LI 13. Magistrates's power to restraint alienation under DV Act.

Whether the Magistrate has discretion to restraint the respondent/husband from alienating or disposing off his piece of land/property under DV Act?


Yes, under the provisions of clauses (d) and (e) of Section 19(1) of the Protection of Women from Domestic Violence Act, 2005, the Magistrate has the power of restraining the respondent from alienating or disposing off the shared household or encumbering the same, or of restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate. Section 19 is as under:

“19. Residence orders.—(1) While disposing of an application under sub-section (1) of Section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order—

(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;

(b) directing the respondent to remove himself from the shared household;

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require :

Provided that no order under clause (b) shall be passed against any person who is a woman.

(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.

(3) The Magistrate may require form the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.

(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.

(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer in charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.

(6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.

(7) The Magistrate may direct the officer-in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.

(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.”

Further, under Section 23 of the said Act, the Magistrate has the power to pass an interim order during the pendency of a complaint under the said Act, including an interim order in the nature of Section 19 as mentioned above. Section 23 is reproduced below:

“23. Power to grant interim and ex parte orders.—(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.

(2) If the Magistrate is satisfied that an application prima facie 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, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under Section 18, Section 19, Section 20, Section 21 or, as the case may be, Section 22 against the respond

Adv Mohammad Akhter Hussain
Patna High Court

LI 12. Anticipatory Bail Application in connection with section 319 of Cr.PC

Sir, with due respect I would like to ask you that whether anticipatory bail is maintenable for accused person whose name is not shown in the FIR but added on later stage under section 319 of Cr.PC? Can you please allow me relevant case laws on this point of law?
................................................................................................
If the name of an accused has been added through Section 319 of Criminal Procedure Code, then that would imply that charge sheet has been filed and/or cognizance of the offence has been taken by the court and the trial or inquiry is in process in court.

The question, whether under S. 438 of Cr.P.C. 1973, the High Court or the Sessions Court has power to grant anticipatory bail to a person after filing of the charge sheet, or after the competent criminal Court has taken cognizance of the case and/or has issued process, viz. warrant for arrest of that person, has attracted the attention of the Courts from time to time and diverse views have been expressed on this issue. However, the judicial opinion is more in favour of the view that anticipatory bail can be granted even at a stage when the charge sheet has already been filed or cognizance of the case has already been taken by the Court.

In Bharat Chaudhary v. State of Bihar, (2003) 8 SCC 77 : AIR 2003 SC 4662, it was held by the Supreme Court that there is no restriction in Section 438 of Cr.P.C. in regard to exercise of the power of granting anticipatory bail in a suitable case either by the Court of Session, High Court or the Supreme Court even when cognizance is taken or a charge-sheet is filed. The object of Section 438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a court has either taken cognizance of the complaint or the investigating agency has filed a charge-sheet, would not by itself, prevent the courts concerned from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the courts concerned while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of a charge-sheet cannot by itself be construed as a prohibition against the grant of anticipatory bail. The courts, i.e., the Court of Session, High Court or the Supreme Court, have the necessary power vested in them to grant anticipatory bail in non-bailable offences under Section 438 of Cr.P.C. even when cognizance is taken or a charge-sheet is filed provided the facts of the case require the court to do so.

In the above case, the Supreme Court explained / clarified certain contrary observations in the case of Salauddin Abdulsamad Shaikh, Salauddin Abdulsamad Shaikh v. State of Maharashtra, AIR 1996 SC 1042 : (1996) 1 SCC 667.

However, in some other cases, it was held by the Supreme Court that if the protective umbrella of Section 438 Cr.P.C. is extended beyond what was laid down in the above case of Salauddin Abdulsamad Shaikh, the result would be clear bypassing of what is mandated in Section 439 regarding custody. In other words, till the applicant avails remedies up to higher courts, the requirements of Section 439 become dead letter. No part of a statute can be rendered redundant in that manner. [See: (1) Nirmal Jeet Kaur v. State of M.P., (2004) 7 SCC 558; (2) Sunita Devi v. State of Bihar, (2005) 1 SCC 608 : AIR 2005 SC 498.]

Adv. Mohammad Akhter Hussain
Patna High Court

LI 11. Recorded call as a piece of evidence.

Whether recorded voice call is admissible in evidence?

A voice recording or a call recording is an “electronic records” and their admissibility in evidence is governed by Section 65-A and Section 65-B of the Evidence Act.
 Recorded voice call conversation is admissible provided
>>>first the conversation is relevant to the matters in issue;
>>>secondly, there is identification of the voice; and,
>>>thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the recording.

A contemporaneous recorded call of a relevant conversation is a relevant fact and is admissible under Section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under Section 7 of the Evidence

Relevant Case Laws:
1.R.M. Malkani v. State of Maharashtra AiR 1973  SC157
2. Ram Singh v. Col. Ram Singh, : AIR 1986 SC 3,
3.N. Sri Rama Reddy v. V.V. Giri, (1970) 2 SCC 340
4. Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 SC 147
5. S. Pratap Singh v. State of Punjab, AIR 1964 SC 72

Adv Mohammad Akhter Hussain
Patna High Court 

LI 10. Filing False Affidavit

Whether filing of false affidavit, false document and making false statement on oath amounts to contempt of court?
The swearing of false affidavits in judicial proceedings nor only has the tendency of causing obstruction in the due course of judicial proceedings but has also the tendency to impede, obstruct and interfere with the administration of justice. The filing of false affidavits in judicial proceedings in any Court of law exposes the intention of the concerned party in perverting the course of justice. The due process of law cannot be permitted to be slighted not the majesty of law be made a mockery by such acts or conduct on the part of the parties to the litigation or even while appearing as witnesses. Anyone who makes an attempt to impede or undermine or obstruct the free flow of the unsoiled stream of justice by resorting to the filing of false evidence commits criminal contempt of the Court and renders himself liable to be dealt with in accordance with the Act. Filing of false affidavits or making false statement on oath in courts aims at striking a blow at the Rule of Law and no Court can ignore such conduct which has the tendency to shake public confidence in the judicial institutions because the very structure of an ordered life is put at stake. It would be a great public disaster if the fountain of justice is allowed to be poisoned by anyone resorting to filing of false affidavits or giving of false statements and fabricating false evidence in a Court of law. The stream of justice has to be kept clean and pure and anyone soiling its purity must be dealt with sternly so that the message percolates loud and clear that no one can be permitted to undermine the dignity of the Court and interfere with the due course of judicial proceedings or the administration of justice in Chandra Shashi v. Anil Kumar Verma MANU/SC/0558/1995 : 1994ECR636(SC) the respondents produced a false and fabricated certificate to defeat the claim of the respondent for transfer of a case. This action was found to be an act amounting to interfere with the administration of justice. Brother Hansaria, J. speaking for the Bench observed: (At P. 4995, of AIR)
"The stream of administration of justice has to remain unpolluted so that purity of Court's atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are, therefore, required to be well taken care of to maintain the sublimity of Court's environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned. Anyone who takes recourse to fraud deflects the course of judicial proceedings; or if any thing is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be property dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice."
Thus, if any person tries to either file any false affidavit, forged document or even makes false statement on oath, the conduct of such person has a tendency to interfere with the administration of justice or the due course of judicial proceedings. This conduct is having tendency of impeding, obstructing or interference striking a blow on the role of law and no Court can ignore such conduct which has the tendency to shake the confidence of the public and in the judicial institution. It would be in our view a great public disaster if the fountain of justice is allowed to be poisoned by anyone resorting to file false affidavits by giving false statements or fabricating false evidence even by impersonation in a Court of law and as such, this type of acts clearly fall within the definition of criminal contempt as defined under Section 2(C) of the Contempt of Courts Act.
IN THE HIGH COURT OF KARNATAKA
Cr. C.C.C. No. 26/2000
Decided On: 30.07.2003
Advocate General, High Court of Karnataka
Vs.
Chidambara and Anr.