Custody in Habeas Corpus

Veena Kapoor v. Varinder Kumar Kapoor, (1981) 3 SCC 92 : 1981 SCC (Cri) 650 at page 93

3. It is difficult for us in this habeas corpus petition to take evidence without which the question as to what is in the interest of the child cannot satisfactorily be determined. We, therefore, direct that the learned District Judge, Chandigarh, will make a report to us before the 23rd of this month on the question as to whether the custody of the child should be handed over to the petitioner-mother, taking into consideration the interest of the minor. The learned Judge will give liberty to the parties to adduce evidence on the question in issue. The learned District Judge may either take up the matter himself or assign it to an Additional District Judge, if there is any at Chandigarh.

Equality of Arms - Bombay HC

2006 SCC OnLine Bom 1155 : (2007) 2 Mah LJ 79 : (2007) 113 FLR 234 (Bom) : (2007) 3 Bom CR 212 : (2007) 1 CLR 580

Post Settlement - Guidelines for Quashing 482 CrPC

Parbatbhai Aahir v. State of Gujarat, 2017 SCC OnLine SC 1189, decided on 04.10.2017

 

http://www.scconline.com/DocumentLink/qZe7uF78

 

he Court summarised the elaborate principles laid down by the Supreme Court in various cases. Below is the summary of the principles:

• The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. Also, the power to quash under Section 482 is attracted even if the offence is non-compoundable.
• In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences.
• As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned.
• Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice.
• Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.

 

156(3) without FIR

Question No. (i)

MANU/MH/1459/2009” Mr. Panchabhai Popotbhai Butani,  vs. The State of Maharashtra through Senior Inspector,  (10.12.2009 - BOMHC) : MANU/MH/1459/2009

 

Whether in absence of a complaint to the police, a complaint can be made directly before a Magistrate ?

 

Answer

 

Normally a person should invoke the provisions of Section 154 of the Code before he takes recourse to the power of the Magistrate competent to take cognizance under Section 190 of the Code, under Section 156(3). At least an intimation to the police of commission of a cognizable offence under Section 154(1) would be a condition precedent for invocation of powers of the Magistrate under Section 156(3) of the Code. We would hasten to add here that this dictum of law is not free from exception. There can be cases where noncompliance to the provisions of Section 154(3) would not divest the Magistrate of his jurisdiction in terms of Section 156(3). There could be cases where the police fail to act instantly and the facts of the case show that there is possibility of the evidence of commission of the offence being destroyed and/or tampered with or an applicant could approach the Magistrate under Section 156(3) of the Code directly by way of an exception as the Legislature has vested wide discretion in the Magistrate.

 

Question No. (ii)

 

Whether without filing a complaint within the meaning of Section 2(d) and praying only for an action under Section 156(3), a complaint before a Magistrate was maintainable ?

 

Answer

 

A Petition under Section 156(3) cannot be strictly construed as a complaint in terms of Section 2(d) of the Code and absence of a specific or improperly worded prayer or lack of complete and definite details would not prove fatal to a petition under Section 156(3), in so far as it states facts constituting ingredients of a cognizable offence. Such petition would be maintainable before the Magistrate.

 

Mr. Panchabhai Popotbhai Butani,  vs. The State of Maharashtra through Senior Inspector,  (10.12.2009 - BOMHC) : MANU/MH/1459/2009

Party seeking to comply with the judgment and taking time from court cannot later challenge it

Union of India v. Puja Dubey 2011 SCC OnLine Del 4879

 

7. We are of the view that a party to a lis if has represented to the Court that it intends to comply with the judgment and on such representation seeks extension of time prescribed for such compliance, and thereby acquiesces to the judgment, ought not to be permitted to subsequently challenge the said judgment without setting out as to why instead of complying, a decision for challenging the judgment has been taken. This is more so when such party to the litigation is the Government. It was so held by the Division Bench of this Court in Secretary, Govt. of India v. Sanjay Kumar MANU/DE/7428/2007 as also by the Division Bench of the Calcutta High Court in UOI v. R. Velumurugan (2009) 3 CHN 170. An attempt to brush the dust under the carpet cannot be ruled out.

Failure to frame points of determination is not fatal in First Appeal

2017 (2) SCC 415
Sent from Phone

Supreme Court: Enlargement of Notice

Yomeshbhai Pranshankar Bhatt v. State of Gujarat, (2011) 6 SCC 312 : (2011) 2 SCC (Cri) 944 at page 317

11. In view of this position under the Rules and having regard to the constitutional provision under Article 142, we do not think that this Court at the time of final hearing is precluded from considering the controversy in its entire perspective and in doing so, this Court is not inhibited by any observation in an order made at the time of issuing the notice.