How to seek Bail in false 498A/406 IPC

Matrimonial cruelty is the cruelty to which women is subjected to, by her husband and his relatives. Cruelty in matrimonial terms is physical and mental torture caused by the actions of husband and his relatives towards wife.

To deal with matrimonial cruelty our constitution makers inserted section 498a in Indian Penal Code which reads as under :-

Husband or relative of husband of a woman subjecting her to cruelty —Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.

For the purpose of this section, “cruelty” means—

(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Effectiveness of IPC Section 498A on society

The object of our framers of constitution is to safeguard the women from harassment at their matrimonial home. But some of the women makes this law as tool of extortion or we can say weapon to fulfill their desires and throw out their frustration as revenge by humiliating the husband and his relatives in front of society. Not every cruelty is matrimonial cruelty under 498a until there was a demand of dowry.

What a great irony is that, where our law has foundation on the principle that says, let a hundred guilty be acquitted, but one innocent should not be convicted, is it really the question of conviction or acquittal?

It’s all about the mental torture from which, one have to suffer due to false allegation put on him with ulterior motive. As we can conclude this is due to rigidity of our procedural law. Nowadays courts also think on this negative step taken by women to trap the innocent people and passed several bail orders keeping in mind various aspects on valid grounds during trial. The main concern of granting bails is the tenet principle that is, “ei incumbit probation qui dicit, non qui negat” which means one is considered innocent unless proven to be guilty. In recent judgement Social Action Forum for Manav Adhikar and another v. Union of India, Supreme Court modifies the earlier directions issued to prevent misuse of 498a in Rajesh Sharma v. UOI case.  Supreme Court removes welfare committees and safeguarded the husband and his relatives by inserting a anticipatory bail provision in dowry harassment cases.

Grounds considered by Courts while granting Bail in recent judgements

1.    Nitesh Arora v. State Govt. of NCT Delhi, 18 July 2018, Delhi High Court

Petitioner had offered to return some of the dowry articles complainant claims to be and in the meantime files an application seeking permission to travel to USA for an assignment. It is also mentioned that the visa of the petitioner is due expire soon and its extension should be necessary for completion of assignment assigned to him by the employer, visa would only be applied once he reached USA.

2.    Lalit Singh Negi v. State, 17 April 2018, Delhi High Court

Court held that as all the stridhan had returned no case of custodial interrogation is made out.

3.    Parag Bansal & Ors. v. State, 12 January 2018, Delhi High Court

It is contended that FIR was lodged after filing an application u/s 125 Cr.P.C. . It is also contended that all the allegations are false.  The complainant, who is well educated and is practicing as an advocate and aware of her rights, has sought to improve upon her story, to falsely implicate the petitioners.

4.     Akshay Kumar v. The state Govt. of NCT Delhi, 13 November 2017, Delhi High Court

Complainant demanded a sum of money to dissolve marriage and threatened to harass and humiliate the petitioner and his family, in case they not give her said amount. Complainant stayed with the petitioner only for two months after marriage. Court contended that there is no need of custodial interrogation and granted anticipatory bail with some conditions.

 

5.    State v. Harshadrai Jani & ors., 26 October 2018, Delhi District Court

There was no documentary proof such as MLC of the said allegations by the complainant. Court concluded that prosecution has failed to prove offence U/s 498A/406/420/34 IPC and section 3 and 7 Dowry Prohibition Act, 1961 against the accused persons beyond reasonable doubt.

 

Kapil Chandna Advocate

Procedures, Grounds & Judgements to Transfer Case in India

The Constitution of India is the fountainhead from which all our laws derive their authority and force. Transfer petitions can be presented at various stages of a trial. They can be presented before the High Court or the Supreme Court. They seek that depending on a just cause or reason, you request the Court to transfer your case to another district or State.

 

Article 139A of the Constitution states,

 

“Transfer of certain cases.—(1) Where cases involving the same or substantially the same questions of law are pending before the Supreme Court and one or more High Courts or before two or more High Courts and the Supreme Court is satisfied on its own motion or an application made by the Attorney-General for India or by a party to any such case that such questions are substantial questions of general importance, the Supreme Court may withdraw the case or cases pending before the High Court or the High Courts and dispose of all the cases itself: Provided that the Supreme Court may after determining the said questions of law return any case so withdrawn together with a copy of its judgment on such questions to the High Court from which the case has been withdrawn, and the High Court shall on receipt thereof, proceed to dispose of the case in conformity with such judgment.

(2) The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court.”

 

v Where  a Transfer petition can be filed?

 

Transfer petition can either be filed at High Court or at supreme court. If the transfer of a case is within a state then High Court of that State the transfer petition can be filed but if it is interstate then at supreme court.

 

How are  Transfer petitions filed?

 

Transfer Petitions are filed under Section 25 of the Code of Civil Procedure. Section 25 (1) provides:

On the application of a party, and after notice to the parties, and  after hearing such of them as desire to be heard, the Supreme Court may,  at any stage, if satisfied that an order under this section is  expedient for the ends of justice, direct that any suit, appeal or other  proceeding be transferred from a High Court or other Civil Court in one  State to a High Court or other Civil Court in any other State.

When the transfer of a case is sought-after from the State of Jammu and Kashmir. Code of Civil Procedure doesn’t apply to the State and thus the provisions of Section 25 of the Code of Civil Procedure additionally wouldn’t apply.

 

In Dr. Subramaniam Swamy v. Ramakrishna Hegde, the Court held that:
The paramount consideration for transfer of a case under Section 25 of Code of Civil Procedure must be the requirement of justice.

Also,  Section 406 of the Code of Criminal Procedure empowers the Supreme Court of India to transfer criminal cases and appeal unfinished in one court to a different court or from a Judicature subordinate to at least one court to a different judicature of equal or superior jurisdiction subordinate to a different court.

 

 

v In which cases a transfer petition can be filed?

A transfer petition can be sought in any kind of case be it matrimonial or a civil or a criminal case having its main aim to give justice to the seekers.

 

It was held that the mere convenience of the parties or anyone of them might not be enough for the exercise of power, however, it ought to even be shown that trial within the chosen forum will result in denial of justice. The Court any control that if the ends of justice therefore demand and also the transfer of the case is imperative, there ought to be no hesitation to transfer the case. The proper of the dominus litis to decide on the forum and thought of complainant’s convenience etc. cannot eclipse the necessity of justice.  Justice should be done in any respect costs; if necessary by the transfer of the case from” one court to a different as held in the case of Dr. Subramaniam Swamy v. Ramakrishna Hegde.

 

Grounds on which a Transfer can be sought.

Transfer petitions are mostly filed in matrimonial cases on the plea of wife.

Transfer of the cases can be sought on various grounds in a matrimonial case; they are:

 

a)   Prejudice in that jurisdiction that husband’s  family  is very infuential and will  hamper the  fair proceedings.

b)   Threat to life- Again being influential is a good ground for having a threat to life.

c)    Old and ailing parents

d)   Being a single woman without any support-If there is no support from father side then that is the good ground for seeking transfer.

e)   Medical History- Medical proof should be attached in case of medical ailment

f)      No  source of income- If wife is not working is a good ground

g)   Simultaneous Jurisdiction

 

Grounds on which the transfer petition be dismissed

 

Rather as a matter of fact, the husband cannot always be made to suffer and there are various judgements passed by the Hon’able supreme Court, wherein the husband can counter the allegations made by wife and protect himself from being further harassed.

 

Defence of these could be as follows:

a)   If the wife claims to have a minor child then grandparents can be asked to look after the child  and merely  on this  ground the petition can’t be transferred  (Anandita Das v. Sirjit Dey, 2006)

b)   If the wife claims a far distance then effort to prevent a transfer,the husband can make offer to bear 2nd class AC tickets for the woman to travel and her stay expenses.

c)   If the wife claims a threat to her life and she cannot commute ,strong proof is needed to be shown, and merely by stating a  fear to her life, the court will not be inclined to transfer the case, merely because petitioner is a lady does not mean she cannot travel’as stated by the SC in  Priti Sharma v. Manjeet in 2005

d)   Men who have kids custody with them can rely on Jaishreee Banarjee vs. Abhirup Banarjee to get proceedings in their favour.

 

Some cases of where the Transfer Application was being filed

 

In Avtar Singh and Co. Pvt. Ltd. v. S.S. Enterprises, a petition was filed, under Section 25 CPC for transfer of the suit from the Calcutta High Court to the District Court at Kanpur where a suit was already pending. The Court directed the Calcutta suit to be transferred to Kanpur taking under consideration of proven fact that Kanpur suit was filed earlier in purpose of time and that the suit was filed in Calcutta was within the nature of a cross-suit.

 

In Kiran Ramanlal Jani Vs Gulam Kadar, .the petitioner had prayed for transfer of a motor accident claim from Jammu and Kashmir to Gujarat. The Court allowed the transfer petition in the absence of any objection on behalf of the respondents and their non-appearance even when in service. It is, however, submitted that there has to be a sound legal basis for such transfer, when the party wishes a transfer of a case from Gujarat to the State of Jammu and Kashmir, the acceptable course would be to file a petition for special leave under Article 136 against the order directing issue of summons, personal appearance, etc. Once the Court is seized of the matter under Article 136 of the Constitution, it would have power under Article 142 to direct transfer, in order to do complete justice.

 

In Kalpana Devi Prakash Thakar Vs Dev PrakashThakar, the Court disallowed the wife’s plea for transfer of the matrimonial proceedings from Mumbai. to Palanpur, Gujarat taking into account the following considerations:
(i) The husband was a medical practitioner and his absence from Mumbai would cause inconvenience to his patients;
(ii) His old and ailing mother who. lived with him needed regular medical check-ups and constant care;
(iii) The witnesses were principally from Mumbai; .
{iv} The wife had relatives in Mumbai with whom she could stay .whenever she went there-for the case;
(v) The husband was ready to bear the expenses of travel and also the traveling expenses of the escort.
(vi) Palanpur was well connected to Mumbai by train

 

In State of Assam vs Dr. Brojen Gogoi, the Supreme Court while setting aside an order of the Bombay High Court granting anticipatory bail on the ground that the State of Assam was not heard; directed transfer of the application for anticipatory bail to the Gauhati High Court on the ground that the alleged offences could have been committed only within the territorial jurisdiction of the Gauhati High Court and it was that High Court, which was the appropriate forum to deal with an application for anticipatory bail. This case is an authority for the proposition that the Court can act suo motu under Section 406 of CrPC, if it feels the interests of justice so require.”

 

In Ayyannar Agencies v.Sri Vishnu Cement Ltd, five complaints had been filed by the respondent under Section 138 of the Negotiable Instruments Act before the Court of the Metropolitan Magistrate at Chennai and thereafter one complaint was filed before the Metropolitan Magistrate at Hyderabad against the petitioners in respect of two cheques for the same offences under Section 138 of the Negotiable Instruments Act. Transfer was sought of the Hyderabad case to Chennai on the ground that parties in all cases were the same and the offence is of the same nature though pertaining to different cheques. The Court allowed the petition for transfer holding that the transfer prayed for could only be in the interests of justice and for the convenience of conducting the trial and disposal of all the cases.
In Abdul Madani v. State of Tamil Nadu, the Court disallowed the plea for transfer. The petitioners-prayed for transfer of the case pending against them in Tamil Nadu to Kerala alleging that the surcharged communal atmosphere in Tamil Nadu made the conduct of a fair trial impossible. The Court found as a matter of fact that a fair and speedy trial of the case was possible and the accused persons need not have any cause for apprehension. The court observed that the apprehension of not getting a fair and impartial trial is required to be reasonable and not imaginary. The Court observed that no universal or hard and fast rules can be prescribed for deciding the transfer petition, which always had to be decided on the basis of the facts of each case. The Court also observed that the convenience of the parties, including the witnesses to be produced at the trial was a relevant consideration, that convenience of the parties does not necessarily’ mean the convenience of the petitioner alone and that convenience for the purpose of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interests of the, society.

 

Conclusion

“Assurance of a fair trial is the first imperative of the dispensation of justice and therefore the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or simple handiness of legal services or like mine-grievances. something more substantial a lot of compelling, a lot of imperilling from the point of read of public justice and its attendant surroundings, is needy if the Court is to exercise its power of transfer; this is the cardinal principle though the circumstances may be myriad and vary from case to case, stated by Krishna Iyer In Maneka Sanjay Gandhi v. Miss Rani Jethmalani!

Transfer of Petition – An effective tool to meet the ends of Justice

This is the provision inserted in Code of Civil Procedure under section 25 reads as under-

Power of Supreme Court to transfer suits, etc.

(1) On the application of a party, and after notice to the parties, and after hearing such of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State.

(2) Every application under this section shall be made by a motion which shall be supported by an affidavit.

(3) The Court to which such suit, appeal or other proceeding is transferred shall, subject to any special directions in the order of transfer, either retry it or proceed from the stage at which it was transferred to it.

(4) In dismissing any application under this section, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case.

(5) The law applicable to any suit, appeal or other proceeding transferred under this section shall be the law which the Court in which the suit, appeal or other proceeding was originally instituted ought to have applied to such suit, appeal or proceeding.

Scope

This section enables the plaintiff or the defendant or the respondent to get the transfer of the suit to their state instead of the other party’s state where the said suit is entertained by the High Court or any other court. This provision is invoked generally in the matrimonial cases, divorce cases or custody cases. The main objective of the Hon’ble Court is to meet the ends of the justice in any possible way. The transfer of petition can be filed in Hon’ble Supreme Court after filing of charge sheet by investigating agency in the court entertaining the said suit.

Impact of the Section 25 C.P.C. on society

There are more than 2 lakhs of cases of matrimonial matters including custody, divorce and domestic violence cases, our courts dealing in each court. As we know our society is influenced under corruption by the people whose motives are ulterior, therefore our legislature and courts have to keep in mind many aspects while administering justice to the victim. This is the main object of the said section to deliver the justice to the victim.

From the beginning people assume that the section of women is weaker as compared to section of men in the society, so it needs to be strengthened.  Same on this assumption Hon’ble Supreme Court is allowing the Transfer of Petition. According to recent judgements probability of getting relief by women is higher under this section.

Parameters Court Consider while allowing the Transfer of Petition

1.     Distance Travel to attend the proceedings.

2.     Reason how one is not capable to attend the proceedings.

3.     How Justice can be influenced at the place where proceedings of the suit are taking place.

4.     Merits of the case

5.     Allegations

Recent Judgements in favor of women

1.     Sneh Sweta Singh vs Manish Singh on 15 November, 2018, TP No.- 1147/2018

 

Mother is of 65 years old lady and suffering from several disease like Joints pain, fever, digestion problem etc. currently her mother is not keeping well with her health and she needs regular medical check-up and constant care in Bangalore. Petitioner’s daughter is 8 years old and is going to school in Bangalore. Both are totally depend on petitioner. In such circumstances she alone has to travel leaving her old and ailing mother and her 8 years old daughter behind a distance of 2200 Kms from Sarjapur in Bangalore to the State of Lucknow to contest the matrimonial suit filed by the respondent.  Therefore, court allow the transfer of petition.

 

2.     Poonam Aggarwal vs Saurabh Agggarwal on 7 September, 2018, TP No.- 703/2018

Petition was allowed by the Hon’ble Court as the petitioner was the sole earner and her father was dependent on her as they were facing financial crisis.

 

3.     Boby Rani alias Babita Vs. Suresh Kumar, 2011(1) HLR 284

Wife has not any source of income and she is 70 % handicapped. Her parents are not in a position to bear the traveling expenses as their economic condition is weak.

 

4.     In the case of Mona Aresh Goel vs Aresh Satya Goel on 21 March 2000, wherein the transfer petition was filed by the wife to transfer the divorce proceedings taken by the husband in Bombay to Delhi, where she stayed with her parents. The transfer petition avers that the wife had no independent income and that her parents were not in a position to bear the expenses of her travel from Delhi to Bombay to contest the divorce proceedings. She averred that she is twenty-two years old and cannot travel to and stay in Bombay alone for, there is no one in Bombay with whom she can stay. Hence the court allowed such a petition in these circumstances.

5.     A very poignant and logical judgment was observed in Premlata Singh v. Rita Singh wherein this Court had not transferred the proceedings but directed the husband to pay for traveling, lodging and boarding expenses of the wife and/or person accompanying her for each hearing. The said principle was also followed in Gana Saraswathi v. H. Raghu Prasad.

6.     In the case of Santhini vs Vijaya Venkatesh on 9 October 2017, the court cited various cases. The court before reaching the final conclusions made a reference to the following cases, it made apt to refer to the decisions that have been noted in Krishna Veni Nagam.

7.     In Mona Aresh Goel ( as discussed above) the three-Judge Bench was dealing with the transfer of the matrimonial proceedings for divorce that was instituted by the husband in Bombay. The prayer of the wife was to transfer the case from Bombay to Delhi. The averment was made that the wife had no independent income and her parents were not in a position to bear the expenses of her travel from Delhi to Bombay to contest the divorce proceedings. That apart, various inconveniences were set forth and the husband chose not to appear in the Transfer Petition. The Court, considering the difficulties of the wife, transferred the case from Bombay to Delhi.

8.     In Lalita A. Ranga, the Court, taking note of the fact that the husband had not appeared and further appreciating the facts and circumstances of the case, thought it appropriate to transfer the petition so that the wife could contest the proceedings. Be it noted, the wife had a small child and she was at Jaipur and it was thought that it would be difficult for her to go to Bombay to contest the proceedings from time to time.

9.     In Deepa’s case, the stand of the wife was that she was unemployed and had no source of income and, on that basis, the prayer of transfer was allowed. In Archana Rastogi, the Court entertained the plea of transfer and held that the prayer for transfer of matrimonial proceedings taken by the husband in the Court of District Judge, Chandigarh to the Court of District Judge, Delhi deserved acceptance and, accordingly, transferred the case. Similarly, in Leena Mukherjee, the prayer for transfer was allowed.

10.  In Neelam Bhatia, the Court declined to transfer the case and directed the husband to bear the to-and-fro traveling expenses of the wife and one person accompanying her by train whenever she actually appeared before the Court.

11.  In Soma Choudhury, taking into consideration the difficulties of the wife, the proceedings for divorce were transferred from the Court of District Judge, South Tripura, Udaipur (Tripura) to the Family Court at Alipore (West Bengal).

12.  In Anju Ohri case, the Court, on the foundation of the convenience of the parties and the interest of justice, allowed the transfer petition preferred by the wife.

13.  In Vandana Sharma, the Court, taking note of the fact that the wife had two minor daughters and appreciating the difficulty on the said bedrock, thought it appropriate to transfer the case and, accordingly, so directed.
 

 

PILs IN THE SUPREME COURT OF INDIA…!!!

PIL that is the “Public Interest Litigation” is directly filed by an individual or group of people in the Supreme Court of India and High Courts of India and judicial magistrate. It was felt that their interests are undermined by the government.In such a situation, the court directly accepts the public good. It is a new legal horizon in which court of law can initiate and enforce action to serve and secure significant Public Interest.

It was in the case of SP Gupta vs Union of India that the Supreme Court of India defined the term “public interest litigation” in the Indian Context.

The concept of public interest litigation (PIL) is in consonance with the principles enshrined in Article 39A of the Constitution of India to protect and deliver prompt social justice with the help of law. Before the 1980s, only the aggrieved party could approach the courts for justice.                                                         After the emergency era the high court reached out to the people, devising a means for any person of the public (or an NGO) to approach the court seeking legal remedy in cases where the public interest is at stake. Justice P. N. Bhagwati and Justice V. R. Krishna Iyer were among the first judges to admit PILs in court.

l       Filing a PIL is not as cumbersome as a usual legal case; there have been instances when letters and telegrams addressed to the court have been taken up as PILs and heard.

l       A PIL is a petition that an individual or a non-government organisation or citizen groups, can file in the court seeking justice in an issue that has a larger public interest. It aims at giving common people an access to the judiciary to obtain legal redress for a greater cause.

l       PIL is not defined in any statute. It is the outcome of judicial activism to take cognisance of a cause at the instance of any person even if it does not affect him personally, but affects the public at large.

 

Difference between a writ and a PIL..??

 

       Writ is an order made by the court in the name of a person

involved to either perform a particular action or abstain him from doing it.

Whereas, PIL (Public Interest Litigation) is a form of writ where an action or law is framed for public convenience. It directly joins public with the judiciary. In PIL, the court has given public the right to file a suit.

 

Writs are filed by institutions or individuals for benefit in their own cases, whereas, PIL is an application that is filed by any citizen for easing out any undue botheration or inconvenience faced by the public at large.

Public interest litigation is not defined in any statute or any act. It has been interpreted by a judge to consider the intent of public at large. Following are the various areas where a PIL can be filed against State/Central Govt./Municipal authorities or any private party.

(a) If there’s abuse of elementary human rights of the underprivileged.

(b) If there’s inappropriate content or conduct of government policy.

(c) To force municipal authorities to accomplish a public duty.

(d) If there’s violation of religious rights or any basic fundamental rights.

 

        Writs are issued by the Supreme Court of India under Article 32 and Article 139. Writs can be issued by High Court of the States under Articles 226.

PIL’s are applications/writs that are filed by any citizen for easing out inconvenience faced by the public at large and they are not defined in any Statute.

Filing of PIL under article 32, 226 or 133
The court must be satisfied that the Writ petition fulfils some basic needs for PIL as the letter is addressed by the aggrieved person, public spirited individual and a social action group for the enforcement of legal or Constitutional rights to any person who are not able to approach the court for redress. Any citizen can file a public case by filing a petition:

·        Under Art 32 of the Indian Constitution, in the Supreme court.

·        Under Art 226 of the Indian Constitution, in the High court.

·        Under sec. 133 of the Criminal Procedure Code, in the court of Magistrate.

 

How to file a PIL in Supreme Court of India

The name PIL has not been defined in the Constitution and is a more popular name for a Writ issued by the Supreme Court in the exercise of its original jurisdiction under Article 32 of the Constitution of India which is considered to be highly prerogative.

The following steps describe in brief the process how to file a PIL in Supreme Court of India.

Firstly  check about the subject on which one is thinking to file the PIL and read all the details of the provisions of the law and the violations of the law if any being done by the State or any statutory body. PIL can only be filed against any existing legal right or violation of the legal right by the Government.

Secondly to make a detailed representation regarding the violations being made by the department concerned or the concerned authorities to take the remedial steps in this regard. If possible a reminder to the same may also be given.

Thirdly to check any arbitrary law, irregularity in the enforcement of law and the class of people being affected by such law or the inactivity of the department concerned.

Fourthly to collect all the relevant material, press reportings, documents etc in this regard and arrange them chronologically.

Fifthly to draft a Writ petition under Article 32 of the Constitution of India citing the violations of the law, inactivity of the state and all other grounds. The format for PIL is given below which may be used. It is important to take the assistance or services of a trained legal hand for the purpose.

Sixthly to prepare and file the PIL in Supreme Court of India before the Registry of the Supreme Court of India and get the matter listed before the court after due scrutiny. The matter is thereafter listed before the Court of hearing and orders accordingly.

WRITS WHICH CAN BE ISSUED:
Writ of Mandamus can be issued against inaction, inactivity of the State or any statutory body or any Government body in any manner.
Writ of Certiorari can be issued for quashing of any judicial or quasi-judicial proceedings or any other irregular proceedings being conducted by any wing of the State.
Writ of Prohibition can be issued against any wing of the State or any statutory body if it is exercising its powers beyond its jurisdiction i.e. beyond the legal powers vested in it.
Writ of Quo Waranto can be issued against any wing of State or any statutory body if it does not enjoy the legal authority to act, or his appointment to the post is illegal or is irregular.
Writ of Habeas Corpus can be issued for producing the body of a missing person. This is the only writ which can be issued by a private body or individual also.
A writ can be by way of a writ, order or direction normally. It can be in form of any other form of order issued by the Court.

Important documents to be enclosed along with a PIL in Supreme Court of India:
(i) Affidavit of the Petitioner.
(ii) Annexures as referred to in the Writ Petitioner, with court fees of Rs.2/- per annexure is to be filed.
(iii) 1+5 copies of the Writ Petition duly bound is to be filed.
(iv) Court fee of Rs.50/- per petitioner for civil matters, for criminal matters, no fees is required.
(v) Index of the papers.
(vi) Cover page.
(vii) Application for interim relief, stay, exemption etc .
(viii) Memo of appearance, Rs. 5/- Court fee.

PILs have achieved a place of great importance in our legal system. In India, the first PIL was filed in the year 1976 – Mumbai Kamgar Sabha v. M/s Abdulbhai Faizullabhai and others [1976 (3) SCC 832]. The seed of the PIL was sown by Justice Krishna Iyer through this landmark judgement.

l  Some of the Landmark PILs of the Supreme Court

Vishaka v. State of Rajasthan

This case was against sexual harassment at work place, brought by Bhanwari Devi to stop the marriage of a one year old girl in rural Rajasthan. Five men raped her. She faced numerous problems when she attempted to seek justice. Naina Kapoor decided to initiate a PIL to challenge sexual harassment at work place, in this supreme court.

The judgement of the case recognized sexual harassment as a violation of the fundamental constitutional rights of Article 14, Article 15 and Article 21. The guidelines also directed for sexual harassment prevention.

M. C. Mehta v. Union of India

In this case, the court passed three landmark judgements and several orders against polluting industries which were more than 50,000 in the Ganga basin. The court shut down numerous industries and allowing them to reopen only after controlled pollution. At the end, millions of people escaped air and water pollution in the Ganga basin, including eight states in India.

Hussainara Khatoon v. State of Bihar

Many have regarded this case as the first PIL in India as well. In this case, the attention of the Court focussed on the incredible situation of under-trials in Bihar who had been in detention pending trial for periods far in excess of the maximum sentence for their offences. The Court not only proceeded to make the right to a speedy trial the central issue of the case, but passed the order of general release of close to 40,000 under-trials who had undergone detention beyond such maximum period.

l  Issues that cannot be filed under PIL?

The Supreme Court has issued a set of PIL guidelines according to which the following matters will not be allowed as PILs:

  • ·        Landlord-tenant matters
  • ·        Service matters
  • ·        Matters pertaining to pension and gratuity
  • ·        Complaints against Central and State government departments and Local Bodies except those relating to items 1 to 10 mentioned in the list of guidelines
  • ·        Admission to medical and other educational institutions
  • ·        Petitions for early hearing of cases pending in High Court or subordinate court.

In 2010, the Supreme Court came down heavily on frivolous public interest litigation petitions for personal or extraneous reasons, and eventually laid down certain guidelines to be followed by courts in entertaining PILs.

The filing of indiscriminate petitions “creates unnecessary strain on the judicial system and consequently leads to inordinate delay in disposal of genuine and bona fide cases,” said a Bench consisting of Justices Dalveer Bhandari and Mukundakam.

Conclusion

PIL now does require a complete rethink and restructuring. Anyway, overuse and abuse of PIL can only make it stale and ineffective. Since it is an extraordinary remedy available at a cheaper cost to all citizens of the country, it ought not to be used by all litigants as a substitute for ordinary ones or as a means to file frivolous complaints.

 

Supreme Court deplores the tendency to turn civil cases into criminal ones

 

What is considered as a civil case?

A civil case begins when a person or entity (such as a corporation or the government), called the plaintiff, claims that another person or entity (the defendant) has failed to carry out a legal duty owed to the plaintiff.

Civil law refers to almost all other disputes—these are the rules that apply when one person sues another person, a business or agency. This can cover a housing case such as for eviction or foreclosure, a family case such as divorce or custody, consumer problems such as debt or bankruptcy, or when someone sues for money because of damage to property or personal harm. All of these cases go to a Civil Court.

These are some of the most common types of cases to appear in civil court.

  • ·        Contract Disputes. Contract disputes occur when one or more parties who signed a contract cannot or will not fulfil their obligations.
  • ·        Property Disputes.
  • ·        Torts.
  • ·        Class Action Cases.
  • ·        Complaints Against the City.

 

 What is said to be a criminal case?

Criminal laws are the rules that apply when someone commits a crime, such as assault, robbery, murder, arson, rape and other kinds of crimes. After a person is arrested and charged with a crime, that person goes to a Criminal Court. An accused in a criminal offence is harmful to the society as whole.

A person accused of a crime is generally charged in a formal accusation called an indictment (for felonies or serious crimes) or information (for misdemeanors).

It is not the victim’s responsibility to bring a criminal case. In a kidnapping case, for instance, the government would prosecute the kidnapper; the victim would not be a party to the action.

 When can a civil action become criminal?

One of the more challenging circumstances of civil practice is the development of a parallel criminal proceeding connected in some fashion to an ongoing civil matter. The complexity of the civil matter, and the strategic choices necessary for its successful resolution, grow exponentially with the overlay of criminal liability for a party or one of its principals. The spectre of a criminal record, incarceration, fines, assessments, restitution and other penalties such as debarment change–is in most circumstances irreversibly–how to proceed with the civil matter.

 

 Why civil cases are being given the colour of criminal cases?

Expressing serious concern over a practice of conversion of civil cases into the criminal cases, a Bench of Justice H.K. Sema and Justice R.V. Raveendran said, “This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families.

“Mr. Justice Raveendran, writing the judgment, said: “There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. The Supreme Court has deprecated the tendency, particularly in business circles, to convert purely civil disputes into criminal cases and the courts entertaining such matters for adjudication.

In the case of Madan Lal  & ANR vs State Of Haryana it was seen that if  the matter is clubbed together and is perused, then, it gives rise to a dispute of purely a civil nature. The question of execution of sale deed or otherwise cannot be gone into by the police or the criminal Court. Only the civil Court has the jurisdiction to decide such intricate questions. It is now well- recognized principle of law that the matter, which essentially involves the dispute of civil nature cannot legally be allowed to become subject matter of criminal proceeding. It is not a matter of dispute that the jurisdiction of civil and criminal courts is entirely different and distinct from each other. The matter which squarely falls within the ambit and jurisdiction of the civil court cannot legally be permitted to be re-agitated in parallel proceedings in the criminal court. If the complainant is permitted to re-agitate the same very dispute in the garb of criminal prosecution, by way of impugned FIR, then, there will be no end of unwarranted litigation and it will inculcate and perpetuate injustice to the petitioners in this relevant direction. The complainant cannot possibly and legally be permitted to execute a non-existent civil court decree by putting pressure of a criminal prosecution against the petitioners-accused.

The division bench of Justice Ranjit More and Justice Shalini Phansalkar Joshi  of the bombay high court recently stated in its judgement that when dispute is of civil nature, giving the proceedings a criminal colour is abuse of the process of law in the case Ramesh Shah v. Tushaar Thakkar.

Bomanji Kavasji v. Mehernosh 1982 Bom. C.R. 503, wherein it was held that there is no justice at all to criminally proceed against the accused where the dispute is essentially of civil nature and that a criminal action in such a case would be abuse of criminal process …  It was further observed that the exercise of inherent powers is necessary to prevent criminal courts being utilized as weapons of harassment for settling disputes of civil nature.

v Can a Criminal as well as Civil case be done in case of Cheque Return?               1.  Both civil case for recovery of cheque amount and criminal complaint for cheque dishonour are maintainable.

2.  Civil case is for recovery of money and criminal complaint is for punishment .

3.  Bombay high court has held that both cases are maintainable .

 

 

Remedy for the cases where civil matters are turned into an criminal offence..!!

A positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 Cr.P.C. (to award compensation for accusation without reasonable cause) more frequently, where they discern malice or frivolous or ulterior motives on the part of the complainant.”

The apex court was dealing with an appeal preferred by Indian Oil Corporation against a judgment of the Madras High Court quashing criminal proceedings initiated against NEPC India Ltd and others for breach of contractual obligations.( Indian Oil Corporation Ltd. vs Nepc India Ltd.)

The High Court had held in one of its cases that mere breach of contractual terms would not amount to cheating unless fraudulent or dishonest intention was shown right at the beginning of the transaction.

 

 

How to get bail in Section 420 IPC

            Section 420 in the Indian Penal Code deals with Cheating and dishonestly inducing delivery of property.

  • 420:Cheating and dishonestly inducing delivery of property.: Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable fine

 

Essential elements of Section 420

      (i) Cheating;
      (ii) Dishonest inducement to deliver property or to make, alter or   destroy any valuable security or anything which is sealed or is capable of being converted into a valuable security and
      (iii) Mens rea of the accused at the time of making the inducement.

        Making of a false representation is one of the essential ingredients to institute the offence of cheating under Section 420 IPC. In order to bring a case for the offence of cheating, it is not merely satisfactory to prove that a false representation had been made, but it is further necessary to prove that the representation was false to the knowledge of the accused and was made in order to deceive the complainant.

 

Cheating

      The term “cheating” has been defined under Section 415 of the Indian Penal Code. The element of cheating must be present in every offence under Section 420 of I.P.C.

      Section 415 of IPC states that Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.

      For example – There are two persons A and Z. A exhibits the false sample of an article to Z and intentionally make Z believes that the article corresponds with the sample. A here induces Z to buy and pay for the false sample of article. A cheats Z.

Acting dishonestly

      Section 24 defines that what is “acting dishonestly”. When the doing of any act or not doing of any act causes wrongful gain of property to one person or a wrongful loss of property to a person, the said act is done dishonestly.

Mens rea

      Mens rea is a legal phrase which used to define the mental state of a person while committing a crime and that should be intentional. It can refer to a general intent to break the law or a specific prearranged plan to commit a particular offense. A criminal prosecutor must show beyond any reasonable doubt to convict an accused person that the suspect actively and knowingly contributed in a crime that affected another person or their property.

 

How Cheating is to be proved

         You have to prove that there was an intention to cheat at the time of making the misrepresentation; and this fact is to be proved on the basis of all the subsequent conduct as acts and omissions of the accused. Therefore, all the acts and omissions of the accused must be clearly and legibly set out right from the date of making of false representation, till the filing of the complaint.

          It must be shown that there is a failure of the promise which was made. It must be shown that there was no effort on the part of accused to perform his promise. The test of prudent man must be applied to appreciate the evidence on record.

 

Cognizance of an offence under Section 420

        The offence is cognizable and falls under the category of Non Bailable. It is triable by Magistrate of the First Class and therefore FIR or Application u/s 156(3) or Private Complaint u/s 200 may be preferred.

 

  • Getting a bail under 420 IPC

Vaman Narain Ghiya v. State Of Rajasthan, Hon’ble Supreme Court has held that, Balance to be maintained between the personal liberty of the accused and the investigational right of the police. –An accused is not detained in custody with the object of punishing him on the assumption of his guilt thus can opt anticipatory bail.

         Offences under section 420 of IPC are non bailable offence, due to which it is possible to apply for anticipatory bail under sec 438 of CrPc.

         In Abdul Fazal Siddiqui vs Fatehchand Hirawat And Another JT 1996 (8), the court held that there was nothing on the record to show that the appellant had any knowledge about the property being an encumbered property or about the appointment of the Joint Receivers by the Calcutta High Court in a suit in respect of that property. There was no evidence to show that the appellant, knowingly made any false representation much less dishonestly or fraudulently. The basic ingredients of the offence of cheating were missing in the case. The evidence on tile record does not connect the appellant with the crime alleged against him at all. A mere representation, which was neither claimed or alleged to be dishonest or fraudulent would not attract the charge of cheating only because the complainant parts with his money on the basis thereof. In the present case the dishonest representation, both orally and in the deed of hypothecation, was made by  proprietor of the Calcutta Case. The conviction and sentence against the appellant as recorded by the trial court and confirmed by the High Court, under the circumstances was unsustainable ad thus accordingly the appellant was given bail.

 

           In Sandeep Chaudhary And Anr. vs State And Ors SC stated that in their opinion, the courts below could not have cancelled the bail solely on the ground that the appellant had failed to keep up his promise made to the court. Here we hasten to observe, first of all from the material on record, we do not find that there was any compromise arrived at between the parties at all, hence, question of fulfillling the terms of the compromise cannot be the basis of granting or cancelling a bail. The grant of bail under the Criminal Procedure Code is governed by the provisions of Chapter xxxviii of the Code and the provision therein does ;not contemplate either granting of a bail on the basis of an assurance of a compromise or cancellation of a bail for violation of the terms of such compromise. What the court has to bear in mind while granting bail is what is provided for in Section 437 of the said Code. In our opinion, having granted the bail under the said provision of law, it is not open to the trial court or the High Court to cancel the same on a ground alien to the grounds mentioned for cancellation of bail in the said provision of law. Since the petitioners have been granted interim protection, that shall remain operative for a period of two weeks during which period the petitioners shall apply for regular bail before the trial court

          In a recent ruling in the case of Sangeetaben Mahendrabhai Patel v. State of Gujarat & Anr the Honorable Supreme court held that Case u/s.420 IPC are not barred if prior case u/s.138 Negotiable Instruments Act is pending!

          Also in Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao & Anr SCC 703, It has been held therein that once the conviction under Section 138 of N.I. Act has been recorded, the question of trying a same person under Section 420 IPC or any other provision of IPC or any other statute is not permissible being hit by Article 20(2) of the Constitution and Section 300(1) Cr.P.C.

 

          In Ranubhai Bhikhabhai Bharwad vs State Of Gujarat the High court on the grounds of detention, a reference was made to three criminal cases registered against the petitioner as under as

(i) Gorva Police Station M. Case No.28/97 for offences under Sec.504, 506(2), 120(B), 406, 420, 386, 389, and 114 of IPC – In this case, the petitioner is enlarged on bail and the trial is pending.

(ii) J.P. Road Police Station Case No.139/98 for offences under Sec.342, 406, 420, 504, 323, 506(2) and 114 of IPC – In this case also, the trial is pending and the petitioner is on bail.  , thus for both the cases the petitioner was granted bail.

Remedies available to the borrower or aggrieved person against the proceedings

INTRODUCTION TO THE SARFAESI ACT, 2002

India is the world’s third largest economy. In order to keep pace with the fast evolving economies of the developed countries and to secure its position amongst the fastest developing countries, it is of utmost interest that the financial stability and growth of the country remains fluid and unharmed. Banks and financial institutions are responsible for the flow of liquid money throughout the economy and they play the key role in maintaining and regulating the country’s economic growth. The banking sector of our country is increasingly trying to match the international standards and norms of banking, however, it is faced with innumerous hurdles that hamper the proper working of these institutions. The government of India has stepped in to ensure that there are certain legal frameworks that the banking sector has to abide by, only to accommodate a larger scope for development. These legal frameworks were first introduced by the government through the Recovery of Debts due to Banks and Financial institutions Act, 1993, subsequent to which the Debt Recovery Tribunals and Debt Recovery Appellate Tribunals were established for expeditious adjudication of disputes with regard to ever increasing non-recovered dues, which is one of the most common impediment to the proper functioning of the banking sector. Non-recovered loans, bad loans, or Non-performing Assets cause interruption in the financial growth of the country, and the government cannot afford it. The Recovery of Debts due to Banks and Financial institutions Act, 1993, however had a number of loopholes, which were yielded by the borrowers and lawyers to their own advantages. The government introspected on these issues and on the recommendation of the committee under Mr. Andhyarujina, brought about a legal reform in the banking sector laws in the form of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act), 2002.

It is a legislation that helps financial institutions to ensure asset quality in multiple ways. This means that the Act was framed to address the problem of NPAs (Non-Performing Assets) or bad assets through different processes and mechanisms.

The SARFAESI Act gives detailed provisions for the formation and activities of Asset Securitization Companies (SCs) and Reconstruction Companies (RCs). Scope of their activities, capital requirements, funding etc. are given by the Act. RBI is the regulator for these institutions.

This article is going to deal with the enforcement of security interests in detail and chalk out the various procedures undertaken by the financial institutions to recover their debts and the remedies and reliefs available to the borrowers in case such procedures are initiated against them.

WHAT IS ENFORCEMENT OF SECURITY INTERESTS?

The Act vests with the bank the power to issue notice to the defaulting borrower and guarantor, asking them to repay the debt within 60 days from the date of the notice. However, if the borrower fails to comply with the notice, the bank or the financial institution may enforce security provided by the borrower, that is, the bank’s security interest, by any of the following provisions, as laid down in the Act:

a) Take possession of the security;
b) Sale or lease or assign the right over the security;
c) Appoint Manager to manage the security;
d) Ask any debtors of the borrower to pay any sum due to the borrower.
If there are more than one secured creditors, the decision about the enforcement of SARFEASI provisions will be applicable only if 75% of them are agreeing.

Chapter III of the SARFAESI Act deals with the enforcement of security interest.

Section 13 of the Act provides that notwithstanding anything contained in Sections 69 or 69A of the Transfer of Property Act, 1882, any security interest created in favour of any secured creditor may be enforced, without the court’s intervention, by such creditor in accordance with the provisions of the Act. Section 13(2) of the Act provides that when a borrower, who is under a liability to a secured creditor, makes any default in repayment of secured debt, and his account in respect of such debt is classified as non- performing asset, then the secured creditor may require the borrower, by notice in writing, to discharge his liabilities within sixty days from the date of the notice, failing which the secured creditor shall be entitled to exercise all or any of the rights given in Section 13(4) of the Act. Section 13(3) of the Act provides that the notice under Section 13(2) of the Act shall give details of the amount payable by the borrower as also the details of the secured assets intended to be enforced by the bank. Section 13(3-A) of the Act was inserted after the decision of the Supreme Court in Mardia Chemicals[1] case, and provides for a last opportunity for the borrower to make a representation to the secured creditor against the classification of his account as a non-performing asset. The secured creditor is required to consider the representation of the borrowers, and if the secured creditor comes to the conclusion that the representation is not tenable or acceptable, then he must communicate, within one week of the receipt of the communication by the borrower, the reasons for rejecting the same. Section 13(4) of the Act provides that if the borrower fails to discharge his liability within the period specified in Section 13(2), then the secured creditor, may take recourse to any of the following actions, to recover his debt, namely-

“(a) take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset;

(b) take over the management of the business of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset:

Provided that the right to transfer by way of lease, assignment or sale shall be exercised only where the substantial part of the business of the borrower is held as security for the debt: Provided further that where the management of whole, of the business or part of the business is severable, the secured creditor shall take over the management of such business of the borrower which is relatable to the security for the debt;

(c) appoint any person (hereafter referred to as the manager), to manage the secured assets the possession of which has been taken over by the secured creditor;

(d) require at any time by notice in writing, any person who has acquired any of the secured assets from the borrower and from whom any money is due or may become due to the borrower, to pay the secured creditor, so much of the money as is sufficient to pay the secured debt.”

SECTION 17 OF THE SARFAESI ACT AND WHAT IT ENTAILS

Section 17 of the Act which provides for an appeal to the DRT, reads as follows:

“17. Right to appeal.–(1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor or his authorised officer under this Chapter, may make an application along with such fee, as may be prescribed to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measures had been taken:

Provided that different fees may be prescribed for making the application by the borrower and the person other than the borrower.

Explanation.–For the removal of doubts it is hereby declared that the communication of the reasons to the borrower by the secured creditor for not having accepted his representation or objection or the likely action of the secured creditor at the stage of communication of reasons to the borrower shall not entitle the person (including borrower) to make an application to the Debts Recovery Tribunal under sub-section (1) of Section 17.

(2) The Debts Recovery Tribunal shall consider whether any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor for enforcement of security are in accordance with the provisions of this Act and the rules made thereunder.”

Sometimes, in furtherance of section 13 of the Act, the Bank may fix the reserve price and sell the property for a very low price affecting the borrower and also the Bank at times. Addressing these concerns, the judiciary has maintained that all actions initiated by the Bank under the provisions of SARFAESI Act, 2002 can be challenged by the borrower in an Appeal under section 17 of SARFAESI Act, 2002.

The borrower or any person aggrieved can approach the Civil Court in a very limited situation where actually there is fraud or serious dispute with regard to the title of the ‘secured asset’/property mortgaged. Though there can be no bar on the jurisdiction of High Courts under Article 226 in dealing with the grievances of the borrower against the Bank when the Bank initiates action, the High Courts come secondary to the DRT in such matters.

The Banks have enormous support from the legal-framework in recovering their dues from the borrowers. Perhaps, in the absence of the SARFAESI Act, 2002, the Banks would’ve had a very difficult time recovering their assets. However, from the borrowers’ point of view, it is alleged that they do not have an effective remedy against the illegal action being initiated by the Bank using the provisions of SARFAESI Act, 2002. The Courts have held that the DRT can look into all allegations while entertaining an appeal under section 17 of the Act and it includes the issue of disputes pertaining to the actual ‘debt’. Then, it is also settled that the DRT can order re-possession of the ‘secured asset’ when it is found that the Bank has illegally taken the possession of the ‘secured asset’.

The DRT can either allow the Appeal filed by the borrower under section 17 or dismiss it. If the DRT allows the Appeal filed by the borrower under section 17, then, it can order re-possession of the ‘secured asset’ if the physical possession of the ‘secured asset’ is already taken, or it have direct the Bank to provide the borrower with cost due to its illegal activities.

When the borrower prefers an Appeal under section 17 against the Bank, the DRT can grant ex-parte stay of proceedings against the Bank if there is sufficient ground to that affect from the averments in the ‘Grounds of Appeal’ and also the documents produced. If there is a caveat, then, the procedure differs. Normally, the DRT orders notice to the Bank irrespective of the fact as to whether it grants stay or not in-favour of the borrower.  The DRT can also ask the borrower to make some deposit while granting stay and it is also reasonable as the borrower has to make the payments towards installments to the Bank in any case and there can be some time lapse between the demand notice issued by the Bank under section 13 (2) and the appeal.

If there is no interim order against the Bank while the Appeal is pending and the Bank is allowed to proceed with the sale proceedings, the issue gets complicated. The borrower should be allowed to raise any point and additional grounds by way of additional affidavit in the pending Appeal and there is nothing wrong in it and technicalities are to be ignored.

In Authorised Officer, Indian Overseas Bank & Anr. Vs. Ashok Saw Mill[2], the main question which fell for determination was whether the DRT would have jurisdiction to consider and adjudicate post Section 13(4) events or whether its scope in terms of Section 17 of the Act will be confined to the stage contemplated under Section 13(4) of the Act?

On an examination of the provisions contained in Chapter III of the Act, in particular Sections 13 and 17, this Court, held as under :

“In order to prevent misuse of such wide powers and to prevent prejudice being caused to a borrower on account of an error on the part of the banks or financial institutions, certain checks and balances have been introduced in Section 17 which allow any person, including the borrower, aggrieved by any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor, to make an application to the DRT having jurisdiction in the matter within 45 days from the date of such measures having taken for the reliefs indicated in sub- section (3) thereof.

The intention of the legislature is, therefore, clear that while the banks and financial institutions have been vested with stringent powers for recovery of their dues, safeguards have also been provided for rectifying any error or wrongful use of such powers by vesting the DRT with authority after conducting an adjudication into the matter to declare any such action invalid and also to restore possession even though possession may have been made over to the transferee.”

In the case of Mardia Chemicals Ltd. v. Union of India and Ors.[3], it was held that the requirement of deposit of 75% of the amount claimed before entertaining an appeal under section 17 of the SARFAESI Act is illusory and an unreasonable condition. The condition is invalid and struck down as it is ultra vires of Article 14 of the Constitution of India.

In the case of Dr. Dipankar Chakraborty v. Allahabad Bank & Ors.[4], Justice Debangsu Basak observed that, “the Act of 2002 gives an independent right to a secured creditor to proceed against its financial assets and in respect of which such asset the secured creditor has security interest. The right to proceed, however, is subject to the adherence to the provisions of limitation as enshrined in the Limitation Act, 1963. The provisions of the Limitation Act, 1963 are, therefore, attracted to a proceeding initiated under the Act of 2002.”

In the case of United Bank Of India vs Satyawati Tondon & Ors, it was held that, “both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective.”

In the case of Sadhna Shivhare and others v. Chief Manager, Punjab and Sind Bank and another[5], the Bank had committed the erroneous mistake of not providing the appellants with the notice under section 13(4) before initiating action under section 13(2), and therefore, owing to the failure on the part of the Bank to comply with all the procedural requirements of the SARFAESI Act before enforcing their security interest, the appeal was allowed by the DRT and the notice issued by the Bank under Section 13(2) was quashed.

In the case of Cyril Kotian & Anr. v. The Bharat Cooperative Bank (Mumbai) Ltd.[6], the notice issued by the Bank under Section 13(2) of the Act was illegal for the reason that it was signed by a Deputy General Manager without explaining as to how he was authorised to sign the same. There was no cause of action for issuing such notice. The amount claimed was highly exaggerated and excessive. The appeal under section 17 was allowed and the learned Judge held that the act of taking possession on the basis of an illegal notice, cannot be sustained and since the appellant was deprived of the possession, unlawfully some amount towards the damages must be awarded.

In the case of Pankaj Shah v. Cosmos Co-Operative Bank Ltd.[7], the appellant was not the borrower, however, he had ownership over certain raw materials that the respondent no. 1 took possession of along with the immovable property of respondent no. 2, who was the defaulting borrower. The securitization application was allowed and the respondent was directed to hand over the possession of raw materials within 15 days from the date of passing the order.

CONCLUSION

The system is aimed at speedy recovery and is balanced heavily towards the Bank, thus genuine borrowers who don’t have mala fide intention of defaulting are also affected in a grave manner . There is a prevalent feeling of helplessness amongst the borrowers due to the lack of remedies and even if someone gets a relief, they feel that the relief provided is ineffective.

It is definitely important to improve the financial health of the Banks/Financial Institutions, there is no justification for a completely biased legal system where the borrower is harassed like anything. Bank officials exercise great discretion and the Bank officials must be extremely happy with the legal provisions now governing the recovery of ‘secured loans’ under SARFAESI Act, 2002. It has become totally one-sided affair and ordinary citizens & small businesses may feel it better to approach the private money leaders for their financial needs rather approaching Banks and Financial Institutions in this country.

However, with the recent judicial pro-activism of the Courts and Tribunals, borrowers and aggrieved persons have been increasingly getting reliefs against illegal and wrong acts of the Banks. A more liberal outlook has been adopted by the Judiciary in dealing with appeals under section 17 and section 18, in order to facilitate the establishment of a fair platform for the aggrieved parties to bring their grievances to.

[1] Mardia Chemicals Ltd. v. Union of India and Ors., (2004) 4 SCC 311.

[2] 4 (2009) 8 SCC 366.

[3] (2004) 4 SCC 311.

[4] W.P. No. 16511   of 2016, Calcutta High Court.

[5] (2010) 109 RD 151 (DRAT).

[6] (2004) 4 BC 175 (DRT).

[7] (2005) 4 BC 217 (DRT)

Fate of simultaneous agreements to sale.

What is agreement to sale ?

An agreement to sale always precedes the process of actual execution of the sale deed. An agreement to sale is a very important stage of the whole process. An agreement to sell is an important document in the process of sale and purchase of property. This agreement contains the terms and conditions agreed upon between the parties. It further binds them too. An agreement to sell is the basic document on which a conveyance deed is drafted. It is always advisable to have an agreement to sell in writing.

Two agreements to sale

What if there are two agreements to sale and no execution of sale deed as such? In such cases, a very famous doctrine, ie Doctrine of priority in Property Law is applied. When there are two simultaneous agreements to sale of the same property, Section 48 of the Transfer of Property Act comes into play.

Section 48 says that Where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.

The essence of Section 48, says that the transfer of the property cannot be done of something more than what the person really has. To simplify this further, it means when with respect to one property documents of transfer of rights therein are executed at different points of time, then, earlier documents would prevail over later documents. Section 48 determines the priority when there are successive transfers. It provides that where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot all exist or be exercised to their fullest extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created. Section 49 of the Registration Act provides that until the document is registered, it shall not affect any immovable property nor can the document be received in operation of the provisions of Sections 48 and 54 of the Transfer of Property Act and there would be compliance of provisions of Section 54 of the Transfer of Property Act as well as Section 49 of the Indian Registration Act.

However, the Madras High Court in Duraiswami Reddi v. Angappa Reddy held that the prior transferee would be entitled to enforce his rights though his document is registered later and even if the subsequent transferee entered into transactions bona fide without knowledge of the first transaction. It was held that this result was implicit and was a direct consequence of the combined operation of Section 47 of the Registration Act and Section 48 of the Transfer of Property Act. It is also observed that the right of priority of the first transferee would be postponed only if the later transferee establishes any informative circumstances like fraud, estoppels or gross negligence.

This decision was followed in a later decision of the Madras High Court in Ramaswami Pillai v. Ramaswami Naicker, as well as in the Bench decision of the Andhra Pradesh High Court in Jagannatha Rao v. Raghavarao.

In Chouth Mal v. Hira Lal, an agreement to sell land in favour of one defendant was executed on 17th January, 1932. The sale-deed was executed in defendant’s favour on 5th May, 1932. But in the meanwhile owners executed an usufructuary mortgage of the same land in the plaintiff’s favour on 20th February, 1932. It was held that the mortgage must have its due effect as against the subsequent sale.Once it is accepted that the parties really intended to convey the suit properties and possession of the said properties was in fact delivered to the conveyee in pursuance of the said conveyance, the mere omission of the plot numbers in the sale-deed is not of any consequence.

It means, if the same property has been transferred at different times the subsequent transfer shall not confer any right, title or interest on the basis of the subsequent transfer vis-à-vis the first transfer.

Mere registration does not convey the title to a purchaser.A transfer operates from the date of execution of the deed, although it may have been registered at a later date. Registration is not a formality which creates any rights. It is prima facie proof of intention to transfer the title. It is no proof of operative transfer. Customarily, the sale deed which was registered first has to prevail in the matter of conveyance of title over others. The title under sale deed passes on the date of execution of the sale deed, even if the registration of the sale deed is completed on later date, it must relate back to the date of sale. Therefore, an agreement to sell executed prior to date of attachment of judgment, but registered thereafter, would prevail over such attachment.

Therefore, According to Section 48, the transferor cannot prejudice the rights of the transferee by any subsequent dealing with the property. This self-evident proposition is expressed in the equitable maxim qui prior est tempore prior est jure.

Is your Spouse Cheating on you: Ways to Prove Adultery

Article 14 of the Indian Constitution provides for equality before law and equal protection of laws. The first phrase translates as a positive right conferred upon the people by the virtue of which every person will be subject to the same judicial system without any privileges or any discrimination whether positive or negative. Whereas, the second part of Article 14 implies that every person will have the right to be protected equally, and this is derived from the principle of treating equals equally and unequals unequally. Article 14 mandates not a blanket equality, but proportionate equality. Owing to this, many archaic Indian laws have since time immemorial been operating in our country under the veil and protection of the latter part of the Article.

The law on adultery is one of the above. Section 497 of the Indian Penal Code, 1860 states that “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.” Even on apparent examination, we find that this law is discriminatory towards men, the men being the only ones liable to be held guilty of the criminal offence. The woman party to adultery has no criminal liability. She is only treated as a victim in the case. One may very well justify this discrimination by basing their arguments on the principle of positive discrimination that flows from Article 14 of the constitution itself, but they fail to explain why only the husband of the wife who is engaged in an adulterous relationship can file a complaint against the adulterer, whereas the wife of the husband who is an adulterer has no say in the matter. Therefore, section 497, cannot be justified as being protective of women and their dignity, as it takes away from them the legal remedy and the power to lodge a complaint when their husbands engage in extra-marital affairs with other married women. The Report of the Malimath Committee on Criminal Justice Reforms and the 42nd Report of the Law Commission of India has also speculated on the given matter and has presented its opinion to amend or repeal the law.

However, these things aside, another problem or rather difficulty that the law brings along with itself is the way the offence has to be proven in courts. Not only is it a mammoth task in itself, different courts across the country have presented different views with respect to the evidences that can and cannot be adduced in order to successfully prove adultery. But before we get into the nitty gritty of proving adultery, we first need to understand what constitutes adultery.

WHAT CONSTITUTES ADULTERY?

The meaning attributed to the term adultery varies from different country to country. It also varies across religion, culture and context. However, the underlying meaning of adultery as enunciated in section 497 IPC refers to the act of men having sexual intercourse with the wives of other men without the consent of their husbands.

Section 497 penalizes sexual intercourse of a man with a married woman without the consent of her husband when such sexual intercourse does not amount to rape. This law draws a clear line of distinction between the consent given by a woman and the consent given by a man. It does not take into consideration the cases where a married man has sexual intercourse with an unmarried woman. It only seeks to prosecute the men in cases where the married women have sexual intercourse with the respective men, whether married or unmarried without taking the permission or consent of the husbands of the women. Since the offence of adultery can be committed by a man with a married woman only, the wife of the man having sexual intercourse with other unmarried women cannot prosecute either her husband or his adulteress. Hence the question of the constitutional validity of the section comes into the forefront.

HOW TO PROVE ADULTERY IN COURT?

The offence under section 497 is non-cognizable, bailable and compoundable, and is triable by magistrate of the first class. In order to prove the offence of adultery, circumstantial evidence plays the main role. Though proof of sexual intercourse is essential for the offence of adultery, it can rarely be proved by direct evidence. It has to be inferred from the facts and circumstances of a case.[1] However, the circumstances must be of such a nature that they fairly infer that sexual intercourse took place.[2]Evidence of opportunities sought for and obtained and of undue familiarities, which point strongly to an inference of guilt, is sufficient to establish the fact of sexual intercourse[3]. The entire background and context of the case needs to be taken into consideration for ascertaining sexual intercourse[4].

In cases where the consent or connivance or even acquiescence of the husband can be proven in the act of adultery, there lies no case against the adulterer. However, he absence or presence of consent or connivance can be inferred from the circumstances of the case. Strict proof of the same is not necessary[5].

In cases of adultery, it is very difficult to produce direct evidence. Adultery is both a matrimonial offence and a criminal offence. The requirement of proof in a criminal case is stricter than the requirement in a matrimonial case. In the former case the act is to be proved beyond reasonable doubt, whereas in the latter the evidence is based on the inferences and possibilities. The offence of adultery may be proved by:

Circumstantial evidence
By evidence as to non-access and birth of a child
By evidence of visits to brothels
By contracting venereal diseases
Confession and admission to parties
Preponderance of probability
In the case of Pattayee Ammal v. Manickam Gounder and Anr.[6] , the High Court had occasion to consider the standard of proof necessary in the case where adultery is pleaded. It was held thus:

“Adultery, from its nature, is a secret act. Direct evidence of an act of adultery is extremely difficult. It is very rarely indeed that the parties are surprised in the direct act of adultery. Direct evidence, even when produced, the court will tend to look upon it with disfavour, as it is highly improbable that any person can be a witness to such acts, as such acts are generally performed with utmost secrecy.”

In Fairman v. Fairman,[7] the lodger gave evidence that he committed adultery with the wife of the petitioner but the wife denied the same. As the lodger’s evidence was not corroborated it could not be held that adultery had been proved.

In the case of England v. England[8], admittedly the wife spent one night with another gentleman. It was even assumed that there was an inclination and opportunity yet the Court accepted the verbal testimony of the respondent. It was held that there was no rule of law that evidence of conjunction of inclination and opportunity must raise presumption that adultery has been committed. The sworn testimony of the wife and other gentlemen were accepted by the Court.

In Barker v. Barker[9], a Full Bench decision of the Madhya Bharat High Court where also it was observed that direct evidence regarding the act of adultery cannot be expected.

In the case of Earnest John White Vs Mrs. Kathleen Olive White and Others[10], the husband filed dissolution of marriage on the ground of her adultery. Trial Court had granted the divorce and High Court had reversed the decree of divorce. Appeal before Supreme Court and Supreme Court held that: The wife went to Patna and stayed with respondent No. 2 under an assumed name. They occupied the same room, i.e., room No. 10. There was undoubtedly a guilty inclination and passion indicated by the conduct of respondent No. 2 and there is no contrary indication as to the inclination and conduct of the wife. As adultery has been proved the court allowed this appeal.

In the case of Bharatlal Deolal Lodhi vs Top Singh Somaru Lodhi[11], the husband and wife were married for 10 years and had a child of 7 years. In 1980, he returned to his house did not find his wife there. Then he waited for sometime and made enquiry in the village but could not get any clue. He then came to know that his wife had gone to village Tikarwada along with accused Top Singh, who was working as Peon in the Panchayat Office in that village. Complainant Bharatlal thereafter went to that village and enquired from Top Singh about his wife. At this, Top Singh told him that his wife is living with him and he has kept her as his wife and there is no question of sending her with him. He thereafter returned back and went to the police station to lodge a report. Such circumstances were held to be valid proof of adultery and Top Singh was convicted.

Different courts across the country have held a variety of cases to be adultery. Some of the circumstances that constitute the commission of adultery are:

Wife had been absenting herself from her house for some times and seen in the company of a stranger to the family of her husband without reasonable explanation or any explanation.
Unrelated person found alone with wife after midnight in her bedroom in actual physical juxtaposition.
Child born beyond the period of twelve months after the cessation of marital consortium between the spouses.
Evidence on post-suit adultery is admissible to prove and explain other evidencegiven in the case and to show the character and quality of the previous acts.
Paramour’s letters indicating facts of illicit relationship.
Admission of adultery by wife through letters.
Testimony of disinterested witnesses to the effect that they had seen the respondent sleeping together with another person in nights is sufficient to prove adultery.
A solitary instance of voluntary sexual intercourse by wife with other person is enough.
Wife left her husband and was living at her parent’s house. The allegation by husband that she became pregnant there without his access to wife. Statement by wife that husband used to visit her parents house and stayed overnights and cohabitated with her. Wife failed to examine her parents or any other witness in support of her statement. There was no interference with the decree of divorce granted against the wife.
Certain cases were not held to be adultery by the courts. Examples are as follows:

The presence of the wife in a restaurant cabin with her blouse and brassiere unhooked and the co-respondent holding her breasts in his hands is not sufficient to prove adultery.
No conclusion of adultery where the wife was found going on the scooter of some other person or talking with someone other than her husband.
No corroboration to prove adultery of wife when she remains in a room with door though shut but unbolted at 10 p.m. with another person when the mother of the husband and five grown-up children were present in the house.
Mere fact that some male relation writes letters to a married woman does no necessarily prove that there was illicit relationship between the writer and recipient of the letters.
Wife becoming pregnant after husband had undergone vasectomy operation without proving that the operation was successful, no illicit relationship of wife can be presumed.
Serious doubts may be raised as to the allegation of adultery of wife when the husband makes no such allegation in the notice for divorce prior to the filing of the suit.
Where the husband files the petition for divorce 8 years after he came to know that his wife has committed adultery and has not explained the reason for the inordinate delay alone.
Mere presence of the alleged adulterer in the bedroom of the parties does not constitute an adulterous act.
Masturbation of co-respondent by wife is not adultery.
Allegations of the husband that he saw his wife talking with other persons on three occasions in daytime without any physical contact are not sufficient.
Apart from pressing criminal charges, the other remedy available to the aggrieved party is to seek divorce under section 13(1)(i) of the Hindu Marriage Act, 1955. In a suit for divorce, it is easier to prove adultery and the element of mens rea that is intention is not necessary to establish. The husband can seek divorce from his wife on the pretext of adultery, and the necessary ingredients to prove adultery in this case is similar to the criminal trial.

[1] Kashuri v Ramaswamy (1979) Cr LJ 741 (Mad).

[2] WJ Phillips v Emperor AIR 1935 Oudh 506.

[3] Vedavalli v MC Ramaswamy AIR 1964 Mys 280.

[4] AS Puri v KC Ahuja AIR 1970 Del 214.

[5] State of Rajasthan v Bhanwaria AIR 1965 Raj 191.

[6] AIR 1967 Mad 254.

[7] (1949) 1 All ER 938.

[8](1952) 2 All ER 784.

[9] AIR 1955 MB 103 (FB).

[10] AIR 1958 SC 0441.

[11] 1995 (0) MPLJ 1050

Guide to getting the custody of your child midst a divorce.

Introduction

Going through a divorce settlement is not easy. With an ongoing maintenance suit coupled with other allegations, it gets severely difficult. The excruciating aftermath of a divorce settlement often involves the battle for the physical custody of the child.

Child custody is a term used in family law courts to define legal guardianship of a child under the age of 18. As the conditions or direct rule has not been established by statutory provisions in India, it depends on the court’s discretion to grant child’s custody to either of the parents.

Courts while deciding so, consider mainly three aspect before deciding on the former.

  1. Parent who demonstrates the most financial security
  2. Adequate parenting skills
  3. Least disruption for the child.

The court seeks for the benefit of child rather than the proof by either of the parents. A great shift in the court’s approach has been seen while considering such cases and that has been to look deeply into the child’s benefits. In Hindu Law or secular GWA Act, the court considers the decision of a child who is 9 years or older. This approach has been taken keeping in mind the welfare of the child, such as medical treatments, religious practices and insurance claims.

Under Hindu Law:

All the personal law matrimonial statutes make provisions for dealing with the issue of child custody. Hindus have an additional Act, viz the Hindu Minority and Guardianship Act 1956 (HMGA). Apart from this, there is the Guardians and Wards Act 1890 (GWA) (secular law). The English and Indian decisions have a few statements in common which are

(i) the children of tender years should be committed to the custody of the mother

(ii) older boys should be in the custody of the father

(iii) older girls in the custody of the mother.

As to the children of tender years it is now a firmly established practice that mother should have their custody since father cannot provide that maternal affection which are essential for their proper growth.

Under Muslim Law:

The mother directly without a doubt gets the custody of the child. However, if it is proved that she is mentally or physically incapable or has any other incapability to keep the child.

How must a father get the custody ?

A divorce is as agonizing to the father just as it is to the mother. However, the reality cannot be denied that Indian courts have a soft side for women in such matters. Hence, the mother is generally awarded the custody.

For a father to obtain custody is to prove the mother is unfit. There are different guidelines in each state. Examples such as, being a drug user, or alcoholic, mental illness, being abusive to the child are certain points used in the courts. Moreover, one can also claim that the mother is not able to provide a proper home or adequate care, in that case, the court may ask the father to pay extra maintenance. In
In Jasmeet Kaur Talwar & Anr. v. Gurjit Singh Talwar , Delhi High Court 2014, the court interpreted the meaning of “reasonable expenditure” for marriage and directed the husband to re-pay an amount of Rs. 37 lakhs to the wife in lieu of the marriage expenses incurred by her family.

One more way a father can gain custody would be trying to establish temporary custody first. Before the application for custody is filed in the court, if the mother moves out of primary residence without the children, it acts as a strong point. One should note that, stability in the home is what is most often looked at, when the courts are trying to decide where the children should go.

In Aviral Mittal v. State NCT & Anr, the court directed the wife to join, with the child, custody proceedings before a court in UK. However, In Anand Raghavan v. State of Delhi & And., decided by the Delhi High Court in 2016, the husband convinced the court to repatriate a six year old child back to the UK after the mother had brought her to India following a marital dispute.

There are many such case references such as Etiappa Mudaliar V. T Subramaniam,In the absence of strong positive proof of father suffering any disqualification, he remains fit and propoer person to have the custody of the child. Maternal grandparents directed to handover the custody of the minor to the father. In Yudhistir Mohanand V. Dalimba Mohanand, a famous case judgement by the Orissa High Court, the wife filed a petition for restoration of child below 5 years of age to her, alleging she was driven away from matrimonial home and child was snatched from her. A search warrant was issued. Child was in the custody of the father for the last more than six months. Father was determined to be the natural guardian, confinement does not amount to offence and search warrant was recalled. The Supreme Court, in Vivek Singh V. Romani Singh, decided the custody matter on basis of parental alienation syndrome.In In Sharli Sunitha V. D. Balson, the Madras High Court stated that the mother is not always the right person for custody and consequently granted the custody of the minor girls to the father.

What precautions must be taken by the father?

Abuse Charges and Restraining Orders

The most common route taken by women is an abuse charge weakening the case further. If any angry, violent or ensuing arguments take place, it shall result in a restraining order which shall further restrict the father to gain custody of the child. In some cases, such fathers lose their visitation rights too. One should always be calm during such circumstances to avoid such restraining orders.

Fighting for child not fighting against the spouse

The first and initial mantra should not be to fight the opposite party but to fight for the child custody. Often such proceedings leave such men/fathers vulnerable and frustrated.

Maintaining the father child relationship

It is not only the husband and wife who are effected due to a divorce. The child becomes a major sufferer in the feud too. Fathers need to make sure their children feel that they are interested in maintaining the contact. The main issue is to keep the spirit in implementing the visitation rights, in effect to child’s mental growth. In India where fathers do not usually convey emotional requirements to their child, it is necessary for them to communicate sensibly to their child about what’s going on and how they still care for their child