While suspending the sentence, pending appeal, in NI Act cases, can the court waive the imposition of depositing the minimum 20% of cheque amount as stipulated U/Sec.148 NI Act?
The General Rule is to direct the appellant/accused to deposit a minimum of 20% of fine or compensation awarded by the trial court, for suspension of sentence U/Sec.389 CrPC. However, If the case is one falling under exceptional case, then the appellate court by recording reasons without directing for deposit of minimum of 20% of fine or compensation can exercise power to suspend the sentence U/Sec.389 CrPC.
Jamboo Bhandari Vs M.P.State Industrial Development Corporation Ltd & Ors – 2023 SCC OnLine SC 1144.
How the period of limitation U/Sec.468 CrPC is to be considered for taking cognizance?
For the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of complaint or the institution of prosecution and not the date of taking cognizance by a Magistrate or issuance of process by a court as held by Hon’ble Supreme Court in Sarah Mathew vs Institute of Cardio Vascular Diseases, (2014) 2 SCC 62.
How to calculate period of detention of first 15 days U/Sec.167 CrPC?
As per Rule 28 of Criminal Rules of Practice and Circular Orders, 1990, while computing the period of 15 days, the day on which the remand order was made and the date on which the accused is ordered to be produced, shall both be included.
Whether the offences under Mines and Minerals (Development & Regulation) Act, 1957 are compoundable?
The offences under mines and minerals act are compoundable as per Sec.23A of the act, and the offences can be compounded either before or after the institution of prosecution by the authorised person as prescribed U/Sec.22 of the said act.
Who are entitled for a copy of Judgment of a criminal court?
An Accused and any person affected by the judgment. The accused is entitled for a free copy of the judgment if he is sentenced to imprisonment and also in every case where judgment is appealable by the accused. However, the court can furnish a copy of judgment to the person who is affected by such judgment on application and payment of prescribed charges. But court can, by assigning special reasons, furnish copy of judgment on free of cost. (Sec.363 CrPC).
Whether a first class magistrate has power to grant police custody in NDPS cases where the substance seized is large or commercial quantity?
Yes. When the accused, involved in offences under NDPS Act relating to small or commercial quantity, is produced before the first class magistrate, the magistrate may authorise the detention of the accused in such custody for a period not exceeding 15 days and the word “such custody” includes police custody. (Sec.36A (1) (b) of NDPS Act, 1985)
Should Test Identification Parade be conducted, when during the preliminary examination of the witness, it was revealed that the witness knows the accused previously?
No. If any of the witnesses knows the accused prior to the occurrence of offence, the TIP of accused by that witness should not be conducted. Jadunath Singh & Anr Vs St of U.P – AIR 1971 SC 363.
Whether a criminal court can pronounce Judgment in the absence of accused?
The accused shall be required to attend the court to hear the judgment unless his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted. Sec.353 (6) CrPC.
Whether a CD containing material facts, filed as part of evidence, need certificate U/Sec.65B of IEA?
The party producing the CD containing material facts and wanted to rely on the said facts as part of evidence is duty bound to produce the 65B certificate from the person incharge of the computer from which the data is transferred to the CD, stating that the original source I,e the computer at the time of capturing the data was properly working and that the same is not tampered and is now transferred onto the CD.
Whether the court has power to withhold statements & documents while complying Sec.207 CrPC?
The court can withhold only those documents which are voluminous as per Sec 207 (v) of CrPC and even then has to permit the accused to inspect the same. The investigation officer U/Sec.173 (6) CrPC cannot request the court to withhold any documents and the power of investigation officer is limited in seeking to withholding of statements alone u/Sec.173 (6) CrPC and the court is duty bound to furnish the withheld statements to the accused at appropriate time during the trial.
Whether bail under 167 CrPC is available to the accused, on the ground that though chargesheet is filed the cognizance is not taken within 60 or 90 days?
No. The bail under Sec.167 CrPC would come into play only when the investigation is not completed within the time prescribed for that offence and the jurisdiction U/Sec.167 CrPC is no way connected to taking cognizance by the court.
Can a copy of bail order granted by Honble high court, downloaded from the website of Honble High Court, be acted upon for accepting sureties?
Yes. The Honble High court in V.Bharath Kumar Vs State of Telangana, through PS Tukaramgate – Crl Petition No.8108 of 2021 decided on 15-11-2021, has framed guidelines and directed the district courts that as and when the counsels file copy of bail order downloaded from the high court website along with a memo for furnishing sureties, the administrative officer of the concerned court should verify the order from the High Courts website and make an endorsement and place before the court and the presiding officer shall on the same day should act upon it and dispatch the release order to the concerned jail authorities through e-mail or any other electronic mode.
Can an accused, in a case U/Sec.138 NI Act, file chief affidavit?
No. Sec.145 (1) of Negotiable Instruments Act, 1881 deals with the right of the complainant to give evidence on affidavit and such right is not provided to the accused in the act. The Honble SC in Mandvi Cooperative Bank Limited Vs Nimesh B Thakore – (2010) 3 SCC 83, held that “the court cannot add the word “accused” in S.145 (1) of NI Act, 1881.” Hence the accused cannot be extended the benefit of filing chief affidavit in lieu of his chief examination
On whom does the burden to prove the claim of juvenility lie?
The initial Burden lies on the person raising the claim of juvenility, and he has to satisfy the court to discharge the initial burden.
Whether age declared by CWC or JJ Board by following procedure under JJ Act can be considered as true age?
The Age recorded by CWC or JJ Board for the purpose of JJ Act be deemed to be true age of that person. (Sec.94 and 9 of JJ Act)
Can the power of granting bail under Sec.167 CrPC be exercised by the district judiciary, while dealing a petition U/Sec.437 or 439 CrPC?
No. While deciding the bail application u/sec.437 or 439 CrPC, the consideration should only be on merits of the case and the fact that the chargesheet is not filed within the time stipulated for that offence and granting bail u/sec.167 CrPC is not proper.
Whether a divorce petition under Hindu Marriage Act, 1955 can be filed before the lapse of one year from the date of marriage?
Sec.14 of the Act bars the parties from filing divorce petition before the lapse of one year from the date of marriage. However, the proviso enables the parties to move an application seeking the leave of the court on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of respondent.
Can holder of a GPA of either a petitioner or a respondent be a witness in a divorce petition?
Any person can be a competent witness to depose subject to qualifications provided U/Sec.118 of Indian Evidence Act,1872. However, the GPA holder is confined to depose the facts which are in his knowledge. His evidence cannot substitute the evidence of his/her principal for the facts which are in the exclusive knowledge of such principal.
Is there any timeline prescribed for completion of investigation and filing of Charge Sheet under SC & ST (POA)Act, 1989?
The Charge sheet shall be filed in the special court within a period of 60 days and the period is inclusive of investigation and filing of chargesheet. (Rule 7 (2) of SC & ST (POA) Rules, 1995.) If there is any delay, it shall be explained in writing by the investigating officer. (Rule 7 (2A) SC & ST (POA) Rules, 1995).
Whether suit can be posted sine-die after passing of preliminary decree in suits for partition?
After Preliminary Decree is passed, the court cannot postpone the suit sine-die for passing of final decree. The matter has to be posted to a specific date for initiating steps towards passing of final decree. - Kattukandi Edathil Krishnan and Another Vs Kattukandi Edathil Valsan and Ors – 2022 SCC Online SC 737.
Whether magistrate has the power to pass reception order under Mental Health Care Act, 2017?
The magistrate under the Mental Health Care Act, 2017 has no power to pass any reception order. However, Under Sec.102 of said act, the magistrate shall convey the person suffering from Mental Illness to Mental health establishment for assessment and treatment. For this purpose the magistrate may authorise the admission of the mentally ill person for not exeeding 10 days to enable the medical officer to carry out assessment and to plan for treatment.
What is the procedure to be followed, when a question arises before a competent court as to mental illness of a person?
The Mental Illness of a person when challenged during judicial proceedings, the court has to refer the Person to the board constituted Under Sec.73 of the act for its further scrutiny and for opinion to the court. (Sec.105 of Mental Health Care Act, 2017).
Whether the Provincial Insolvency Act, 1920 has been repealed by the Insolvency and Bankruptcy Code, 2016?
No. Sec.243 (1) of the Insolvency and Bankruptcy Code, 2016 has not been notified till date. Hence the Provincial Insolvency Act, 1920 and the Presidency Towns Insolvency Act, 1909 have not been repealed and both enactments still remain in force. - Lalit Kumar Jain Vs UOI – (2021) 9 SCC 321.
Whether co-parcenars can be adjudicated as insolvents?
No. Co-parcenars cannot be adjudicated as insolvents unless they are personally liable for debts. Krishna Aiyyar & Ors Vs Pierce Laslia & Co – AIR 1936 Mad 64.
Whether recording of detailed reasons required for issuance of process U/sec.204 CrPC?
It is not necessary to record detailed reasons, however there should be adequate evidence on record to proceed U/Sec.204 CrPC. - Deepak Gabba Vs State of UP – (2023) 3 SCC 423.
Whether a cryptic phone call can be treated as FIR?
A cryptic phone call without complete information about commission of cognizable offence cannot always be treated as an FIR. - Netaji Achuth Shinde Vs State of Maharashtra – (2021) 14 SCC 222.
Whether failure to send report of arrest and seizure to superior official U/Sec.57 of NDPS Act, 1985, within the time prescribed would vitiate the proceedings?
No. When substantial compliance has been made, it would not vitiate the entire proceedings merely on the ground of not sending the report within the period enumerate U/Sec.57 of NDPS Act. - Gurmal Chand Vs State of Punjab – (2021) 14 SCC 334.
Whether an FIR can be registered and chargesheet can be filed against Juvenile Offenders?
Rule 8 of The Juvenile Justice (Care and Protection of Children) model rules 2016 envisages that no FIR shall be registered except where a heinous offence is alleged to have been committed by the child or alleged to have been committed jointly with adults. In case of other matters, special juvenile police unit or child welfare police officers shall record the information regarding the offence in the general diary followed by a social background report of the child in Form-1. The FIR and chargesheet in respect ofJuvenile offenders is filed onlyin serious cases where punishment exceeds seven years. The enquiry to be conducted in any such case should be child friendly one but not an adversarial one. (Dr.Subramanian Swamy and others Vs Raju through JJ board and another – (2014) 8 SCC 390.
Whether the court is under obligation to furnish the contents of memory card/pen drive to the accused in terms of section 207` CrPC?
The documents including electronic record produced for the inspection of the court along with police report with a purpose to use against accused must be furnished to the accused. The contents of the memory card/pen drive must be furnished to the accused in the form of a cloned copy of such memory card/pen drive.
Whether court can refuse to furnish copies to accused if the same infringes the privacy of victim?
The accused tried for a serious offence should be furnished with all material in advance. However, furnishing of such material if affects privacy of victim/witness or disclose the identity of such victim/witness, then court can refuse to furnish such material. But the court can allow the accused or his counsel to inspect the contents of the memory card/Pen drive.
How memory card/pen drive can be marked in evidence?
If the contents of the memory card/Pen drive are sought to be relied upon, the same would be admitted/marked as documentary evidence. In case to rely on the fact of recovery of a memory card/pen drive, then it could be treated as a material object. - P.Gopalakrishna @ Dileep Vs. State of Kerala & Another – (2020) 9 SCC 161.
Whether arrest of an accused is essential in every cognizable offence?
Section 41 CrPC authorises a police officer to arrest an accused. The section has given a discretionary power to the police officer to affect the arrest without warrant in a cognizable offence. However, a police officer is not bound to arrest an accused in every case even if he has committed a cognizable offence. The police officer must have sufficient material for making an arrest when the offence is punishable with imprisonment extended upto 7 years and he must satisfy the court that there are reasonable grounds for suspicion.
“...no arrest should be made only because the offence is non-bailable and cognizable and there lawful for the police officers to do so.” - Arnesh Kumar Vs State of Bihar and Another – (2014) 8 SCC 273.
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