Monday, June 28, 2021

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Termination of Pregnancy

 


Statute

  1. Medical termination of Pregnancy Act, 1971
    1. Section 3
      1. Subsection 2
        1. Subject to provision of sub-section (4), a pregnancy may be terminated by registered medical practitioner
        2. Where the LENGHT of the pregnancy DOES NOT EXCEED 20weeks, of such medical practitioner is, or
        3. Where the LENGTH of the pregnancy EXCEEDS 20 weeks BUT DOES NOT EXCEED 24 Weeks in case of such category of women as may be prescribed by rules made under this Act 
          1. if not less than 2 registered medical practitioners are of the opinion, formed in GOOD FAITH that
            1. the continuation of the pregnancy would involve a RISK to life of the pregnant woman or grave injury to her physical or mental health.
            2. there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.
        4. Explanation 1 :- for the purpose of clause (a) where any pregnancy occurs as a result of failure of any device or method used by any women or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be PRESUMED to constitute a grave injury to the mental health of the pregnant women.
        5. Explanation 2 :- For the purpose of clause (a) & (b) where any pregnancy is alleged by pregnant women to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant women.
          1. (2A) The norms of the registered medical practitioner whose opinion is required for termination of pregnancy at different gestational age SHALL be such as may be prescribe by rules made under this Act
          2. (2B) The provision of subsection(2) relating to the LENGHT of pregnancy SHALL NOT apply to the termination of pregnancy by the medial practitioner where such termination is necessary by the diagnosis of any of the SUBSTANTIAL foetal abnormalities diagnosed by the Medical board.
          3. (2C) Every State Govt or Union Territory as the case may be SHALL be notification in official Gazette constitute a board to be called a Medial Board for the purpose of this Act to exercise such powers and function as may be prescribed by rule made under this act.
          4. (2D) The Medical Board SHALL consist of following
            1. A Gynaecologist
            2. a Pediatrician
            3. a Radiologist or Sonologist
            4. Such other number of members as may be notified in Offical Gazett





Important Points

  1. A woman's right to make Reproductive choice is also dimension of personal liberty as understood under A21 of the Constitution.
  2. CONSENT of women is ESSENTIAL requirement for proceeding with the termination of pregnancy.
  3. Reproductive rights include a woman's' entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children
  4. allowed reasons for Termination of pregnancy 
    1. Rape victim, 
      1. if forced to give birth to a child in social scenario she has to face a life time anguish
        1. Impact mental health
      2. Apart from fact the child who is born will also have to face disdain of the society
  5. Prerequisites for Termination of Pregnancy
    1. Medical Reports of District Medical Board 
    2. Section 3 of MTP Acr, 1971
      1. Regarding section 3 would show that the length of pregnancy can be terminated in opinion of registered medical practitioner formed in good faith that pregnancy would cause GRAVE INJURY to Physical & mental health of women and where the length of pregnancy does not exceed 20weeks.
      2. Explanation 2 the same is prescribed wherein it is stated that the pregnancy which is caused by RAPE would PRESUMED to cause grave injury to mental health of the pregnant women. 
  6. DNA of the Child SHALL also be preserved considering the facts - report under Section 373  which will be eventually required at future date.





Case Law

  1. Meera Santosh Pal Vs UoI (2017) 3 SCC 462
    1. Para 9 - In Suchita Srivastava Bench of 3 J held a "women right to make reproductive choice is also dimension  of personal liberty as understood under A21 of Constitution "
    2. The court there dealt with the importance of the consent of the pregnant women as an essential requirement for proceeding with termination of pregnancy.
    3. There is no doubt that a woman's right to make reproductive choice is also a dimension of "personal liberty" as understood under A21 of Constitution. it is imp to recognize that Reproductive choices can be exercised to procreate as well as to abstain from procreating.
    4. The crucial consideration is that woman's right to privacy, dignity and bodily integrity should be respected. 
    5. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman's right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. 
    6. Further more women are also free to choose birth control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman's' entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children.
  2. Suchita srivaatava Vs Chandigarh Adm (2009) 9 SCC 1





Source

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Joint Parenting

 


Statue

  1. Order VII Rule 11 CPC - Summarily dismiss a suit at the threshold
  2. Section 9 of GWA, 1890


Section 9 of GWA 1890

  1. Court having jurisdiction to entertain application 
    1. if the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having Jurisdiction in the place where the minor ordinarily resides.
    2. if the application is with respect to the guardianship of the property of the minor, it may be made either to the district court having jurisdiction in the place where the minor ordinarily resides or to a district court having jurisdiction in a place where he has property.
    3. if an application with respect to guardianship of the property of a minor is made to a District court other than having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction.

Section 6(a) of Hindu Minority and Guardianship Ac, 1956

  1. Natural guardians of a Hindu minor :- the natural guardian of a Hindu minor, in respect of the minor person as well as in respect of the minor property (Excluding his / her undivided interest in join family property ) are 
    1. in the case of a boy or an unmarried girl -- the father and after him, the mother
    2. provided that the custody of a minor who has not completed the age of 5y shall ordinarily be with the mother.

Section 10(3) of Family Court Act
  1. FC can device its own procedures and is not bound by any watertight compartment of other procedural law.
Comity of Courts
  1. Principle of comity of courts or principle of forum of convenience alone cannot determine the threshold bar of jurisdiction.

Notes on Order VII Rule 11 CPC

  1. Purpose
    1. ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of court and exercise the mind of the respondent.
  2. Similar to 227, 239, 245 CrPC
  3. Judicial time is precious & ought to be employed in most efficient manner possible
  4. Sham litigation are menace that only waste the time of the court
  5. Cause unwarranted prejudice and harm to parties arrayed as defendants 
  6. Therefore defeating justice.
  7. O7 R11 - provides litigants the option to pursue an independent and special remedy, empowering courts to summarily dismiss a suit at the threshold without proceeding to record evidence and conducting trail on 
  8. Grounds of application of O7 R11
    1. No cause of action is disclosed in the plaint
    2. if the suit is barred by limitation
    3. Plaint manifestly vexatious and without merit
    4. relifs prayed are defective and un-remediable
    5. Court would not permit protraction of proceedings, end the sham litigation so further judicial time is not wasted
  9. Determination of application filed u/s O7 R11
    1. Should restrict itself to the plaint and should not go into the detail facts as provided under the written statment or even application filed u/s O7 R11
    2. Dont' got into merits of the case.
    3. O7 R11 may be exercised at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant or before conclusion of the trail
    4. Plaints providing a prima facie cause of action are not be simply rejected at the threshold. The decision of using option of O7 R11 should therefore be taken with due consideration of the facts and circumstances.
  10. What cannot be dismissed u/s O7R11?
    1. GWA matter where paramount consideration is welfare of child and same cannot be subject matter of final determination u/s O7 R11
  11. Case 
    1. Azhar Hussain Vs Rajiv Gandhi
    2. Liverpool and London S.P & I association Ltd Vs M.V Sea Success
      1. whether the plaint discloses a cause of action or not is essential a question of fact.
      2. However  whether it does or does not must be found from the reading of the plaint itself during which the averments made in plaint in their entirety MUST be held to be correct. 
    3. Khatri Hotels Private Limited Vs Union of India
      1. Period of limitation will begin to run from the date when the 1st right to sue accures
      2. Accordingly, it observed that since the suit was filed after expiry of 3y of 1st right to sue occurred, it found the suit to be barred by limitation.

Ordinary Residence

  1. Ordinary Resident is matter of evidence 
    1. Central Bank of India Vs Ram Narain AIR 1955 SC 36
    2. Ruchi Majoo vs Sanjeev Majoo AIR 2011 SC 1952
      1. Liberal interpretation is the first and foremost rule of interpretation it would be useful to understand the literal meaning of two words
      2. Ordinary : black law dictionary : regular, normal, common, often recurring; according to established order, settled, customary; reasonable NOT characterized by peculiar or unusual circumsntaces
      3. Reside : live , dwell, abide, sojourn, stay, remain, lodge
      4. To settle oneself or thing in a place to remain or to stay to dwell permanently or continuously 
    3. Ordinarily resides u/s Section 9 of GWA does not have same meaning as "residence at the time of the application" - mischief to stealthily remove child to distant place
    4. Law provides that the jurisdiction would lie at place where minor would have continued, but for his removal.
    5. Temporary shifting or removal of children cannot make a permanent home of children for purpose of GWA Section 9
    6. Section 6(1) of HMGA - residence of minor may not necessarily follow the residence of mother
    7. Section 6 HMGA and Section 9 GWA operate in different fields
      1. Section 6 cannot be imported for the purpose of territorial jurisdiction
      2. Section 6 HMGA was enacted to amend & codify certain parts of law relating to guardian ship among hindus & does not apply other class of persons
      3. HMGA 1956 is ONLY in addition to GWA 1890 but not in derogation to it

Habeas Corpus in Child matters

  1. Only determine the lawful/unlawful custody of children

Doctrine of Tender years and matrimonial preference

  1. developed for the welfare of the children
  2. Role of mother in child care is greater than the father, based on tender years
    1. Bindhu Philip Vs Sunil Jacob (2018) 12 SCC 2003
  3. Statutory presumption in favor of mother under section 6 of HMGA which has be rebutted
  4. Maternal preference 
    1. ABC Vs State (NCT of delhi ) 2015 10 SCC 1

 

Arguments in favor of father/mother

  1. While balancing competing rights even for welfare of the children, the rights of the mother cannot be destroyed.

How can father get custody of child below 5y?

  1. Paramount interest is welfare of the child
  2. UNLESS father discloses cogent reason that are indicative of likelihood of welfare and interest of child being undermined jeopardized it custody is retained by mother.
  3. S6(a) HMGA presumes albeit a rebuttable one, in favor of mother
  4. Onus on father to prove that it is not in welfare of child
  5. Comparative characteristics of parents would come in play.
  6. Roxann Sharma Vs Srun Sharma (2015) 8 SCC 318

What is mental maturity of child?


Role of court

  1. Aditya Mahajan Vs Sachi Mahajan 2016
    1. Facts
      1. Judge noted that during his interaction with child he found child completely hesitant to be with his father. The father says the visitation right is illusory.
    2. Para 4
      1. One off incident assuming to be true, should not deprive the father the right to meet child and vice versa
      2. Trite is always interest of a chilld to bond with both parents notwithstanding the parents being estranged.
    3. Para 8
      1. if a child is hesitant to be with a parent, it is DUTY of the Presiding Judge of the FC to have the child counseled with help of the counsellors attached to the Court.
      2. Every effort has to be made to counsel both parents to spare the child of the agony of their separation.
      3. The parents have to be counseled to keep child out of litigation., both spouses should be encouraged to in turn encourage the child to meet the other spouse.
    4. Para 9 
      1. Child hesitant to meet either parent, SHOULD not be the ground to deny proper access to the souse in Question.
  2. Soumitra Kumar Nahar Vs Parul Nahar 2020
    1. High courts directs to explore the possibility of negotiated settlement by mediation  
    2. The Mediator shall faciliate free and healthy meeting b/w father as well grandparents of the children keeping in view all the sensibilities and welfare of child in mind - respondent shall not obstruct or interfere
    3. Child psychologist to have conselling session with children and parents 
    4. Counsellor submits sealed cover report - court inclined to note the report and parties and children need counseling
    5. Court appointed 4 court commissioners to facilitate admission of children, if either party not complied with order, SUO MOTU contempt petition will be initiated
  3. MOhan Kumar Rayana Vs Komal Mohan Rayana - SLP 9821/2009
    1. Psychiatric evaluation on direction of HC 
      1. Respondent wife was diagnosed with a histrionic personality disorder of a nature that rendered her unfit for having custody of the child
      2. Report also mentioned that the respondent wife was highly manipulative and readily spoke Lies seen for trivial  matters and showed trends of psychosis.
    2. ON a COMPARATIVE assessment of both the parties, the report concluded that it would not be in the interest of the child to keep her in the custody of respondent mother and contrary, father was more fit and capable to undertaken the upbringing of the child
    3. Even the second report stated that there was no evidence to revise the recommendation made in earlier report. 
  4. Gaurava Nagpal Vs Sumedha Nagpal (2009) 1 SCC 42
    1. Paramaount consideration of the court in determining question of who should be given custody of minor child, is the "Welfare of the Child" and not rights of the parents under the statute for the time being in force or what parties say.
    2. Court has to give due weight to child ordinary contentment, health, education, intellectual development and favorable surroundings but over and above physical comfort the moral and ethical values should also be noted.


Inernational

Greece

  1. Joint custody make difference, dull the pain in the process of divorce & separation.
  2. Support the children and support the parents
  3. personal is political and political is personal as feminist taught in 70's
  4. saddens so many fellow fathers- learn to live without children her and outside
  5. pain and despair suffered by thousands of people outside
  6. forced to drink poison too, this reconciliation  inhuman idea that you cannot  live without kids
  7. Personal experience of sitting in car outside and not being able to meet , anger grows inside you some people use child against you
  8. Sadness that 



Case Law
  1. J K vs N S - link
    1. Nov 2016 - 
      1. Mother seeking maintenance under Section 125 CrPC r/w Section 18(1)(b) of Hindu Adoption and Maintenance Act, 1956.
      2. GWA Section 7,9,11 & 25 r/w Section 6(a) of Hindu Minority and Guardianship Act, 1956 and Section 7(g) of Family courts act
        1. FC DISMISSED GWA on lack of territorial jurisdiction u/s Order VII Rule 11 CPC
        2. Wife filed appeal in HC MAT 3/2017 - Division Bench of HC dismissed it upheld FC order
    2. Nov 2016 - Father was granted temporary custody of children ex-parte, 2017 - Father granted permanent custody by US court
    3. 2018 - Wife file SLP - SC set aside division Bench order - paramount consideration is the welfare of the child and same cannot be subject matter of final determination in O7 R11
    4. 2018 - husband filed writ of habeas corpus - directed appellant to return to USA with respondent and children subject to certain conditions to secure rights of the wife.
      1. Husband in superior court of USA, recall orders of custody of children
      2. Once landed in USA, children not be removed form mother custody
      3. Given liberty to have visitation right 
      4. husband provide legal expenses of wife 
      5. Husband was directed to file affidavit of undertaking in terms of directions
      6. Husband satisfied conditions, Division bench orders return of mother in 3 weeks failing which children will be handed over to father
    5. Wife files SLP(Crl) 4858-4859/2018
    6. Immigration law - residing without permit
      1. Settled principle Immigration laws - children below 16y of age are not considered in conflict with law.
  2. Yogesh Bhardwaj Vs State of UP AIR 1991 SC 356
    1. Ordinary residence of child follows the ordinary residence of the mother by virtue of statutory presumption. Mother given custody of children of tender age.
      1. CATEGORICALLY DISSENTED by AP, Gujarat, HP, Rajasthan Court
        1. Harihar Pershad Jaiswal vs Suresh Jaiswal AIR 1978 AP 13
        2. Harshadbhi zinabhia Vs Bhavnaben Harhadbhai AIR 2003 Guj 74
        3. Himanshu Mahanjan Vs Rashu Mahajan AIR 2008 HP 38
    2. ordinary residence has not tenure attached to it.
    3. Citizenship of the parties and their children is irrelevant and same is not related to being a residnet. A citizen of one country can be ordinary resident anywhere in the world
  3. The remedy to seek custody and guardianship is NOT BY WAY of habeas corpus, the parties should resort to a substantive law in appropriate forum. Only examine at the threshold whether the minor is in lawful/unlawful custody
    1. Kanika Goel Vs The State (NCT of Delhi ) ( 2018 SCC Online 709 )
    2. Nithya Anand Raghavan Vs State of NCT ( 2017) 8 SCC 454
  4. Vikram Vir Vohra Vs Shalini Bhall 2010 (4) SCC 409
    1. Right to development is a basic human right
    2. Respondent mother cannot be asked to choose b/w her child and her career.
    3. if custody of the child is denied to her, she may not be able to pursue her career and may not be conducive either to development of her career or to the future prospects of child.
    4. Separating the child from his mother will be disastrous to both.
  5. Ramji Yadav V Dalip K. Yadav 76 ( 1998( DLT 526
    1. Children in the instant case are NOT old enough to form an intention.
  6. Prateek Gupta Vs Shilpi Gupta 2018 (2) SCC 309 
    1. Court would have to see if ANY Harm is being caused to the child before shifting the custody of the child to the other parent.
  7. Roxann Sharma Vs Srun Sharma (2015) 8 SCC 318
    1. Custody of a child aged below 5y should be given to his/her mother UNLESS
      1. father discloses cogent reasons that
        1. likelihood of welfare and interest of child being undermined or jeopardized if custody is retained by mother
    2. Ordinarily in Section 6(a) of Hindu Minority and Guardianship Act ordains a presumption albeit a REBUTTABLE one in favor of mother.
    3. Onus on father to prove that it is not in welfare of child to be placed in custody of his/her mother
    4. Comparative characteristic of the person would come into play
    5. Section 6(a) of HMGA preserves the right of father to be guardian of the property of minor child but not the guardian of their person whilst the child is below 5y of age.
    6. GWA does not disqualify the mother to custody of child even after the latter cross the age of 5y
  8. Yashita Sahu Vs State of Rajasthan and Other (2020) 3 SCC 67






Source 
  1. Greece adopts shared parenting law - link

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Exception from Appearance

 

Statue

  1. Civil
  2. Criminal
    1. 205 CrPC  Chapter XVI - Commencement of Proceedings before Magistrates
      1. Magistarte MAY dispense with personal attendance of accused
        1. Whenever a Magistrate issues a summons, he MAY , if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader.
        2. But the Magistrate inquiring into or trying the case may, in his DISCRETION, at any stage of the proceedings, direct the personal attendance of the accused, and if necessary, enforce such attendance in the manner hereinbefore provided.
    2. 317 CrPC Chapter XXIV , General Provisions as to Enquires and Trails . 
      1. Provisions for the inquiries and trail being held in the absence of accused in certain cases
        1. At ANY Stage of an inquiry or trail under this code, if the Judge or Magistrate is satisfied for reason to be recorded, that the personal attendance of the accused before the Court is NOT necessary in the interests of Justice. or that the accused persistently disturbs the proceedings in the court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trail in his absence, and may at any subsequent stage of the proceedings, direct the personal attendance of such accused.
        2. if the accused in any such case is not represented by a pleader or if the Judge/ Magistrate consider his personal attendance necessary, he may if he thinks fit and for reason to be recorded by his, either adjourn such inquiry or trail or order that the case of such accused be taken up or tried separately.


Importan Points

  1. Dispense with personal attendance
  2. 205 CrPC -
    1. Even before Charges are yet to be framed
    2. Dispence  with appearance during trail/enquiry IF represented by counsel duly authorized by petitioner.
    3. Proceeding before Magistrate 
    4. Even the FIRST appearance through a counsel
    5. Exempting personal attendance of accused would continue ever 
      1. after charges have been framed and 
      2. Till conclusion of the trail
    6. Discretion on the court to exempt from appearance 
      1. TILL such time his appearance is considered not necessary during the trial.
      2. Bear in mind the Nature of the case and conduct of the person summoned.
      3. Whether useful purpose is served by requiring the personal attendance of accused
      4. Or progress of the trail is likely to be hampered on account of his absence.
    7. 205 CrPC  - Nature of Special vakalat to represent the petitioner / accused and the counsel can answer to the questions put to him including his examination, so also examination under Section 313 CrPC
    8. Plea of Guilty
      1. Plea of the counsel can be taken for on behalf of accused even if the plea of one of guilty
      2. Plea can be recorded through his counsel
  3. 317 CrPC
    1. During the trial stage i.e after charges have been framed.
    2. Proceeding before Magistrate & Judge
    3. Can be done for ONLY adjourning the case 
    4. and NOT for proceeding with trial or enquiry of cases in absence
    5. Absence of petitioner can be condoned either during trail or enquiry or trial
    6. Being represented by advocate not a requirement.
  4. 205, 317 CrpC - Don't apply to Complainant
    1. Personal attendance may not always be insisted upon if represented by advocate
    2. EXCPET in private complaint
      1. Presence of complainant is considered to be NECESSARY if not by advocate.
      2. in absence - case cannot proceed further.
      3. Section 256 CrPC - if complaint fails to appear, Magistrate shall acquit the accused - discharge on default.

  5. Court should take PRECAUTION
    1. To take undertaking to the satisfaction of the court that he would not dispute his identity as the particular accused in the case 
    2. Counsel on his behalf would be present in court and that he has no objection in taking evidence in his absence.
    3. Section 273 CrPC - Except as otherwise EXRPESSLY provided, all evidence taken in course of trail or other proceeding SHALL be taken in the presence of accused or when his personal attendance is dispensed with, in presence of his pleader.
      1. Purpose of attendance of accused at trial is NOT merely a formality or compulsion but for the reason that the trail be allowed to be conducted in an expedient manner.
      2. Such precaution in the interest of the accused so that the accused is able to know about the incriminating material if any, being produced in court against him at end of prosecution 
      3. Further facilitate proper identification of the accused as evidence, identification before the court is SUBSTANTIVE piece of evidence.
      4. Section 273 CrPC - Contemplates CONSTRUCTIVE PRESENCE - actual physical presence is not required 
      5. Evidence
        1. ALL statements which the court permits or requires to be made before it by witness in relation to matter of act under inquiry; such statements are called oral evidence 
        2. ALL DOCUMENTS including electronic records produced for the inspection of the Court ; such documents are called documentary evidence;
      6. IMPORTANCE & HISTORY OF 273 CRPC - LINK
      7. A21 of Constitution of India - fair trial - Concept of ex-parte trail is alient
        1. accused is NECESSARY both for 
          1. framing charge and  - 228 CrPC
          2. Recording of evidence  - 273 CrPC
  6. What happens if the counsel engaged by the accused does not appear / co-operate ?
    1. 205(2) - Magistrate can in his discretion direct the personal attendance of accused at any stage 
    2. 317(1) - Confers a discretion on the magistrate to direct the personal attendance of the accused at any subsequent stage of proceedings. 
    3. Under 313 CrPC - power to examine the accused - insist the presence 
    4. Issue Notice, BW, NBW,  Proclamation , sale of property to recover dues, 
  7. Additional support for exemption
    1. Petitioner to appear before the court on every date of adjournment is NOTHING but harassment to the petitioner.
    2. ill Health, age, Physical disability
    3. if other have been exempted
    4. Security
    5. Distance, hardship , expenses 
    6. member of security forces
    7. Travel often
    8. Other good reason in the interest of Justice
    9. Apply multiple times
    10. Multiple case in different jurisdictions
  8. What is Power  of court?
    1. The question is one basically of attitudes and mind set
      1. Traditional criminal courts would shudder at the though of criminal trail being held without the personal presence of the accused from stage of cognizance to stage of pronouncement of judgment.
      2. Courts have to cognizant of changing times and the new breezes which sweep through the system of administration of Justice.
      3. New generation courts will not and should not cause any avoidable inconvenience to any party, litigant or witness. 
      4. The system exist not for the lawyer or the Judge but for the litigants- the seekers of Justice.
      5. Undeserved truma CANNOT be inflicted on the litigants. 
      6. The mandate of A21 of Constitution of India that procedural law MUST also be fair, reasonable and just and should not be arbitrary, capricious or oppressive will have to be borne in mind while considering & contemplating the procedures advantages to the litigants.
      7. More reasons persuade the court to adopt suh a course
        1. Corridors of the Criminal court in the state are thronged unncessarily by the litigants and not a day passes in this court in this jurisdiction u/s 482 CrPC without accused persons coming to lament before this court that they could not wade theri way through the crowd and reach the Magistrate in time when case was called.
        2. By then their absence is noted and warrant of arrest are issued against them.
        3. Need of the hours is FREELY INVOKE discretion u/s Section 205 CrPC - unless facts of a case give reason NOT to extend the benefit to accused.
    2. Main Concern of Court is administration of Justice and court proceeding should register progress.
    3. in cases of offence punishable with FINE ALONE, and involved NO MORAL TURPITUDE the EXCEMPTION should be RULE 
    4. Serious / grave offense,  Court shall NOT ordinarily grant exemption to the accused from appearance before 
    5. Serves Useful purpose requiring the personal attendance of accused
    6. Progress of trail is likely to be hampered on account of absence.
      1. if progress of trail is achieved even in ABSENCE of accused , the court can certainly take into account the MAGNITUDE of the sufferings which could be born in order to make himself present in court.
    7. If warrant is issued for appearance i.e because he was not available warrant was issued
    8. Don't favour application of 205CrPC in Serious offense  ( Gravity of offence )
    9. Court should not be too technical or stringent although discretion should not be used liberally for mere asking of it.
    10. It not only dispense with appearance but also can DIRECT the personal attendance of the accused at any stage of proceeding.
    11. If at any stage court comes to conclusion that the accused person is trying to DELAY the completion of trail, it shall be free to refuse the prayer for dispensing personal attendance.
      1. Cancel the bail bound and issue warrant of arrest 
    12. Long delay in trail - Not grant exemption u/s 317 CrPC
    13. 205 CrPC -  Discretionary power has to be exercised depending on  circumstances WITHOUT Subjecting the accused to any unnecessary harassment.
    14. Court should not hesitate to dispense personal appearnce of accused UNLESS the interest of the prosecution would there by suffer or under Code itself the presence of accused is mandatory.
  9. What to do if 205/ 317 CrPC are not accepted?
    1. 482 CrPC - Session. / High Court
    2. 397(2) CrPC - Power of revision shall not be exercised in relation to any interlocutory order
      1. Sole Test of Interlocutory order is NOT Whether such order was passed during the interim stage
      2. The feasible test is whether by upholding the objections raised by part, it would result in culmination of proceedings, if so any order passed on such objection would not be merely interlocutory in nature as envisaged in 397(2) CrPC
    3. 362 CrPC : 
      1. No Court when it has Signed its judgment or final order disposing of a case, SHALL alter or REVIEW the same EXCEPT to correct a clerical or arithmetical error.
  10. Guidelines for exercising such discretion - Sheela Kumar Vs State of Bihar 
    1. Where summons is issued at first instance, whether it may be summons case or warrant case, application under 205 CrPC can be allowe in categories as follows
      1. If accused resides or carries on business at a far off place
      2. On account of Physical reasons
      3. If insistence of his personal presence would implicit enormous suffering or tribulation on him and comparative advantage of disallowing such petition would be less
      4. Purdanashin woman
      5. Old and Sick person
      6. Factory workers and labourers
      7. Busy business people or public functionaries
      8. Corporate employees




Case Laws

  1. TGN Kumar Vs State of Kerala & Ors MANU/SC1646/2011
    1. Exempting personal attendance of accused would continue ever 
      1. after charges have been framed and
      2.  Till conclusion of the trail
  2. Bhaskar Industries Ltd Vs Bhiwandi Denim & Apparels Ltd Ord MANU/SC/0489/2001
    1. 205 CrPC - even on FIRST appearance through a counsel.
  3. Sandeep Kumar Tekriwal vs The State of Bihar & Anr 2009 (2) PLJR 260
    1. Issue warrant of arrest and proceed according to chapter VI CrPC ( Process to compel appearance ) , cancel bail and bail bond and proceed according to Chapter XXXIII CrPC ( Provisions of bail and bonds )
    2. It should NOT be composite order of NBW, Cancellation of bail and bail bond
  4. Raman Nair Vs State of Kerala ( 1999(3) KLT 714 ]
    1. 205 CrPC can be invoked in summon/ warrant cases ever before or after personal physical appearance of accused before court.
  5. Noorjahan Vs Moideen (2000 (2) KLT 756
    1. Plea of guilt can be taken by the counsel of the accused when 205 CrPC & accused is exempted from appearance.
  6. Jain babu Vs K.J. Joseph 
    1. Discretion u/s 205 CrPC - Freely invoked.
  7. Shir Chandramauli Prasad Vs State of Delhi
  8. Sultan Singh Jain Vs The State
    1. There is NO SECTION in CrPC which provides that the accused must be present at every hearing of the case, though there are several section sin the code which show that presence of the accused at certain stages of proceeding is specifically provided for. It is however, one of the vital principles of the administration of criminal justice, which is universal acknowledged that a criminal trail the court should not proceed exe parte againt an accused.
  9. Rameshwar Yadav Vs State of Bihar
    1. 498A & DP4 - Petition by business mand who has to travel 1700km sough exemption from appearing before court u/s 205 CrPC
    2. Grant of exemption from personal appearance in court on each and every date was required to be considered in view of fact that application was filed much before appearnce in court and finally granted exemption.
  10. Sushila Devi Vs Sharad Devi - MP HC
    1. Excemption u/s 205 CrPC should be the rule
    2. UNLESS it involves No moral turpitude and offence punishable only with fine.
  11. Sheela Kumar Vs State of Bihar 
    1. Guidelines when such power has to be exercised by Magistrate
    2. Categories are illustrative not exhaustive
  12. Jagadgureu Sachidanand Vs State of Mysore - 1968 - link



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Sunday, June 27, 2021

41A CrPC

 


Statute

  1. 41 CrPC - Chapter V - When Police may arrest WITHOUT warrant
    1. exigencies and circumstances under which a police office may arrest any one without warrant.
    2. Any police officer may without an order from Magistrate and without a warrant, arrest any person
      1. Who commits, in the presence of a police officer, a cognizable offence;
      2. against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than 7y or which may extend to 7y whether with or without fine, if the following conditions are satisfied
        1. The police officer has reason to believe on the basis of such compliant, information or suspicion that such person has committed the said offence;
        2. the police officer is satisfied that such arrest is necessary
          1. to prevent such person from committing any further offence;
          2. for proper investigation of the offence.
          3. to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner;
          4. to prevent such person from making any inducement threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or the police office - Intimidation of witness
          5. as unless such person is arrested, his presence in the court whenever required cannot be ensured, and the police officer SHALL record while making such arrest, his reason in writing: Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section record the reasons in writing for NOT making the arrest.
          6. against whom credible information has been received that imprisonment for a term which may extend to more than 7y whether with or without fine or with death sentence and the police officer has reasons to believe on basis of that information that such person has committed the said offence.
        3. who has been proclaimed as offender either under this code or by order of the State Government ; or
        4. in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing;
        5. who obstructs a police officer while in execution of his duty, or who has escaped or attempts to escape from lawful custody or
        6. who is reasonable suspected of being a deserted from ANY of the armed forces of the union; or
        7. who has concerned in, or against whom a reasonable complaint has been made, or credible information has been received or reasonable suspicion exist of his having been concerned in any act committed at any place out of India, which, if committed in India, would have been punishable as an offence, and for which he is under any law relating to extradition or otherwise, liable to be apprehended or detained in custody of India
        8. who being a released convict, commits a breach of any rule made under sub-section (5) of Section 365
        9. for whose arrest any requisition, whether written or oral has been received from another police officer, provided that the requisition specifies that person to be arrested and the offence or other cause for which the arrest is to be made and it appear therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
      3. Subject to the provisions of Section 42, no person concerned in a non-congnizale offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exist of his having so concerned, shall be arrested EXCEPT under a warrant or order of a magistrate.
  2. 41A CrPC - Notice of appearance before police officer
    1. Police officer SHALL, in all cases where the arrest of person is NOT required under provision of 41(1) issue a notice directing the person against whom a reasonable complaint has been received or credible information has been received or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or such other place as may be specified in the notice.
    2. Where such a notice is issued to any person, it SHALL be the duty of that person to comply with the terms of notice.
    3. Where such person complies and continues to comply with the notice, he SHALL NOT BE ARRESTED in respect of the offence referred to in the notice UNLESS, for reasons to be recorded the police officer is of the opinion that he ought to be arrested.
    4. Where such person, at any time fails to comply with the terms of the notice or is unwilling to identify himself, the police office may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the offenses mentioned in the notice.



Important Points

  1. 41A CrPC - Investigation Officer issues Notice calling upon the petitioner to appear before him for Investigation
  2. 41A CrPC - if police officer, is of the opinion that he ought to arrest, he has to record the reasons
  3. 41A94) CrPC - failing to comply with the terms of notice, the Investigation officer MAY arrest him for the offense in notice
  4. in New scheme of code - under BOTH circumstances i.e
    1. When he decides to arrest or when he decides NOT to arrest
    2. There has to be SATISFACTION of the police office  - Such satisfaction is Judicially reviewable
    3. Record what reasons for arrest to believe he had for coming to a conclusion that 
      1. person has Committed the offence
      2. Further also required as under what exigencies, arrest is necessary 
        1. Exigencies are provided in 41(1)(b)(ii)(a-e) CrPC
  5. Intent behind the introduction of 41A CrPC - Statement of objects and reasons
    1. Legislative intended to make it COMPULSORY for the police to record reasons for making an arrest
    2. Not make arrest in respect of a cognizable offence with max imprisonment up to 7y
    3. Compulsory for Police to issue a NOTICE in such cases Where arrest is NOT REQUIRED u/s 41(1)(b)
    4. Unwillingness of a person who has not been arrested to identify himself and whom notice has been issue under 41A would be ground for arrest.
  6. Notice of Appearance is in line with 
    1. Right to Life and liberty of the citizens and 
    2. seeks to bring down the number of arrest
    3. Decongest the crowded Indian Jails
    4. Innocent too can feel secure in cases they stand a chance to exposure to implication in fake case.
  7. Under 170(1) of CrPC, on completion of investigation, if sufficient evidnece has been collected
    1. the accused shall be forwarded in custody to the Magistrate concerned
    2. Unless he has been released on bail
    3. in  which even security may be taken for his appearance before Magistrate.
  8. Apprehension of being arrested
    1. When notice is issued under 41A(1) CrPC
    2. After complying the terms of Noice the police officer forms an opinion that such person OUTHG to be arrested
    3. such person fails to comply the terms of Notice or unwilling to identify himself.
    4. In all these situations - Anticipatory Bail application is maintainable
      1. Till the Time the person is NOT arrested
      2. he is ENTITLED to maintain an application for grant of anticipatory Bail 
      3. Subject to of course applicability of any other law to contrary. 
      4. 41A DEFERS arrest until and Unless sufficient evidence is collected so as to produce or forward the accused to the custody of court.


Apprehensions

  1. In the guise of 41A notice, likelihood of being arrested. 


Questions?

  1. Can AB ( anticipatory bail ) applied u/s 438 CrPC when 41A Notice is issued?
    1. Yes
    2. Till the time person is NOT arrested, he is entitled to maintain application for grant of AB
    3. Subject to other laws to contrary
    4. 41A defers arrest until and unless sufficient evidence is collected so as produce or forward the accused to the custody of court.
    5. Apprehension of arrest does not completely vanish away on issuance of notice  of appearance u/s 41A
    6. Case link - Karnataka HC



Case Law

  1. Gauri Shankar Roy & Others Vs The State of Bihar 2015 (3) PLJR 618
    1. Para 22 - Elaborate discussion over Section 41, 41A
      1. From perusal of the scheme of section 41 CrPC as it stands now after being substituted by code of criminal Procedure (Amendment) Act 2008 ( 5 of 2009 ), it transpires that the POWER OF ARREST available to the to a police officer in connection with commission of a cognizable offence may be categorized under 3 heads
        1. Under the first Head, the Police officer has been conferred a power to arrest any person who has committed a cognizable offence in his presence.
          1. This power is WITHOUT any qualification, exception and prerequisite
          2. The ONLY  SINE QUA NON is commission of a cognizable offence in presence of a police officer
        2. Second category of the case have been mentioned in 41(1)(b). Those cases are included which are punishable with imprisonment for a term which may be less than 7y or which may extend to seven year whether with or without fine and the police officer has received a reasonable complaint or a credible information regarding any one having committed such offence or a reasonable suspicion exists that any one has committed such a cognizable offence
          1. Power to arrest for the offence under this category is, however NOT ABSOLUTE and UNQUALIFIED.
          2. In order to exercise the power of arrest in these category of cases, the police officer MUST have a reason to believe on the basis of complaint, information or suspicion that any person has committed the said offence and the police officer should be satisfied that such arrest is necessary in terms of any or all of the grounds mentioned in under Section 41(a)(b)(ii)(a, b, c, d, e) of the Code.
    2. Arnesh Kumar Vs State of Bihar AIR 2014 SC 2756
    3. Jerry Paul Vs State of Karnataka 2021(1) Kar.L.J 550




Source

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497 Adultry

 


Yusuf Abdul Aziz Vs State - 26th June 1951 - AIR 1951 Bom 470

History of 497 IPC

  1. In very famous and a very brilliant passage in the Introduction of the Indian Penal Code where the authors of the Code point out why they adopted this particular line in 497 Contrary to principles of law known and understood by the great Hindu law giver Manu by principles of law embodied in the Mahomedan law and even in may European systems of law, and the resons given by the authors of the code stand as a permanent tribute to the enlightenment and humane outlook of those who were responsible for framing the code.
  2. The authors of the Code were oppressed by the fact that when they were enacting the code the position of women in this country was in a shocking state. They point out that women were married when they were children, they were married to men who could marry any number of wives, that they had to share the attention of the husband with several rivals. They might also have pointed out that indian society believed in and upheld the system of seclusion of women, that women were deliberately put down, that there was a belief that women were not the equal of men in any walk of life and that every possible consideration weight with the authors in taking a liberal enlightened view in FAVOR of women in this country; and therefore they point out that it would be weighing the scale against women which scale was already too much depressed by making women punishable for committing the offence of adultery. 
  3. Women according to them were more often than not mere tools and passive tools in hands of men and placed as they were it was impossible for them to resist the blandishments that men might hold out aginst them. It was this background and it was in the context of this society Section 497 was enacted.
  4. 497 IPC  position in law which takes a sympathetic and charitable view of the weakness of woman in this country. 
  5. 497 IPC should not find a place in modern code of law. Day are past we hope when women were looked upon as property by husband. but that is a argument more in favor of doing away Section 497 
  6. Is this violation of A14 & A15 of Constitution of India
    1. The state shall not discriminate against any citizen on grounds only of .... sex
    2. Sub-caluse(3) - of A15 - "Nothing in this article shall prevent the state from making any special provision for women..... "
      1. it was argued that 15(3) should be confined to provisions which are beneficial to women and cannot be used to give them licence to commit and abet crimes.
      2. Court said - we are unable to read any such restrictions into the clause; now are able to agree that a provision which prohibits punishment is tantamount to a licence to commit the offence of which punishment has been prohibited.

Joseph Shine Vs Union of India - (2019) 3 SCC 39 - link
  1. 497 IPC struck down.
  2. Declared ultra-vires of the constitution, no conviction under Section 497 of IPC can be sustained.
  3. Being violative of A14, 15, 21 , section 198(2) CrPC which contains procedure for proseuction under XX IP C was also held unconstitutional only to the extend that it is applicable to the offence of adultery under Section 497 IPC
  4. As per A141 of Constitution of India, the Law declared by the Hon'ble Supreme Court is binding on all courts within the territory of India and the law laid down by the Hon'ble SC applies to all pending proceedings

Rupesh Vs Shri Charandas 2018 SCC Online Bombay 629
  1. Joseph Shine has been followed and conviction and sentence u/s 497 has been set aside under reversional Jurisdiction
  2. Upon perusal of Joseph Shine decision of SC, there is no indication that the same would apply prospectively and there is nothing like prospective operation of law laid down by SC
  3. Maj Gen A.S.Gauraya & another Vs S.N. Thakur (1986) 2 SCC 709

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Senior Citizen

 




Statue

  1. A226 - Writ Power
  2. Section 27 of Senior Citizen Act 2007
    1. barred for civil court jurisdiction


Statement of Objects and Reasons 

Traditional norms and values of the Indian society laid stress on providing care for the elderly. However, due to withering of the joint family system, a large number of elderly are not being looked after by their family. Consequently, many older persons, particularly widowed women are not forced to spend their twilight years all alsone and are exposed to emotional neglect and to lack of physical and financial support. this clearly reveals that ageing has become a major social challenge and there is a need to give more attention to the care and protection for the older persons. Through the parents can claim maintenace under code of criminal includes provisions for food, clothing, residence and medical attendance and treatment 2(f) Property means property of any kind ,whether movable of immovable, ancestral or self acquired tangible or intangible and includes rights and interest in the such property"


Important Points

  1. A nation that cannot take care of its aged, old and infirm citizens cannot be regarded as having achieved complete civilization
  2. Intent and Object of the Act is to provide for an inexpensive and speedy relief to parents and senior citizens.
  3. Chapter II - provide monetary relief for sustenance and maintenance
  4. Chapter V - provisions for protecting the life and property of parents and senior citizens.
  5. Section 23 - 2 separate and distinct Rights
    1. Empowers Tribunal to declare a transfer of property by a senior citizen VOID, where the transfer was conditioned upon providing basic amenities and physical needs to a senior citizen, where the transferee fails to provide them;
    2. 23(2) recognizes a pre-existing right of a senior citizen to receive maintenance out of an estate and secure the right of making it enforceable against a transferee who had notice of the right.
  6. Children and their spouses living in the senior citizen house are at best licensees.
    1. License comes to an end once the senior citizens are not comfortable with their children and their families.
  7. The Right of a senior citizen to exclusively reside in his own house, must be viewed from the prism of A21 of constitution of India.
  8. Arguments in favor of Senior Citizens
    1. Don't feel comfortable and do not feel safe so long are private respondent live in said premises
    2. U/s A21 of Constitution of India - Entitled to live in peace in his own house,
  9. Courts
    1. Use high Prerogative writ Jurisdiction u/s A226 and direct the Officer in charge, Police station to Physically escort out the respondents out of said premises immediately.
    2. Petitioners shall be put in possession of premises to EXCLUSIVE use and residence.
    3. Do not enter without written permission from petitioners
  10. Section 4 which provides for maintenance of parents and senior citizens cannot be construed narrowly, 



Case Law

  1. S. Vanitha Vs Deputy Commissioner, 2020 SCCOnline SC 1023
    1. Senior Citizens Act, 2007 and DV Act 2005 are SPECIAL legislation, the Two must be construed harmoniously and applied suitably by a writ court hearing a plea of the senior citizen.
    2. The law protecting the interest of senior citizens is intended to ensure that they are not left destitute, or at the mercy of their children or relatives. 
    3. Equally, the purpose of PWDV 2005 cannot be ignore by a sleight of statutory interpretation. 
    4. Right of a women to secure a residence order in respect of a shared household cannot be defeated by the simple expedient of securing an order of eviction by adopting the summary procedure under senior citizen Act 2007
  2. Sandeep Gulati Vs Divisional Commissioner WP (C) 2761/2020
  3. Ashish Vinod Dalal Vs Vinor ramanlal Dalal - WP 2400/200021 - Bombay HC




Sources

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