Court did not summons the sister in law in a domestic violence case: What to do? My case of domestic violence is pending in the judicial magistrate’s court. In which three accused have been summoned. But the court is not summoning the sister in law only because she is not residing in the sharehold house. Kindly suggest what to do?
The criminal proceeding under the Domestic Violence Act (DV Act) initiates by moving a complaint under Section 12 of the DV Act. It is a complaint case and the Magistrate, after perusal of the content and evidence of the complaint issue process (summon or warrant) under Section 204 of the Code of Criminal Procedure (crpc).
At the stage of issuance of process, the court has to examine the facts of the case and evidence adduced by the complainant. If the court finds that there is sufficient grounds to proceed further against the accused then he issues summons [Dr. C. Abraham vs Maulavi 1990 CrLJ 533].
Magistrate has to issue summon if prima facie offence is made out
If you have successfully proved that the prima facie offence is made out against the accused including the sister in law, the Magistrate has to issue process. The Magistrate cannot evaluate or appreciate evidence and facts in a detailed manner for the issuing process.
If the sister in law has committed an act of domestic violence the aggrieved person has right to file a complaint against the sister in law.
High Court can direct the Magistrate to issue summon
If you are feeling aggrieved because the Magistrate despite having prima facie case against the sister in law not issuing summons then you can move a petition before the High Court under Section 482 crpc for directing the Magistrate to issue summons.
Otherwise, you should wait till the initiation of trial. If during the trial you produce enough materials against the sister in law that she has committed an act of domestic violence, then the court will be bound to issue summons.
At that stage you should move an application under Section 319 crpc for calling your sister in law as an accused. The court after appreciation of evidence shall issue a summons against your sister in law.
It depends upon the service contract between your former company and you. If the contract permits then your wife can do business with clients of the former company.
When the terms and conditions of the contract prohibits an ex-employee to do business with its clients for a certain period then after expiry of that period you or your wife can start a business with those clients.
If there is a complete embargo on the ex-employee in respect of business with the clients of the former company that embargo is void and illegal.
If your wife has special skill and is doing business with the clients of your former company without your favour or influence then it is legal however, some contradictory provisions have been made in your service contract. Your former company cannot initiate any legal action against your wife because it does not constitute a breach of service contract.
Entire family roped in a domestic violence case: How to quash? My son got married on 16th Sep 2021. The girl stayed with us only for 18 days. She left for her place on 13th Oct and did not return till date. Now she has filed a petition under Section 12 of the Domestic Violence Act 2005. Ours is an absolutely ethical and orthodox family. Therefore, no demands were made and it was a simple marriage. My son is well placed in the IT industry.
Your daughter in law temporarily stayed in her matrimonial home because she lived in the shared household for just eighteen days. The entire scheme of the DV Act is thus to provide immediate relief to the aggrieved person with respect to the shared household where the aggrieved person lives or has lived.
The aggrieved person (daughter in law) did not live in the shared household (your house) with the intention to live there permanently. She stayed there for just eighteen days. Therefore, your house shall not be treated as the shared household under Section 2(s) of the DV Act.
In Satish Chandra Ahuja v. Sneha Ahuja (2021) 1 SCC 148the hon'ble Supreme Court has held that “lives or at any stage has lived in a domestic relationship have to be given its normal and purposeful meaning. The living of a woman in a household has to refer to a living which has some permanency. Mere fleeting or casual living at different places shall not make a shared household.”
Entire family roped in a domestic violence case: How to quash?
You should move a petition in the High Court under Section 482 of the code of criminal procedure for quashing the complaint filed under Section 12 of DV Act.
The decision of Supreme Court in Satish Chandra Ahuja case excludes your house from the meaning of “shared household” because the aggrieved person lived there temporarily or just for a fleeting stay.
Once the house shall not be treated as the shared household, thereafter, no offence under the DV Act is made out against the accused. Hence, the High Court may quash the complaint filed under the DV Act.
Your daughter in law has fraudulently and dishonestly roped the entire family in the domestic violence case. It is hard to presume that a newly wedded woman was subjected to domestic violence in just eighteen days stay in her matrimonial home. This fact constitutes a solid ground for quashing this kind of false and frivolous complaint.
Can the case be prolonged to over a year for Written Statement Sessions? I have a ROR for a Land parcel ( Land1 ). I wanted to sell it. A person with whom I had made an agreement to sell for a different land i.e. Land2 lodged a false Civil case against me that I had made an agreement with him to sell the Land 1 and accepted a part of the money, but I was not accepting the remaining money for the last 3 years. In support he produced a False Document of Agreement to sale Land1. He photocopied the signature part from the Land2 document.
Fortunately he copied not just my signature but also the other details Handwritten by me (names and the words "BUYER" and "SELLER" along with his own signature also). With these details I could recognise the source of signatures used in forged documents. Although I had a Cellphone photo of the Land2 document I was unsure if that would stand as a proof… original document is with the person, I kept mum on the source of signature because I thought that I can create some surprise element during the case proceedings when needed.
Even after almost a year the case is still in WS status after 4 deliberations and now again there is one more WS deliberation in March 2023 End so again nothing will happen till June/July because of vacations. I asked my lawyer details and why so many WS sessions.. he says it is a regular procedure. As per eCourt , details the WS was given during 1st deliberation itself, what business took place in other WS sessions is not shown in eCourt reporting.
In order to expose the signature fraud I could bring a FIR thru Magistrate to verify the signatures in document produced in Civil Case. Although FIR has a FIR number it does not appear in Police FIR details website. I also do not have Criminal case number lodged with Magistrate. My vakil says FIR number is same as CC number but that is wrong.
When I asked him the status he says it is not for you.. it is between Magistrate and Police and Me ( Lawyer ). When the investigating officer of FIR called me, I said there is no such agreement and does he have any proof of money that he says he paid me? In turn the officer produced a purported receipt. Fortunately the dumb fellow produced the copy of Old agreement with him for Land2 with very obvious changes using White Correction Fluid.
I Immediately sent my rejoinder to Investigating officer comparing both the document signatures produced by the opposite party pointing out that the whole signature area from Land2 doc has been Copied for forging the signature of Land1 doc. On enquiry of the current status the Investigating Officer says that the civil court is not releasing the document for forensic investigation.
I am 75 years and there is no one else who will take over in case I am no more. ( intend to donate the money to Charity by selling the land. ) 1. Is it common to have several WS sessions in civil court? When I asked this to my Lawyer he says 'I Can't explain you .. it is regular process. ' But when I tried to see the Case histories of other cases in same court maximum WS sessions were 3 in about 20 % cases. 2. In FIR case, will the civil case document be not released for Forensic Investigation by Police authorities for Criminal Case Investigation? Is there a way to appeal for a possible FIR laxity? 3. Unlike Maharashtra, there is no special status for Senior Citizens in Telengana. Can I shift to Maharashtra and ask the case to be transferred there because of age factor?
The plaintiff is trying to prolong the civil suit. In this situation you should approach the High Court under Article 227 of the constitution of India for expedite disposal of the case. The High Court may direct the subordinate court to dispose of the case within a stipulated time. Thereafter, the civil judge shall not grant long dates and more opportunities for filing WS. If the civil judge gives unnecessary adjournments, he’ll commit contempt of the court.
So far as forensic examination of the forged document is concerned, you should move an application under Section 156(3) of the code of criminal procedure (crpc) for sending the crime material (forged agreement to sell) for FSL. If the crime material is custodia legis in the civil suit, the investigating officer can request the court under Section 91 crpc to hand over the agreement to sell for forensic examination.
When the investigating officer makes such a request the accused (plaintiff in civil suit) cannot oppose that is it against the right to self incrimination as provided by Article 20(3) [State of Bombay Vs Kathi Kalu reported in AIR 1961 SC 1808] Therefore, the civil court will provide the forged document for forensic test.
For the laxity of investigation the Magistrate has the power to monitor the investigation and pass any order necessary for speedy completion of investigation. Hence, you should move an application to the magistrate under Section 156(3) crpc for speedy investigation. If the magistrate does not act on your application then you can file a writ petition before the High Court under Article 226 constitution for speedy completion of investigation.
Your advocate is giving wrong advice that FIR is the subject matter of court, accused and advocate. The victim is the only person who is suffering from forged documents. Hence, your interest stands at the highest pedestal and the court cannot ignore your interest.
I want the quashing of the first information report (FIR). A false first information report FIR has been lodged against me by the university. There are three students who are working on a project in association with me. I am the senior most of them hence, has a privilege to check the progress report of others. Now the university says that I have prepared my thesis on the materials and data collected by the fellow researchers. I have the evidence to prove that allegations are false. I have kept the record of all data and findings of tests which are not related to the others. One advocate says that I should file a case in the high court under Section 482 crpc. Please help.
Asked from: Uttar Pradesh
Your advocate is giving wrong advise. The first information report does not quash under Section 482 of the code of criminal procedure (crpc). When the officer in charge of the police station records the FIR he forwards a copy of it to the competent judicial magistrate under Section 157 crpc.
At this stage the magistrate does not take cognisance because FIR is not a document of institution of a criminal case. In absence of the cognisance it cannot be said that a criminal proceeding is pending against the accused.
Consequently, the High Court does not entertain the petition for the quashing of FIR which is filed under Section 482 crpc.
Quashing of first information report (FIR) under Article 226
At this stage you should move a writ petition in the High Court under Article 226 of the constitution for the quashing of FIR. If you have evidence which prima facie proves that the accused (you) has not committed the alleged offence, the court may quash the FIR.
At this stage the court does not appreciate the evidence because the appreciation of evidence is the matter of trial. The first information report is not an encyclopaedia of relevant facts [Rajesh Bajaj vs State (1999) 3 SCC 259]. Hence, the court does not examine the veracity of FIR. Court does wait until the filing of the charge sheet because more detailed and relevant facts are unearthed after the investigation.
Therefore, in the quashing petition, the High Court superficially examines the evidence which you produce along with the petition. You must bear in mind that the evidence which you want to produce for quashing the FIR must be capable of proving your innocence on the first impression.
In S. M. Dutta vs State of Gujarat (2001) 7 SCC 659 the Supreme Court has held that “criminal proceedings, in the normal course of events ought not to be scuttled at the initial stage, unless the same amounts to an abuse of process of law.”
You must satisfy the High Court that there is no incriminating evidence against you and the contents of FIR do not disclose commission of offence. In Bhajan Lal case the Hon'ble Supreme Court has held that FIR should be quashed, if FIR does not disclose the commission of any offence and nor make out a case against the accused.
As you said that you have evidence to prove your innocence. Hence, you must move a writ petition under Article 226 of the constitution for quashing of FIR.
Further investigation can be done only after submission of a police report to the magistrate under Section 173(2) of the code of criminal procedure (crpc). Permission of court is not necessary for the police to undertake further investigation [Raman In Re (1973) CrLJ 1288.]
Discovery of new facts
The police can do further investigation upon discovery of new facts. This is the very basis of further investigation Ram Lal vs State AIR 1979 SC1791. It is immaterial that the new facts will tend to prove the innocence of the accused. Meaning thereby, the police cannot refuse to do further investigation because it'll go in the favour of accused. Thus, an accused can seek further investigation after filing of charge sheet.
Further investigation is the continuation of the earlier investigation to which a police report has been filed. It is not a new or fresh investigation. In Hasanbhai Valibhai Qureshi v. State of Gujarat (2004) 5 SCC 347 the hon'ble Supreme Court has explained the importance of further investigation as “the prime consideration for further investigation is to arrive at the truth and do real and substantial justice.”
Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed and the provisions of subsections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)
Section 173(8) CrPC
Magistrate can direct further investigation
When the investigating officer submits its report under Section 173(2) crpc, the Magistrate can direct to do further investigation if he is not satisfied with the police report.
The Magistrate can direct further investigation under Section 156(3) crpc and require from the investigating officer to submit a report as per section 173(8) crpc.
Magistrate can exercise this power either at the pre cognisance stage or post cognisance stage. Section 173(8) does not put a bar on further investigation, even when the court has taken cognisance upon the police report.
In Bhagwant Singh v. Commr. of Police (1985) 2 SCC 537 the hon'ble Supreme Court has held that the Magistrate has the power to direct further investigation even on the “protest petition” of the complainant.
Further investigation on the request of complainant
The complainant is the real victim of defective, tainted and unfair investigation. Fair investigation is a fundamental right enshrined under Article 21 of the Constitution of India [Nirmal Singh Kahlon Vs State of Punjab (2009) 1 SCC 441].
Hence, the complainant has the right to approach the High Court for directing the agency to do further investigation. The complainant can approach the court for further investigation:
If new facts come to light, or
Investigation is tainted [Kishan Lal v. Dharmendra Bafna, (2009) 7 SCC 685] or
Investigation is not carried on in the proper manner, or
For the ends of justice.
Further investigation by another agency
The hon'ble Supreme Court in Sakiri Vasu vs State of U.P. and others (2008) 2 SCC 409 has held that the Magistrate has no power in Section 156(3) crpc to direct the CBI or another agency to conduct further investigation.
But the Supreme Court under Article 32 & 136 of the Constitution and High Court under Article 226 has the power to direct the other agency to do further investigation.
High Court has the power under Article 226 to transfer the investigation to another agency for the ends of justice. Failing which, the complainant can approach the Supreme Court under Article 136 for the same relief.
In Kashmeri Devi v. Delhi Admn. 1988 Supp SCC 482 the investigating officer was shielding the accused (fellow policemen) accused of murder by torture in police custody. The Supreme Court directed the CBI to conduct further investigation as per Section 173(8) CrPC.
Prosecution launched without obtaining sanction from the government under Section 197 crpc? I am a police inspector and being a police officer I have arrested four people when they were gambling IPL match. Total thirty nine lakh sixty eight thousand was recovered from his possession along with twenty seven mobile phones. They make a complaint to the superior officer that I have stolen one crore fifty lakh rupees from their possession. Which is false and frivolous.
Now the officer has lodged an FIR against me, three sub-inspector and nine constables. The police have filed a charge sheet. The Magistrate has taken cognisance. My advocate pleaded that the prosecution is against the provisions of Section 197 crpc because cognisance has taken without a valid sanction from the state government. The court has rejected our plea. Please suggest in the circumstances of my case.
You want the protection available to the government servant under Section 197 of the code of criminal procedure. The provisions of Section 197 protects the government servant against the malicious and frivolous prosecution when he committed the alleged act in the discharge of his official duty.
Prosecution without sanction under Section 197 crpc
It is not necessary that every offence committed by a public servant requires sanction for prosecution under Section 197 of the Criminal Procedure Code.
Sanction under Section 197 crpc is mandatory for the prosecution of the government servant who is removable from the service save by or with the sanction of the Government.
Superior officers like IAS, IPC, PCS and Judges have such immunity from prosecution because they are removed from the service only by the sanction of the government.
Removed from service without sanction of government
If a government servant is subject to removal from his service by the order of a senior officer or an authority other than the government then he cannot invoke Section 197 crpc.
According to section 3 of the U.P. Government Servant (Discipline and Appeal) Rules 1999, the police inspector can be removed by the Deputy Inspector General of Police. Government sanction is not necessary for removal and dismissal of the police inspector.
When government sanction is not necessary for your removal from service hence, you cannot claim protection granted to government servants under Section 197 crpc.
Essential conditions for invoking Section 197
There are three essential conditions for invoking Section 197 of the code of criminal procedure.
The accused is a government servant.
He committed the offence in discharge of his official duty.
He is removable from the service save by or with the sanction of the Government.
The first two elements are existing in your case. In State of Maharashtra v. Budhikota Subbarao, (1993) 3 SCC 339 the Supreme Court has explained that when an act is said to be done in the discharge of his official duties. The court held that:
If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed.
Your team had arrested the culprits indulging in betting on IPL matches. That act is part of your official duty and it has a reasonable connection with your official duty.
Since, government sanction is not necessary for your termination or removal from service, hence, the provisions of Section 197 crpc don’t apply in your case.
The charge sheet and cognisance taken by the court on the charge sheet is valid. There is no impediment in respect of the prosecution. The prosecution without obtaining sanction of government under Section 197 crpc is valid.
Can a tenant refuse to vacate an allotted house? Our father had purchased 3 houses together in a colony, more than 50 years ago. Two on the ground floor, in which we were already living there on rent. And One house is on top of these two houses. A tenant family was on rent, the time we purchased it. This tenant is no more and his wife lives with her elder son now. Her daughter is married & settled. And though both of her sons own houses in Dehradun. Her younger son is living with his family in our house and not vacating it.
Our family has extended and we need this house to be vacated urgently. According to the tenant this house is an allotment house and can not be vacated. Is there any new law supporting a landlord in this kind of situation? Please help and guide.
She is a tenant and in your case the landlord requires that premises for his bonafide necessity. There is no law which confers on tenants a right for the indefinite period through the allotment.
You should serve a legal notice for eviction. An allotment can be cancelled by the person who permitted the allottee to reside therein. Her two sons owned a house in the same city.
Therefore she will not face any hardship on eviction because she has alternative residential accommodation in the same city. If she fails or refuses to vacate the premises then you should file a civil suit for eviction.
What cases can I file on them, especially my sister in law and her husband who is the primary person and how can I go back home with protection? I'm a victim of domestic violence from my in-laws and husband, my sister in law and her husband. Now they thrown me out of house with pregnancy with a two year old baby in hand for not agreeing for abortion. And are not letting me home filing conjugal and other civil cases.
I have a 498a with possible evidence but police are supporting them as they are highly influential.now police by joining hands with them filing false cases on.me and my family. my sister in law has robbed my gold and I have recorded proof.
You should file an FIR for the offence of theft and criminal breach of trust. Your sister in law has no right to misappropriate your jewellery. If you have handed over your jewelleries for keeping safe, she holds them as a trustee. When she has misappropriated then she has committed the offence under Section 409/498A/504 of the Indian Penal Code.
So far as domestic violence by sister in law is concerned, you should file a complaint under Section 12 of the Domestic Violence Act for the protection and residence order.
