Talha Abdul Rahman B.C.L. (Oxon.) B.A.,LL.B. (Hons.)(Nalsar) | Address: D-6, First Floor H. Nizamuddin West New Delhi 110013 Landline: +91- 11-4100-11-15 | ||
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Supreme Court of India | |||
Kailash Verma v. Punjab State Civil Supplies Corpn., (2005) 2 SCC 571 : 2005 SCC (Cri) 538 at page 574
5. It may also be noticed that this Court in Rajathi v. C. Ganesan [(1999) 6 SCC 326 : 1999 SCC (Cri) 1118] said that the power under Section 482 of the Criminal Procedure Code has to be exercised sparingly and such power shall not be utilised as a substitute for second revision. Ordinarily, when a revision has been barred under Section 397(3) of the Code, the complainant or the accused cannot be allowed to take recourse to revision before the High Court under Section 397(1) of the Criminal Procedure Code as it is prohibited under Section 397(3) thereof. However, the High Court can entertain a petition under Section 482 of the Criminal Procedure Code when there is serious miscarriage of justice and abuse of the process of the court or when mandatory provisions of law are not complied with and when the High Court feels that the inherent jurisdiction is to be exercised to correct the mistake committed by the revisional court.
State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402 : (2016) 1 SCC (Cri) 510 : 2015 SCC OnLine SC 799 at page 425
28. It will also be pertinent to mention that power of judicial superintendence under Article 227 of the Constitution and under Section 482 CrPC has to be exercised sparingly when there is patent error or gross injustice in the view taken by a subordinate court [Jasbir Singh v. State of Punjab, (2006) 8 SCC 294 : (2006) 3 SCC (Cri) 470, paras 10 to 14] . A finding to this effect has to be supported by reasons. In the present case, the High Court has allowed the prayer of the accused, even while finding no error in the view taken by the trial court, merely by saying that exercise of power was required for granting fair and proper opportunity to the accused. No reasons have been recorded in support of this observation. On the contrary, the view taken by the trial court rejecting the stand of the accused has been affirmed. Thus, the conclusion appears to be inconsistent with the reasons in the impugned order.
In the following cases the adulterer was not made a party to the case:
Sanjay Khanderao Bodake v. Ashwini Sanjay Bodake
Relevant para 4 and 5
The learned trial Judge rejected the application principally on the ground that at the time of filing H.M.P, the petitioner did not seek permission as required under Rule-5 of Bombay High Court Hindu Marriage and Divorce Rules 1955 (for short ‘Rules’). If the petitioner was not aware of the name of such person at the time of filing of the Petition etc, he should have sought permission to dispense with joinder of such person. The learned trial judge observed that in the present case, neither that person is made party nor such permission was sought. Here the petitioner did not implead him as party at the time of filing of the Petition and also no permission was sought for dispensing with the joinder of adulterer. Therefore he cannot be made a party to the case.
Ayyapan v. Vasanta, A.I.R. 1988 Kerala 314, Relevant para 3 and 4
The question that arises for consideration is as to whether the failure to implead the alleged adulterer is fatal to the petition. It has also to be considered whether he could be impleaded at a later stage. Rule 11(a) envisages that in every petition for divorce on the ground that the respondent is living in adultery or has, after the solemnisation of the marriage, had sexual intercourse with any person, the petitioner shall make such person as co-respondent. This is a mandatory Rule. Rule 11(d) reads:—
“The petitioner may, however, apply to the Court by an application supported by an affidavit for leave to dispense with the joinder of the co-respondent in cases covered by sub-rule (a) above on any of the following grounds:—
(i) that the name of such person is unknown to the petitioner although he has made due efforts for discovery.
(ii) that such person is dead.
(iii) that the respondent being the wife is leading the life of a prostitute and the petitioner knows of no person with whom she has committed adultery or has had sexual intercourse.
(iv) for any other reason that the Court may deem fit and sufficient to consider.”
Thus the position admits no doubt that in cases not covered by R. 11(d) it is incumbent upon the petitioner to implead the adulterer as co-respondent, Having not done so when the original petition was filed before the Court and having not filed a petition supported by the affidavit under R. 11(d), the petitioner cannot at a later stage implead the adulterer as co-respondent.
Gajanan s/o Prabhakar Deshpande Versus Smita Gajanan Deshpande: (2011) 5 Mah LJ 936 , Relevant para 6 and 7
Rule 5 of the Bombay High Court Special Marriage Rules, 1954 (hereinafter referred to as “the Rules of 1954”) has not been complied with in the instant case by the appellant-husband inasmuch as the alleged adulterer was not added as co-respondent nor the appellant was excused by the trial Court from doing so and, therefore, the petition was bad for non-joinder of the necessary party. In short, she prayed for dismissal of Appeal with costs.
Specific Relief Act, 1963 is an enactment in procedural law is purported to be drawn from the decisions in Adhunik Steels Ltd. v. Orissa Manganese & Minerals Pvt. Ltd (2007), Radheshyam Kamila v. Kiran Bala (1971) and Moulvi Ali Hossain Mian v. Rajkumar Halda (1943).
Amendment to procedural law (specific relief act) would not apply retrospectively. (Specific Relief Act, 1963 is an enactment in procedural law is purported to be drawn from the decisions in Adhunik Steels Ltd. v. Orissa Manganese & Minerals Pvt. Ltd (2007), Radheshyam Kamila v. Kiran Bala (1971) and Moulvi Ali Hossain Mian v. Rajkumar Halda (1943).)
Commissioner of Income Tax v. Vatika Township Private Limited (2014) – for the proposition that distinction that amendment confer benefits without imposing corresponding duties, and therefore attract the rule against retrospective operation are distinct.
Chennai Container Terminal Pvt. Ltd. v. Union of India, 2007 SCC OnLine Mad 253 : (2007) 3 Arb LR 218 : (2007) 3 Mad LJ 1 at page 228
16. To sum up the findings, though Government of India was not a signatory to the arbitration agreement, it was a party non-signatory. Therefore, not only a party to the arbitration agreement but a party non-signatory also can challenge the impugned award passed by the learned arbitrator. Further, the scheme of the Code of Civil Procedure applies to the proceedings under Section 34 of the Arbitration and Conciliation Act, 1996. Therefore, the proposition of law that an aggrieved party can challenge the judgment will have to be applied to the facts and circumstances of this case. The contextual facts and circumstances warrant expansion of the definition found under Section 2(1)(h) of the Arbitration and Conciliation Act, 1996 to include the Government of India who is a party non-signatory for the purpose of challenging the award under Section 34 of the said Act. In view of the above, sustaining the order passed by this court granting leave to Union of India to prefer the original petition challenging the award passed by the learned arbitrators, Application No. 169 of 2007 filed by Chennai Container Terminal Private Limited seeking to recall and set aside the order dated 09.01.2007 stands dismissed.
