Questions and answers on law Part 29

Q 1:- Under which section, appeal is maintainable under Domestic violence Act?

Ans: 29 of DV Act:- Appeal —There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later.

Q 2:- Can appellate court remand the criminal case?

Ans:- Appellate court can remand the case for retrial as per S 386 of CRPC if trial court has not properly appreciated evidence.

Q 3 :- Can accused joined under 319 of CrPC apply for discharge ?

Ans:- Thus it does not stand to reason that a person who is
summoned as an accused to stand trial and added as such to
the proceedings on the basis of a stricter standard of proof can
be allowed to be discharged from the proceedings on the basis of
a lesser standard of proof such as a prima facie connection with
the offence necessary for charging the accused.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 343 OF 2012

JOGENDRA YADAV & ORS. V STATE OF BIHAR & ANR. 

Dated;JULY 15, 2015
S. A. BOBDE, J.
Citation;2015 ALLMR(CRI)3707 SC

https://www.lawweb.in/2015/10/whether-accused-summoned-us-319-of-crpc.html

Q 4:- What will be the effect of cross appeal in case of abetment of main appeal or withdrawal of appeal ?

Ans: Even Where the appeal is withdrawn or is dismissed for default, cross-objection may nevertheless be heard and determined.

Supreme Court of India

Superintending Engineer And Ors vs B. Subba Reddy on 26 April, 1999

Bench: D.P. Wadhwa, N. Santosh Hegde

           CASE NO.:
Appeal (civil)  451-58 of 1994

Citation:AIR 1999 SC 1747

https://www.lawweb.in/2016/07/leading-judgment-on-cross-objection.html

Q 5:-  What are considerations for grant of anticipatory bail in case of Atrocities Act offences after amendment in sec 18 of the SC & ST Atrocities Act

Ans:- Concerning the applicability of provisions of section 438 Cr.PC, it

shall not apply to the cases under Act of 1989. However, if the

complaint does not make out a prima facie case for applicability of the

provisions of the Act of 1989, the bar created by section 18 and 18A (i)

shall not apply. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION [C] NO. 1015 OF 2018

PRATHVI RAJ CHAUHAN Vs UNION OF INDIA 

ARUN MISHRA, J.

Dated:February 10, 2020

https://www.lawweb.in/2020/02/supreme-court-court-can-not-grant.html

 Q 6:- Can an informant /raiding officer conduct investigation in offences under NDPS act ?

 Ans:-  Coming to his second argument viz the complainant and the Investigating Agency cannot be same, I may refer to Mukesh Singh vs State (NCT) of Delhi 2020 (10) SCC 120 wherein it was held:-

“8. The question which is referred to the larger Bench is, whether in case the investigation is conducted by the informant/police officer who himself is the complainant, the trial is vitiated and in such a situation, the accused is entitled to acquittal? xxxx

10.5. Therefore, as such, the NDPS Act does not specifically bar the informant/complainant to be an investigator and officer in charge of a police station for the 

investigation of the offences under the NDPS Act. On the contrary, it permits, as observed hereinabove. 

https://www.lawweb.in/2021/08/whether-will-trial-be-vitiated-if.html

Q 7:-  Can criminal appeal  be dismissed in absence of accused on merits ?

Ans:- The matter relates to administration of criminal justice. As held by this Court, a criminal matter cannot be dismissed for default and it must be decided on merits. Only on that ground the appeal deserves to be allowed.

5. Thus in Bani Singha and Ors. v. State of U.P. MANU/SC/0615/1996 : 1996CriLJ3491 , a three Judge Bench of this Court held that a criminal appeal should not be dismissed in default but should be decided on merits. If despite notice neither the appellant nor his counsel present, the Court could decide the appeal on merits. If the appellant is in jail the Court can appoint a lawyer at State expense to assist it. This would equally apply to the respondent.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1150 of 2007 

Decided On: 31.08.2007

 Madan Lal Kapoor  Vs.  Rajiv Thapar and Ors.

Hon'ble Judges/Coram:

C.K. Thakker and Markandey Katju, JJ.

https://www.lawweb.in/2020/11/whether-court-can-dismiss-criminal.html

Q 8:- What is limitation period for filing of execution of compromise decree of sec. 138 of N I Act  case?

Ans:- As per S 21 of legal services authorities Act, it is deemed to be decree of civil court. As per Article 136 of limitation Act, limitation for execution of this decree is twelve years when decree becomes enforceable.

Q 9:- What is the limitation period to file appeal against acquittal?

Ans:- Limitation is ninety days if order is passed under S 378(1) or (2) (old S 417) of CRPC.

Limitation is thirty days if order is passed under S 378 (3) (old S 417)  of CRPC.

Q 10:- What is the criteria to grant transit bail?

Ans:- A transit bail is a bail granted by a Court not having jurisdiction over the place where offence was committed.

The purpose of transit anticipatory bail is to grant bail to a person till the time he/she reaches the appropriate Court so that in case the police wants to effect the arrest, the person will be released on bail. However, such bail is given at the condition that the accused has to cooperate in the investigation throughout the ongoing investigative process.

Q 11:- Whether court will grant enhanced punishment of accused if he is convicted twice for similar offence?

Ans:- S 75 of IPC provides that enhanced punishment to be awarded in case of old offender.If a person has been convicted by an Indian court of any offence relating to coin and government stamps or against property punishable with imprisonment for three years or more,is again guilty of such an offence punishable with three years or more,he is subject to be punished with imprisonment for life or imprisonment for ten years.

Q 12:- Whether life convict is liable to get enhanced punishment if he commits murder?

Ans:- Central Government Act

Section 303 in The Indian Penal Code

303. Punishment for murder by life-convict.—Whoever, being under sentence of 1[imprisonment for life], commits murder, shall be punished with death.

This section is declared unconstitutional in the case of Mithu Vs state of Punjab 1983 AIR 473 SC

Q 13:- What kinds of punishment are provided in IPC

Ans: Punishments Under Section 53, IPC

The punishments to which offenders are liable under the provisions of this Code are:

1. Death.
2. Imprisonment for life.
3. Imprisonment, which is of two descriptions, namely:
   (1) Rigorous, that is, with hard labour;
   (2) Simple.
4. Forfeiture of property.
5. Fine.
6. Solitary Confinement.

As per section 53 of the Indian Penal Code, there are five types of punishments that a court may provide to a person convicted for a crime. These are death, imprisonment for life, simple and rigorous imprisonment, forfeiture of property and fine. And, section 73 provides for another type of punishment, that is solitary confinement.

Q 14:-  To whom POCSO Act is  applicable?

Ans:- Pocso Act is applicable to child below the age of eighteen years.

Q 15:-  Whether a child can be prosecuted under Pocso act?

Ans:-Yes, if he has committed an offence under the POCSO Act against child.

Q 16:-  What is S 50 of NDPS Act?

Ans:- S 50 of  NDPS Act provides conditions for personal search of accused

Q 17:- What are Presumptions under POCSO Act?

Ans:- 29 of POCSO Act:- Presumption as to certain offences.—Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.

30. Presumption of culpable mental state.—(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.

Explanation.—In this section, “culpable mental state” includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.

Q 18:-  Whether person who has acquired right to property by adverse possession can use it sword?

Ans:- We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by

the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as

a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7764 OF 2014

RAVINDER KAUR GREWAL  Vs MANJIT KAUR 

ARUN MISHRA, J.

Dated: August 07, 2019.

Read full judgment here: Click here 

Q 19:- What are  provisions for appeal against orders?

Ans:- Section 104 CPC 

(1) An appeal shall lie from the following Orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other Orders:-

1[***]

2[(ff) an Order under section 35A;]

3[(ffa) an Order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be;]

(g) an Order under section 95;

(h) an Order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;

(i) any Order made under rules from which an appeal is expressly allowed by rules;

2[Provided that not appeal shall lie against any Order specified in clause (ff) save on the ground that no Order, or an Order for the payment of a less amount, ought to have been made.]

(2) No appeal shall lie from any Order passed in appeal under this section.

Q 20:- Whether S 306 of IPC will be applicable if the person committing suicide survives?

Ans: -Presumption of severe stress in case of attempt to commit suicide.

S 115 of The Mental Healthcare Act, 2017:-

 (1) Notwithstanding anything contained in section 309 of the Indian Penal Code

any person who attempts to commit suicide shall be presumed, unless proved otherwise, to
have severe stress and shall not be tried and punished under the said Code.

(2) The appropriate Government shall have a duty to provide care, treatment and

rehabilitation to a person, having severe stress and who attempted to commit suicide, to
reduce the risk of recurrence of attempt to commit suicide.

Q 21:- What is meant by abetment of an offence?

Ans:- Central Government Act

Section 107 in The Indian Penal Code

107. Abetment of a thing.—A person abets the doing of a thing, who—

(First) — Instigates any person to do that thing; or

(Secondly) —Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

(Thirdly) — Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.—A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to dis­close, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2.—Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.

Q 22:- Whether Supreme court guidelines in Bipin Shantilal Panchal is still applicable?

Ans:- Supreme court guidelines modifying practice of recording of evidence as mandated in the case of Bipin Shantilal Panchal

Therefore, this court is of opinion that the view in Bipin Shantilal Panchal should not be considered as binding. The presiding officer therefore, should decide objections to questions, during the course of the proceeding, or failing it at the end of the deposition of the concerned witness. This will result in decluttering the record, and, what is more, also have a salutary effect of preventing

frivolous objections. In given cases, if the court is of the opinion that repeated objections have been taken, the remedy of costs, depending on the nature of obstruction, and the proclivity of the line of questioning, may be resorted to. Accordingly, the practice mandated in Bipin Shantilal Panchal shall stand modified in the above terms.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

ORIGINAL JURISDICTION

SUO MOTO WRIT (CRL) NO.(S) 1/2017

IN RE: TO ISSUE CERTAIN GUIDELINES REGARDING INADEQUACIES AND DEFICIENCIES IN CRIMINAL TRIALS  Vs THE STATE OF ANDHRA PRADESH 

Coram: S.A. BOBDE J, L. NAGESWARA RAO J, S. RAVINDRA BHAT J

Dated: April 20, 2021.

https://www.lawweb.in/2021/04/supreme-court-guidelines-modifying.html

Q 23:- Whether Judgment passed in S.R. Batra Vs. Taruna Batra is still binding precedent?

Ans:-Judgment of S R Batra is partly overruled in the case of SATISH CHANDER AHUJA Vs  SNEHA AHUJA 

The interpretation which is put by this

Court in S.R. Batra Vs. Taruna Batra (supra) if

accepted shall clearly frustrate the object and purpose

of the Act. We, thus, are of the opinion that the

interpretation of definition of shared household as put

by this Court in S.R. Batra Vs. Taruna Batra (supra) is

not correct interpretation and the said judgment does

not lay down the correct law.{Para 64}

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2483 of 2020

SATISH CHANDER AHUJA Vs  SNEHA AHUJA 

Author:: ASHOK BHUSHAN, J.

Dated: 15-10-2020

https://www.lawweb.in/2020/10/whether-wife-can-claim-right-of.html

Q 14:- What is difference between active bribery and passive bribery?

Ans:- When a person offers, promises or gives a bribe, it is called 'active bribery' and when a person requests, receives, or accepts a bribe, it is called 'passive bribery'.

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