings under

the law for violating the fundamental rights inherent in Articles 21 and

22 of Constitution. (Vide: Ahmed Noormohmed Bhatti v. State of

Gujarat and Ors., AIR 2005 SC 2115).

1
 (See also: Joginder Kumar v. State of U.P. and Ors., AIR 1994 SC
1349 , D.K. Basu v. State of West Bengal, AIR 1997 SC 610).

16. In the instant case the proceedings under Sections 107/151

Cr.P.C. were initiated on 4.2.2007 and the High Court has quashed the

proceedings. At such a belated stage, correctness of the decision to

that extent does not require consideration. Even otherwise the issue

regarding quashing of those proceedings at this stage remains purely

academic. So, we uphold the impugned judgment to that extent.

17. The issue of award of compensation in case of violation of

fundamental rights of a person has been considered by this Court time

and again and it has consistently been held that though the High Courts

and this Court in exercise of their jurisdictions under Articles 226 and

32 can award compensation for such violations but such a power

should not be lightly exercised. These Articles cannot be used as a

substitute for the enforcement of rights and obligations which could be

enforced efficaciously through the ordinary process of courts. Before

awarding any compensation there must be a proper enquiry on the

question of facts alleged in the complaint. The court may examine the

report and determine the issue after giving opportunity of filing

1
objections to rebut the same and hearing to the other side. Awarding of

compensation is permissible in case the court reaches the same

conclusion on a re-appreciation of the evidence adduced at the enquiry.

Award of monetary compensation in such an eventuality is permissible

“when that is the only practicable mode of redress available for the

contravention made by the State or its servants in the purported

exercise of their powers.”

(Vide: Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026;

Bhim Singh, MLA v. State of J&K & Ors., AIR 1986 SC 494; Smt.
Nilabati Behera v. State of Orissa & Ors., AIR 1993 SC 1960; D.K.
Basu v. State of W.B.,AIR 1997 SC 610; Chairman, Railway Board
& Ors. v. Mrs. Chandrima Das & Ors., AIR 2000 SC 988; and
S.P.S. Rathore v. State of Haryana & Ors., (2005) 10 SCC 1).

18. In Sube Singh v. State of Haryana & Ors., AIR 2006 SC 1117,

while dealing with similar issue this Court held as under:

“In cases where custodial death or custodial

torture or other violation of the rights guaranteed
under Article 21 is established, the courts may
award compensation in a proceeding under Article
32 or 226. However, before awarding
compensation, the Court will have to pose to itself
the following questions: (a) whether the violation
of Article 21 is patent and incontrovertible, (b)
whether the violation is gross and of a magnitude
to shock the conscience of the court, (c) whether
the custodial torture alleged has resulted in
death….. Where there are clear indications that
the allegations are false or exaggerated fully or in
part, the courts may not award compensation as a

1
 public law remedy under Article 32 or 226, but
relegate the aggrieved party to the traditional
remedies by way of appropriate civil/criminal
action.”
(See also: Munshi Singh Gautam (D) & Ors. v. State of M.P., AIR
2005 SC 402; and Bharat Amratlal Kothari v. Dosukhan
Samadkhan Sindhi & Ors., AIR 2010 SC 475).

19. In view of the above, we are of the considered opinion that the

High Court erred in awarding even token compensation to the tune of

Rs.25,000/- each as the High Court did not hold any enquiry and

passed the order merely after considering the status report submitted by

the appellant no.1 without hearing any of the persons against whom

allegations of abuse of power had been made. Such an order is liable

to be set aside.

20. In view of the above, appeals succeed and are allowed.

Judgment and order impugned herein is set aside except to the extent

that the proceedings under Sections 107/151 Cr.P.C. against the

contesting respondents stood quashed.

………………………….
J. (P. SATHASIVAM)

………………………….J.
New Delhi, (Dr. B.S. CHAUHAN)
August 12, 2011

1
 Code of Criminal Procedure
(Preventive & Precautionary Measures)

Dr. Madhuker Sharma

Lloyd Law College, Greater Noida
 PART – I (Security for keeping peace and for good
behavior)
• In case of conviction (Sec. 106)
• From person other than convicted (Sec. 107)
• From person disseminating seditious matter (Sec.
108)
• From a suspected person (Sec. 109)
• From habitual offender (Sec. 110)
• Miscellaneous provisions (Sec. 111 to Sec. 124)
 PART – III (Preventive power of the
police)

• Power in r/o prevention of cognizable offence (Sec. 149)

• Power to arrest in r/o prevention of cognizable offence
(Sec. 151)
• Power to prevent injury to public property (Sec. 152)
PART – II (Maintenance of public order &
tranquility)

• Unlawful assembly (Sec. 129 to Sec. 132)

• Public nuisance (Sec. 133 to Sec. 143)
• Urgent cases of nuisance or apprehended danger (Sec.
144 to Sec. 148)
 Provisions in r/o unlawful assembly
• In case of an unlawful assembly or assembly of five or more
persons, is likely to cause disturbance to public peace
• The Executive Magistrate, or Officer in-charge (Police Station),
or any police officer of Sub-inspector or above rank (in case of
absence of the SHO) may
• Pass order asking the said assembly to disperse, or
• To use force to disperse such assembly in case it does not
disperse or shows determination to not to disperse
• This power includes power to arrest
• The Executive Officer may use armed forces to disperse

the said assembly

• In case of urgency, commanding officer of the armed

officer may also use force to disperse said assembly

(Sec. 131)

• When threat to public peace can’t be communicated

to the Executive Magistrate, hence, his order can’t be

procured
Public Nuisance
(I.P.C. & Cr.P.C.)
 Indian Penal Code
CHAPTER XIV
OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY, CONVENIENCE,
DECENCY AND MORALS

• Sec. 268. Public nuisance.—

• A person is guilty of a public nuisance who does any act or is guilty of an
illegal omission which causes any common injury, danger or annoyance to
the public or to the people in general who dwell or occupy property in the
vicinity, or which must necessarily cause injury, obstruction, danger or
annoyance to persons who may have occasion to use any public right.
• A common nuisance is not excused on the ground that it causes some
convenience or advantage.
• Sec. 290. Punishment for public nuisance in cases not otherwise provided for.—
• Whoever commits a public nuisance in any case not otherwise punishable
by this Code, shall be punished with fine which may extend to two hundred
rupees.
• Sec. 291. Continuance of nuisance after injunction to discontinue.—
• Whoever repeats or continues a public nuisance, having been enjoined by
any public servant who has lawful authority to issue such injunction not to
repeat or continue such nuisance, shall be punished with simple
imprisonment for a term which may extend to six months, or with fine, or
with both.
 Code of Criminal Procedure, 1973
• Sec. 133.Conditional order for removal of nuisance.

(1) Whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate

specially empowered in this of behalf by the State Government, on receiving the report of a police

officer or other information and on taking such evidence (if any) as he thinks fit, considers-

(a) that any unlawful obstruction or nuisance should be removed from any public place or from any

way, river or channel which is or may be lawfully used by the public ; or

(b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is

injurious to the health or physical comfort of the community, and that in consequence such trade

or occupation should be prohibited or regulated or such goods or merchandise should be removed

or the keeping thereof regulated ; or

(c) that the construction of any building, or, the disposal of any substance, as is likely to occasion

configuration or explosion, should be prevented or stopped ;

 (d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall
and thereby cause injury to persons living or carrying on business in the neighbourhood or
passing by, and that in consequence the removal, repair or support of such building, tent or
structure, or the removal or support of such tree, is necessary ; or
(e) that any tank, well or excavation adjacent to any such way or public place should be
fenced in such manner as to prevent danger arising to the public ; or
(f) that any dangerous animal should be destroyed, confined or otherwise disposed of,
• Such Magistrate may make a conditional order requiring the person causing such
obstruction or nuisance, or carrying on such trade or occupa tion, or keeping any
such goods or merchandise, or owning, possessing or controlling such building,
tent, structure, substance, tank, well or excavation, or owning or possessing such
animal or tree, within a time to be fixed in the order-
(i) to remove such obstruction or nuisance ; or
 • (ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or

occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may

be directed; or

• (iii) to prevent or stop the construction of such building, or to alter the disposal of such substance ; or

• (iv) to remove, repair or support such building, tent or structure, or to remove or support such trees ; or

• (v) to fence such tank, well or excavation ; or

• (vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order; or,

• if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time

and place to be fixed by the Order, and show cause, in the manner hereinafter provided, why the order should not

be made absolute.

• (2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court. Explanation-A

"public place" includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary

or re-creative purposes.
Sec. 144. Power to issue order in urgent cases of nuisance of apprehended danger.

• (1) In cases where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or any

other Executive Magistrate specially empowered by the State Government in this behalf, there

is sufficient ground for proceeding under this section and immediate prevention or speedy

remedy is desirable, such Magistrate may, by a written order stating the material facts of the

case and served in the manner provided by section 134, direct any person to abstain from a

certain act or to take certain order with respect to certain property in his possession or under

his management, if such Magistrate considers that such direction is likely to prevent, or tends to

prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human

life, health or safety, or a disturbance of the public tranquility, or a riot, of an affray.

• (2) An order under this section may, in cases of emergency or in cases where the circumstances do
not admit of the serving in due time of a notice upon the person against whom the order is directed,
be passed ex parte.
• (3) An order under this section may be directed to a particular individual, or to persons residing in a
particular place or area, or to the public generally when frequenting or visiting a particular place or
area.
• (4) No order under this section shall remain in force for more than two months from the making
thereof:
Provided that, if the State Government considers it necessary so to do for preventing danger to
human life, health or safety or for preventing a riot or any affray, it may, by notification, direct that
an order made by a Magistrate under this section shall remain in force for such further period not
exceeding six months from the date on which the order made by the Magistrate would have, but
for such order, expired, as it may specify in the said notification.
• (5) Any Magistrate may, either on his own motion or on the application of any person

aggrieved, rescind or alter any order made under this section, by himself or any Magistrate

subordinate to him or by his predecessor-in-office.

• (6) The State Government may, either on its own motion or on the application of any person

aggrieved, rescind or alter any order made by it under the proviso to sub-section (4).

• (7) Where an application under sub-section (5) or sub-section (6) is received, the Magistrate, or

the State Government, as the case may be, shall afford to the applicant an early opportunity of

appearing before him or it, either in person or by pleader and showing cause against the order ;

and if the Magistrate or the State Government, as the case may be, rejects the application

wholly or in part, he or it shall record in writing the reasons for so doing.

 Subsequent to Sec. 133, Cr.P.C.
• If the order is defied or ignored Section 188 IPC comes into penal play:
• Whoever, knowing that, by an order promulgated by a public servant
lawfully empowered to promulgate such order, he is directed to obtain
from a certain act, or to take certain order with certain property in his
possession or under his management, disobeys such direction, and if such
disobedience causes or tends to cause danger to human life, health or
safety, or causes or tends to cause a riot or affray, shall be punished with
imprisonment of either description for a term which may extend to six
months, or with fine which may extend to one thousand rupees, or with
both.
Municipal Council, Ratlam v. Vardichand & Ors. (1980) 4 SCC 162

• Facts:
• New Road, Shastri Nagar, Ratlam – under jurisdiction of Municipal
Council, Ratlam
• There was a road dividing two localities –
• On one side, prosperous colony, and
• On the other, there was a slum
• Semi-constructed nullah was there; no. of well-pits were there;
mosquito breeding was there; people from slum would relieve in
open due to lack of wash-room facility
• Mr. Vardhichand & few other residents of the slum filed application
u/s 133 of the Cr.PC before the S.D.M.
 Remedy Clause under Application filed u/s 133
1. The drains constructed by Municipality are mismanaged and incomplete, they should be
managed and be completed and flow of water in the drains should be made so that the
water may pass through the drain without obstruction.
2. The big pits and earthen drains which are situated near the College boundary and on the
corners of the road where dirty water usually accumulates, they should be closed and the
filth shall be removed therefrom.
3. The big 'Nala' which is in between the road, should be managed and covered in this way
that it must not create overflow in the rainy season.
4. The Malaria Department should be ordered to sprinkle D.D.T. and act in such a manner and
use such means so that the mosquitoes may be eradicated completely from the said
locality.
 Arguments of the Respondent Municipality before
the SDM
1. Owners of houses had gone to that locality on their own
choice with eyes open and, therefore, could not
complain if human excreta was flowing, dirt was
stinking, mosquitoes were multiplying and health was
held hostage.
A public body constituted for the principal statutory duty
of ensuring sanitation and health cannot outrage the
court by such an ugly plea.
2. Insufficiency of funds with the municipality
 Order of the S.D.M.
The Town Improvement Trust with the help of Municipal Council must prepare a
permanent plan to make the proper flow in the said Nallah which is flowing in
between Shastri Colony and New Road.
Both the non- applicants must prepare the plan within six months and they must take
proper action to give it a concrete form.
According to para 13 a few places are described which are either having the same
drains and the other area is having no drain and due to this the water stinks there; so
the Municipal Council and the Town Improvement Trust must construct the proper
drainage system and within their own premises where there is no drain it must be
constructed immediately and all this work should be completed within six months
The Municipal Council should construct drains from the jail to the bridge behind
the southern side of the houses so that the water flowing from the septic tanks
and the other water flowing outside the residential houses may be channellised
and it may stop stinking and it should have a proper flow so that the water may
go easily towards the main Nallah.
All these drains should be constructed completely within six months by the
Municipal Council.
The places where the pits are in existence the same should be covered with
mud so that the water may not accumulate in those pits and it may not breed
mosquitoes.
The Municipal Council must complete this work within two months.
A notice u/s of the Criminal Procedure Code (Old Code) may be issued to the
non- applicants Nos. 1 and 2 so that all the works may be carried out within the
stipulated period. Case is hereby finalised.
 Appellate Stage

• Court of Session:
• Allowed appeal of the Municipality and dismissed order of the SDM
• High Court of Madhya Pradesh:
• Allowed appeal of Mr. Vardhichand & Ors. and dismissed judgement of the
Court of Session
• Supreme Court:
• Dismissed appeal of the Municipality and upheld judgement of the High
Court
 Question before the Supreme Court
o Question of facts:
o Was there any nuisance?
o Already answered by the S.D.M.
o Neither the Municipality had contested on that
o Question of law:
o Whether a Court can by affirmative action compel a statutory body to carry
out its duty to the community by constructing sanitation facilities at great
cost and on a time-bound basis?
o Is the power u/s 133 of the Code discretionary or it is duty of the
Magistrate? (not framed by the Supreme Court)
 Order of the Supreme Court
 Wherever there is a public nuisance, the presence of Sec. 133, CrPC

must be felt and any contrary opinion is contrary to the law.

 The public power of the Magistrate under the Code is a public duty to

the members of the public who are victims of the nuisance and so he

shall exercise, it when the jurisdictional facts are present.

 The Magistrate's responsibility u/s 133 of the Code is to order

removal of such nuisance within a time to be fixed in the order. This is

a public duty implicit in the public power to be exercised on behalf of

the public and pursuant to a public proceeding. Failure to comply with

the direction will be visited with a punishment contemplated by Sec.

188, IPC.
• The Municipal Commissioner or other executive authority bound
by the order u/s 133 of the Code shall obey the direction
because disobedience, if causes obstruction or annoyance or
injury to any persons lawfully pursuing their employment, shall
be punished with simple imprisonment or fine as prescribed in
the section.
• The offence is aggravated if the disobedience tends to cause
danger to human health or safety.
• Public nuisance, because of pollutants being discharged by big
factories to the detriment of the poorer sections, is a challenge
to the social justice component of the rule of law.
 The imperative tone of Sec. 133 of the Code r.w. punitive temper of
Sec. 188, I.P.C. make the prohibitory act a mandatory duty.
 The Code operates against statutory bodies and others regardless of
the cash in their coffers, even as human rights under Part III of the
Constitution have to be respected by the State regardless of
budgetary provision.
 Section 123 M. P. Municipalities Act 1961 has no saving clause when
the municipal council is penniless.
 Although the Code and the I.P.C. are of ancient vintage the new social
justice orientation imparted to them by the Constitution of India
makes them a remedial weapon of versatile use.
 Social Justice is due to the people and, therefore, the people must be able to

trigger off the jurisdiction vested for their benefit in any public functionary

like a Magistrate u/s 133 of the Code.

 In the exercise of such power, the judiciary must be informed by the broader

principle of access to justice necessitated by the conditions of developing

countries and obligated by Art. 38 of the Constitution.

 A responsible municipal council constituted for the precise purpose of

preserving public health and providing better finances cannot run away from

its principal duty by pleading financial inability.

 Decency and dignity are non- negotiable facets of human rights and are a first charge

on local self-governing bodies. Similarly, providing drainage systems not pompous and

attractive, but in working condition and sufficient to meet the needs of the people-

cannot be evaded if the municipality is to justify its existence.

 The Court, armed with the provisions of the two Codes and justified by the obligation

u/s 123 of the Act, must adventure into positive directions as it has done in the present

case.

 Sec. 133 of the Code authorises the prescription of a time-limit for carrying out the

order. The same provision spells out the power to give specific directives.

 The state will realise that Art. 47 of the Constitution makes it a paramount principle of

governance that steps are taken for the improvement of public health as amongst its

primary duties.

 The municipality also will slim its budget on low priority items and elitist projects to

use the savings on sanitation and public health.

Where Directive Principles have found statutory expression in Do's and Don'ts
the court will not sit idly by and allow municipal government to become a
statutory mockery.
The law will relentlessly be enforced and the plea of poor finance will be poor
alibi when people in misery cry for justice. The dynamics of the judicial process
have a new `enforcement' dimension not merely through some of the
provisions of the Code but also through activated tort consciousness.
The officers in charge and even the elected representatives will have to face the
penalty of the law if what the Constitution and follow up legislation direct them
to do are defied or denied wrongfully.
The wages of violation is punishment, corporate and personal.

The Court approved a scheme of construction work to be

undertaken by the Municipality for the elimination of the insanitary

conditions and directed that the work be commenced within two

months and that the Magistrate inspect the progress of the work

every three months and see that it is implemented.

Criminal Procedure Code
(Sem. IX)

Topic: General Provisions –

Examination of Witness
 General Rules – Examination of Accused / Witness and / Cross-examination of Witness
• Applicable Sections –
• Sec. 272 to Sec. 281 (process of examination and recording the examination)
• Power to examine:
• Court –
• Sec. 311
• Prosecution –
• Sec. 230 (Sessions trial);
• Sec. 242 (Warrant case by Magistrate on P/R;
• Sec. 244 (Warrant case on M/C);
• Sec. 254 (Summons case)
• Defense –
• Sec. 233 (Sessions trial);
• Sec. 243 (Warrant case by Magistrate on P/R;
• Sec. 247 (Warrant case on M/C);
• Sec. 254 (Summons case)
 General Principles in r/o examination of witness / accused
 Language of the court – as determined by the State government (Sec. 272)
 All the witness shall be examined in presence of the accused (Sec. 273)
 Exception - rape / sexual offence female victim of less than 18 yrs. shall
not be confronted by the accused
 Primary duty of recording statement of the witness is that of the trial court
judge;
 Provided trial court judge may ask his subordinate officer to record the
statement; in that case, trial court judge need to attach certificate for the
same
 Statement shall be read over to the witness / accused
 It shall necessarily be signed by the witness / accused + trial court judge
 It becomes evidence and can be used by both the sides
 Right Against Self-incrimination & Examination of Witness/Accused by Judicial Officer

 Position of law in r/o accused:

 Accused can refuse to answer the question; (Sec. 313)

 Accused shall not render himself for punishment in case of giving false answer (Sec. 313)

 Position of law in r/o witness:

 Sec. 132 – Indian Evidence Act: Witness not excused from answering on ground that answer

will criminate.

A witness shall not be excused from answering any question as to any matter relevant to

the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that

the answer to such question will criminate, or may tend directly or indirectly to criminate,

such witness, or that it will expose, or tend directly or indirectly to expose, such witness to

a penalty or forfeiture of any kind

Provided that no such answer, which a witness shall be compelled to give, shall subject him

to any arrest or prosecution, or be proved against him in any criminal proceeding, except a

prosecution for giving false evidence by such answer.

 Administration
of Oath Signature of the
Process of
Examinati Cross- Statement is Witness /
Examinati (Exception: Sec. on in- examinatio read-over to accused and of
on of 313 chief n the witness the Trial Court
Witness examinatioin of Judge
the accused)
 In case of witness
In case of
(Summons Case -
accused
Memorandum of
Examinati Examination Record of (MM - substance)
Recordin on / / Cross- the Court memo of
g of the Cross- examination (in Final the sub-
Documen examinati in language document stance) (Warramt case:
language
t on in Q/A that witness narrative or in q/a
of the
format understands format)
court) (CMM/CoS -
q/a
format ) (CoS - narrative or
q/a format)
Code of Criminal Procedure
(Maintenance u/s 125)

Dr. Madhuker Sharma

(Lloyd Law College, Greater Noida)
• Security for keeping peace Chap. VIII

• From convicted persons (Sec. 106)

• From persons other than convicted (Sec. 107)

• From persons disseminating seditious matters (Sec.

108)

• From suspected persons (Sec. 109)

• From habitual offenders (Sec. 116)

• Miscellaneous provisions (Sec. 117 to Sec. 124)

• Maintenance of wife, children, & parents (Chap. IX - Sec. 125 to Sec. 128)
• Application against
• any male person – in case of wife, child, & parents
• any female person – in case of child, & parents
• Provided
• This person has means to maintain the applicant
• This person has neglected the applicant, or has refused to maintain the
applicant
• Applicant is unable to maintain himself/herself
• Applicant may be
• Wife, legitimate minor child, illegitimate minor child, legitimate (minor or
major) child who is unable to maintain due to physical or mental
abnormality or is injured
• Exceptions in case of wife as applicant {Sec. 125 (4)}
• Wife living in adultery, or
• Wife refuses to live with husband, without sufficient reason,
or
• Wife & husband living separately under mutual consent

• Jurisdiction – where application may be filed {Sec. 126}

• Husband resides, or
• Wife resides, or
• Husband & wife resided together last
 Alteration / cancellation of Sec. 125 order
• In case, applicant is wife, child, or parent
• Change in circumstance
• Any order passed by civil court due to which Sec. 125 order
should be varied
• In case, applicant is wife; and, husband – wife have been divorced
• Wife has remarried after divorce
• Wife had received permanent anomaly from the husband,
either under any customary law or under any personal law
• Wife has voluntarily surrendered her right to receive
maintenance
 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 730 OF 2020
(Arising out of SLP (Crl.) No. 9503 of 2018)

RAJNESH …APPELLANT

Versus

NEHA & Anr. …RESPONDENTS

INDEX
PART A Order passed in Criminal Appeal No.730 of 2020
PART B General Guidelines and Directions
I. Issue of Overlapping Jurisdictions
II. Payment of interim maintenance
III. Criteria for determining quantum of maintenance
IV. Date from which Maintenance to be awarded
V. Enforcement of orders of maintenance
VI. Final Directions

Signature Not Verified

Digitally signed by
Jatinder Kaur
Date: 2020.11.04
13:33:16 IST
Reason:

1
INDU MALHOTRA, J.
PART A
Leave granted.
(i) The present Criminal Appeal arises out of an application for Interim
Maintenance filed in a petition u/S. 125 Cr.P.C. by the Respondent-wife and
minor son. The Respondent No.1-wife left the matrimonial home in January
2013, shortly after the birth of the son-Respondent No.2. On 02.09.2013, the wife
filed an application for interim maintenance u/S. 125 Cr.P.C. on behalf of herself
and the minor son. The Family Court vide a detailed Order dated 24.08.2015
awarded interim maintenance of Rs.15,000 per month to the Respondent No.1-
wife from 01.09.2013; and Rs.5,000 per month as interim maintenance for the
Respondent No.2-son from 01.09.2013 to 31.08.2015; and @ Rs. 10,000 per
month from 01.09.2015 onwards till further orders were passed in the main
petition.
(ii) The Appellant-husband challenged the Order of the Family Court vide
Criminal Writ Petition No.875/2015 filed before the Bombay High Court,
Nagpur Bench. The High Court dismissed the Writ Petition vide Order dated
14.08.2018, and affirmed the Judgment passed by the Family Court.
(iii) The present appeal has been filed to impugn the Order dated 14.08.2018.
This Court issued notice to the wife and directed the Appellant-husband to file
his Income Tax Returns and Assessment Orders for the period from 2005-2006
till date. He was also directed to place a photocopy of his passport on record. By
a further Order dated 11.09.2019, the Appellant-husband was directed to make
payment of the arrears of Rs.2,00,000 towards interim maintenance to the wife;
and a further amount of Rs.3,00,000, which was due and payable to the wife
towards arrears of maintenance, as per his own admission. By a subsequent
Order dated 14.10.2019, it was recorded that only a part of the arrears had been
paid. A final opportunity was granted to the Appellant-husband to make payment
of the balance amount by 30.11.2019, failing which, the Court would proceed
under the Contempt of Courts Act for wilful disobedience with the Orders passed
by this Court.

2
 In the backdrop of the facts of this case, we considered it fit to frame
guidelines on certain aspects pertaining to the payment of maintenance in
matrimonial matters. There are different statutes providing for making an
application for grant of maintenance / interim maintenance, if any person having
sufficient means neglects, or refuses to maintain his wife, children, parents. The
different enactments provide an independent and distinct remedy framed with a
specific object and purpose. Inspite of time frames being prescribed by various
statutes for disposal of interim applications, we have noticed, in practice that in
a vast majority of cases, the applications are not disposed of within the time
frame prescribed. To address various issues which arise for consideration in
applications for grant of maintenance / interim maintenance, it is necessary to
frame guidelines to ensure that there is uniformity and consistency in deciding
the same. To seek assistance on these issues, we have appointed Ms. Anitha
Shenoy and Mr. Gopal Sankaranaryanan, Senior Advocates as Amici Curiae,
who have graciously accepted to assist this Court.
(iv) By a further Order dated 17.12.2019, the Appellant was directed to pay
an amount of Rs.1,45,000 to the Respondent no.1-wife within a period of 45
days.
On the issue of framing guidelines, the National Legal Services Authority
was directed to elicit responses from the State Legal Services Authorities of
various States.
(v) By a subsequent Order dated 05.08.2020, it was recorded that an Affidavit
of Compliance had been filed on 04.08.2020 by the Appellant-husband, wherein
it was stated that arrears of Rs.1,45,000 till 11.09.2019 had been paid by him in
January, 2020. However, he had made no further payment to the wife thereafter.
With respect to the amount of Rs.10,000 p.m. payable for the minor son, the
Order had been complied with till July 2020. A statement was made by the
Counsel for the Appellant that he was not disputing the payment of maintenance
for his son, and would continue to pay the same. A direction was issued by this
Court to pay the entire arrears of maintenance to the wife @ Rs.15,000 p.m. as

3
 fixed by the Family Court, and continue to pay the said amount during the
pendency of proceedings.
(vi) By the Order dated 25.08.2020, it was noted that the Appellant had filed
an Affidavit dated 23.08.2020 wherein he had admitted and acknowledged that
an amount of Rs.5,00,000 was pending towards arrears of maintenance to the
Respondent No.1-wife. The Appellant was directed to pay 50% of the arrears
within a period of 4 weeks to the Respondent No.1, failing which, he was
directed to remain present before the Court on the next date of hearing. The
Counsel for the husband placed on record a chart of various proceedings pending
between the parties. Taking note of the aforesaid facts, we considered it
appropriate to refer the matter for mediation by Mr. Shridhar Purohit, Advocate,
a well-known Mediator in Nagpur, to resolve all disputes pending between the
parties, and arrive at an overall settlement.
(vii) On 08.10.2020, we were informed that the mediation had failed. The
husband appeared before the Court, and made an oral statement that he did not
have the financial means to comply with the Order of maintenance payable to
the Respondent No.1-wife, and had to borrow loans from his father to pay the
same. He however stated that he had paid the maintenance awarded to the son,
and would continue to do so without demur. Both parties addressed arguments
and filed their written submissions.
(viii) We have heard the Counsel for the parties, and perused the written
submissions filed on their behalf.
The husband has inter alia submitted that he was presently unemployed,
and was not in a position to pay maintenance to the Respondent No.1-wife. He
stated that he did not own any immovable property, and had only one operational
bank account. The husband declined to pay any further amount towards the
maintenance of his wife. It was further submitted that the Family Court had
erroneously relied upon the Income Tax Returns of 2006, while determining the
maintenance payable in 2013. He further submitted that he was exploring new
business projects, which would enable him to be in a better position to sustain
his family.

4
 The wife has inter alia submitted that the amount of Rs.10,000 awarded
for the son was granted when he was 2 ½ years old in 2015. The said amount
was now highly inadequate to meet the expenses of a growing child, who is 7 ½
years old, and is a school-going boy. It was further submitted that the admission
fee for the current academic year 2020-2021 had not yet been paid. If the fee
was not paid within time, the school would discontinue sending the link for
online classes. She submitted that she was being over-burdened by the growing
expenses, with no support from the husband.
With respect to the contention of the husband that he had no income, she
submitted that the husband had made investments in real estate projects, and
other businesses, which he was concealing from the Court, and diverting the
income to his parents. It has also been alleged that the Appellant had retained
illegal possession of her Streedhan, which he was refusing to return. Despite
orders being passed by this Court, and in the proceedings under the D.V. Act, he
was deliberately not complying with the same. In these circumstances, it was
submitted that there was a major trust deficit, and there was no prospect for
reconciliation.
(ix) With respect to the issue of enhancement of maintenance for the son, the
Respondent is at liberty to move the Family Court for the said relief. We cannot
grant this relief in the present appeal, as it has been filed by the husband.
(x) In the facts and circumstances of the case, we order and direct that :
(a) The Judgment and order dated 24.08.2015 passed by the Family Court,
Nagpur, affirmed by the Bombay High Court, Nagpur Bench vide Order
dated 14.08.2018 for payment of interim maintenance @ Rs.15,000 p.m. to
the Respondent No.1-wife, and Rs.10,000 p.m. to the Respondent No.2-son,
is hereby affirmed by this Court;
(b) The husband is directed to pay the entire arrears of maintenance @
Rs.15,000 p.m., within a period of 12 weeks’ from the date of this Judgment,
and continue to comply with this Order during the pendency of the
proceedings u/S. 125 Cr.P.C. before the Family Court;

5
(c) If the Appellant-husband fails to comply with the aforesaid directions of
this Court, it would be open to the respondents to have the Order enforced
u/S.128 Cr.P.C., and take recourse to all other remedies which are available
in accordance with law;
(d) The proceedings for payment of interim maintenance u/S. 125 Cr.P.C.
have been pending between the parties for a period of over 7 years now. We
deem it appropriate that the Family Court decides the substantive application
u/S. 125 Cr.P.C. in Petition No. E-443/ 2013 finally, in light of the directions
/ guidelines issued in the present judgment, within a period of 6 months’ from
the date of this judgment.
The Registry is directed to forward a complete copy of the pleadings,
alongwith the written submissions filed by the parties, and the record of the
proceedings in the present Criminal Appeal, to the Family Court, Nagpur.
The present Criminal Appeal is disposed of accordingly.

6
 PART B
Given the backdrop of the facts of the present case, which reveal that the
application for interim maintenance under Section 125 Cr.P.C. has remained
pending before the Courts for seven years now, and the difficulties encountered
in the enforcement of orders passed by the Courts, as the wife was constrained
to move successive applications for enforcement from time to time, we deem it
appropriate to frame guidelines on the issue of maintenance, which would cover
overlapping jurisdiction under different enactments for payment of maintenance,
payment of Interim Maintenance, the criteria for determining the quantum of
maintenance, the date from which maintenance is to be awarded, and
enforcement of orders of maintenance.
Guidelines / Directions on Maintenance
Maintenance laws have been enacted as a measure of social justice to
provide recourse to dependant wives and children for their financial support, so
as to prevent them from falling into destitution and vagrancy.
Article 15(3) of the Constitution of India provides that :
“Nothing in this article shall prevent the State from making any special
provision for women and children.”

Article 15 (3) reinforced by Article 39 of the Constitution of India, which

envisages a positive role for the State in fostering change towards the
empowerment of women, led to the enactment of various legislations from time
to time.
Justice Krishna Iyer in his judgment in Captain Ramesh Chander Kaushal
v Mrs. Veena Kaushal & Ors.1 held that the object of maintenance laws is :
“9. This provision is a measure of social justice and specially enacted to
protect women and children and falls within the constitutional sweep of
Article 15(3) reinforced by Article 39. We have no doubt that sections of
statutes calling for construction by courts are not petrified print but vibrant
words with social functions to fulfil. The brooding presence of the
constitutional empathy for the weaker sections like women and children
must inform interpretation if it has to have social relevance. So viewed, it is

1
(1978) 4 SCC 70.

7
 possible to be selective in picking out that interpretation out of two
alternatives which advances the cause — the cause of the derelicts.”

The legislations which have been framed on the issue of maintenance are
the Special Marriage Act 1954 (“SMA”), Section 125 of the Cr.P.C. 1973; and
the Protection of Women from Domestic Violence Act, 2005 (“D.V. Act”) which
provide a statutory remedy to women, irrespective of the religious community
to which they belong, apart from the personal laws applicable to various religious
communities.
I Issue of Overlapping Jurisdiction
Maintenance may be claimed under one or more of the afore-mentioned
statutes, since each of these enactments provides an independent and distinct
remedy framed with a specific object and purpose. For instance, a Hindu wife
may claim maintenance under the Hindu Adoptions and Maintenance Act 1956
(“HAMA”), and also in a substantive proceeding for either dissolution of
marriage, or restitution of conjugal rights, etc. under the Hindu Marriage Act,
1955 (“HMA”) by invoking Sections 24 and 25 of the said Act.
(i) In Nanak Chand v Chandra Kishore Aggarwal & Ors. 2 , the Supreme
Court held that there was no inconsistency between the Cr.P.C. and HAMA.
Section 4(b) of HAMA would not repeal or affect the provisions of Section 488
of the old Cr.P.C. It was held that :
“4. Both can stand together. The Maintenance Act is an act to amend and
codify the law relating to adoptions and maintenance among Hindus. The
law was substantially similar before and nobody ever suggested that Hindu
Law, as in force immediately before the commencement of this Act, insofar
as it dealt with the maintenance of children, was in any way inconsistent
with Section 488, Cr.P.C. The scope of the two laws is different. Section 488
provides a summary remedy and is applicable to all persons belonging to
all religions and has no relationship with the personal law of the parties.
Recently the question came before the Allahabad High Court in Ram Singh
v. State: AIR1963All355, before the Calcutta High Court in Mahabir
Agarwalla v. Gita Roy [1962] 2 Cr. L.J.528 and before the Patna High
Court in Nalini Ranjan v. Kiran Rani: AIR1965Pat442. The three High
Courts have, in our view, correctly come to the conclusion that Section 4(b)
of the Maintenance Act does not repeal or affect in any manner the
provisions contained in Section 488, Cr.P.C.”
(emphasis supplied)
2
(1969) 3 SCC 802.

8
 While it is true that a party is not precluded from approaching the Court
under one or more enactments, since the nature and purpose of the relief under
each Act is distinct and independent, it is equally true that the simultaneous
operation of these Acts, would lead to multiplicity of proceedings and conflicting
orders. This would have the inevitable effect of overlapping jurisdiction. This
process requires to be streamlined, so that the respondent / husband is not
obligated to comply with successive orders of maintenance passed under
different enactments.
For instance, if in a previous proceeding under Section 125 Cr.P.C., an
amount is awarded towards maintenance, in the subsequent proceeding filed
for dissolution of marriage under the Hindu Marriage Act, where an application
for maintenance pendente lite is filed under Section 24 of that Act, or for
maintenance under Section 25, the payment awarded in the earlier proceeding
must be taken note of, while deciding the amount awarded under HMA.
Statutory provisions under various enactments
(a) The Special Marriage Act, 1954 (“SMA”)
Section 4 of the Special Marriage Act, 1954 provides that a marriage
between any two persons who are citizens of India may be solemnised under this
Act, notwithstanding anything contained in any other law for the time being in
force. It is a secular legislation applicable to all persons who solemnize their
marriage in India.
Section 36 of the Special Marriage Act provides that a wife is entitled to
claim pendente lite maintenance, if she does not have sufficient independent
income to support her and for legal expenses. The maintenance may be granted
on a weekly or monthly basis during the pendency of the matrimonial
proceedings. The Court would determine the quantum of maintenance depending
on the income of the husband, and award such amount as may seem reasonable.
Section 36 reads as:
“S.36. Alimony pendente lite.—Where in any proceeding under Chapter V
or Chapter VI it appears to the district court that the wife has no
independent income sufficient for her support and the necessary expenses

9
 of the proceeding, it may, on the application of the wife, order the husband
to pay her the expenses of the proceeding, and weekly or monthly during
the proceeding such sum as, having regard to the husband’s income, it may
seem to the court to be reasonable.
Provided that the application for the payment of the expenses of the
proceeding and such weekly or monthly sum during the proceeding under
Chapter V or Chapter VI, shall, as far as possible, be disposed of within
sixty days from the date of service of notice on the husband.”

Section 37 provides for grant of permanent alimony at the time of passing

of the decree, or subsequent thereto. Permanent alimony is the consolidated
payment made by the husband to the wife towards her maintenance for life.
Section 37 reads as:
“S. 37. Permanent alimony and maintenance.—(1) Any court exercising
jurisdiction under Chapter V or Chapter VI may, at the time of passing any
decree or at any time subsequent to the decree, on application made to it
for the purpose, order that the husband shall secure to the wife for her
maintenance and support if necessary, by a charge on the husband’s
property such gross sum or such monthly or periodical payment of money
for a term not exceeding her life, as, having regard to her own property, if
any, her husband’s property and ability, the conduct of the parties and other
circumstances of the case, as it may seem to the court to be just.
(2) If the district court is satisfied that there is a change in the circumstances
of either party at any time after it has made an order under sub-Section (1),
it may, at the instance of either party, vary, modify or rescind any such order
in such manner as it may seem to the court to be just.
(3) If the district court is satisfied that the wife in whose favour an order
has been made under this Section has remarried or is not leading a chaste
life, it may, at the instance of the husband, vary, modify or rescind any such
order and in such manner as the court may deem just.”

(b) The Hindu Marriage Act, 1955 (“HMA”)

The HMA is a complete code which provides for the rights, liabilities and
obligations arising from a marriage between two Hindus. Sections 24 and 25
make provision for maintenance to a party who has no independent income
sufficient for his or her support, and necessary expenses. This is a gender-neutral
provision, where either the wife or the husband may claim maintenance. The pre-
requisite is that the applicant does not have independent income which is
sufficient for her or his support, during the pendency of the lis.

10
 Section 24 of the HMA provides for maintenance pendente lite, where the
Court may direct the respondent to pay the expenses of the proceeding, and pay
such reasonable monthly amount, which is considered to be reasonable, having
regard to the income of both the parties.
Section 24 reads as:
“24. Maintenance pendente lite and expenses of proceedings.—
Where in any proceeding under this Act it appears to the court that either
the wife or the husband, as the case may be, has no independent income
sufficient for her or his support and the necessary expenses of the
proceeding, it may, on the application of the wife or the husband, order the
respondent to pay to the petitioner the expenses of the proceeding, and
monthly during the proceeding such sum as, having regard to the
petitioner’s own income and the income of the respondent, it may seem to
the court to be reasonable.
Provided that the application for the payment of the expenses of the
proceeding and such monthly sum during the proceeding, shall, as far as
possible, be disposed of within sixty days from the date of service of notice
on the wife or the husband, as the case may be.”
(emphasis supplied)
The proviso to Section 24 providing a time line of 60 days for disposal of
the application was inserted vide Act 49 of 2001 w.e.f. 24.09.2001.
Section 25 provides for grant of permanent alimony, which reads as :
“25. Permanent alimony and maintenance —
(1) Any court exercising jurisdiction under this Act may, at the time of
passing any decree or at any time subsequent thereto, on application made
to it for the purpose by either the wife or the husband, as the case may be,
order that the respondent shall pay to the applicant for her or his
maintenance and support such gross sum or such monthly or periodical sum
for a term not exceeding the life of the applicant as, having regard to the
respondent's own income and other property, if any, the income and other
property of the applicant, the conduct of the parties and other
circumstances of the case, it may seem to the court to be just, and any such
payment may be secured, if necessary, by a charge on the immovable
property of the respondent.
(2) If the court is satisfied that there is, a change in the circumstances of
either party at any time after it has made an order under sub-section (1), it
may at the instance of either party, vary, modify or rescind any such order
in such manner as the court may deem just.
(3) If the court is satisfied that the party in whose favour an order has been
made under this section has remarried or, if such party is the wife, that she

11
 has not remained chaste, or, if such party is the husband, that he has had
sexual intercourse with any woman outside wedlock, it may at the instance
of the other party vary, modify or rescind any such order in such manner as
the court may deem just.”
(emphasis supplied)

Section 26 of the HMA provides that the Court may from time to time pass
interim orders with respect to the custody, maintenance and education of the
minor children.

(c) Hindu Adoptions & Maintenance Act, 1956 (“HAMA”)

HAMA is a special legislation which was enacted to amend and codify the
laws relating to adoption and maintenance amongst Hindus, during the
subsistence of the marriage. Section 18 provides that a Hindu wife shall be
entitled to be maintained by her husband during her lifetime. She is entitled to
make a claim for a separate residence, without forfeiting her right to
maintenance. Section 18 read in conjunction with Section 23 states the factors
required to be considered for deciding the quantum of maintenance to be paid.
Under sub-section (2) of Section 18, the husband has the obligation to maintain
his wife, even though she may be living separately. The right of separate
residence and maintenance would however not be available if the wife has been
unchaste, or has converted to another religion.
Section 18 reads as follows :
“18. Maintenance of wife.—
(1) Subject to the provisions of this section, a Hindu wife, whether married
before or after the commencement of this Act, shall be entitled to be
maintained by her husband during her lifetime.
(2) A Hindu wife shall be entitled to live separately from her husband
without forfeiting her claim to maintenance—
(a) if he is guilty of desertion, that is to say, of abandoning her without
reasonable cause and without her consent or against her wish or willfully
neglecting her;
(b) if he has treated her with such cruelty as to cause a reasonable
apprehension in her mind that it will be harmful or injurious to live with
her husband;
(c) [****]
(d) if he has any other wife living;

12
 (e) if he keeps a concubine in the same house in which his wife is living or
habitually resides with a concubine elsewhere;
(f) if he has ceased to be a Hindu by conversion to another religion;
(g) if there is any other cause justifying living separately.
(3) A Hindu wife shall not be entitled to separate residency and
maintenance from her husband if she is unchaste or ceases to be a Hindu
by conversion to another religion.”

The distinction between maintenance under HMA and HAMA is that the
right under Section 18 of HAMA is available during the subsistence of a
marriage, without any matrimonial proceeding pending between the parties.
Once there is a divorce, the wife has to seek relief under Section 25 of HMA. 3
Under HMA, either the wife, or the husband, may move for judicial
separation, restitution of conjugal rights, dissolution of marriage, payment of
interim maintenance under Section 24, and permanent alimony under Section 25
of the Act, whereas under Section 18 of HAMA, only a wife may seek
maintenance.
The interplay between the claim for maintenance under HMA and HAMA
came up for consideration by the Supreme Court in Chand Dhawan v Jawaharlal
Dhawan.4 The Supreme Court, while considering the various laws relating to
marriage amongst Hindus, discussed the scope of applications under the HMA
and HAMA in the following words :
“23. …Section 18(1) of the Hindu Adoptions and Maintenance Act, 1956
entitles a Hindu wife to claim maintenance from her husband during her
life-time. Sub-section (2) of Section 18 grants her the right to live
separately, without forfeiting her claim to maintenance, if he is guilty of any
of the misbehaviors enumerated therein or on account of his being in one of
objectionable conditions as mentioned therein. So while sustaining her
marriage and preserving her marital status, the wife is entitled to claim
maintenance from her husband. On the other hand, under the Hindu
Marriage Act, in contrast, her claim for maintenance pendente lite is
durated on the pendency of a litigation of the kind envisaged under Sections
9 to 14 of the Hindu Marriage Act, and her claim to permanent maintenance
or alimony is based on the supposition that either her marital status has
been strained or affected by passing a decree for restitution of conjugal
rights or judicial separation in favour or against her, or her marriage
stands dissolved by a decree of nullity or divorce, with or without her

3
Panditrao Chimaji Kalure v Gayabai (2002) 2 Mah LJ 53.
4
(1993) 3 SCC 406.

13
 consent. Thus when her marital status is to be affected or disrupted the court
does so by passing a decree for or against her. On or at the time of the
happening of that event, the court being seized of the matter, invokes its
ancillary or incidental power to grant permanent alimony. Not only that,
the court retains the jurisdiction at subsequent stages to fulfill this
incidental or ancillary obligation when moved by an application on that
behalf by a party entitled to relief. The court further retains the power to
change" or alter the order in view of the changed circumstances. Thus the
whole exercise is within the gammit of a diseased or a broken marriage.
And in order to avoid conflict of perceptions the legislature while codifying
the Hindu Marriage Act preserved the right of permanent maintenance in
favour of the husband or the wife, as the case may be, dependent on the
court passing a decree of the kind as envisaged under Sections 9 to 14 of
the Act. In other words without the marital status being affected or; disputed
by the matrimonial court under the Hindu Marriage Act the claim of
permanent alimony was not to be valid as ancillary or incidental to such
affectation or disruption. The wife's claim to maintenance necessarily has
then to be agitated under the Hindu Adoptions and Maintenance Act, 1956
which is a legislative measure later in point of time than the Hindu
Marriage Act, 1955, though part of the same socio-legal scheme
revolutionizing the law applicable to Hindus….”
(emphasis supplied)

Section 19 of the HAMA provides that a widowed daughter-in-law may

claim maintenance from her father-in-law if (i) she is unable to maintain herself
out of her own earnings or other property; or, (ii) where she has no property of
her own, is unable to obtain maintenance; (a) from the estate of her husband, or
her father or mother, or (b) from her son or daughter, if any, or his or her estate.
Section 20 of HAMA provides for maintenance of children and aged
parents. Section 20 casts a statutory obligation on a Hindu male to maintain an
unmarried daughter, who is unable to maintain herself out of her own earnings,
or other property. In Abhilasha v Parkash & Ors.,5 a three-judge bench of this
Court held that Section 20(3) is a recognition of the principles of Hindu law,
particularly the obligation of the father to maintain an unmarried daughter. The
right is absolute under personal law, which has been given statutory recognition
by this Act. The Court noted the distinction between the award of maintenance
to children u/S. 125 Cr.P.C., which limits the claim of maintenance to a child,
until he or she attains majority. However, if an unmarried daughter is by reason

5
Decided on 15.10.2020 in Criminal Appeal No.615/2020.

14
of any physical or mental abnormality or injury, unable to maintain herself, under
Section 125(1)(c), the father would be obligated to maintain her even after she
has attained majority. The maintenance contemplated under HAMA is a wider
concept. Section 3(b) contains an inclusive definition of maintenance including
marriage expenses. The purpose and object of Section 125 Cr.P.C. is to provide
immediate relief to the wife and children in a summary proceeding, whereas
under Section 20 read with Section 3(b) of HAMA, a much larger right is
contemplated, which requires determination by a civil court.
Section 22 provides for maintenance of dependants. Section 23 provides
that while awarding maintenance, the Court shall have due regard to the criteria
mentioned therein :
“23. Amount of maintenance. –
(1) It shall be in the discretion of the court to determine whether any, and
if so what, maintenance shall be awarded under the provisions of this Act,
and in doing so, the court shall have due regard to the consideration set out
in sub-section (2) or sub-section (3), as the case may be, so far as they are
applicable.

(2) In determining the amount of maintenance, if any, to be awarded to a

wife, children or aged or infirm parents under this Act, regard shall be had
to—
(a) the position and status of the parties;
(b) the reasonable wants of the claimant;
(c) if the claimant is living separately, whether the claimant is justified in
doing so;
(d) the value of the claimant's property and any income derived from such
property, or from the claimant's own earning or from any other source;
(e) the number of persons entitled to maintenance under this Act.

(3) In determining the amount of maintenance, if any, to be awarded to a

dependant under this Act, regard shall be had to—
(a) the net value of the estate of the deceased after providing for the
payment of his debts;
(b) the provision, if any, made under a will of the deceased in respect, of
the dependant;
(c) the degree of relationship between the two;
(d) the reasonable wants of the dependant;
(e) the past relations between the dependant and the deceased;
(f) the value of the property of the dependant and any income derived from
such property, or from his or her earnings or from any other course;

15
 (g) the number of dependants entitled to maintenance under this Act.”

(d) Section 125 of the Cr.P.C.

Chapter IX of Code of Criminal Procedure, 1973 provides for
maintenance of wife, children and parents in a summary proceeding.
Maintenance under Section 125 of the Cr.P.C. may be claimed by a person
irrespective of the religious community to which they belong. The purpose and
object of Section 125 Cr.P.C. is to provide immediate relief to an applicant. An
application under Section 125 Cr.P.C. is predicated on two conditions : (i) the
husband has sufficient means; and (ii) “neglects” to maintain his wife, who is
unable to maintain herself. In such a case, the husband may be directed by the
Magistrate to pay such monthly sum to the wife, as deemed fit. Maintenance is
awarded on the basis of the financial capacity of the husband and other relevant
factors.
The remedy provided by Section 125 is summary in nature, and the
substantive disputes with respect to dissolution of marriage can be determined
by a civil court / family court in an appropriate proceeding, such as the Hindu
Marriage Act, 1956.
In Bhagwan Dutt v Kamla Devi 6 the Supreme Court held that under
Section 125(1) Cr.P.C. only a wife who is “unable to maintain herself” is entitled
to seek maintenance. The Court held :
“19. The object of these provisions being to prevent vagrancy and
destitution, the Magistrate has to find out as to what is required by the wife
to maintain a standard of living which is neither luxurious nor penurious,
but is modestly consistent with the status of the family. The needs and
requirements of the wife for such moderate living can be fairly determined,
only if her separate income, also, is taken into account together with the
earnings of the husband and his commitments.”
(emphasis supplied)
Prior to the amendment of Section 125 in 2001, there was a ceiling on the
amount which could be awarded as maintenance, being Rs. 500 “in the whole”.
In view of the rising costs of living and inflation rates, the ceiling of Rs. 500 was

6
(1975) 2 SCC 386.

16
done away by the 2001 Amendment Act. The Statement of Objects and Reasons
of the Amendment Act states that the wife had to wait for several years before
being granted maintenance. Consequently, the Amendment Act introduced an
express provision for grant of “interim maintenance”. The Magistrate was vested
with the power to order the respondent to make a monthly allowance towards
interim maintenance during the pendency of the petition.
Under sub-section (2) of Section 125, the Court is conferred with the
discretion to award payment of maintenance either from the date of the order, or
from the date of the application.
Under the third proviso to the amended Section 125, the application for
grant of interim maintenance must be disposed of as far as possible within sixty
days’ from the date of service of notice on the respondent.
The amended Section 125 reads as under :
“125. Order for maintenance of wives, children and parents.
(1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not,
unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who
has attained majority, where such child is, by reason of any physical or
mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself,
a Magistrate of the first class may, upon proof of such neglect or refusal,
order such person to make a monthly allowance for the maintenance of his
wife or such child, father or mother, at such monthly rate as such Magistrate
thinks fit, and to pay the same to such person as the Magistrate may from
time to time direct:
Provided that the Magistrate may order the father of a minor female child
referred to in clause (b) to make such allowance, until she attains her
majority, if the Magistrate is satisfied that the husband of such minor female
child, if married, is not possessed of sufficient means :
Provided further that the Magistrate may, during the pendency of the
proceeding regarding monthly allowance for the maintenance under this
sub-section, order such person to make a monthly allow for the interim
maintenance of his wife or such child, father or mother, and the expenses of
such proceeding which the Magistrate considers reasonable, and to pay the
same to such person as the Magistrate may from time to time direct :

17
Provided also that an application for the monthly allowance for the interim
maintenance and expenses of proceeding under the second proviso shall, as
far as possible, be disposed of within sixty days from the date of the service
of notice of the application to such person.
Explanation. – For the purposes of this Chapter,-
(a) "minor" means a person who, under the provisions of the Indian
Majority Act, 1875 (9 of 1875); is deemed not to have attained his majority;
(b) "wife" includes a woman who has been divorced by, or has obtained a
divorce from, her husband and has not remarried.
(2) Any such allowance for the maintenance or interim maintenance and
expenses of proceeding shall be payable from the date of the order, or, if so
ordered, from the date of the application for maintenance or interim
maintenance and expenses of proceeding, as the case may be.
(3) If any person so ordered fails without sufficient cause to comply with
the order, any such Magistrate may, for every breach of the order, issue a
warrant for levying the amount due in the manner provided for levying fines,
and may sentence such person, for the whole, or any part of each month's
allowance for the maintenance or the interim maintenance and expenses of
proceeding, as the case may be, remaining unpaid after the execution of the
warrant, to imprisonment for a term which may extend to one month or until
payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount
due under this section unless application be made to the Court to levy such
amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition
of her living with him, and she refuses to live with him, such Magistrate may
consider any grounds of refusal stated by her, and may make an order under
this section notwithstanding such offer, if he is satisfied that there is just
ground for so doing.
Explanation. – If a husband has contracted marriage with another woman
or keeps a mistress, it shall be considered to be a just ground for his wife' s
refusal to live with him.
(4) No wife shall be entitled to receive an allowance for the maintenance or
interim maintenance and expenses of proceeding, as the case may be, from
her husband under this section if she is living in adultery, or if, without any
sufficient reason, she refuses to live with her husband, or if they are living
separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under
this section is living in adultery, or that without sufficient reason she refuses
to live with her husband, or that they are living separately by mutual
consent, the Magistrate shall cancel the order.”
(emphasis supplied)

18
 In Chaturbhuj v Sitabai7 this Court held that the object of maintenance
proceedings is not to punish a person for his past neglect, but to prevent vagrancy
and destitution of a deserted wife by providing her food, clothing and shelter by
a speedy remedy. Section 125 of the Cr.P.C. is a measure of social justice
especially enacted to protect women and children, and falls within the
constitutional sweep of Article 15(3), reinforced by Article 39 of the
Constitution.
Proceedings under Section 125 of the Cr.P.C. are summary in nature. In
Bhuwan Mohan Singh v Meena & Ors.8 this Court held that Section 125 of the
Cr.P.C. was conceived to ameliorate the agony, anguish, financial suffering of a
woman who had left her matrimonial home, so that some suitable arrangements
could be made to enable her to sustain herself and the children. Since it is the
sacrosanct duty of the husband to provide financial support to the wife and minor
children, the husband was required to earn money even by physical labour, if he
is able-bodied, and could not avoid his obligation, except on any legally
permissible ground mentioned in the statute.
The issue whether presumption of marriage arises when parties are in a
live-in relationship for a long period of time, which would give rise to a claim
u/S. 125 Cr.P.C. came up for consideration in Chanmuniya v Virendra Kumar
Singh Kushwaha & Anr. 9 before the Supreme Court. It was held that where a
man and a woman have cohabited for a long period of time, in the absence of
legal necessities of a valid marriage, such a woman would be entitled to
maintenance. A man should not be allowed to benefit from legal loopholes, by
enjoying the advantages of a de facto marriage, without undertaking the duties
and obligations of such marriage. A broad and expansive interpretation must be
given to the term “wife,” to include even those cases where a man and woman
have been living together as husband and wife for a reasonably long period of
time. Strict proof of marriage should not be a pre-condition for grant of

7
(2008) 2 SCC 316.
8
(2015) 6 SCC 353.
9
(2011) 1 SCC 141.
This judgment was referred to a larger bench.

19
 maintenance u/S. 125 Cr.P.C. The Court relied on the Malimath Committee
Report on Reforms of Criminal Justice System published in 2003, which
recommended that evidence regarding a man and woman living together for a
reasonably long period, should be sufficient to draw the presumption of
marriage.
The law presumes in favour of marriage, and against concubinage, when a
man and woman cohabit continuously for a number of years. Unlike matrimonial
proceedings where strict proof of marriage is essential, in proceedings u/S. 125
Cr.P.C. such strict standard of proof is not necessary.10
(e) Protection of Women from Domestic Violence Act, 2005 (“D.V. Act”)
The D.V. Act stands on a separate footing from the laws discussed
hereinabove. The D.V. Act provides relief to an aggrieved woman who is
subjected to “domestic violence.” The “aggrieved person” has been defined by
Section 2(a) to mean any woman who is, or has been, in a domestic relationship
with the respondent, and alleges to have been subjected to any act of domestic
violence. Section 2(f) defines “domestic relationship” to include a relationship
between two persons who live, or have at any point of time lived together in a
shared household, when they are related by consanguinity, marriage, or through
a relationship in the nature of marriage, adoption, or are family members living
together as a joint family.
Section 2(q) of the Act defined “respondent” to mean an “adult male
person” who is, or has been, in a domestic relationship with the aggrieved
woman. In Hiral P. Harsora & Ors. v Kusum Narottamdas Harsora & Ors.11
this Court held that the “respondent” could also be a female in a domestic
relationship with the aggrieved person. Section 3 of the D.V. Act gives a gender-
neutral definition to “domestic violence”. Physical abuse, verbal abuse,
emotional abuse and economic abuse can also be inflicted by women against
other women. Even sexual abuse may, in a given fact circumstance, be by one
woman on another. Section 17(2) provides that the aggrieved person cannot be

10
Kamala & Ors. v. M.R. Mohan Kumar (2019) 11 SCC 491.
11
(2016) 10 SCC 165.

20
evicted or excluded from a “shared household”, or any part of it by the
“respondent”, save in accordance with the procedure established by law. If
“respondent” is to be read as only an adult male person, women who evict or
exclude the aggrieved person would then not be covered by the ambit of the Act,
and defeat the very object, by putting forward female persons who can evict or
exclude the aggrieved woman from the shared household. The Court struck down
the words “adult male” before the word “person” in Section 2(q) of the 2005 Act,
and deleted the proviso to Section 2(q), as being contrary to the object of the Act.
The expression “relationship in the nature of marriage” as being akin to a
common law or a de facto marriage, came up for consideration in D. Velusamy
v D. Patchaiammal.12 It was opined that a common law marriage is one which
requires that although a couple may not be formally married : (a) the couple hold
themselves out to society as being akin to spouses; (b) the parties must be of
legal age to marry; (c) the parties must be otherwise qualified to enter into a legal
marriage, including being unmarried; and (d) the parties must have voluntarily
cohabited, and held themselves out to the world as being akin to spouses for a
significant period of time. However, not all live-in relationships would amount
to a relationship in the nature of marriage to avail the benefit of D.V. Act. Merely
spending week-ends together, or a one-night stand, would not make it a
“domestic relationship”.
For a live-in relationship to fall within the expression “relationship in the
nature of marriage”, this Court in Indra Sarma v. V.K.V. Sarma13 laid down the
following guidelines : (a) duration of period of relationship; (b) shared
household; (c) domestic arrangements; (d) pooling of resources and financial
arrangements; (e) sexual relationship; (f) children; (g) socialisation in public and
(h) intention and conduct of the parties. The Court held that these guidelines were
only indicative, and not exhaustive.
“Domestic violence” has been defined in Section 3 of the Act, which
includes economic abuse as defined in Explanation 1 (iv) to Section 3, as :

12
(2010) 10 SCC 469.
13
(2013) 15 SCC 755.

21
 “Economic abuse which means deprivation of all or any economic or
financial resources, to which the aggrieved person is entitled under any law
or custom, whether payable under an order of a Court or otherwise, or
which the aggrieved person requires out of necessity, including but not
limited to household necessities for the aggrieved person, or her children.”

Section 17 by a non-obstante clause provides that notwithstanding anything

contained in any other law for the time being in force, every woman in a domestic
relationship shall have the right to reside in the “shared household”, irrespective
of whether she has any right, title or beneficial interest in the same. Section 17
reads as :
“17. Right to reside in a shared household:
(1) Notwithstanding anything contained household: in any other law for
the time being in force, every woman in a domestic relationship shall have
the right to reside in the shared household, whether or not she has any right,
title or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the shared
household or any part of it by the respondent save in accordance with the
procedure established by law.”

Section 19 deals with residence orders, grant of injunctive reliefs, or for

alternate accommodation / payment of rent by the respondent.
A three-judge bench of this Court in Satish Chander Ahuja v Sneha Ahuja14
has overruled the judgment in S.R.Batra v Taruna Batra,15 wherein a two judge
bench held that the wife is entitled to claim a right of residence in a “shared
household” u/S.17 (1), which would only mean the house belonging to, or taken
on rent by the husband, or the house which belongs to the joint family of which
the husband is a member. In Satish Chander Ahuja (supra), the Court has held
that although the judgment in S.R. Batra (supra) noticed the definition of shared
household under Section 2(s), it did not advert to different parts of the definition,
which makes it clear that there was no requirement for the shared household to
be owned singly or jointly by the husband, or taken on rent by the husband. If

14
Decided on 15.10.2020 in C.A. No. 2483/2020 by a bench comprising of Hon’ble Justices Ashok
Bhushan, R. Subhash Reddy and M.R.Shah.
15
(2007) 3 SCC 169.

22
the interpretation given in S.R. Batra is accepted, it would frustrate the object of
the Act. The Court has taken the view that the definition of “shared household”
in Section 2(s) is an exhaustive definition. The “shared household” is the
household which is the dwelling place of the aggrieved person in present time.
If the definition of “shared household” in Section 2(s) is read to mean all the
houses where the aggrieved person has lived in a domestic relationship alongwith
the relatives of the husband, there will be a number of shared households, which
was never contemplated by the legislative scheme. The entire scheme of the
legislation is to provide immediate relief to the aggrieved person with respect to
the shared household where the aggrieved woman lives or has lived. The use of
the expression “at any stage has lived”, is with the intent of not denying
protection to an aggrieved woman merely on the ground that she was not living
there on the date of the application, or on the date when the Magistrate passed
the order u/S. 19. The words “lives, or at any stage has lived in a domestic
relationship” has to be given its normal and purposeful meaning. Living of the
woman in a household must refer to a living which has some permanency. Mere
fleeting or casual living at different places would not make it a shared household.
The intention of the parties and the nature of living, including the nature of the
household, must be considered, to determine as to whether the parties intended
to treat the premises as a “shared household” or not. Section 2(s) r.w. Sections
17 and 19 grant an entitlement in favour of an aggrieved woman to the right of
residence in a “shared household”, irrespective of her having any legal interest
in the same or not. From the definition of “aggrieved person” and “respondent”,
it was clear that :
(i) it is not the requirement of law that the aggrieved person may either
own the premises jointly or singly, or by tenanting it jointly or
singly;
(ii) the household may belong to a joint family of which the respondent
is a member, irrespective of whether the respondent or the aggrieved
person has any right, title, or interest in the shared household;

23
 (iii) the shared household may either be owned, or tenanted by the
respondent singly or jointly.
The right to residence u/S. 19 is, however, not an indefeasible right,
especially when a daughter-in-law is claiming a right against aged parents-in-
law. While granting relief u/S. 12 of the D.V. Act, or in any civil proceeding,
the court has to balance the rights between the aggrieved woman and the parents-
in-law.
Section 20 provides for monetary relief to the aggrieved woman :
“20. Monetary reliefs.-
(1) While disposing of an application under sub-section (1) of section 12,
the Magistrate may direct the respondent to pay monetary relief to meet the
expenses incurred and losses suffered by the aggrieved person and any
child of the aggrieved person as a result of domestic violence and such relief
may include, but is not limited to,-
(a) the loss of earnings;
(b) the medical expenses;
(c)the loss caused due to destruction, damage or removal of any property
from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any,
including an order under or in addition to an order of maintenance under
section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any
other law for the time being in force.
(2) The monetary relief granted under this section shall be adequate, fair
and reasonable and consistent with the standard of living to which the
aggrieved person is accustomed.
(3) The Magistrate shall have the power to order an appropriate lump sum
payment or monthly payments of maintenance, as the nature and
circumstances of the case may require.”
(emphasis supplied)
Section 20(1)(d) provides that maintenance granted under the D.V. Act to
an aggrieved woman and children, would be given effect to, in addition to an
order of maintenance awarded under Section 125 of the Cr.P.C., or any other law
in force.
Under sub-section (6) of Section 20, the Magistrate may direct the employer
or debtor of the respondent, to directly pay the aggrieved person, or deposit with
the court a portion of the wages or salaries or debt due to or accrued to the credit

24
 of the respondent, which amount may be adjusted towards the monetary relief
payable by the respondent.
Section 22 provides that the Magistrate may pass an order directing the
respondent to pay compensation and damages for the injuries, including mental
torture and emotional distress, caused by the acts of domestic violence
perpetrated by the respondent.
Section 23 provides that the Magistrate may grant an ex parte order,
including an order under Section 20 for monetary relief. The Magistrate must be
satisfied that the application filed by the aggrieved woman discloses that the
respondent is committing, or has committed an act of domestic violence, or that
there is a likelihood that the respondent may commit an act of domestic violence.
In such a case, the Magistrate is empowered to pass an ex parte order on the basis
of the affidavit of the aggrieved woman.
Section 26 of the D.V. Act provides that any relief available under Sections
18, 19, 20, 21 and 22 may also be sought in any legal proceeding before a Civil
Court, Family Court or Criminal Court. Sub-section (2) of Section 26 provides
that the relief mentioned in sub-section (1) may be sought in addition to, and
alongwith any other relief that the aggrieved person may seek in a suit or legal
proceeding before a civil or criminal court. Section 26 (3) provides that in case
any relief has been obtained by the aggrieved person in any proceeding other
than proceedings under this Act, the aggrieved woman would be bound to inform
the Magistrate of the grant of such relief.
Section 36 provides that the D.V. Act shall be in addition to, and not in
derogation of the provisions of any other law for the time being in force.
Conflicting judgments on overlapping jurisdiction
(i) Some High Courts have taken the view that since each proceeding is distinct
and independent of the other, maintenance granted in one proceeding cannot be
adjusted or set-off in the other. For instance, in Ashok Singh Pal v Manjulata,16
the Madhya Pradesh High Court held that the remedies available to an aggrieved
person under S. 24 of the HMA is independent of S. 125 of the Cr.P.C. In an

16
AIR 2008 MP 139.

25
 application filed by the husband for adjustment of the amounts awarded in the
two proceedings, it was held that the question as to whether adjustment is to be
granted, is a matter of judicial discretion to be exercised by the Court. There is
nothing to suggest as a thumb rule which lays down as a mandatory requirement
that adjustment or deduction of maintenance awarded u/S. 125 Cr.P.C. must be
off-set from the amount awarded under S.24 of the HMA, or vice versa.
A similar view was taken by another single judge of the Madhya Pradesh
High Court in Mohan Swaroop Chauhan v Mohini.17
Similarly, the Calcutta High Court in Sujit Adhikari v Tulika Adhikari18
held that adjustment is not a rule. It was held that the quantum of maintenance
determined by the Court under HMA is required to be added to the quantum of
maintenance u/S. 125 Cr.P.C.
A similar view has been taken in Chandra Mohan Das v Tapati Das19,
wherein a challenge was made on the point that the Court ought to have adjusted
the amount awarded in a proceeding under S.125 Cr.P.C., while determining the
maintenance to be awarded under S.24 of the HMA, 1955. It was held that the
quantum of maintenance determined under S.24 of HMA was to be paid in
addition to the maintenance awarded in a proceeding under S.125 Cr.P.C.
(ii) On the other hand, the Bombay and Delhi High Courts, have held that in
case of parallel proceedings, adjustment or set-off must take place.
The Bombay High Court in a well-reasoned judgment delivered in Vishal
v Aparna & Anr.,20 has taken the correct view. The Court was considering the
issue whether interim monthly maintenance awarded under Section 23 r.w.
Section 20 (1)(d) of the D.V. Act could be adjusted against the maintenance
awarded under Section 125 Cr.P.C. The Family Court held that the order passed
under the D.V. Act and the Cr.P.C. were both independent proceedings, and
adjustment was not permissible. The Bombay High Court set aside the judgment
of the Family Court, and held that Section 20(1)(d) of the D.V. Act makes it clear

17
(2016) 2 MP LJ 179.
18
(2017) SCC OnLine Cal 15484.
19
2015 SCC OnLine Cal 9554.
20
2018 SCC OnLine Bom 1207.

26
that the maintenance granted under this Act, would be in addition to an order of
maintenance under Section 125 Cr.P.C., and any other law for the time being in
force. Sub-section (3) of Section 26 of the D.V. Act enjoins upon the aggrieved
person to inform the Magistrate, if she has obtained any relief available under
Sections 18, 19, 20, 21 and 22, in any other legal proceeding filed by her, whether
before a Civil Court, Family Court, or Criminal Court. The object being that
while granting relief under the D.V. Act, the Magistrate shall take into account
and consider if any similar relief has been obtained by the aggrieved person.
Even though proceedings under the D.V. Act may be an independent proceeding,
the Magistrate cannot ignore the maintenance awarded in any other legal
proceedings, while determining whether over and above the maintenance already
awarded, any further amount was required to be granted for reasons to be
recorded in writing.
The Court observed :
“18. What I intend to emphasize is the fact that the adjustment is permissible
and the adjustment can be allowed of the lower amount against the higher
amount. Though the wife can simultaneously claim maintenance under the
different enactments, it does not in any way mean that the husband can be
made liable to pay the maintenance awarded in each of the said
proceedings.”
(emphasis supplied)

It was held that while determining the quantum of maintenance awarded

u/S.125 Cr.P.C., the Magistrate would take into consideration the interim
maintenance awarded to the aggrieved woman under the D.V. Act.
The issue of overlapping jurisdictions under the HMA and D.V. Act or
Cr.P.C. came up for consideration before a division bench of the Delhi High
Court in RD v BD 21 wherein the Court held that maintenance granted to an
aggrieved person under the D.V. Act, would be in addition to an order of
maintenance u/S. 125 Cr.P.C., or under the HMA. The legislative mandate
envisages grant of maintenance to the wife under various statutes. It was not the
intention of the legislature that once an order is passed in either of the

21
2019 VII AD (Delhi) 466.

27
maintenance proceedings, the order would debar re-adjudication of the issue of
maintenance in any other proceeding. In paragraphs 16 and 17 of the judgment,
it was observed that :
“16. A conjoint reading of the aforesaid Sections 20, 26 and 36 of DV Act
would clearly establish that the provisions of DV Act dealing with
maintenance are supplementary to the provisions of other laws and
therefore maintenance can be granted to the aggrieved person (s) under the
DV Act which would also be in addition to any order of maintenance arising
out of Section 125 of Cr.P.C.

17. On the converse, if any order is passed by the Family Court under
Section 24 of HMA, the same would not debar the Court in the proceedings
arising out of DV Act or proceedings under Section 125 of Cr.P.C. instituted
by the wife/aggrieved person claiming maintenance. However, it cannot be
laid down as a proposition of law that once an order of maintenance has
been passed by any Court then the same cannot be re-adjudicated upon by
any other Court. The legislative mandate envisages grant of maintenance
to the wife under various statutes such as HMA, Hindu Adoption and
Maintenance Act, 1956 (hereinafter referred to as 'HAMA'), Section 125 of
Cr.P.C. as well as Section 20 of DV Act. As such various statutes have been
enacted to provide for the maintenance to the wife and it is nowhere the
intention of the legislature that once any order is passed in either of the
proceedings, the said order would debar re adjudication of the issue of
maintenance in any other Court.”
(emphasis supplied)

The Court held that u/S. 20(1)(d) of the D.V. Act, maintenance awarded
to the aggrieved woman under the D.V. is in addition to an order of maintenance
provided u/S. 125 Cr.P.C. The grant of maintenance under the D.V. Act would
not be a bar to seek maintenance u/S. 24 of HMA.
Similarly, in Tanushree & Ors. v A.S.Moorthy,22 the Delhi High Court
was considering a case where the Magistrate’s Court had sine die adjourned the
proceedings u/S. 125 Cr.P.C. on the ground that parallel proceedings for
maintenance under the D.V. Act were pending. In an appeal filed by the wife
before the High Court, it was held that a reading of Section 20(1)(d) of the D.V.
Act indicates that while considering an application u/S. 12 of the D.V. Act, the

22
2018 SCC OnLine Del 7074.

28
Court would take into account an order of maintenance passed u/S. 125 Cr.P.C.,
or any other law for the time being in force. The mere fact that two proceedings
were initiated by a party, would not imply that one would have to be adjourned
sine die. There is a distinction in the scope and power exercised by the Magistrate
under S.125, Cr.P.C. and the D.V. Act. With respect to the overlap in both
statutes, the Court held :
“5. Reading of Section 20(1)(d) of the D.V. Act further shows that the two
proceedings are independent of each other and have different scope, though
there is an overlap. Insofar as the overlap is concerned, law has catered for
that eventuality and laid down that at the time of consideration of an
application for grant of maintenance under Section 12 of the D.V. Act, the
maintenance fixed under Section 125 Cr.P.C. shall be taken into account.”
(emphasis supplied)

The issue whether maintenance u/S. 125 Cr.P.C. could be awarded by the
Magistrate, after permanent alimony was granted to the wife in the divorce
proceedings, came up for consideration before the Supreme Court in Rakesh
Malhotra v Krishna Malhotra.23 The Court held that once an order for permanent
alimony was passed, the same could be modified by the same court by exercising
its power u/S. 25(2) of HMA. The Court held that :
“16. Since the Parliament has empowered the Court Under Section 25(2)
of the Act and kept a remedy intact and made available to the concerned
party seeking modification, the logical sequitur would be that the remedy
so prescribed ought to be exercised rather than creating multiple channels
of remedy seeking maintenance. One can understand the situation where
considering the exigencies of the situation and urgency in the matter, a wife
initially prefers an application Under Section 125 of the Code to secure
maintenance in order to sustain herself. In such matters the wife would
certainly be entitled to have a full-fledged adjudication in the form of any
challenge raised before a Competent Court either under the Act Or similar
such enactments. But the reverse cannot be the accepted norm.”

The Court directed that the application u/S. 125 Cr.P.C. be treated as an
application u/S. 25(2) of HMA and be disposed of accordingly.

23
2020 SCC OnLine SC 239.

29
(iii) In Nagendrappa Natikar v Neelamma24 this Court considered a case where
the wife instituted a suit under Section 18 of HAMA, after signing a consent
letter in proceedings u/S. 125 Cr.P.C., stating that she would not make any
further claims for maintenance against the husband. It was held that the
proceedings u/S. 125 Cr.P.C. were summary in nature, and were intended to
provide a speedy remedy to the wife. Any order passed u/S. 125 Cr.P.C. by
compromise or otherwise would not foreclose the remedy u/S. 18 of HAMA.
(iv) In Sudeep Chaudhary v Radha Chaudhary25 the Supreme Court directed
adjustment in a case where the wife had filed an application under Section 125
of the Cr.P.C., and under HMA. In the S. 125 proceedings, she had obtained an
order of maintenance. Subsequently, in proceedings under the HMA, the wife
sought alimony. Since the husband failed to pay maintenance awarded, the wife
initiated recovery proceedings. The Supreme Court held that the maintenance
awarded under Section 125 Cr.P.C. must be adjusted against the amount awarded
in the matrimonial proceedings under HMA, and was not to be given over and
above the same.
Directions on overlapping jurisdictions
It is well settled that a wife can make a claim for maintenance under
different statutes. For instance, there is no bar to seek maintenance both under
the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however,
be inequitable to direct the husband to pay maintenance under each of the
proceedings, independent of the relief granted in a previous proceeding. If
maintenance is awarded to the wife in a previously instituted proceeding, she is
under a legal obligation to disclose the same in a subsequent proceeding for
maintenance, which may be filed under another enactment. While deciding the
quantum of maintenance in the subsequent proceeding, the civil court/family
court shall take into account the maintenance awarded in any previously
instituted proceeding, and determine the maintenance payable to the claimant.

24
(2014) 14 SCC 452.
25
(1997) 11 SCC 286.

30
 To overcome the issue of overlapping jurisdiction, and avoid conflicting
orders being passed in different proceedings, we direct that in a subsequent
maintenance proceeding, the applicant shall disclose the previous maintenance
proceeding, and the orders passed therein, so that the Court would take into
consideration the maintenance already awarded in the previous proceeding, and
grant an adjustment or set-off of the said amount. If the order passed in the
previous proceeding requires any modification or variation, the party would be
required to move the concerned court in the previous proceeding.

31
II Payment of Interim Maintenance
(i) The proviso to Section 24 of the HMA (inserted vide Act 49 of 2001 w.e.f.
24.09.2001), and the third proviso to Section 125 Cr.P.C. (inserted vide Act 50
of 2001 w.e.f. 24.09.2001) provide that the proceedings for interim maintenance,
shall as far as possible, be disposed of within 60 days’ from the date of service
of notice on the contesting spouse. Despite the statutory provisions granting a
time-bound period for disposal of proceedings for interim maintenance, we find
that applications remain pending for several years in most of the cases. The
delays are caused by various factors, such as tremendous docket pressure on the
Family Courts, repetitive adjournments sought by parties, enormous time taken
for completion of pleadings at the interim stage itself, etc. Pendency of
applications for maintenance at the interim stage for several years defeats the
very object of the legislation.
(ii) At present, the issue of interim maintenance is decided on the basis of
pleadings, where some amount of guess-work or rough estimation takes place,
so as to make a prima facie assessment of the amount to be awarded. It is often
seen that both parties submit scanty material, do not disclose the correct details,
and suppress vital information, which makes it difficult for the Family Courts to
make an objective assessment for grant of interim maintenance. While there is a
tendency on the part of the wife to exaggerate her needs, there is a corresponding
tendency by the husband to conceal his actual income.
It has therefore become necessary to lay down a procedure to streamline
the proceedings, since a dependant wife, who has no other source of income, has
to take recourse to borrowings from her parents / relatives during the interregnum
to sustain herself and the minor children, till she begins receiving interim
maintenance.
(iii) In the first instance, the Family Court in compliance with the mandate of
Section 9 of the Family Courts Act 1984, must make an endeavour for settlement
of the disputes. For this, Section 6 provides that the State Government shall, in
consultation with the High Court, make provision for counsellors to assist a
Family Court in the discharge of its functions. Given the large and growing

32
 percentage of matrimonial litigation, it has become necessary that the provisions
of Section 5 and 6 of the Family Courts Act are given effect to, by providing for
the appointment of marriage counsellors in every Family Court, which would
help in the process of settlement.
If the proceedings for settlement are unsuccessful, the Family Court
would proceed with the matter on merits.
(iv) The party claiming maintenance either as a spouse, or as a partner in a
civil union, live-in relationship, common law marriage, should be required to file
a concise application for interim maintenance with limited pleadings, alongwith
an Affidavit of Disclosure of Assets and Liabilities before the concerned court,
as a mandatory requirement.
(v) On the basis of the pleadings filed by both parties and the Affidavits of
Disclosure, the Court would be in a position to make an objective assessment of
the approximate amount to be awarded towards maintenance at the interim stage.
(vi) The Delhi High Court in a series of judgments beginning with Puneet
Kaur v Inderjit Singh Sawhney26 and followed in Kusum Sharma v Mahinder
Kumar Sharma27 (“Kusum Sharma I”) directed that applications for maintenance
under the HMA, HAMA, D.V. Act, and the Cr.P.C. be accompanied with an
Affidavit of assets, income and expenditure as prescribed. In Kusum Sharma II,28
the Court framed a format of Affidavit of assets, income and expenditure to be
filed by both parties at the threshold of a matrimonial litigation. This procedure
was extended to maintenance proceedings under the Special Marriage Act and
the Indian Divorce Act, 1869. In Kusum Sharma III, 29 the Delhi High Court
modified the format of the Affidavit, and extended it to maintenance proceedings
under the Guardians & Wards Act, 1890 and the Hindu Minority & Guardianship
Act, 1956. In Kusum Sharma IV 30 the Court took notice that the filing of
Affidavits alongwith pleadings gave an unfair advantage to the party who files

26
ILR (2012) I Delhi 73.
27
(2014) 214 DLT 493.
28
(2015) 217 DLT 706.
29
MANU/DE/2406/2017.
30
2017 – (2018) 246 DLT 1.

33
 the affidavit subsequently. In this judgment, it was clarified that the Affidavit
must be filed simultaneously by both parties. In Kusum Sharma V31 the Court
consolidated the format of the Affidavits in the previous judgments, and directed
that the same be filed in maintenance proceedings.
(vii) Given the vastly divergent demographic profile of our country, which
comprises of metropolitan cities, urban areas, rural areas, tribal areas, etc., it was
considered appropriate to elicit responses from the various State Legal Services
Authorities (“SLSAs”).
This Court vide its Order dated 17.12.2019 requested the National Legal
Services Authority (“NALSA”) to submit a report of the suggestions received
from the SLSAs for framing guidelines on the Affidavit of Disclosure of the
Assets and Liabilities to be filed by the parties.
(viii) The NALSA submitted a comprehensive report dated 17.02.2020
containing suggestions from all the State Legal Service Authorities throughout
the country. We find the various suggestions made by the SLSAs to be of great
assistance in finalizing the Affidavit of Disclosure which can be used by the
Family Courts for determining the quantum of maintenance to be paid.
(ix) Keeping in mind the varied landscape of the country, and the
recommendations made by the SLSAs, it was submitted that a simplified
Affidavit of Disclosure may be framed to expedite the process of determining
the quantum of maintenance.
We feel that the Affidavit to be filed by parties residing in urban areas,
would require to be entirely different from the one applicable to rural areas, or
tribal areas.
For this purpose, a comprehensive Affidavit of Disclosure of Assets and
Liabilities is being attached as Enclosure I and II to this judgment.
(x) We have been informed by the Meghalaya State Legal Services Authority
that the State of Meghalaya has a predominantly tribal population, which follows
a matrilineal system of society. The population is comprised of three tribes viz.
the Khasis, Jaintia and Garo tribes. In Meghalaya, the youngest daughter is the

31
Decided by the Delhi High Court vide Judgment dated 06.08.2020.

34
 custodian of the property, and takes important decisions relating to family
property in consultation with her maternal uncle. The majority of the population
is employed in the unorganized sector, such as agriculture. Under Section 10(26)
of the Income Tax Act 1961, the tribals residing in this State are exempted from
payment of income tax.
The Meghalaya State Legal Services Authority has suggested that the
declaration in Meghalaya be made in the format enclosed with this judgment as
Enclosure III.
(xi) Keeping in mind the need for a uniform format of Affidavit of Disclosure
of Assets and Liabilities to be filed in maintenance proceedings, this Court
considers it necessary to frame guidelines in exercise of our powers under Article
136 read with Article 142 of the Constitution of India :
(a) The Affidavit of Disclosure of Assets and Liabilities annexed at
Enclosures I, II and III of this judgment, as may be applicable, shall be filed
by the parties in all maintenance proceedings, including pending proceedings
before the concerned Family Court / District Court / Magistrate’s Court, as
the case may be, throughout the country;
(b) The applicant making the claim for maintenance will be required to file a
concise application accompanied with the Affidavit of Disclosure of Assets;
(c) The respondent must submit the reply alongwith the Affidavit of
Disclosure within a maximum period of four weeks. The Courts may not
grant more than two opportunities for submission of the Affidavit of
Disclosure of Assets and Liabilities to the respondent.
If the respondent delays in filing the reply with the Affidavit, and seeks
more than two adjournments for this purpose, the Court may consider
exercising the power to strike off the defence of the respondent, if the conduct
is found to be wilful and contumacious in delaying the proceedings.32
On the failure to file the Affidavit within the prescribed time, the Family
Court may proceed to decide the application for maintenance on basis of the
Affidavit filed by the applicant and the pleadings on record;

32
Kaushalya v Mukesh Jain, Criminal Appeal Nos. 1129-1130 / 2019 decided vide Judgment 24.07.2019.

35
(d) The above format may be modified by the concerned Court, if the
exigencies of a case require the same. It would be left to the judicial discretion
of the concerned Court, to issue necessary directions in this regard.
(e) If apart from the information contained in the Affidavits of Disclosure,
any further information is required, the concerned Court may pass
appropriate orders in respect thereof.
(f) If there is any dispute with respect to the declaration made in the Affidavit
of Disclosure, the aggrieved party may seek permission of the Court to serve
interrogatories, and seek production of relevant documents from the opposite
party under Order XI of the CPC;
On filing of the Affidavit, the Court may invoke the provisions of Order
X of the C.P.C or Section 165 of the Evidence Act 1872, if it considers it
necessary to do so;
The income of one party is often not within the knowledge of the other
spouse. The Court may invoke Section 106 of the Evidence Act, 1872 if
necessary, since the income, assets and liabilities of the spouse are within the
personal knowledge of the party concerned.
(g) If during the course of proceedings, there is a change in the financial status
of any party, or there is a change of any relevant circumstances, or if some
new information comes to light, the party may submit an amended /
supplementary affidavit, which would be considered by the court at the time
of final determination.
(h) The pleadings made in the applications for maintenance and replies filed
should be responsible pleadings; if false statements and misrepresentations
are made, the Court may consider initiation of proceeding u/S. 340 Cr.P.C.,
and for contempt of Court.
(i) In case the parties belong to the Economically Weaker Sections (“EWS”),
or are living Below the Poverty Line (“BPL”), or are casual labourers, the
requirement of filing the Affidavit would be dispensed with.
(j) The concerned Family Court / District Court / Magistrate’s Court must
make an endeavour to decide the I.A. for Interim Maintenance by a reasoned

36
 order, within a period of four to six months at the latest, after the Affidavits
of Disclosure have been filed before the court.
(k) A professional Marriage Counsellor must be made available in every
Family Court.
Permanent alimony
(i) Parties may lead oral and documentary evidence with respect to income,
expenditure, standard of living, etc. before the concerned Court, for fixing
the permanent alimony payable to the spouse.
(ii) In contemporary society, where several marriages do not last for a
reasonable length of time, it may be inequitable to direct the contesting
spouse to pay permanent alimony to the applicant for the rest of her life. The
duration of the marriage would be a relevant factor to be taken into
consideration for determining the permanent alimony to be paid.
(iii) Provision for grant of reasonable expenses for the marriage of children
must be made at the time of determining permanent alimony, where the
custody is with the wife. The expenses would be determined by taking into
account the financial position of the husband and the customs of the family.
(iv) If there are any trust funds / investments created by any spouse /
grandparents in favour of the children, this would also be taken into
consideration while deciding the final child support.

37
III Criteria for determining quantum of maintenance
(i) The objective of granting interim / permanent alimony is to ensure that
the dependant spouse is not reduced to destitution or vagrancy on account of the
failure of the marriage, and not as a punishment to the other spouse. There is no
straitjacket formula for fixing the quantum of maintenance to be awarded.
The factors which would weigh with the Court inter alia are the status of
the parties; reasonable needs of the wife and dependant children; whether the
applicant is educated and professionally qualified; whether the applicant has any
independent source of income; whether the income is sufficient to enable her to
maintain the same standard of living as she was accustomed to in her matrimonial
home; whether the applicant was employed prior to her marriage; whether she
was working during the subsistence of the marriage; whether the wife was
required to sacrifice her employment opportunities for nurturing the family, child
rearing, and looking after adult members of the family; reasonable costs of
litigation for a non-working wife.33
In Manish Jain v Akanksha Jain 34 this Court held that the financial
position of the parents of the applicant-wife, would not be material while
determining the quantum of maintenance. An order of interim maintenance is
conditional on the circumstance that the wife or husband who makes a claim has
no independent income, sufficient for her or his support. It is no answer to a
claim of maintenance that the wife is educated and could support herself. The
court must take into consideration the status of the parties and the capacity of the
spouse to pay for her or his support. Maintenance is dependent upon factual
situations; the Court should mould the claim for maintenance based on various
factors brought before it.
On the other hand, the financial capacity of the husband, his actual
income, reasonable expenses for his own maintenance, and dependant family
members whom he is obliged to maintain under the law, liabilities if any, would

33
Refer to Jasbir Kaur Sehgal v District Judge, Dehradun & Ors. (1997) 7 SCC 7.
Refer to Vinny Paramvir Parmar v Paramvir Parmar (2011) 13 SCC 112.
34
(2017) 15 SCC 801.

38
 be required to be taken into consideration, to arrive at the appropriate quantum
of maintenance to be paid. The Court must have due regard to the standard of
living of the husband, as well as the spiralling inflation rates and high costs of
living. The plea of the husband that he does not possess any source of income
ipso facto does not absolve him of his moral duty to maintain his wife if he is
able bodied and has educational qualifications.35
(ii) A careful and just balance must be drawn between all relevant factors.
The test for determination of maintenance in matrimonial disputes depends on
the financial status of the respondent, and the standard of living that the applicant
was accustomed to in her matrimonial home.36
The maintenance amount awarded must be reasonable and realistic, and
avoid either of the two extremes i.e. maintenance awarded to the wife should
neither be so extravagant which becomes oppressive and unbearable for the
respondent, nor should it be so meagre that it drives the wife to penury. The
sufficiency of the quantum has to be adjudged so that the wife is able to maintain
herself with reasonable comfort.
(iii) Section 23 of HAMA provides statutory guidance with respect to the
criteria for determining the quantum of maintenance. Sub-section (2) of Section
23 of HAMA provides the following factors which may be taken into
consideration : (i) position and status of the parties, (ii) reasonable wants of the
claimant, (iii) if the petitioner/claimant is living separately, the justification for
the same, (iv) value of the claimant’s property and any income derived from such
property, (v) income from claimant’s own earning or from any other source.
(iv) Section 20(2) of the D.V. Act provides that the monetary relief granted to
the aggrieved woman and / or the children must be adequate, fair, reasonable,
and consistent with the standard of living to which the aggrieved woman was
accustomed to in her matrimonial home.

35
Reema Salkan v Sumer Singh Salkan (2019) 12 SCC 303.
36
Chaturbhuj v Sita Bai (2008) 2 SCC 316.

39
(v) The Delhi High Court in Bharat Hedge v Smt. Saroj Hegde37 laid down
the following factors to be considered for determining maintenance :
“1. Status of the parties.
2. Reasonable wants of the claimant.
3.The independent income and property of the claimant.
4. The number of persons, the non-applicant has to maintain.
5. The amount should aid the applicant to live in a similar lifestyle as
he/she enjoyed in the matrimonial home.
6. Non-applicant’s liabilities, if any.
7. Provisions for food, clothing, shelter, education, medical attendance
and treatment etc. of the applicant.
8. Payment capacity of the non-applicant.
9. Some guess work is not ruled out while estimating the income of the
non-applicant when all the sources or correct sources are not disclosed.
10. The non-applicant to defray the cost of litigation.
11. The amount awarded u/s 125 Cr.PC is adjustable against the
amount awarded u/ 24 of the Act. 17.”

(vi) Apart from the aforesaid factors enumerated hereinabove, certain

additional factors would also be relevant for determining the quantum of
maintenance payable.
(a) Age and employment of parties
In a marriage of long duration, where parties have endured the
relationship for several years, it would be a relevant factor to be taken into
consideration. On termination of the relationship, if the wife is educated and
professionally qualified, but had to give up her employment opportunities to
look after the needs of the family being the primary caregiver to the minor
children, and the elder members of the family, this factor would be required
to be given due importance. This is of particular relevance in contemporary
society, given the highly competitive industry standards, the separated wife
would be required to undergo fresh training to acquire marketable skills and
re-train herself to secure a job in the paid workforce to rehabilitate herself.
With advancement of age, it would be difficult for a dependant wife to get an
easy entry into the work-force after a break of several years.

37
140 (2007) DLT 16.

40
(b) Right to residence
Section 17 of the D.V. Act grants an aggrieved woman the right to live in
the “shared household”. Section 2(s) defines “shared household” to include
the household where the aggrieved woman lived at any stage of the domestic
relationship; or the household owned and rented jointly or singly by both, or
singly by either of the spouses; or a joint family house, of which the
respondent is a member.
The right of a woman to reside in a “shared household” defined under
Section 2(s) entitles the aggrieved woman for right of residence in the shared
household, irrespective of her having any legal interest in the same. This
Court in Satish Chander Ahuja v Sneha Ahuja 38 (supra) held that “shared
household” referred to in Section 2(s) is the shared household of the
aggrieved person where she was living at the time when the application was
filed, or at any stage lived in a domestic relationship. The living of the
aggrieved woman in the shared household must have a degree of permanence.
A mere fleeting or casual living at different places would not constitute a
“shared household”. It is important to consider the intention of the parties,
nature of living, and nature of the household, to determine whether the
premises is a “shared household”. Section 2(s) read with Sections 17 and 19
of the D.V. Act entitles a woman to the right of residence in a shared
household, irrespective of her having any legal interest in the same. There is
no requirement of law that the husband should be a member of the joint
family, or that the household must belong to the joint family, in which he or
the aggrieved woman has any right, title or interest. The shared household
may not necessarily be owned or tenanted by the husband singly or jointly.
Section 19 (1)(f) of the D.V. Act provides that the Magistrate may pass a
residence order inter alia directing the respondent to secure the same level of
alternate accommodation for the aggrieved woman as enjoyed by her in the
shared household. While passing such an order, the Magistrate may direct the

38
Civil Appeal No. 2483 / 2020 decided vide Judgment dated 15.10.2020.

41
 respondent to pay the rent and other payments, having regard to the financial
needs and resources of the parties.
(c) Where wife is earning some income
The Courts have held that if the wife is earning, it cannot operate as a bar
from being awarded maintenance by the husband. The Courts have provided
guidance on this issue in the following judgments.
In Shailja & Anr. v Khobbanna,39 this Court held that merely because the
wife is capable of earning, it would not be a sufficient ground to reduce the
maintenance awarded by the Family Court. The Court has to determine
whether the income of the wife is sufficient to enable her to maintain herself,
in accordance with the lifestyle of her husband in the matrimonial home.40
Sustenance does not mean, and cannot be allowed to mean mere survival.41
In Sunita Kachwaha & Ors. v Anil Kachwaha 42 the wife had a
postgraduate degree, and was employed as a teacher in Jabalpur. The husband
raised a contention that since the wife had sufficient income, she would not
require financial assistance from the husband. The Supreme Court repelled
this contention, and held that merely because the wife was earning some
income, it could not be a ground to reject her claim for maintenance.
The Bombay High Court in Sanjay Damodar Kale v Kalyani Sanjay
Kale43 while relying upon the judgment in Sunita Kachwaha (supra), held
that neither the mere potential to earn, nor the actual earning of the wife,
howsoever meagre, is sufficient to deny the claim of maintenance.
An able-bodied husband must be presumed to be capable of earning
sufficient money to maintain his wife and children, and cannot contend that
he is not in a position to earn sufficiently to maintain his family, as held by
the Delhi High Court in Chander Prakash Bodhraj v Shila Rani Chander

39
(2018) 12 SCC 199.
See also Decision of the Karnataka High Court in P. Suresh v S. Deepa & Ors., 2016 Cri LJ 4794.
40
Chaturbhuj v Sita Bai, (2008) 2 SCC 316.
41
Vipul Lakhanpal v Smt. Pooja Sharma, 2015 SCC OnLine HP 1252.
42
(2014) 16 SCC 715.
43
2020 SCC OnLine Bom 694.

42
 Prakash.44 The onus is on the husband to establish with necessary material
that there are sufficient grounds to show that he is unable to maintain the
family, and discharge his legal obligations for reasons beyond his control. If
the husband does not disclose the exact amount of his income, an adverse
inference may be drawn by the Court.
This Court in Shamima Farooqui v Shahid Khan45 cited the judgment in
Chander Prakash (supra) with approval, and held that the obligation of the
husband to provide maintenance stands on a higher pedestal than the wife.
(d) Maintenance of minor children
The living expenses of the child would include expenses for food,
clothing, residence, medical expenses, education of children. Extra coaching
classes or any other vocational training courses to complement the basic
education must be factored in, while awarding child support. Albeit, it should
be a reasonable amount to be awarded for extra-curricular / coaching classes,
and not an overly extravagant amount which may be claimed.
Education expenses of the children must be normally borne by the father.
If the wife is working and earning sufficiently, the expenses may be shared
proportionately between the parties.
(e) Serious disability or ill health
Serious disability or ill health of a spouse, child / children from the
marriage / dependant relative who require constant care and recurrent
expenditure, would also be a relevant consideration while quantifying
maintenance.

44
AIR 1968 Delhi 174.
45
(2015) 5 SCC 705.

43
IV Date from which Maintenance to be awarded
There is no provision in the HMA with respect to the date from which an
Order of maintenance may be made effective. Similarly, Section 12 of the D.V.
Act, does not provide the date from which the maintenance is to be awarded.
Section 125(2) Cr.P.C. is the only statutory provision which provides that
the Magistrate may award maintenance either from the date of the order, or from
the date of application. 46
In the absence of a uniform regime, there is a vast variance in the practice
adopted by the Family Courts in the country, with respect to the date from which
maintenance must be awarded. The divergent views taken by the Family Courts
are : first, from the date on which the application for maintenance was filed;
second, the date of the order granting maintenance; third, the date on which the
summons was served upon the respondent.
(a) From date of application
The view that maintenance ought to be granted from the date when the
application was made, is based on the rationale that the primary object of
maintenance laws is to protect a deserted wife and dependant children from
destitution and vagrancy. If maintenance is not paid from the date of application,
the party seeking maintenance would be deprived of sustenance, owing to the
time taken for disposal of the application, which often runs into several years.
The Orissa High Court in Susmita Mohanty v Rabindra Nath Sahu47 held
that the legislature intended to provide a summary, quick and comparatively
inexpensive remedy to the neglected person. Where a litigation is prolonged,
either on account of the conduct of the opposite party, or due to the heavy docket
in Courts, or for unavoidable reasons, it would be unjust and contrary to the
object of the provision, to provide maintenance from the date of the order.
In Kanhu Charan Jena v. Smt. Nirmala Jena48 , the Orissa High Court was
considering an application u/S. 125 Cr.P.C., wherein it was held that even though

46
K. Sivaram v K. Mangalamba & Ors.1989 (1) APLJ (HC) 604.
47
1996 (I) OLR 361.
48
2001 Cri LJ 879.

44
the decision to award maintenance either from the date of application, or from
the date of order, was within the discretion of the Court, it would be appropriate
to grant maintenance from the date of application. This was followed in Arun
Kumar Nayak v Urmila Jena,49 wherein it was reiterated that dependents were
entitled to receive maintenance from the date of application.
The Madhya Pradesh High Court in Krishna Jain v Dharam Raj Jain50
held that a wife may set up a claim for maintenance to be granted from the date
of application, and the husband may deny it. In such cases, the Court may frame
an issue, and decide the same based on evidence led by parties. The view that
the “normal rule” was to grant maintenance from the date of order, and the
exception was to grant maintenance from the date of application, would be to
insert something more in Section 125(2) Cr.P.C., which the Legislature did not
intend. Reasons must be recorded in both cases. i.e. when maintenance is
awarded from the date of application, or when it is awarded from the date of
order.
The law governing payment of maintenance u/S. 125 Cr.P.C. from the date
of application, was extended to HAMA by the Allahabad High Court in Ganga
Prasad Srivastava v Additional District Judge, Gonda & Ors.51 The Court held
that the date of application should always be regarded as the starting point for
payment of maintenance. The Court was considering a suit for maintenance u/S.
18 of HAMA, wherein the Civil Judge directed that maintenance be paid from
the date of judgment. The High Court held that the normal inference should be
that the order of maintenance would be effective from the date of application. A
party seeking maintenance would otherwise be deprived of maintenance due to
the delay in disposal of the application, which may arise due to paucity of time
of the Court, or on account of the conduct of one of the parties. In this case, there
was a delay of seven years in disposing of the suit, and the wife could not be

49
(2010) 93 AIC 726 (Ori).
50
1993 (2) MPJR 63.
51
2019 (6) ADJ 850.

45
 made to starve till such time. The wife was held to be entitled to maintenance
from the date of application / suit.
The Delhi High Court in Lavlesh Shukla v Rukmani52 held that where the
wife is unemployed and is incurring expenses towards maintaining herself and
the minor child / children, she is entitled to receive maintenance from the date of
application. Maintenance is awarded to a wife to overcome the financial crunch,
which occurs on account of her separation from her husband. It is neither a matter
of favour to the wife, nor any charity done by the husband.
(b) From the date of order
The second view that maintenance ought to be awarded from the date of
order is based on the premise that the general rule is to award maintenance from
the date of order, and grant of maintenance from the date of application must be
the exception. The foundation of this view is based on the interpretation of
Section 125(2) Cr.P.C. which provides :
“(2) Any such allowance for the maintenance or interim maintenance and
expenses for proceeding shall be payable from the date of the order, or, if
so ordered, from the date of the application for maintenance or interim
maintenance and expenses of proceeding, as the case may be.”
(emphasis supplied)
The words “or, if so ordered” in Section 125 has been interpreted to mean
that where the court is awarding maintenance from the date of application,
special reasons ought to be recorded.53
In Bina Devi v State of U.P., 54 the Allahabad High Court on an
interpretation of S.125(2) of the Cr.P.C. held that when maintenance is directed
to be paid from the date of application, the Court must record reasons. If the
order is silent, it will be effective from the date of the order, for which reasons
need not be recorded. The Court held that Section 125(2) Cr.P.C. is prima facie
clear that maintenance shall be payable from the date of the order.

52
Crl.Rev.P. 851/2019 decided by the Delhi High Court vide Order dated 28.11.2019.
53
Bina Devi & Ors. v State of Uttar Pradesh & Ors. (2010) 69 ACC 19.
54
(2010) 69 ACC 19.

46
 The Madhya Pradesh High Court in Amit Verma v Sangeeta Verma &
Ors.55 directed that maintenance ought to be granted from the date of the order.
(c) From the date of service of summons
The third view followed by some Courts is that maintenance ought to be
granted from the date of service of summons upon the respondent.
The Kerala High Court in S. Radhakumari v K.M.K. Nair 56 was
considering an application for interim maintenance preferred by the wife in
divorce proceedings filed by the husband. The High Court held that maintenance
must be awarded to the wife from the date on which summons were served in
the main divorce petition. The Court relied upon the judgment of the Calcutta
High Court in Samir Banerjee v Sujata Banerjee,57 and held that Section 24 of
the HMA does not contain any provision that maintenance must be awarded from
a specific date. The Court may, in exercise of its discretion, award maintenance
from the date of service of summons.
The Orissa High Court in Gouri Das v Pradyumna Kumar Das58 was
considering an application for interim maintenance filed u/S. 24 HMA by the
wife, in a divorce petition instituted by the husband. The Court held that the
ordinary rule is to award maintenance from the date of service of summons. It
was held that in cases where the applicant in the maintenance petition is also the
petitioner in the divorce petition, maintenance becomes payable from the date
when summons is served upon the respondent in the main proceeding.
In Kalpana Das v Sarat Kumar Das,59 the Orissa High Court held that the
wife was entitled to maintenance from the date when the husband entered
appearance. The Court was considering an application for interim maintenance
u/S. 24 HMA in a petition for restitution of conjugal rights filed by the wife. The
Family Court awarded interim maintenance to the wife and minor child from the
date of the order. In an appeal filed by the wife and minor child seeking

55
CRR No. 3542/2019, decided by the Madhya Pradesh High Court vide Order dated 08.01.2020.
56
AIR 1983 Ker 139.
57
70 CWN 633.
58
1986 (II) OLR 44.
59
AIR 2009 Ori 133.

47
maintenance from the date of application, the High Court held that the Family
Court had failed to assign any reasons in support of its order, and directed :
“9. …Learned Judge. Family Court has not assigned any reason as to why
he passed the order of interim maintenance w.e.f. the date of order. When
admittedly the parties are living separately and prima facie it appears that
the Petitioners have no independent source of income, therefore, in our view
order should have been passed for payment of interim maintenance from
the date of appearance of the Opposite Party-husband…”
(emphasis supplied)

Discussion and Directions

The judgments hereinabove reveal the divergent views of different High
Courts on the date from which maintenance must be awarded.
Even though a judicial discretion is conferred upon the Court to grant
maintenance either from the date of application or from the date of the order in
S. 125(2) Cr.P.C., it would be appropriate to grant maintenance from the date of
application in all cases, including Section 125 Cr.P.C. In the practical working
of the provisions relating to maintenance, we find that there is significant delay
in disposal of the applications for interim maintenance for years on end. It would
therefore be in the interests of justice and fair play that maintenance is awarded
from the date of the application.
In Shail Kumari Devi and Ors. v Krishnan Bhagwan Pathak60, this Court
held that the entitlement of maintenance should not be left to the uncertain date
of disposal of the case. The enormous delay in disposal of proceedings justifies
the award of maintenance from the date of application. In Bhuwan Mohan Singh
v Meena61, this Court held that repetitive adjournments sought by the husband in
that case resulted in delay of 9 years in the adjudication of the case. The delay in
adjudication was not only against human rights, but also against the basic
embodiment of dignity of an individual. The delay in the conduct of the
proceedings would require grant of maintenance to date back to the date of
application.

60
2008 9 SCC 632.
61
2015 6 SCC 353.

48
 The rationale of granting maintenance from the date of application finds
its roots in the object of enacting maintenance legislations, so as to enable the
wife to overcome the financial crunch which occurs on separation from the
husband. Financial constraints of a dependant spouse hampers their capacity to
be effectively represented before the Court. In order to prevent a dependant from
being reduced to destitution, it is necessary that maintenance is awarded from
the date on which the application for maintenance is filed before the concerned
Court.
In Badshah v Urmila Badshah Godse 62 , the Supreme Court was
considering the interpretation of Section 125 Cr.P.C. The Court held :
“13.3. …purposive interpretation needs to be given to the provisions of
Section 125 CrPC. While dealing with the application of a destitute wife or
hapless children or parents under this provision, the Court is dealing with
the marginalised sections of the society. The purpose is to achieve “social
justice” which is the constitutional vision, enshrined in the Preamble of the
Constitution of India. The Preamble to the Constitution of India clearly
signals that we have chosen the democratic path under the rule of law to
achieve the goal of securing for all its citizens, justice, liberty, equality and
fraternity. It specifically highlights achieving their social justice. Therefore,
it becomes the bounden duty of the courts to advance the cause of the social
justice. While giving interpretation to a particular provision, the court is
supposed to bridge the gap between the law and society.”
(emphasis supplied)

It has therefore become necessary to issue directions to bring about

uniformity and consistency in the Orders passed by all Courts, by directing that
maintenance be awarded from the date on which the application was made before
the concerned Court. The right to claim maintenance must date back to the date
of filing the application, since the period during which the maintenance
proceedings remained pending is not within the control of the applicant.

62
(2014) 1 SCC 188.

49
V Enforcement of orders of maintenance
Enforcement of the order of maintenance is the most challenging issue,
which is encountered by the applicants. If maintenance is not paid in a timely
manner, it defeats the very object of the social welfare legislation. Execution
petitions usually remain pending for months, if not years, which completely
nullifies the object of the law. The Bombay High Court in Sushila Viresh
Chhawda v Viresh Nagsi Chhawda63 held that :

“The direction of interim alimony and expenses of litigation under Section 24

is one of urgency and it must be decided as soon as it is raised and the law takes
care that nobody is disabled from prosecuting or defending the matrimonial
case by starvation or lack of funds.”

(i) An application for execution of an Order of Maintenance can be filed

under the following provisions :
(a) Section 28 A of the Hindu Marriage Act, 1956 r.w. Section 18 of the Family
Courts Act, 1984 and Order XXI Rule 94 of the CPC for executing an Order
passed under Section 24 of the Hindu Marriage Act (before the Family
Court);
(b) Section 20(6) of the DV Act (before the Judicial Magistrate); and
(c) Section 128 of Cr.P.C. before the Magistrate’s Court.
(ii) Section 18 of the Family Courts Act, 1984 provides that orders passed by
the Family Court shall be executable in accordance with the CPC / Cr.P.C.
(iii) Section 125(3) of the Cr.P.C provides that if the party against whom the
order of maintenance is passed fails to comply with the order of maintenance,
the same shall be recovered in the manner as provided for fines, and the
Magistrate may award sentence of imprisonment for a term which may extend
to one month, or until payment, whichever is earlier.
Striking off the Defence
(i) Some Family Courts have passed orders for striking off the defence of the
respondent in case of non-payment of maintenance, so as to facilitate speedy
disposal of the maintenance petition.

63
AIR 1996 Bom 94.

50
 In Kaushalya v Mukesh Jain 64 , the Supreme Court allowed a Family
Court to strike off the defence of the respondent, in case of non-payment of
maintenance in accordance with the interim order passed.
(ii) The Punjab & Haryana High Court in Bani v. Parkash Singh 65 was
considering a case where the husband failed to comply with the maintenance
order, despite several notices, for a period of over two years. The Court taking
note of the power to strike off the defence of the respondent, held that :
"Law is not that powerless as not to bring the husband to book. If the
husband has failed to make the payment of maintenance and litigation
expenses to wife, his defence be struck out."

(iii) The Punjab & Haryana High Court in Mohinder Verma v Sapna, 66
discussed the issue of striking off the defence in the following words :
“8. Section 24 of the Act empowers the matrimonial court to award
maintenance pendente lite and also litigation expenses to a needy and
indigent spouse so that the proceedings can be conducted without any
hardship on his or her part. The proceedings under this Section are
summary in nature and confers a substantial right on the applicant during
the pendency of the proceedings. Where this amount is not paid to the
applicant, then the very object and purpose of this provision stands
defeated. No doubt, remedy of execution of decree or order passed by the
matrimonial court is available under Section 28A of the Act, but the same
would not be a bar to striking off the defence of the spouse who violates
the interim order of maintenance and litigation expenses passed by the
said Court. In other words, the striking off the defence of the spouse not
honouring the court's interim order is the instant relief to the needy one
instead of waiting endlessly till its execution under Section 28A of the Act.
Where the spouse who is to pay maintenance fails to discharge the
liability, the other spouse cannot be forced to adopt time consuming
execution proceedings for realising the amount. Court cannot be a mute
spectator watching flagrant disobedience of the interim orders passed by
it showing its helplessness in its instant implementation. It would, thus, be
appropriate even in the absence of any specific provision to that effect in
the Act, to strike off the defence of the erring spouse in exercise of its
inherent power under Section 151 of the Code of Civil Procedure read
with Section 21 of the Act rather than to leave the aggrieved party to seek
its enforcement through execution as execution is a long and arduous
procedure. Needless to say, the remedy under Section 28A of the Act
regarding execution of decree or interim order does not stand obliterated
or extinguished by striking off the defence of the defaulting spouse. Thus,
where the spouse who is directed to pay the maintenance and litigation

64
Criminal Appeal Nos. 1129-1130 / 2019 decided vide Judgment dated 24.07.2019.
65
AIR 1996 P&H 175.
66
MANU/PH/3684/2014.

51
 expenses, the legal consequences for its non-payment are that the defence
of the said spouse is liable to be struck off.”
(emphasis supplied)

(iv) The Delhi High Court in Satish Kumar v Meena67 held that the Family
Court had inherent powers to strike off the defence of the respondent, to ensure
that no abuse of process of the court takes place.
The Delhi High Court in Smt. Santosh Sehgal v Shri Murari Lal Sehgal,68
framed the following issue for consideration : “Whether the appeal against the
decree of divorce filed by the appellant-wife can be allowed straightway without
hearing the respondent-husband in the event of his failing to pay interim
maintenance and litigation expenses granted to the wife during the pendency of
the appeal.”
The reference was answered as follows :
“5.The reference to the portion of the judgment in Bani's case extracted here-
in-above would show that the Punjab and Haryana High Court and Orissa
Page 2216 High Court have taken an unanimous view that in case the
husband commits default in payment of interim maintenance to his wife and
children then he is not entitled to any matrimonial relief in proceedings by
or against him. The view taken by Punjab and Haryana High Court in
Bani's case has been followed by a Single Judge of this Court in Satish
Kumar v. Meena . We tend to agree with this view as it is in consonance
with the first principle of law. We are of the view that when a husband is
negligent and does not pay maintenance to his wife as awarded by the
Court, then how such a person is entitled to the relief claimed by him in the
matrimonial proceedings. We have no hesitation in holding that in case the
husband fails to pay maintenance and litigation expenses to his wife granted
by the Court during the pendency of the appeal, then the appeal filed by the
wife against the decree of divorce granted by the trial court in favor of the
husband has to be allowed. Hence the question referred to us for decision
is answered in the affirmative.”

The Court concluded that if there was non-payment of interim

maintenance, the defence of the respondent is liable to be struck off, and the
appeal filed by the appellant-wife can be allowed, without hearing the
respondent.

67
2001 (60) DRJ 246.
68
AIR 2007 Delhi 210.

52
(v) The Punjab and Haryana High Court in Gurvinder Singh v Murti & Ors.69
was considering a case where the trial court stuck off the defence of the husband
for non-payment of ad-interim maintenance. The High Court set aside the order
of the trial court, and held that instead of following the correct procedure for
recovery of interim maintenance as provided u/S. 125 (3) or Section 421 of the
Cr.P.C., the trial court erred in striking off the defence of the husband. The error
of the court did not assist in recovery of interim maintenance, but rather
prolonged the litigation between the parties.
(vi) The issue whether defence can be struck off in proceedings under Section
125 Cr.P.C. came up before the Madhya Pradesh High Court in Venkateshwar
Dwivedi v Ruchi Dwivedi.70 The Court held that neither Section 125(3) of the
Cr.P.C, nor Section 10 of the Family Courts Act either expressly or by necessary
implication empower the Magistrate or Family Court to strike off the defence. A
statutory remedy for recovery of maintenance was available, and the power to
strike off defence does not exist in a proceeding u/S. 125 Cr.P.C. Such power
cannot be presumed to exist as an inherent or implied power. The Court placed
reliance on the judgment of the Kerala High Court in Davis v Thomas,71 and held
that the Magistrate does not possess the power to strike off the defence for failure
to pay interim maintenance.
Discussion and Directions on Enforcement of Orders of Maintenance
The order or decree of maintenance may be enforced like a decree of a
civil court, through the provisions which are available for enforcing a money
decree, including civil detention, attachment of property, etc. as provided by
various provisions of the CPC, more particularly Sections 51, 55, 58, 60 read
with Order XXI.

69
Gurvinder Singh v Murti & Ors. I (1990) DMC 559.
70
II (2018) DMC 103 MP.
Karnataka High Court affirmed this view in Ravindra Kumar v Renuka & Anr. 2009 SCC OnLine Kar
481.
71
2007(4) ILR (Kerala) 389.
See also Sakeer Hussain T.P. v Naseera & Ors., 2016 (4) ILR (Kerala) 917.

53
 Striking off the defence of the respondent is an order which ought to be
passed in the last resort, if the Courts find default to be wilful and contumacious,
particularly to a dependant unemployed wife, and minor children.
Contempt proceedings for wilful disobedience may be initiated before the
appropriate Court.

54
VI Final Directions
In view of the foregoing discussion as contained in Part B – I to V of this
judgment, we deem it appropriate to pass the following directions in exercise of
our powers under Article 142 of the Constitution of India :
(a) Issue of overlapping jurisdiction
To overcome the issue of overlapping jurisdiction, and avoid conflicting
orders being passed in different proceedings, it has become necessary to issue
directions in this regard, so that there is uniformity in the practice followed
by the Family Courts/District Courts/Magistrate Courts throughout the
country. We direct that:
(i) where successive claims for maintenance are made by a party
under different statutes, the Court would consider an adjustment or set-
off, of the amount awarded in the previous proceeding/s, while
determining whether any further amount is to be awarded in the
subsequent proceeding;
(ii) it is made mandatory for the applicant to disclose the previous
proceeding and the orders passed therein, in the subsequent proceeding;
(iii) if the order passed in the previous proceeding/s requires any
modification or variation, it would be required to be done in the same
proceeding.
(b) Payment of Interim Maintenance
The Affidavit of Disclosure of Assets and Liabilities annexed as
Enclosures I, II and III of this judgment, as may be applicable, shall be filed
by both parties in all maintenance proceedings, including pending
proceedings before the concerned Family Court / District Court / Magistrates
Court, as the case may be, throughout the country.
(c) Criteria for determining the quantum of maintenance
For determining the quantum of maintenance payable to an applicant, the
Court shall take into account the criteria enumerated in Part B – III of the
judgment.

55
 The aforesaid factors are however not exhaustive, and the concerned
Court may exercise its discretion to consider any other factor/s which may be
necessary or of relevance in the facts and circumstances of a case.
(d) Date from which maintenance is to be awarded
We make it clear that maintenance in all cases will be awarded from the
date of filing the application for maintenance, as held in Part B – IV above.
(e) Enforcement / Execution of orders of maintenance
For enforcement / execution of orders of maintenance, it is directed that
an order or decree of maintenance may be enforced under Section 28A of the
Hindu Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128
of Cr.P.C., as may be applicable. The order of maintenance may be enforced
as a money decree of a civil court as per the provisions of the CPC, more
particularly Sections 51, 55, 58, 60 r.w. Order XXI.

Before we part with this judgment, we note our appreciation of the

valuable assistance provided by the Ld. Amici Curiae Ms. Anitha Shenoy and
Mr. Gopal Sankaranarayanan, Senior Advocates in this case.
A copy of this judgment be communicated by the Secretary General of
this Court, to the Registrars of all High Courts, who would in turn circulate it to
all the District Courts in the States. It shall be displayed on the website of all
District Courts / Family Courts / Courts of Judicial Magistrates for awareness
and implementation.

.……………………….
(INDU MALHOTRA, J.)

New Delhi, ………………………….

November 4, 2020 (R. SUBHASH REDDY J.)

56
 Enclosure I
Affidavit of Assets and Liabilities for Non-Agrarian Deponents

I _________, d/o _______ or s/o , aged about ______years, resident of

, do hereby solemnly affirm and declare as under:

A. Personal Information
1. Name:
2. Age/Sex:
3. Qualifications (Educational and Professional):
4. Whether the Applicant is staying in the matrimonial house / parental home /
separate residence. Please provide the current residential address of matrimonial
home or place of residence and details of ownership of residence, if owned by other
family member.
5. Date of marriage:
6. Date of separation:
7. General monthly expenses of the Applicant (rent, household expenses, medical
bills, transportation, etc.):

B. Details of Legal Proceedings and Maintenance being paid

1. Particulars of any ongoing or past legal proceedings with respect to maintenance
or child support between the Applicant and Non-Applicant.
2. Whether any maintenance has been awarded in any proceeding arising under the
D.V.Act, Cr.P.C., HMA, HAMA, etc.? If yes, provide details of the quantum of
maintenance awarded in the proceedings.
3. If so, provide particulars thereof, alongwith a copy of the Order/s passed.
4. Whether the Order of maintenance passed in earlier proceedings has been complied
with. If not, arrears of maintenance.
5. Whether any voluntary contribution towards maintenance has been made/ will be
made in the future? If yes, provide details of the same.

C. Details of dependant family members

1. Details of Dependant family members, if any.
a. Relationship with dependants:
b. Age and sex of dependant/s:

57
 2. Disclose if any independent source/s of income of the dependants, including
interest income, assets, pension, tax liability on any such income and any other
relevant details.
3. The approximate expenses incurred on account of the dependant.

D. Medical details if any, of the Deponent and/or dependant family members

1. Whether either party or child /children is suffering from any physical / mental
disability, or any other serious ailment. If yes, produce medical records.
2. Whether any dependant family member has serious disability, requiring continuous
medical expenditure. If yes, produce disability certificate and approximate medical
expenditure incurred on such medical treatment.
3. Whether either party or child/children or any other dependent family member is
suffering from life-threatening diseases, which would entail expensive and regular
medical expenditure? If yes, provide details of the same along with summary of
previous details of hospitalisation/medical expenses incurred.

E. Details of Children of the parties

1. Number of children from the existing marriage / marital relationship/ previous
marriage
2. Name and age of children
3. Details of the parent who has the custody of the children.
4. Expenditure for maintenance of dependant children.
a. Towards food, clothing and medical expenses
b. Towards expenses for education, and a summary of general expenses
c. Towards expenses, if any, of any extra educational, vocational or professional /
educational course, specialised training or special skills programme of
dependent children.
d. Details of any loan, mortgage, charge incurred or instalment plan (being paid or
payable), if any, on account of any educational expenses of children.
5. Whether any voluntary contribution by either of the parties is being made towards
these educational expenses. If yes, provide details of the same. Also provide an
estimate of any additional contribution that may be required.
6. Whether any financial support is being provided by a third party for the educational
expenses of the children?

58
F. Details of Income of the Deponent
1. Name of employer:
2. Designation:
3. Monthly income:
4. If engaged in Government Service, furnish latest Salary Certificates or current Pay
Slips or proof of deposit in bank account, if being remitted directly by employer.
5. If engaged in the private sector, furnish a certificate provided by the employer
stating the designation and gross monthly income of such person, and Form 16 for
the relevant period of current employment.
6. If any perquisites, benefits, house rent allowance, travel allowance, dearness
allowance or any other service benefit is being provided by the employer during
the course of current employment.
7. Whether assessed to income tax?
If yes, submit copies of the Income Tax Returns for the periods given below :
(i) One year prior to marriage
(ii) One year prior to separation
(iii) At the time when the Application for maintenance is filed
8. Income from other sources, such as rent, interest, shares, dividends, capital gains,
FDRs, Post office deposits, mutual funds, stocks, debentures, agriculture, or
business, if any, alongwith TDS in respect of any such income.
9. Furnish copies of Bank Statement of all accounts for the last 3 years.

G. Assets (movable and immovable) owned by the Deponent

1. Self-acquired property, if any:
2. Properties jointly owned by the parties after marriage:
3. Share in any ancestral property:
4. Other joint properties of the parties (accounts/ investments/ FDR/ mutual funds,
stocks, debentures etc.), their value and status of possession:
5. Status of possession of immovable property and details of rent, if leased:
6. Details of loans taken or given by the Deponent
7. Brief description of jewellery and ornaments of parties acquired during /after
marriage

59
 8. Details of transfer deeds or transactions of alienation of properties previously
owned by the applicant, executed during the subsistence of the marriage. Also
provide brief reasons for such sale or transaction, if any.

H. Details of Liabilities of the Deponent

1. Loans, liabilities, mortgage, or charge outstanding against the Deponent, if any.
2. Details of any EMIs being paid.
3. Date and purpose of taking loan or incurring any such liability:
4. Actual amount borrowed, if any, and the amount paid upto date of filing the
Affidavit:
5. Any other information which would be relevant to describe current liabilities of the
Deponent.

I. Self-employed persons / Professionals / Business Persons / Entrepreneur

1. Brief description of nature of business/profession/vocation/self-employed/work
activity.
2. Whether the business/profession/ self-employment is carried on as an individual,
sole proprietorship concern, partnership concern, LLP, company or association of
persons, HUF, joint family business or any other form? Give particulars of
Applicant’s share in the partnership/business/ professional association/self-
employment. In case of partnership, specify the share in the profit/losses of the
partnership.
3. Net Income from the business/profession/ partnership/self-employment.
4. Business/partnership/self-employment liabilities, if any, in case of such activity.
5. In case of business of company, provide brief details of last audited balance sheet
to indicate profit and loss of the company in which such party is in business in the
company.
6. In case of a partnership firm, provide details of the filings of the last Income Tax
Return of partnership.
7. In case of self-employed individual, provide the filings of the last Income Tax
Return from any such professional/business/vocational activity.

J. Information provided by the Deponent with respect to the income, assets and
liabilities of the other Spouse
1. Educational and professional qualifications of the other spouse:

60
 2. Whether spouse is earning? If so, give particulars of the occupation and income of
the spouse.
3. If not, whether he/she is staying in his/her own accommodation, or in a rented
accommodation or in accommodation provided by employer/business/partnership?
4. Particulars of assets and liabilities of spouse as known to the deponent, alongwith
any supporting documents.

K. Details of Applicant or the other Spouse, in case parties are Non-Resident Indians,
Overseas Citizens of India, Foreign Nationals or Persons living abroad outside
India.
1. Details of Citizenship, Nationality and current place of residence, if the Applicant
or other spouse is residing abroad outside India, temporarily or permanently.
2. Details of current employment and latest income in foreign currency of such
applicant/spouse, duly supported by relevant documentation of employment and
income from such foreign employer or overseas institution by way of employment
letter or testimonial from foreign employer or overseas institution or latest relevant
bank statement.
3. Details of household and other expenditure of such applicant/spouse in foreign
jurisdiction.
4. Details of tax liability of applicant/other spouse in foreign jurisdiction.
5. Details of income of applicant/other spouse from other sources in India/foreign
jurisdiction.
6. Details of expenses incurred or contribution made on account of spousal
maintenance, child support or any other educational expenses, medical treatment
of spouse or children.
7. Any other relevant detail of expenses or liabilities, not covered under any of the
above headings and any other liabilities to any other dependant family members in
India or abroad.

61
 Declaration

1. I declare that I have made a full and accurate disclosure of my income,

expenditure, assets and liabilities from all sources. I further declare that I have no
assets, income, expenditure and liabilities other than as stated in this affidavit.
2. I undertake to inform this Court immediately with respect to any material change
in my employment, assets, income, expenses or any other information included
in this affidavit.
3. I understand that any false statement in this affidavit, apart from being contempt
of Court, may also constitute an offence under Section 199 read with Sections
191 and 193 of the Indian Penal Code punishable with imprisonment upto seven
years and fine, and Section 209 of Indian Penal Code punishable with
imprisonment upto two years and fine. I have read and understood Sections 191,
193, 199 and 209 of the Indian Penal Code, 1860.

DEPONENT

Verification

Verified at ___on this _____day of _____ that the contents of the above affidavit
are true to my personal knowledge, no part of it is false and nothing material has
been concealed therefrom, whereas the contents of the above affidavit relating to
the assets, income and expenditure of my spouse are based on information
believed to be true on the basis of record. I further verify that the copies of the
documents filed along with the affidavit are the copies of the originals.

DEPONENT

62
 Enclosure II
Details for Affidavit for Agrarian Deponents (Krishi)

1. Total extent of the rural land/s owned, or the specific share holding in the same
land:
2. Jamabandis / Mutations to show ownership
3. Location of the land owned by the party.
4. Nature of land : whether wet land or dry land.
5. Whether such land is agricultural land or non-agricultural land:
6. Nature of agriculture / horticulture :
7. Nature of crops cultivated during the year :
8. If rural land is not cultivable, whether the same is being used for business, leasing
or other activity :
9. Income generated during the past 3 years from the land.
10. Whether any land is taken on lease /battai (or any other term used for a lease in the
local area of the concerned jurisdiction where rural /agricultural land is located.)
11. (a) Whether owner of any livestock, such as buffaloes, cows, goats, cattle, poultry,
fishery, bee keeping, piggery etc., the number thereof and Income generated
therefrom?
(b) Whether engaged in dairy farming, poultry, fish farming or any other livestock
activity.
12. Loans, if any obtained against the land. Furnish details of such loans.
13. Any other sources of income :
14. Liabilities, if any
15. Any other relevant information :

63
 Declaration

1. I declare that I have made a full and accurate disclosure of my income,

expenditure, assets and liabilities from all sources. I further declare that I have no
assets, income, expenditure and liabilities other than as stated in this affidavit.
2. I undertake to inform this Court immediately with respect to any material change
in my employment, assets, income, expenses or any other information included
in this affidavit.
3. I understand that any false statement in this affidavit, apart from being contempt
of Court, may constitute an offence under Section 199 read with Sections 191 and
193 of the Indian Penal Code punishable with imprisonment upto seven years and
fine, and Section 209 of Indian Penal Code punishable with imprisonment upto
two years and fine. I have read and understood Sections 191, 193, 199, and 209
of the Indian Penal Code,1860.

DEPONENT

Verification

Verified at ___on this ___day of_____that the contents of the above affidavit are
true to my personal knowledge, no part of it is false and nothing material has been
concealed therefrom. I further verify that the copies of the documents filed along
with the affidavit are the copies of the originals.

DEPONENT

64
 Enclosure III
Affidavit for the State of Meghalaya
1. Whether the woman is the youngest daughter of the family.
2. Whether the woman is staying with her husband in her family property.
3. Whether she has any maternal uncle, who plays a very important role in their family
matters, which includes settlement of matrimonial disputes. The woman should also
disclose her clan and her lineage.
4. The woman should disclose if her children have adopted the surname of her mother,
in as much as Khasi has been defined as “a person who adopts the surname of his
or her mother”.
5. The woman should disclose if she gets any financial assistance from her clan or
family member.
6. The woman should disclose if her parents are alive more specifically, her mother,
and how many siblings she has.
7. In event of a woman not being the youngest daughter, she has to disclose who the
youngest daughter is.
8. The woman should disclose if she has any movable or any immovable property,
self-acquired or inherited from her clan.
9. The woman should disclose if she is married to tribal or non-tribal
The above format may be modified or adapted by the concerned Court, as may
be considered appropriate.

65
 Declaration

1. I declare that I have made a full and accurate disclosure of my income,

expenditure, assets and liabilities from all sources. I further declare that I have
no assets, income, expenditure and liabilities other than as stated in this
affidavit.
2. I undertake to inform this Court immediately with respect to any material change
in my employment, assets, income, expenses or any other information included
in this affidavit.
3. I understand that any false statement in this affidavit, apart from being contempt
of Court, may also constitute an offence under Section 199 read with Sections
191 and 193 of the Indian Penal Code punishable with imprisonment upto seven
years and fine, and Section 209 of Indian Penal Code punishable with
imprisonment upto two years and fine. I have read and understood Sections 191,
193, 199, and 209 of the Indian Penal Code, 1860.

DEPONENT

Verification

Verified at ___on this _____day of _____ that the contents of the above affidavit
are true to my personal knowledge, no part of it is false and nothing material has
been concealed therefrom, whereas the contents of the above affidavit relating to
the assets, income and expenditure of my spouse are based on information
believed to be true on the basis of record. I further verify that the copies of the
documents filed along with the affidavit are the copies of the originals.

DEPONENT

66