SDM cannot attach property under section 146 crpc when a civil suit is pending before the civil court. I am the owner of a house which I purchased in 2020. After purchase of that flat one person namely Pawan came and claimed that the property belongs to him. I produced him sale deed and other documents like electricity connection, water tax receipts etc to prove that I am the owner of this flat. But he denied and continuously claimed that he is the owner. I saw his intention that he is trying to interfere in my property. I immediately filed a suit for declaration of title and injunction in the civil suit. After some time when he came to know that I have filed a civil suit and a copy of it was served on his address, he filed a case before the SDM under section 145 crpc and property was attached by the order of the SDM. Now the SDM is compelling me to vacate the house. I am very tense because the opposite party is trying to evict me from my own property. A revision application has been filed by me to the Commissioner.
Asked from: Bihar
The order passed by the SDM (Sub-Divisional Magistrate) appears to be erroneous and without jurisdiction. When a civil suit regarding the same property is pending before a competent civil court, the SDM has no authority to entertain the matter or pass any order under Sections 145 and 146 of the Code of Criminal Procedure (CrPC).
The SDM can interfere only when there is a likelihood of breach of peace arising from a dispute concerning immovable property, and even then, the applicant must be in possession of the disputed property. In this case, the applicant who moved the application under Section 145 CrPC is not in possession of the property. Therefore, the SDM had no legal power to pass an order under Section 145 CrPC.
Under such circumstances, a revision petition is not maintainable and is liable to be dismissed for want of jurisdiction. Since the proceeding arises under the provisions of the CrPC, the appropriate remedy is to file a petition before the High Court under Section 482 CrPC seeking to quash the SDM’s order.
In Amresh Tiwari v. Lalta Prasad Dubey, AIR 2000 SC 1504, the Hon’ble Supreme Court held that when a civil suit concerning the same property is pending before the competent civil court, no order can be passed under Section 145 CrPC.
In light of the above judgment, the order passed by the SDM is liable to be quashed. Therefore, it is advisable not to press the revision petition and instead immediately file a petition before the High Court under Section 482 CrPC. SDM cannot attach property under section 146 crpc when civil suit is pending in the civil court.
Related: Executive magistrate passed order under section 145 crpc however dispute has decided by the civil court
क्या तलाक के लिये पति-पत्नी को अलग-अलग रहना जरूरी है। पिछले 23 वर्षों से हम एक साथ हैं लेकिन सिर्फ दिखावे के लिये पत्नी साथ नहीं रहना चाहती है। मैं दुबई में काम करता था और पिछले 11 साल से भारत मे रह रहा हूँ अपनी पत्नी के साथ। मेरे एक बेटी है जो राजस्थान में होस्टल में रह कर पढती है। मैं और मेरी पत्नी मेँ अभी बनती नहीं है। वो बहुत ज्यादा शंका करने वाली और बदमिजाज औरत है। मेरी एक और बेटी थी लेकिन वह ढाई साल की उम्र में ही मर गई थी क्योंकी मेरी पत्नी उसे बहुत पीटती थी। उस समय मैं दुबई में रहता था। इसलिये मैं कुछ नहीं कर पाया। मैं अब दूसरी शादी करना चाहता हूँ इसलिए मैं अपनी पत्नी से तलाक चाहता हूँ। मैंने बहुत मुश्किल से उसे म्यूचुयल तलाक के लिये मनाया हूँ। मैने एक वकील से सम्पर्क किया लेकिन उनका कहना है कि म्यूचुयल तलाक नहीं हो सकता क्योंकी मैं और मेरि पत्नी एक साथ रहते हैं। मेरी पत्नी अपने मायके नहीं रहना चाहती क्योंकि उसके माता-पिता अब इस दुनियां में नहीं हैं तथा वह अपने भाई के पास रहना नहीं चाहती हैं। क्या ऐसी स्थिति में मुझे तलाक नहीं मिल सकता है?
प्रश्न पूछा गया: हरियाणा से
हिंदू विवाह अधिनियम के धारा 13 बी के तहत आपसी सहमति से विवाह विच्छेद के लिये पक्षकारों (पति-पत्नी) को एक वर्ष या अधिक समय से अलग रहना चाहिए। यहाँ अलग या पृथक रहने का तात्पर्य पक्षकारों का पृथक स्थानों पर निवास करना नहीं है। यहाँ पृथक रहने का तात्पर्य वैवाहिक रिश्ता या दाम्पत्य जीवन के पृथकता से हैं। यदि विवाह के पक्षकार एक ही छत के नीचे निवास कर रहे हैं लेकिन उनके बीच दाम्पत्य रिश्ता या दाम्पत्य जीवन पूर्णतया समाप्त हो गया है तो विधि की दृष्टि में कहा जायेगा कि वे पृथक रह रहे हैं।
यदि वह पृथक्करण एक या एक से अधिक वर्षों से है तो वे हिंदू विवाह अधिनियम के धारा 13 बी के तहत आपसी सहमति से विवाह विच्छेद के लिये वाद दाखिल कर सकते हैं, यदि निम्नलिखित शर्तें पूरी हो रही हैं:
- विवाह के पक्षकारों का अब एक साथ रहना असंभव है। और
- विवाह के पक्षकारों ने विवाह को समाप्त करने के निर्णय कर लिया है।
माननीय सर्वोच्च न्यायालय ने सुरेष्ठा देवी बनाम ओम प्रकाश 1991 में निर्णीत किया है कि धारा 13 बी के तहत अलग रहने का तात्पर्य, पति-पत्नी का एक दूसरे के प्रति दाम्पत्य उत्तरदायित्व के पालन से खुद को पृथक कर लेना है। जब ऐसा पृथक्करण एक या अधिक वर्षों से है, उनका एक साथ रहना असंभव है और वें अपने विवाह को समाप्त करने के लिए सहमत हो गये हैं तो हिंदू विवाह अधिनियम के धारा 13 बी के तहत आपसी सहमति से विवाह विच्छेद के लिये आवश्यक सभी शर्तें पूरी हो जाती हैं।
अतः उपरोक्त निर्णय के क्रम में यदि आप के बीच आपसी सहमति से विवाह विच्छेद की राय बन जाती है तो हिंदू विवाह अधिनियम के धारा 13 बी के तहत आपसी सहमति से विवाह विच्छेद के लिये वाद दाखिल किया जा सकता है, चाहे आप पति-पत्नी एक ही छत के नीचे साथ-साथ निवास कर रहे हों।
संबन्धित: Enhancement of maintenance after mutual consent divorce
Can I produce pendrive at the advance stage of trial? I want to prove that the prosecutrix herself involved in sexual relations with me out of her free consent. In the trial the prosecution witness and a few defence witnesses have examined. At the later stage I wanted to produce a pendrive containing some videos and call recordings to prove that she also expressed her desire to have sex with me. We are studying in the same college and she is a junior to me. She wanted to establish physical relations hence, she made friendship and exchanged a lot of vulgar messages on whatsapp. However, I have no evidence to prove those vulgar messages because my mobile phone was lost. But during the sex she expressed some significant remarks to me and also showed fulfilment of her lust.
At several occasions she recognised those sexual activities and showed that she was very happy and wanted to do the same again. When my advocate submitted that pen drive in the court, it has been rejected that it cannot be admitted at this stage. Now my advocate wanted to challenge the order in high court. What would be the possibility of a proposed appeal?
Asked from: Uttar Pradesh
Upon perusal of the facts, it appears that the contents of the pen drive in question are materially relevant to your defence. If you are able to establish the authenticity and genuineness of the said evidence, it is likely to exonerate you from the alleged offence.
Section 294 of the Code of Criminal Procedure, 1973, permits both the prosecution and the defence to adduce documentary evidence without the necessity of formal proof, provided the genuineness of such documents is not disputed by the opposing party. Importantly, this provision can be invoked at any stage of the trial.
At this juncture, it is crucial to demonstrate that the proposed evidence is relevant and necessary for just adjudication. The trial court cannot summarily reject the application for production of additional evidence solely on the ground that it has been filed at an advanced stage of the proceedings. Such a rejection would amount to a misapplication of Section 294 CrPC.
In light of the above, you are advised to file a petition under Section 482 of the CrPC before the Hon’ble High Court, seeking quashing of the trial court’s order rejecting your application for bringing additional evidence on record.
Alternatively, if the trial is being conducted under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, you may prefer an appeal before the High Court under the appropriate provision of the said Act.
The impugned order of the trial court is prima facie unsustainable in law and is liable to be set aside for being in contravention of the provisions of Section 294 CrPC. You can produce pen drive even at the advance stage of trial.
Related:
Lessor has refused to renew the lease even after receiving entire rent in advance. I am running a small business in the city on a rental premises. The lessor has accepted the rent for this year but now sent a legal notice to vacate the premises because he has not renew the lease. In the lease agreement it has been mentioned that the written permission of lessor is mandatory for the renewal of rent. When the lease came to end I have deposited entire rent for this year in his bank account. After that he has sent a legal notice. The lessor wants to increase the rent or someone has approached him to let the premises on increased rent. I don’t know what is the real intention behind serving legal notice. In the present scenario whether I have any legal remedy please suggest.
Asked from: Gujarat
You stated that written permission from the lessor (i.e., the owner) is mandatory for the renewal of the lease. It appears that remitting rent into the account of the landlord (i.e., the lessor) does not constitute a renewal of the lease. There is no automatic renewal of a lease. In the present scenario, you have very limited legal options. You cannot claim renewal of the lease merely on the basis that the entire rent has been deposited in advance.
When the lessor serves a legal notice to vacate the premises, it clearly indicates that he has no intention to renew the lease. According to Section 111 of the Transfer of Property Act, a lease of immovable property terminates by the efflux of time as specified in the agreement. Therefore, when the lease period expires, the owner (i.e., the lessor) has the right to repudiate or cancel the lease. The lessee cannot compel the lessor to renew the lease solely on the ground that the entire rent has already been remitted into his account.
Since you have been running a business on the premises, eviction is not possible merely on the basis of the notice. The lessor is obligated to provide you with sufficient time to vacate the premises. You may also negotiate with the landlord for additional time to find a suitable alternative location in the vicinity. In prevailing circumstance you cannot take a defense that lessor has refused to renew the lease even after receiving entire rent because lessor has exclusive right extend the lease.
Related:
Compensation on the basis of record of rights or on possession. Mr A, B and C were three brothers. All are deceased; they were having landed property in a joint name. The property was divided by the village headman and the villager in the year 1980. Now, the National Highway is acquiring the property of A’s share partly. As per law as informed by the Tahsildar of the locality that the compensation amount will be divided into three as per ROR (Record of Rights). He will decide as per ROR and not as per possession.
The compensation will be given to the respective legal heirs of these three brothers. As per my opinion: 1. The land in question falls within the portion orally partitioned and continuously possessed by A and his legal heirs. They have been cultivating the said land for over 45 years without interruption. 2. The legal heirs of B and C have never been in physical possession and have no legal or equitable claim over this portion of the land. Hence compensation amount may be given to legal heirs of A only. Please guide me in this matter. Myself one of the legal heirs of A.
Asked from: Odisha
It was your fault that, after the partition of the land, the names of the owners were not brought on record. The record of rights is prima facie proof of possession of the land. There is no illegality in the disbursement of the compensation amount among the persons recorded in the Record of Rights (ROR).
In the prevailing situation, you should file an objection before the Appropriate Authority under the Land Acquisition Act. Thereafter, file a partition suit for the division of land based on the oral partition that occurred in 1980. After obtaining the partition of the land, immediately initiate proceedings for mutation in the ROR on the basis of the partition. Then you can claim the compensation. At present compensation on the basis of record of rights is correct.
Related: My neighbor has constructed a 6 to 7-foot compound wall
Remedy after dismissal of criminal revision by high court. I would like to seek your assistance. Discharge petition dismissed in magistrate court. Criminal Revision Case dismissed in High Court. What are the options now?
Asked from: Telangana
After dismissal of criminal revision by the high court the aggrieved person has the option to file a special leave petition i.e. SLP (criminal) in the Supreme Court under Article 136 of the Constitution of India. Keep the grounds of SLP very specific. You can file SLP on any of these grounds:
- No prima facie case has been made out against the accused [Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135]
- No relevant evidence in support of allegation or the charge-sheet further does not contain any allegation which can amount to an offence.
- No offence has been made out against the accused. (State of Haryana vs Bhajan Lal 1992)
- No grave suspicion about the commission of offence but evidence produced along with the charge sheet gives rise suspicion only. (Yogesh v. State of Maharashtra, (2008) 10 SCC 394]. If two views are possible and one of them gives rise to suspicion only, the accused is entitled for discharge. [CBI v. K. Narayana Rao, (2012) 9 SCC 512]
- The order of revisional court is unreasoned or passed in a mechanical manner.
- Revisional Court has failed to evaluate the evidence available on record.
At the stage of framing of charge, the trial court is bound to examine and evaluate the evidence to satisfy itself whether there is sufficient ground for proceeding against the accused? It clearly shows that the Judge is not a mere post office to frame the charge at the behest of the prosecution. The court is bound to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution [Sajjan Kumar v. CBI, (2010) 9 SCC 368].
The hon’ble Supreme Court has held in State of J&K v. Sudershan Chakkar, (1995) 4 SCC 181, that the law required the Court to consider only the charge-sheet and materials adduced with it. Hence, there is very limited scope in discharge petition. Court cannot go beyond the charge sheet.
If the charge sheet and materials adduced with it do not constitute offence or grave suspicion about the commission of offence, you are entitled to discharged. If your case has merit, you should file SLP because it is the ultimate remedy after dismissal of criminal revision by high court.
Magistrate cancelled my complaint under section 138 NI Act saying premature. I presented the cheque in the bank and that cheque was dishonoured. When I came to know from the bank that the drawer has insufficient money in his bank account the cheque has been bounced. Then I contacted an advocate who prepared the demand notice. That demand notice was delivered to the accused on 10.12.2023. On 25.12.2023 my advocate filed the complaint under Section 138 of the negotiable instrument act. When the court has issued the summon to the accused he approached the court and said that he is willing to pay the cheque amount but without giving sufficient time the complaint was filed. Thereupon the court has dismissed the complaint. The court wrote in the order that complaint has been before date. My advocate says that the complaint is within the time. The magistrate has wrongly cancelled my complaint under Section 138 NI Act saying premature to the offence. I want to take action against the Magistrate. He has no knowledge of law.
Asked from: Andhra Pradesh
It appears from the facts of your case that the complaint was premature. You filed the complaint before the expiry of fifteen days from the date the accused received the demand notice. The day the notice was sent is excluded.
According to Section 138(c) of the Negotiable Instruments Act, an offence is considered to have been committed only if the drawer of the cheque fails to pay the amount within fifteen days of receiving the notice.
If fifteen days have not passed since the receipt of the demand notice, the court has no power to take cognizance of the offence. Such a complaint is considered non est and has no legal effect. The cause of action arises on the sixteenth day from the date of receipt of the notice.
As per Section 142 of the Negotiable Instruments Act, the court cannot take cognizance of the offence until the cause of action has arisen. This principle was established by the Supreme Court in Yogendra Pratap Singh vs. Savitri Pandey (2014) 10 SCC 713.
You still have the option to file a fresh complaint within one month from the date of the court’s decision. The limitation period starts from the day the Magistrate passed the order in your case, by which your cheque was cancelled.
Related advice in cheque bouce cases:
Admit card cancelled due to ineligibility for the post. I submitted the application form on 12.05.2024 for the post of pharmacist. The result of final examination of B. Pharma was declared on 19.05.2024. I qualified that examination and appeared in the preliminary examination which was held in the month of December 2024. When I submitted mains examination form and preparing for that examination my admit card for mains was cancelled. Authority says that on the last date of filling of examination form I was not qualified B. Pharma examination. Examination was conducted in February 2024 and result was declared on 19.05.2024 so that I possessed bachelor decree when the pre-examination was held. In the advertisement no cut of date was mentioned. The examination authority has wrongly cancelled my admit card because I possess essential qualification. In this situation what should I do? I want to move high court for direction to issue admit card. My opportunity has been cancelled by the authority.
Asked from: Maharashtra
You did not have the required qualification on the last date for submitting the examination form. If the advertisement did not mention a specific date for obtaining the qualification, then the last date for submitting the form is considered the cut-off date. This rule has been confirmed by the Supreme Court in Uttar Pradesh Public Service Commission vs. Alpana (1994) 2 SCC 723, and State of Gujarat vs. Arvind Kumar Tiwari (2012) 9 SCC 545.
Therefore, the law is clear regarding the date by which candidates must have the required qualification. You received your B. Pharma degree on 19.05.2024, but the last date to submit the examination form was 12.05.2024. You wrongly stated in the form that you already had the degree. This amounts to fraud because you knowingly gave false information.
Given these facts, if you go to the High Court under Article 226 to request a writ of mandamus, your case will be dismissed. This is because you obtained the required qualification after the submission of examination form. The decision made by the examination authority is correct. The mistake was yours, as you misrepresented yourself as a degree holder when you were not qualified at the time of application. Admit card cancelled due to ineligibility for the post is proper
Related: Terminated from service for mere misconduct
Magistrate denied hearing accused at the stage of issue summon when the matter has already been under cognisance of the court. In this situation my advocate moved a revision before the sessions court. But that revision is not accepted by the court. The case is filed on the false and frivolous facts. Complainant has manipulated that facts. He wants to take revenge from me by dragging me in a false case because I am planning to settle in London. If that criminal case remains pending, then I cannot get visa and go London. Please advise how to handle this issue.
Asked from: Andhra Pradesh
If you have prima facie evidence demonstrating that the complaint case against you is false and frivolous, you must wait until legal process (summon or warrant) is issued against you. Until then, as the accused, you have no right to appear in the proceedings.
You did not specify when the complaint was filed. If it was filed after July 1, 2024, the court was legally obligated under Section 223 of the BNSS to issue a notice to you (the proposed accused) at the cognizance stage, allowing you an opportunity to defend yourself before proceedings commenced. Section 223 provides that:
Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.
If the magistrate failed to issue you a notice at the cognizance stage, you may file a petition in the High Court under Section 528 of the BNSS seeking quashing of the entire proceedings. If the allegations are bald and vague the court may quash the proceedings. This provision mandates that the accused must be heard before cognizance is taken. Violation of this requirement renders the proceedings invalid, and the High Court can quash the case, directing a de novo (fresh) proceeding.
In the new proceeding, you will have the opportunity to present evidence proving the complaint is based on false and frivolous allegations. If the court finds merit in your arguments, it may dismiss the complaint.
However, if the complaint was filed before July 1, 2024, you can approach the High Court under Section 528 BNSS only after the process (summon/warrant) is issued. Until then, you have no right to intervene in the matter.
Related: Can I seek quashing of FIR on expiry of limitation period?
