LMASLFD.
Saturday, December 25, 2021
Criminal complaints cannot be quashed only on ground that the allegations made therein appear to be of civil nature- Karnataka High Court.
Criminal Procedure Code, 1973 Section 482 Case registered against petitioners for offence punishable under Sections 120B, 406, 415, 418 and 420 read with Section 34 of Indian Penal Code Prayer for quashing of FIR - Complaint is %3D specific that with dishonest intention, the MSA was entered into between the parties Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of civil nature If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted - There was MSA between the parties and also an agreement between the parties - No doubt, there is a clause to withhold the amount- Questionarose whether there was dishonest intention at the inception of the entering into question has to be probed by the IO contract - Said if the complaint prima facie discloses the cognizable offence and hence, once the cognizable offence is found in the allegations made in the complaint, the IO has to be probe the matter as established under law - Present petition accordingly dismissed
Wednesday, December 22, 2021
Mutual divorce - Parties lived together only for three days, after which they have Mutual divorce - Parties lived together only for three days, after which they have separated on account of irreconcilable differences Decree of mutual divorce by waiving separated on account of irreconcilable differences Decree of mutual divorce by waiving statutory waiting period of six months- Supreme Court
JUDGMENT Indira Banerjee, J. Indira Banerjee, J. - Leave granted. 2. This appeal is against a judgment and order dated 17th November 2021 passed by the High Court of Punjab and Haryana dismissing the Civil Revisional Application being CRA No. 2537/2021(O&M) filed by the Appellant against an order dated 12th October 2021 passed by the Family Court, Hissar, refusing the prayer of the Appellant and the Respondent, to waive the requirement under section 13B(2) of the Hindu Marriage Act, 1955 to make the motion for a decree of divorce after at least six months from the date of filing the petition for divorce by mutual consent under Section 13B(1) of the said Act. 3. The Appellant and the Respondent, both of whom are educated and well placed in life (the Appellant being an IPS officer and the Respondent an IFS officer), were married according to Hindu rites on 10th September 2020. Admittedly, on account of irreconciliable differences, the Appellant and Respondent separated on 13th September 2020, that is, precisely three days after marriage. 4. On or about 30th September 2021, after over one year of separation, the Appellant and the Respondent filed a petition in the Family Court under section 13B of the Hindu Marriage Act for a decree of divorce by mutual consent. section 13B of the Hindu Marriage Act reads as under:Â "13B Divorce by mutual consent. 13B Divorce by mutual consent. (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in subÂsection (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree." 5. In terms of section 13B(1) of the Hindu Marriage Act, the parties to a marriage might file a petition for dissolution of marriage, by decree of divorce by mutual consent, on the ground that that they have been living separately for a period of one year or more, and that they have not been able to live together and have mutually agreed that the marriage should be dissolved. 6. SubÂsection (2) of section 13B of the Hindu Marriage Act provides that the Court shall pass a decree of divorce, declaring the marriage to be dissolved with effect from the date of the decree, on the motion of both the parties, made not earlier than six months after the date of presentation of the petition referred to in subÂsection (1) of Section 13B, but not later than 18 months after the said date, after making necessary enquiries, if the petition is not withdrawn in the meantime. 7. Section 14 provides that notwithstanding anything contained elsewhere in the Hindu Marriage Act, it shall not be competent to the Court to entertain any petition for dissolution of a marriage by a decree of divorce, unless on the date of presentation of the petition, one year has elapsed since the date of marriage.
8. In terms of the proviso to Section 14, the Court may, on application made to it, in accordance with such rules as may be made by the High Court, allow a petition to be presented before one year has elapsed since the date of marriage, on the ground that the case is one of exceptional hardship to the Appellant or of exceptional depravity on the part of the respondent. In this case, the petition under Section 13B was filed after one year had elapsed from the date of marriage 9. On or about 12th October 2021, the Appellant and the Respondent moved an application before the Family Court, seeking waiver of the sixÂmonth waiting period under section 13B(2) of the Hindu Marriage Act, to make the motion for the Court to pass a decree of divorce. 10. By the order dated 12th October 2021, impugned before the High Court, the Family Court dismissed the application as devoid of merits and not maintainable. The case file was directed to be put up on 4th April 2022 for the purpose of recording statement on 2nd motion of the parties. The Family Court held: "As per the guidelines laid down by the Hon'ble Supreme Court in case titled Amardeep Singh Amardeep Singh v. Harveen Kaur, 2017(4) RCR (Civil) 608 v. Harveen Kaur, 2017(4) RCR (Civil) 608 the case of the petitioners does not fall within the parameters fixed to waive off the stipulated period of six months as mentioned under section 13B(2) of the Hindu Marriage Act. In the above mentioned case it has been clearly laid down that where the Court dealing with the matter is satisfied that a case is made out to waive the statutory period under section 13B(2) of the Hindu Marriage Act, it can do so after considering the following: 1) The statutory period of six months specified in Section 13B(20 in addition to the statutory period of one year under Section 13B of separation of parties is already over before the first motion itself. 2) 3) . . 4) . 6. In the present case, the statement of first motion was recorded on 30.09.2021 and the parties are residing separately since 13.09.2020. Meaning thereby on the date of recording the statement of first motion, the period of separation of 18 months was not complete. The present case is not covered by the guidelines laid down by the Hon'ble Supreme Court in para no.19 of the judgment. In such circumstances, this Court cannot grant permission for waiving off the stipulated period of six months under section 13B(2) of the Hindu Marriage Act. The application is accordingly dismissed being devoid of merits and not maintainable. Now the file be put upon 04.04.2022 for the purpose already fixed i.e., for recording statement of second motion of the parties." 11. The Appellant filed a Civil Revisional Application under Article 227 of the Constitution of India, being CR 2527 2021 (O&M) in the High Court, challenging the aforesaid order dated 12th October 2021 passed by the Family Court. 12. The said Civil Revisional Application has been dismissed by the High Court, by the judgment and order impugned in this appeal. The High Court, inter alia, held: "5. The judgment in Amardeep Singh (supra) is unambiguous. It lays down that the object of Section 13ÂB of the Act is to enable parties to dissolve a marriage by consent if it has broken down irretrievably. This would enable them to explore other options and to move on in life. A period of six months has been provided in Section 13B(2) of the Act to safeguard against a hurried decision. However, if a Court comes to the conclusion that there is no chance of a reunion, it should not be powerless to waive the statutory period of six months so that the parties may not be subjected to further agony. Thus, it has been held that six months statutory period prescribed is directory in nature. However, the power has been made subject to certain conditions which are reproduced below: i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself; ii) ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts; iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties; iv) the waiting period will only prolong their agony. 5. A perusal of the aforementioned conditions shows that all of them are fulfilled except the condition of a period of 1 ½ years having elapsed before the first motion. Thus, the Family Court had no option but to dismiss the application filed for waiving the period of six months. In this view of the matter no error has been committed by it warranting any interference by this Court. The judgments in Jobanpreet Kaur (supra); Nav Raj Bhatta (supra) and Priyanka Chauhan (supra) cannot be relied upon even though in the said cases a period of 1 ½ years had not elapsed before the first motion for the reason that none of them have considered the issue of waiver being subject to period of 1 ½ years having elapsed before first motion. 6. In view of the above, the revision petition has no merit and is dismissed." 13. section 13B(1) of the Hindu Marriage Act read with Section 13B(2) envisages a total waiting period of 1 ½ years from the date of separation to move the motion for a decree of divorce. The High Court correctly found that Section 13B (2) is directory, but rejected the Criminal Revisional Application with the observation that the Family Court had no option but to dismiss the application for waiving the waiting period of six months, since the condition of waiting for 1½ years from the date of separation for moving the motion for passing of a decree of divorce had not been fulfilled. 14. The provisions of the Hindu Marriage Act evince an inherent respect for the institution of marriage, which contemplates the sacramental union of a man and a woman for life. However, there may be circumstances in which it may not reasonably be possible for the parties to the marriage to live together as husband and wife. 15. The Hindu Marriage Act, therefore has provisions for annulment of marriage in specified circumstances, which apply to marriages which are not valid in the eye of law and provisions of judicial separation and dissolution of marriage by decree of divorce on grounds provided in Section 13(1) of the said Act, which apply to cases where it is not reasonably possible for the parties to a marriage to live together as husband and wife. 16. Section 13B incorporated in the Hindu Marriage Act with effect from 27.5.1976, which provides for divorce by mutual consent, is not intended to weaken the institution of marriage. Section 13B puts an end to collusive divorce proceedings between spouses, often undefended, but time consuming by reason of a rigmarole of procedures. Section 13B also enables the parties to a marriage to avoid and/or shorten unnecessary acrimonious litigation, where the marriage may have irretrievably broken down and both the spouses may have mutually decided to part. But for Section 13B, the defendant spouse would often be constrained to defend the litigation, not to save the marriage, but only to refute prejudicial allegations, which if accepted by Court, might adversely affect the defendant spouse. 17. Legislature has, in its wisdom, enacted section 13B (2) of the Hindu Marriage Act to provide for a cooling period of six months from the date of filing of the divorce petition under Section 13B (1), in case the parties should change their mind and resolve their differences. After six months if the parties still wish to go ahead with the divorce, and make a motion, the Court has to grant a decree of divorce declaring the marriage dissolved with effect from the date of the decree, after making such enquiries as it considers fit. 18. The object of Section 13B(2) read with Section 14 is to save the institution of marriage, by preventing hasty dissolution of marriage. It is often said that "time is the best healer". With passage of time, tempers cool down and anger dissipates. The waiting period gives the spouses time to forgive and forget. If the spouses have children, they may, after some time, think of the consequences of divorce on their children, and reconsider their decision to separate. Even otherwise, the cooling period gives the couple time to ponder and reflect and take a considered decision as to whether they should really put an end to the marriage for all time to come. 19. Where there is a chance of reconciliation, however slight, the cooling period of six months from the date of filing of the divorce petition should be enforced. However, if there is no possibility of reconciliation, it would be meaningless to prolong the agony of the parties to the marriage. Thus, if the marriage has broken down irretrievably, the spouses have been living apart for a long time, but not been able to reconcile their differences and have mutually decided to part, it is better to end the marriage, to enable both the spouses to move on with the life. 20. In Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746 Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, relied upon by the Family Court and the High Court, this Court held: "19. Applying the above to the present situation, we are of the view that where the court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13ÂB (2), it can do so after considering the following: (i) The statutory period of six months specified in Section 13ÂB(2), in addition to the statutory period of one year under Section 13ÂB(1) of separation of parties is already over before the first motion itself; (ii) All efforts for mediation/conciliation including efforts in terms of Order 32ÂA Rule 3 CPC/Section 23(2) of the Act/section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts; (iii) The parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties; (iv) The waiting period will only prolong their agony. The waiver application can be filed one week after the first motion giving reasons for the
prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the court concerned. 20. Since we are of the view that the period mentioned in Section 13ÂB(2) is not mandatory but directory, it will be open to the court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation." 21. The factors mentioned in Amardeep Singh v. Harveen Kaur Amardeep Singh v. Harveen Kaur (supra), in Paragraph 19 are illustrative and not exhaustive. These are factors which the Court is obliged to take note of. If all the four conditions mentioned above are fulfilled, the Court would necessarily have to exercise its discretion to waive the statutory waiting period under Section 13B (2) of the Marriage Act. 22. The Family Court, as well as the High Court, have misconstrued the judgment of this Court in Amardeep Singh v. Harveen Kaur Amardeep Singh v. Harveen Kaur (supra) and proceeded on the basis that this Court has held that the conditions specified in paragraph 19 of the said judgment, quoted hereinabove, are mandatory and that the statutory waiting period of six months under Section 13B (2) can only be waived if all the aforesaid conditions are fulfilled, including, in particular, the condition of separation of at least one and half year before making the motion for decree of divorce. 23. It is well settled that a judgment is a precedent for the issue of law that is raised and decided. A judgment is not to be read in the manner of a statute and construed with pedantic rigidity. In Amardeep Singh v. Harveen Kaur Amardeep Singh v. Harveen Kaur (supra), this Court held that the statutory waiting period of at least six months mentioned in section 13B (2) of the Hindu Marriage Act was not mandatory but directory and that it would be open to the Court to exercise its discretion to waive the requirement of Section 13B(2), having regard to the facts and circumstances of the case, if there was no possibility of reconciliation between the spouses, and the waiting period would serve no purpose except to prolong their agony. 24. In Devinder Singh Narula v. Meenakshi Nangia, (2012) 8 SCC 580 Devinder Singh Narula v. Meenakshi Nangia, (2012) 8 SCC 580, this Court observed:Â "8. We have carefully considered the submissions made on behalf of the parties and have also considered our decision in Anil Kumar Jain case [Anil Kumar Jain v. Maya Jain, (2009) 10 Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415 : (2009) 4 SCC (Civ) 226 SCC 415 : (2009) 4 SCC (Civ) 226]. It is no doubt true that the legislature had in its wisdom stipulated a cooling off period of six months from the date of filing of a petition for mutual divorce till such divorce is actually granted, with the intention that it would save the institution of marriage. It is also true that the intention of the legislature cannot be faulted with, but there may be occasions when in order to do complete justice to the parties it becomes necessary for this Court to invoke its powers under Article 142 in an irreconcilable situation. In fact, in Kiran v. Sharad Dutt Kiran v. Sharad Dutt [Kiran v. Sharad Dutt, (2000) 10 SCC 243 Kiran v. Sharad Dutt, (2000) 10 SCC 243] , which was considered in Anil Kumar Jain case [Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415 : Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415 : (2009) 4 SCC (Civ) 226 (2009) 4 SCC (Civ) 226], after living separately for many years and 11 years after initiating the proceedings under section 13 of the Hindu Marriage Act, the parties filed a joint application before this Court for leave to amend the divorce petition and to convert the same into a proceeding under Section 13ÂB of the Act. Treating the petition as one under Section 13ÂB of the aforesaid Act, this Court by invoking its powers under Article 142 of the Constitution granted a decree of mutual divorce at the stage of the SLP itself. In different cases, in different situations, this Court had invoked its powers under Article 142 of the Constitution in order to do complete justice between the parties."
25. In Soni Kumari v. Deepak Kumar, (2016) 16 SCC 346 Soni Kumari v. Deepak Kumar, (2016) 16 SCC 346, this Court exercised its power under Article 142 of the Constitution of India to waive the statutory waiting period of six months, where the wife had received the entire compensation of Rs.15 lacs in full and final settlement of her claims as per the settlement arrived at between the parties, and further granted a decree of divorce to the parties by mutual consent. 26. In Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415 Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415, this Court held:Â "29. In the ultimate analysis the aforesaid discussion throws up two propositions. The first proposition is that although irretrievable breakdown of marriage is not one of the grounds indicated whether under Section 13 or 13ÂB of the Hindu Marriage Act, 1955 for grant of divorce, the said doctrine can be applied to a proceeding under either of the said two provisions only where the proceedings are before the Supreme Court. In exercise of its extraordinary powers under Article 142 of the Constitution the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in Section 13ÂB of the aforesaid Act." 27. For exercise of the discretion to waive the statutory waiting period of six months for moving the motion for divorce under section 13B (2) of the Hindu Marriage Act, the Court would consider the following amongst other factors: Â (i) the length of time for which the parties had been married; (ii) how long the parties had stayed together as husband and wife; (iii) the length of time the parties had been staying apart; (iv) the length of time for which the litigation had been pending; (v) whether there were any other proceedings between the parties; (vi) whether there was any possibility of reconciliation; (vii) whether there were any children born out of the wedlock; (viii) whether the parties had freely, of their own accord, without any coercion or pressure, arrived at a genuine settlement which took care of alimony, if any, maintenance and custody of children, etc. 28. In this Case, as observed above, the parties are both well-educated and highly placed government officers. They have been married for about 15 months. The marriage was a nonÂstarter. Admittedly, the parties lived together only for three days, after which they have separated on account of irreconcilable differences. The parties have lived apart for the entire period of their marriage except three days. It is jointly stated by the parties that efforts at reconciliation have failed. The parties are unwilling to live together as husband and wife. Even after over 14 months of separation, the parties still want to go ahead with the divorce. No useful purpose would be served by making the parties wait, except to prolong their agony. 29. The appeal is, therefore, allowed. The impugned order dated 17th November, 2021 passed by the High Court and the impugned order dated 12th October, 2021 passed by the Family Court, Hissar are set aside. 30. In the facts and circumstances of this case, this Court deems it appropriate to exercise its power
under Article 142 of the Constitution of India, to grant the Appellant and the Respondent a decree of divorce by mutual consent under section 13B of the Hindu Marriage Act, 1955, waiving the statutory waiting period of six months under Section 13(B) (2) of the said Act. 31. There will accordingly be a decree of divorce by mutual consent under section 13B of the Hindu Marriage Act, 1955 dissolving the marriage of the Appellant and the Respondent. 32. Pending Applications, if any, stand disposed of.
LMASLFD1926592
Judgement date 11.12.2021
Monday, December 20, 2021
Sunday, December 12, 2021
बलात्कार की पीड़िता को डीएनए टेस्ट कराने के लिए मजबूर नहीं किया जा सकता': POCSO मामले में इलाहाबाद हाईकोर्ट ने कहा
इलाहाबाद हाईकोर्ट ने हाल ही में कहा कि बलात्कार की पीड़िता को उसके बच्चे के पितृत्व का निर्धारण करने के लिए डीएनए टेस्ट करवाने के लिए मजबूर नहीं किया जा सकता।अदालत अतिरिक्त सत्र न्यायाधीश, सुल्तानपुर के 25 जून, 2021 के आदेश को चुनौती देने वाली एक पुनरीक्षण याचिका पर सुनवाई कर रही थी, जिसमें इस तरह के डीएनए टेस्ट की अनुमति दी गई थी। न्यायमूर्ति संगीता चंद्रा ने निराशा व्यक्त करते हुए कहा कि संबंधित अतिरिक्त सत्र न्यायाधीश ने 'अपनी एनर्जी या ऊर्जा को गलत दिशा में निर्देशित' किया है क्योंकि उनके समक्ष विचाराधीन प्रश्न यह नहीं था कि क्या पीड़िता को पैदा हुआ बच्चा आरोपी (विपरीत पक्ष नंबर 2 ) का बच्चा है या नहीं बल्कि सवाल यह है कि क्या बलात्कार का अपराध आरोपी ने किया था?
अदालत ने कहा कि, ''यह स्पष्ट है कि अतिरिक्त सत्र न्यायाधीश ने अपनी एनर्जी को गलत दिशा में निर्देशित किया है। न्यायालय के समक्ष प्रश्न यह नहीं था कि क्या पीड़िता को पैदा हुआ बच्चा विपरीत पक्ष नंबर 2 का बच्चा है या नहीं? बच्चे के पितृत्व को निर्धारित करने के संबंध में कोई प्रश्न नहीं था। इस मामले में शामिल सवाल यह है कि क्या विपरीत पक्ष नंबर 2 ने पीड़िता से बलात्कार किया था? पीड़िता के पास अपने बच्चे का डीएनए परीक्षण करवाने का कोई कारण नहीं था।''
आगे यह भी कहा गया कि कथित घटना के इतने लंबे समय के बाद बलात्कार की पीड़िता को डीएनए परीक्षण के लिए मजबूर नहीं किया जा सकता है। पृष्ठभूमि इस मामले में अतिरिक्त सत्र न्यायाधीश सुल्तानपुर के 25 जून 2021 के आदेश के खिलाफ पीड़िता की मां ने पुनरीक्षण(रिवीजन) याचिका दायर की थी। 14 वर्षीय पीड़ित लड़की के साथ सात महीने पहले कथित तौर पर बलात्कार किया गया था, जिसके परिणामस्वरूप वह गर्भवती हो गई। जिसके बाद थाना कोतवाली देहात, जिला सुल्तानपुर में भारतीय दंड संहिता की धारा 376, 504, 506 और यौन अपराधों से बच्चों का संरक्षण अधिनियम, 2012, (पॉक्सो) अधिनियम की धारा 3/4 के तहत मामला दर्ज किया गया था।
बेटी के गर्भवती होने की खबर मिलने पर पीड़िता की मां ने आरोपी से उसकी शादी कराने की कोशिश की थी लेकिन आरोपी के पिता ने इस तरह के प्रस्ताव से इनकार कर दिया। इसके अलावा, मुकदमे की सुनवाई के दौरान, आरोपी को किशोर घोषित कर दिया गया था, जिसके परिणामस्वरूप मामला ट्रायल कोर्ट से किशोर न्याय बोर्ड, सुल्तानपुर में स्थानांतरित कर दिया गया। नतीजतन, आरोपी ने किशोर न्याय बोर्ड के समक्ष पीड़िता का डीएनए परीक्षण कराने के लिए एक आवेदन दिया। 25 मार्च, 2021 को किशोर न्याय बोर्ड ने पूरे तथ्यों और परिस्थितियों और रिकॉर्ड पर उपलब्ध सबूतों पर विचार करने के बाद डीएनए टेस्ट करवाने की मांग वाले आवेदन को खारिज कर दिया।
किशोर न्याय बोर्ड ने अपने आदेश में कहा था कि पीड़िता की जांच के लिए इस तरह का आवेदन केवल उसी चरण में दायर किया जा सकता है जब सीआरपीसी की धारा 313 के तहत बचाव पक्ष के गवाहों के बयान दर्ज किए जा रहे हों। बोर्ड ने आगे यह भी कहा था कि पीड़ित बच्चे को डीएनए टेस्ट के लिए भेजने से मुकदमे में और देरी होगी, जबकि क़ानून के प्रावधानों के तहत मुकदमे की सुनवाई को जल्दी से समाप्त किया जाना चाहिए। इसके बाद, किशोर न्याय बोर्ड के आदेश के खिलाफ, आरोपी ने अतिरिक्त सत्र न्यायाधीश, सुल्तानपुर के समक्ष एक आपराधिक अपील दायर की, जिसने 25 जून, 2021 के आदेश के तहत डीएनए परीक्षण करवाने की मांग वाले आवेदन को अनुमति दे दी। कोर्ट का निष्कर्ष न्यायालय ने पाया कि अतिरिक्त सत्र न्यायाधीश, सुल्तानपुर ने आक्षेपित आदेश पारित करते हुए भारत के संविधान के अनुच्छेद 14--21 के प्रावधानों की अनदेखी की है। आगे यह भी कहा कि पीड़िता का डीएनए टेस्ट करवाने की अनुमति देने का कोई कारण नहीं था क्योंकि विचाराधीन मुद्दा यह है कि क्या बलात्कार का अपराध किया गया था और न कि क्या आरोपी बच्चे का पिता है? पुनरीक्षण याचिका की अनुमति देते हुए कोर्ट ने कहा, ''25.06.2021 के आदेश को खारिज किया जाता है और किशोर बोर्ड के दिनांक 25.03.2021 के आदेश की पुष्टि इस संशोधन के अधीन की जाती है कि सीआरपीसी की धारा 313 के तहत इस तरह के आवेदन के संबंध में बोर्ड के अवलोकन ( कि उसके गुणदोष के आधार पर विचार किया जाएगा) को भी संशोधनवादी (रिविजनिस्ट)के खिलाफ इस तरह नहीं पढ़ा जाएगा कि कथित घटना के इतने लंबे समय के बाद बलात्कार की पीड़िता को डीएनए परीक्षण के लिए मजबूर किया जा सकता है।''
आगे यह भी कहा गया कि कथित घटना के इतने लंबे समय के बाद बलात्कार की पीड़िता को डीएनए परीक्षण के लिए मजबूर नहीं किया जा सकता है। पृष्ठभूमि इस मामले में अतिरिक्त सत्र न्यायाधीश सुल्तानपुर के 25 जून 2021 के आदेश के खिलाफ पीड़िता की मां ने पुनरीक्षण(रिवीजन) याचिका दायर की थी। 14 वर्षीय पीड़ित लड़की के साथ सात महीने पहले कथित तौर पर बलात्कार किया गया था, जिसके परिणामस्वरूप वह गर्भवती हो गई। जिसके बाद थाना कोतवाली देहात, जिला सुल्तानपुर में भारतीय दंड संहिता की धारा 376, 504, 506 और यौन अपराधों से बच्चों का संरक्षण अधिनियम, 2012, (पॉक्सो) अधिनियम की धारा 3/4 के तहत मामला दर्ज किया गया था।
बेटी के गर्भवती होने की खबर मिलने पर पीड़िता की मां ने आरोपी से उसकी शादी कराने की कोशिश की थी लेकिन आरोपी के पिता ने इस तरह के प्रस्ताव से इनकार कर दिया। इसके अलावा, मुकदमे की सुनवाई के दौरान, आरोपी को किशोर घोषित कर दिया गया था, जिसके परिणामस्वरूप मामला ट्रायल कोर्ट से किशोर न्याय बोर्ड, सुल्तानपुर में स्थानांतरित कर दिया गया। नतीजतन, आरोपी ने किशोर न्याय बोर्ड के समक्ष पीड़िता का डीएनए परीक्षण कराने के लिए एक आवेदन दिया। 25 मार्च, 2021 को किशोर न्याय बोर्ड ने पूरे तथ्यों और परिस्थितियों और रिकॉर्ड पर उपलब्ध सबूतों पर विचार करने के बाद डीएनए टेस्ट करवाने की मांग वाले आवेदन को खारिज कर दिया।
किशोर न्याय बोर्ड ने अपने आदेश में कहा था कि पीड़िता की जांच के लिए इस तरह का आवेदन केवल उसी चरण में दायर किया जा सकता है जब सीआरपीसी की धारा 313 के तहत बचाव पक्ष के गवाहों के बयान दर्ज किए जा रहे हों। बोर्ड ने आगे यह भी कहा था कि पीड़ित बच्चे को डीएनए टेस्ट के लिए भेजने से मुकदमे में और देरी होगी, जबकि क़ानून के प्रावधानों के तहत मुकदमे की सुनवाई को जल्दी से समाप्त किया जाना चाहिए। इसके बाद, किशोर न्याय बोर्ड के आदेश के खिलाफ, आरोपी ने अतिरिक्त सत्र न्यायाधीश, सुल्तानपुर के समक्ष एक आपराधिक अपील दायर की, जिसने 25 जून, 2021 के आदेश के तहत डीएनए परीक्षण करवाने की मांग वाले आवेदन को अनुमति दे दी। कोर्ट का निष्कर्ष न्यायालय ने पाया कि अतिरिक्त सत्र न्यायाधीश, सुल्तानपुर ने आक्षेपित आदेश पारित करते हुए भारत के संविधान के अनुच्छेद 14--21 के प्रावधानों की अनदेखी की है। आगे यह भी कहा कि पीड़िता का डीएनए टेस्ट करवाने की अनुमति देने का कोई कारण नहीं था क्योंकि विचाराधीन मुद्दा यह है कि क्या बलात्कार का अपराध किया गया था और न कि क्या आरोपी बच्चे का पिता है? पुनरीक्षण याचिका की अनुमति देते हुए कोर्ट ने कहा, ''25.06.2021 के आदेश को खारिज किया जाता है और किशोर बोर्ड के दिनांक 25.03.2021 के आदेश की पुष्टि इस संशोधन के अधीन की जाती है कि सीआरपीसी की धारा 313 के तहत इस तरह के आवेदन के संबंध में बोर्ड के अवलोकन ( कि उसके गुणदोष के आधार पर विचार किया जाएगा) को भी संशोधनवादी (रिविजनिस्ट)के खिलाफ इस तरह नहीं पढ़ा जाएगा कि कथित घटना के इतने लंबे समय के बाद बलात्कार की पीड़िता को डीएनए परीक्षण के लिए मजबूर किया जा सकता है।''
शीर्षक- गुलाफ्सा बेगम बनाम यू.पी. राज्य
Collector has to assess market value of land taking into account sale consideration reflected in exemplar deeds and not on the basis of minimum rates.
Court No. - 38
Case :- WRIT - C No. - 53843 of 2010
Petitioner :- Pratap Singh
Respondent :- State of U.P. and Others
Counsel for Petitioner :- Rajesh Kumar Mishra
Counsel for Respondent :- C.S.C.
Hon'ble Jayant Banerji,J.
Heard Shri Rajesh Kumar Mishra, learned counsel for the petitioner and Shri Awadhesh Chandra Srivastava, learned Standing Counsel appearing for the respondents.
By means of this petition, the petitioner seeks to challenge the order dated 31.12.2009 passed by the Additional District Magistrate (Finance & Revenue), Moradabad in Case No.407/09 under Section 33/40/47 of the Indian Stamp Act, 18991 whereby, by means of an ex-parte order, deficiency of stamp has been imposed upon the petitioner while relying upon the report dated 16.10.2009 of the Assistant Inspector General of Registration. Further under challenge is the order dated 26.05.2010 passed by the Additional Commissioner (Administration), Moradabad Mandal, Moradabad, whereby the appeal filed by the petitioner under Section 56 of the Act, being Appeal No.74/2009-10, has been partly allowed by reducing the amount of penalty imposed upon the petitioner.
The facts as mentioned in the petition are that the petitioner purchased an area of 0.002 hectares from Khasra No.869-Ka, an area of 0.130 hectares from Khasra No.948 and an area of 0.255 hectares from Khasra No.950, totalling 0.387 hectares in Village-Bhogpur, Mithauni, Tehsil & District-Moradabad by means of a sale-deed executed on 27.09.2007, which was registered thereafter. It is stated that the aforesaid land was purchased for agricultural purposes and the stamp duty was paid in accordance with the minimum rates specified by the Collector. The name of the petitioner was also mutated in the revenue records. It is alleged that the respondent no.2 passed the impugned order dated 31.12.2009 without issuance of summons or notice to the petitioner, in which it was held that the plots in question are for residential usage and, therefore, deficiency of stamp duty of Rs.1,38,400/- and penalty of Rs.1,38,400/- alongwith interest at the rate of 1.5% per mensem were imposed. It is stated that on coming to know of the ex-parte order passed by the respondent no.2, an appeal was filed by the petitioner before the Additional Commissioner (Administration) which was partly allowed by reducing the amount of penalty imposed, though no error was found in the order of the respondent no.2 in assessing the land in question as residential.
The contention of the learned counsel for the petitioner is that an ex-parte report of the Assistant Inspector General of Registration has been relied upon by the respondent no.2 to record a finding regarding evasion of duty which could not have been relied upon by the authority in view of the judgment of this Court in the matter of Ram Khelawan alias Bachcha v. State of U.P. and another2. It is further contended that the vendors of the sale-deed in question had sold their entire share of the land on the khasra numbers to the petitioner, and the admitted terms of the habendum clause appearing in the sale-deed reflect that the land in question was bhumidhari over which agricultural activities were being carried on. The learned counsel states that the order of the respondent no.2 was passed ex-parte without affording any opportunity of hearing to the petitioner. It is further contended that the Additional Commissioner (Administration), in the appellate order, has committed an error of law in affirming the order of the respondent no.2 and that neither the penalty nor the deficiency in stamp duty could have been imposed upon the petitioner under the facts and circumstances of the present case.
Learned Standing Counsel has opposed the writ petition stating that the report of the Assistant Inspector General of Registration dated 16.10.2009 has referred to three exemplar sale-deeds pertaining to parts of land of those very Khasra numbers that were sold to other persons in which the purpose for purchase was stated to be residential. The contention is that, accordingly, no fault exists in the order of the respondent no.2 on this ground and, also on the ground that the service of notice on the petitioner was deemed sufficient.
It is noticed, as is admitted, that the impugned order dated 31.12.2009 was ex-parte. It is not the contention of the learned counsel for the petitioner that any restoration application was filed on behalf of the petitioner in respect of the aforesaid order dated 31.12.2009. The petitioner straightaway proceeded to file the appeal under Section 56 of the Act. The grounds of appeal, that has been enclosed as Annexure-6 to the writ petition, do not contain any ground with regard to the non-receipt of notice. Among the grounds raised is of lack of opportunity of hearing to the petitioner. In view of the aforesaid, the affirmation on behalf of the petitioner that no notice was received by him, is belied. The order of the respondent no.2, Additional District Magistrate, has been passed relying upon the report of the Assistant Inspector General of Registration dated 16.10.2009 in which it was mentioned that portions of lands of those very Khasra numbers, were subject of instrument Nos.4894/05, 601/06 and 2463/07 on which stamp duty on the basis of the residential rates was paid. The respondent no.2 has observed that since neither the petitioner nor his counsel had appeared nor any objection was filed, it would be deemed that he accepts the report and notice. Accordingly, the deficiency in stamp duty and penalty were imposed.
Annexure-5 is the report made by the Assistant Inspector General of Registration dated 16.10.2009. The relevant part of the report dated 16.10.2009 is extracted below:-
"...........
अधोहस्ताक्षरित द्वारा अर्द्धनगरीय एवं उपान्त क्षेत्र के कृषि आधारित मूल्यांकन वाले विक्रय विलेखों के मूल्यांकन जांच के क्रम में उक्त विक्रय विलेख मेरे संज्ञान में आया। अभिलेखों के अवलोकन से खसरा न० 869, 948 व 950 स्थित ग्राम भोगपुर मिठौनी से सम्पत्ति क्रय की गयी तथा आवासीय दर के मूल्यांकन पर स्टाम्प शुल्क अदा किया गया है। उक्त प्रकार के कतिपय विलेखों का विवरण निम्न सारिणी में दिया जा रहा हैः-
क्रमांक
विक्रय विलेख संख्या
निष्पादन तिथि
खसरा न०
अन्तरित क्षेत्रफल (वर्ग मी० में)
दर प्रति वर्ग मी०
मूल्यांकन जिस पर स्टाम्प शुल्क अदा किया गया
अदा किया गया स्टाम्प शुल्क
1.
4894/05
9.11.05
869, 948, 950
140.00
1500
210000
21000
2.
601/06
8.2.06
948
132.47
1500
199000
20000
3.
2463/07
5.4.07
869, 948, 950
245.91
1600
394000
31600
उपरोक्त सारिणी के अवलोकन से स्पष्ट है कि खसरा न० 869, 948, 950 स्थित ग्राम भोगपुर मिठौनी से सम्बन्धित विक्रय विलेख संख्या 4894/05, 601/06 तथा 2463/07 का निबन्धन किया गया तथा निर्धारित आवासीय दर के मूल्यांकन पर स्टाम्प शुल्क अदा किया गया है। एक ही ग्राम एक ही एक ही खसरे की भूमि के दो दर्रो के आधार पर सम्पत्ति के बाजार मूल्य का निर्धारण किया जाना तर्क संगत एवं विधि सम्मत् नही है कि सारिणी में उल्लिखित विलेख विवादित विलेख संख्या 5733/07 के द्वारा अन्तरित सम्पत्ति के मूल्यांकन हेतु उपयुक्त एवं तर्क संगत पूर्व दृष्टांत / दृष्टांत स्टजित करते है। ....."
As is evident from the report, as extracted above, that three specific exemplar deeds have been relied upon by the Assistant Inspector General of Registration to reflect the residential usage over the land in question.
In the decision of Ram Khelawan (supra), a coordinate Bench of this Court had made an observation that no reliance can be placed on an ex-parte report for deciding the case. It was observed that the ex-parte inspection report may be relevant for initiating the proceedings under Section 47-A of the Act and after initiation of the case, inspection is to be made by the Collector or the authority hearing the case after due notice to the parties to the instrument as provided under Rule 7(3)(c) of the U.P. Stamp (Valuation of Property) Rules, 1997.
Though this Court is in respectful agreement with the aforesaid observations made by this Court in the case of Ram Khelawan (supra), however, in the present case at hand, the ex-parte report specifically refers to three exemplar instruments that were considered by the Assistant Inspector General of Registration while making his report. It was, therefore, open for the District Magistrate, in the facts and circumstances of the present case, where despite notice, neither any objection was filed on behalf of the petitioner nor had any advocate appeared on his behalf, to rely upon the ex-parte report which was based upon the exemplar deeds. It is always open to the Collector or the authority undertaking an examination of an instrument under Section 47-A(3) of the Act, to refer to exemplar deeds for the purpose of ascertaining the market value even though they may form part of an ex-parte report that has led to the initiation of the proceedings under Section 47-A(3) of the Act. Therefore, no fault can be attributable to the respondent no.2 in relying upon the three exemplar deeds that find mention in the ex-parte report dated 16.10.2009. In view of the above, the order of the Additional Commissioner, upholding the order of the respondent no.2, cannot faulted as far as this aspect is concerned.
However, the matter of concern in the present petition is that despite relying upon the aforesaid exemplar deeds, the respondent no.2 has proceeded to assess the value of the land in question on the basis of the minimum rates prescribed by the Collector. This could not have been done in view of the express provisions of Section 47-A(3) of the Act that is also relied in the judgment of this Court in Ram Khelawan (supra) and several other decisions. In the decision of a three Judge Bench of this Court in the case of Smt. Pushpa Sareen vs. State of U.P.3, it has been held as follows:-
"26. The true test for determination by the Collector is the market value of the property on the date of the instrument because, under the provisions of the Act, every instrument is required to be stamped before or at the time of execution. In making that determination, the Collector has to be mindful of the fact that the market value of the property may vary from location to location and is dependent upon a large number of circumstances having a bearing on the comparative advantages or disadvantages of the land as well as the use to which the land can be put on the date of the execution of the instrument.
27. Undoubtedly, the Collector is not permitted to launch upon a speculative inquiry about the prospective use to which a land may be put to use at an uncertain future date. The market value of the property has to be determined with reference to the use to which the land is capable reasonably of being put to immediately or in the proximate future. The possibility of the land becoming available in the immediate or near future for better use and enjoyment reflects upon the potentiality of the land. This potential has to be assessed with reference to the date of the execution of the instrument. In other words, the power of the Collector cannot be unduly circumscribed by ruling out the potential to which the land can be advantageously deployed at the time of the execution of the instrument or a period reasonably proximate thereto. Again the use to which land in the area had been put is a material consideration. If the land surrounding the property in question has been put to commercial use, it would be improper to hold that this is a circumstance which should not weigh with the Collector as a factor which influences the market value of the land.
28. The fact that the land was put to a particular use, say for instance a commercial purpose at a later point in time, may not be a relevant criterion for deciding the value for the purpose of stamp duty, as held by the Supreme Court in State of U.P. and others v. Ambrish Tandon and another, (2012) 5 SCC 566. This is because the nature of the user is relateable to the date of purchase which is relevant for the purpose of computing the stamp duty. Where, however, the potential of the land can be assessed on the date of the execution of the instrument itself, that is clearly a circumstance which is relevant and germane to the determination of the true market value. At the same time, the exercise before the Collector has to be based on adequate material and cannot be a matter of hypothesis or surmise. The Collector must have material on the record to the effect that there has been a change of use or other contemporaneous sale-deeds in respect of the adjacent areas that would have a bearing on the market value of the property which is under consideration. The Collector, therefore, would be within jurisdiction in referring to exemplars or comparable sale instances which have a bearing on the true market value of the property which is required to be assessed. If the sale instances are comparable, they would also reflect the potentiality of the land which would be taken into consideration in a price agreed upon between a vendor and a purchaser."
Accordingly, the impugned order of the respondent no.2 dated 31.12.2009, insofar as it assesses the valuation of the land in question on the basis of the minimum rates, is set aside. The order of the Additional Commissioner (Administration) dated 26.05.2010 is also set aside insofar as it affirms the order of the respondent no.2 assessing the market value on the basis of the minimum rates. The matter is remitted to the respondent no.2 or the competent authority who may be seized of the matter, to assess the market value taking into account the monetary consideration reflected in the exemplar deeds aforesaid or any other exemplar deeds, and not on the basis of the minimum rates. This exercise shall be done by the authority concerned within a period of three months from today. Since the petitioner is represented, no separate notice is required to be sent to him. It is, however, provided that the petitioner shall appear before the respondent no.2 on 22.12.2021 alongwith a certified copy of the order passed today, whereafter dates may be fixed. In case of failure of the petitioner in appearing on that day, it will be open to the authority concerned to proceed in accordance with law.
In view of the aforesaid observations and to the extent mentioned above, this writ petition is allowed.
Order Date :-07.12.2021
Heard Shri Rajesh Kumar Mishra, learned counsel for the petitioner and Shri Awadhesh Chandra Srivastava, learned Standing Counsel appearing for the respondents.
By means of this petition, the petitioner seeks to challenge the order dated 31.12.2009 passed by the Additional District Magistrate (Finance & Revenue), Moradabad in Case No.407/09 under Section 33/40/47 of the Indian Stamp Act, 18991 whereby, by means of an ex-parte order, deficiency of stamp has been imposed upon the petitioner while relying upon the report dated 16.10.2009 of the Assistant Inspector General of Registration. Further under challenge is the order dated 26.05.2010 passed by the Additional Commissioner (Administration), Moradabad Mandal, Moradabad, whereby the appeal filed by the petitioner under Section 56 of the Act, being Appeal No.74/2009-10, has been partly allowed by reducing the amount of penalty imposed upon the petitioner.
The facts as mentioned in the petition are that the petitioner purchased an area of 0.002 hectares from Khasra No.869-Ka, an area of 0.130 hectares from Khasra No.948 and an area of 0.255 hectares from Khasra No.950, totalling 0.387 hectares in Village-Bhogpur, Mithauni, Tehsil & District-Moradabad by means of a sale-deed executed on 27.09.2007, which was registered thereafter. It is stated that the aforesaid land was purchased for agricultural purposes and the stamp duty was paid in accordance with the minimum rates specified by the Collector. The name of the petitioner was also mutated in the revenue records. It is alleged that the respondent no.2 passed the impugned order dated 31.12.2009 without issuance of summons or notice to the petitioner, in which it was held that the plots in question are for residential usage and, therefore, deficiency of stamp duty of Rs.1,38,400/- and penalty of Rs.1,38,400/- alongwith interest at the rate of 1.5% per mensem were imposed. It is stated that on coming to know of the ex-parte order passed by the respondent no.2, an appeal was filed by the petitioner before the Additional Commissioner (Administration) which was partly allowed by reducing the amount of penalty imposed, though no error was found in the order of the respondent no.2 in assessing the land in question as residential.
The contention of the learned counsel for the petitioner is that an ex-parte report of the Assistant Inspector General of Registration has been relied upon by the respondent no.2 to record a finding regarding evasion of duty which could not have been relied upon by the authority in view of the judgment of this Court in the matter of Ram Khelawan alias Bachcha v. State of U.P. and another2. It is further contended that the vendors of the sale-deed in question had sold their entire share of the land on the khasra numbers to the petitioner, and the admitted terms of the habendum clause appearing in the sale-deed reflect that the land in question was bhumidhari over which agricultural activities were being carried on. The learned counsel states that the order of the respondent no.2 was passed ex-parte without affording any opportunity of hearing to the petitioner. It is further contended that the Additional Commissioner (Administration), in the appellate order, has committed an error of law in affirming the order of the respondent no.2 and that neither the penalty nor the deficiency in stamp duty could have been imposed upon the petitioner under the facts and circumstances of the present case.
Learned Standing Counsel has opposed the writ petition stating that the report of the Assistant Inspector General of Registration dated 16.10.2009 has referred to three exemplar sale-deeds pertaining to parts of land of those very Khasra numbers that were sold to other persons in which the purpose for purchase was stated to be residential. The contention is that, accordingly, no fault exists in the order of the respondent no.2 on this ground and, also on the ground that the service of notice on the petitioner was deemed sufficient.
It is noticed, as is admitted, that the impugned order dated 31.12.2009 was ex-parte. It is not the contention of the learned counsel for the petitioner that any restoration application was filed on behalf of the petitioner in respect of the aforesaid order dated 31.12.2009. The petitioner straightaway proceeded to file the appeal under Section 56 of the Act. The grounds of appeal, that has been enclosed as Annexure-6 to the writ petition, do not contain any ground with regard to the non-receipt of notice. Among the grounds raised is of lack of opportunity of hearing to the petitioner. In view of the aforesaid, the affirmation on behalf of the petitioner that no notice was received by him, is belied. The order of the respondent no.2, Additional District Magistrate, has been passed relying upon the report of the Assistant Inspector General of Registration dated 16.10.2009 in which it was mentioned that portions of lands of those very Khasra numbers, were subject of instrument Nos.4894/05, 601/06 and 2463/07 on which stamp duty on the basis of the residential rates was paid. The respondent no.2 has observed that since neither the petitioner nor his counsel had appeared nor any objection was filed, it would be deemed that he accepts the report and notice. Accordingly, the deficiency in stamp duty and penalty were imposed.
Annexure-5 is the report made by the Assistant Inspector General of Registration dated 16.10.2009. The relevant part of the report dated 16.10.2009 is extracted below:-
"...........
अधोहस्ताक्षरित द्वारा अर्द्धनगरीय एवं उपान्त क्षेत्र के कृषि आधारित मूल्यांकन वाले विक्रय विलेखों के मूल्यांकन जांच के क्रम में उक्त विक्रय विलेख मेरे संज्ञान में आया। अभिलेखों के अवलोकन से खसरा न० 869, 948 व 950 स्थित ग्राम भोगपुर मिठौनी से सम्पत्ति क्रय की गयी तथा आवासीय दर के मूल्यांकन पर स्टाम्प शुल्क अदा किया गया है। उक्त प्रकार के कतिपय विलेखों का विवरण निम्न सारिणी में दिया जा रहा हैः-
क्रमांक
विक्रय विलेख संख्या
निष्पादन तिथि
खसरा न०
अन्तरित क्षेत्रफल (वर्ग मी० में)
दर प्रति वर्ग मी०
मूल्यांकन जिस पर स्टाम्प शुल्क अदा किया गया
अदा किया गया स्टाम्प शुल्क
1.
4894/05
9.11.05
869, 948, 950
140.00
1500
210000
21000
2.
601/06
8.2.06
948
132.47
1500
199000
20000
3.
2463/07
5.4.07
869, 948, 950
245.91
1600
394000
31600
उपरोक्त सारिणी के अवलोकन से स्पष्ट है कि खसरा न० 869, 948, 950 स्थित ग्राम भोगपुर मिठौनी से सम्बन्धित विक्रय विलेख संख्या 4894/05, 601/06 तथा 2463/07 का निबन्धन किया गया तथा निर्धारित आवासीय दर के मूल्यांकन पर स्टाम्प शुल्क अदा किया गया है। एक ही ग्राम एक ही एक ही खसरे की भूमि के दो दर्रो के आधार पर सम्पत्ति के बाजार मूल्य का निर्धारण किया जाना तर्क संगत एवं विधि सम्मत् नही है कि सारिणी में उल्लिखित विलेख विवादित विलेख संख्या 5733/07 के द्वारा अन्तरित सम्पत्ति के मूल्यांकन हेतु उपयुक्त एवं तर्क संगत पूर्व दृष्टांत / दृष्टांत स्टजित करते है। ....."
As is evident from the report, as extracted above, that three specific exemplar deeds have been relied upon by the Assistant Inspector General of Registration to reflect the residential usage over the land in question.
In the decision of Ram Khelawan (supra), a coordinate Bench of this Court had made an observation that no reliance can be placed on an ex-parte report for deciding the case. It was observed that the ex-parte inspection report may be relevant for initiating the proceedings under Section 47-A of the Act and after initiation of the case, inspection is to be made by the Collector or the authority hearing the case after due notice to the parties to the instrument as provided under Rule 7(3)(c) of the U.P. Stamp (Valuation of Property) Rules, 1997.
Though this Court is in respectful agreement with the aforesaid observations made by this Court in the case of Ram Khelawan (supra), however, in the present case at hand, the ex-parte report specifically refers to three exemplar instruments that were considered by the Assistant Inspector General of Registration while making his report. It was, therefore, open for the District Magistrate, in the facts and circumstances of the present case, where despite notice, neither any objection was filed on behalf of the petitioner nor had any advocate appeared on his behalf, to rely upon the ex-parte report which was based upon the exemplar deeds. It is always open to the Collector or the authority undertaking an examination of an instrument under Section 47-A(3) of the Act, to refer to exemplar deeds for the purpose of ascertaining the market value even though they may form part of an ex-parte report that has led to the initiation of the proceedings under Section 47-A(3) of the Act. Therefore, no fault can be attributable to the respondent no.2 in relying upon the three exemplar deeds that find mention in the ex-parte report dated 16.10.2009. In view of the above, the order of the Additional Commissioner, upholding the order of the respondent no.2, cannot faulted as far as this aspect is concerned.
However, the matter of concern in the present petition is that despite relying upon the aforesaid exemplar deeds, the respondent no.2 has proceeded to assess the value of the land in question on the basis of the minimum rates prescribed by the Collector. This could not have been done in view of the express provisions of Section 47-A(3) of the Act that is also relied in the judgment of this Court in Ram Khelawan (supra) and several other decisions. In the decision of a three Judge Bench of this Court in the case of Smt. Pushpa Sareen vs. State of U.P.3, it has been held as follows:-
"26. The true test for determination by the Collector is the market value of the property on the date of the instrument because, under the provisions of the Act, every instrument is required to be stamped before or at the time of execution. In making that determination, the Collector has to be mindful of the fact that the market value of the property may vary from location to location and is dependent upon a large number of circumstances having a bearing on the comparative advantages or disadvantages of the land as well as the use to which the land can be put on the date of the execution of the instrument.
27. Undoubtedly, the Collector is not permitted to launch upon a speculative inquiry about the prospective use to which a land may be put to use at an uncertain future date. The market value of the property has to be determined with reference to the use to which the land is capable reasonably of being put to immediately or in the proximate future. The possibility of the land becoming available in the immediate or near future for better use and enjoyment reflects upon the potentiality of the land. This potential has to be assessed with reference to the date of the execution of the instrument. In other words, the power of the Collector cannot be unduly circumscribed by ruling out the potential to which the land can be advantageously deployed at the time of the execution of the instrument or a period reasonably proximate thereto. Again the use to which land in the area had been put is a material consideration. If the land surrounding the property in question has been put to commercial use, it would be improper to hold that this is a circumstance which should not weigh with the Collector as a factor which influences the market value of the land.
28. The fact that the land was put to a particular use, say for instance a commercial purpose at a later point in time, may not be a relevant criterion for deciding the value for the purpose of stamp duty, as held by the Supreme Court in State of U.P. and others v. Ambrish Tandon and another, (2012) 5 SCC 566. This is because the nature of the user is relateable to the date of purchase which is relevant for the purpose of computing the stamp duty. Where, however, the potential of the land can be assessed on the date of the execution of the instrument itself, that is clearly a circumstance which is relevant and germane to the determination of the true market value. At the same time, the exercise before the Collector has to be based on adequate material and cannot be a matter of hypothesis or surmise. The Collector must have material on the record to the effect that there has been a change of use or other contemporaneous sale-deeds in respect of the adjacent areas that would have a bearing on the market value of the property which is under consideration. The Collector, therefore, would be within jurisdiction in referring to exemplars or comparable sale instances which have a bearing on the true market value of the property which is required to be assessed. If the sale instances are comparable, they would also reflect the potentiality of the land which would be taken into consideration in a price agreed upon between a vendor and a purchaser."
Accordingly, the impugned order of the respondent no.2 dated 31.12.2009, insofar as it assesses the valuation of the land in question on the basis of the minimum rates, is set aside. The order of the Additional Commissioner (Administration) dated 26.05.2010 is also set aside insofar as it affirms the order of the respondent no.2 assessing the market value on the basis of the minimum rates. The matter is remitted to the respondent no.2 or the competent authority who may be seized of the matter, to assess the market value taking into account the monetary consideration reflected in the exemplar deeds aforesaid or any other exemplar deeds, and not on the basis of the minimum rates. This exercise shall be done by the authority concerned within a period of three months from today. Since the petitioner is represented, no separate notice is required to be sent to him. It is, however, provided that the petitioner shall appear before the respondent no.2 on 22.12.2021 alongwith a certified copy of the order passed today, whereafter dates may be fixed. In case of failure of the petitioner in appearing on that day, it will be open to the authority concerned to proceed in accordance with law.
In view of the aforesaid observations and to the extent mentioned above, this writ petition is allowed.
Order Date :-07.12.2021
Saturday, November 27, 2021
‘जन्म देने वाली माँ से ज्यादा हक उसे पालने वाली का’ – 10 साल की बच्ची के लिए लड़ाई, मद्रास हाई कोर्ट का अहम फैसला
हाई कोर्ट में जस्टिस पीएन प्रकाश और जस्टिस आर हेमलता की पीठ ने मामले की सुनवाई कर आदेश पारित कर दिया है। कोर्ट ने सलेम की बाल कल्याण समिति को बच्ची को उसकी पालक माँ को अविलंब सौंपने का आदेश दिया है। बच्ची को लेकर दोनों महिलाओं में विवाद गहराने के बाद प्रशासन ने उसे समिति की देखभाल में रखवा दिया था। कोर्ट ने अपने आदेश में एक बात और साफ कर दी है कि बच्ची के बालिग होने तक उसे जन्म देने वाली माँ सारण्या और पिता शिवकुमार उसे साथ रखने के लिए किसी तरह का अधिकार नहीं जता सकेंगे।
आपको बता दें कि बच्ची जन्म देने वाली माँ सारण्या की दूसरी बेटी है, जिसे उसने जन्म के 100 दिन बाद ही साल 2012 में अपने पति शिवकुमार की बहन सत्या को गोद दे दिया था। इसके बाद से गोद लेने वाली माँ सत्या और उसका पति रमेश बच्ची की देखभाल कर रहे थे, लेकिन रमेश की जून, 2019 में कैंसर से मृत्यु होने के बाद दोनों परिवारों के बीच विवाद शुरू हो गया, जिससे उनके संबंधों में खटास आ गई।
विवाद के बाद सारण्या ननद सत्या से अपनी बेटी को वापस देने की माँग करने लगी। मामला पुलिस थाने पहुँचा, जहाँ बच्ची को सलेम की बाल कल्याण समिति को सौंप दिया गया। इसके बाद दोनों परिवारों ने बच्ची को वापस पाने के लिए कानूनी लड़ाई शुरू कर दी। दोनों पक्षों ने हाई कोर्ट में बंदी प्रत्यक्षीकरण याचिका दायर कर बच्ची की सुपुर्दगी की माँग की, जिसके बाद हाई कोर्ट ने बच्ची को गोद लेने वाली माँ के पक्ष में फैसला सुनाया।
भारत में हिंदू अडॉप्शन एंड मेंटेनेंस एक्ट 1956 के अनुसार, गोद लेने संबंधी नियम और प्रक्रिया में बताया गया है कि बच्चे के नाम कोई संपत्ति न हो और उसे गोद दिया जाए, तो गोद देने वाले के यहाँ से उसके सभी कानूनी हक खत्म हो जाते हैं और जिसने उसे गोद लिया है, वहाँ उसे तमाम कानूनी हक मिल जाते हैं। इसके अलावा पर्याप्त शर्तों का पालन करके ही बच्चे को गोद लेना बेहतर माना गया है, वरना कभी भी गोद लेना अवैध हो सकता है। यानी गोद लेने की प्रक्रिया रजिस्टर्ड कानूनी प्रक्रिया है।
Tuesday, November 2, 2021
Anomaly of Medical Report can not be seen in the petition of 482: Allahabad High Court
Case :- APPLICATION U/S 482 No. - 15632 of 2007 Applicant :- Rakesh Singh And Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- R.N.Sharma,Atul Sharma Counsel for Opposite Party :- Govt. Advocate,Jata Shankar Pandey
Hon'ble Krishan Pahal,J. 1.Heard Sri Atul Sharma, learned counsel for the applicants and Sri Jata Shankar Pandey, learned counsel for the respondent no.2 and also Sri Vikas Goswami, learned A.G.A. for the State-respondent. 2. This application has been filed under Section 482 Cr.P.C. seeking to quash the impugned order dated 20.04.2007 passed by 16th Additional District Judge, Agra, framing the charge against the applicants under Sections 324/34, 307/34, 504 and 506 IPC, Police Station- Khera Rathore, District- Agra in Sessions Trial No.311 of 2007 (State Vs. Rakesh Singh and Others). 3.Brief facts of the case as per the First Information Report are that on the occasion of Holi celebrations on 15.03.2006 at about 04:30 PM in Village Gohara, Police Station Khera Rathore, District- Agra, the accused persons, namely, Rakesh Singh, Ugesh Singh, Pramod Kumar and Shyamveer assaulted Navichand son of Dalveer Singh with lathi-danda and on the screaming of Navichand, Rakesh Yadav and Om Prakash, the complainant, rushed to the spot to save him at which Rakesh Singh and Ugesh fired on them. One of the firearm shots which was fired by Ugesh, hit the left wrist of Om Prakash son of Jasram after which Om Prakash fell on the floor and thereafter they assaulted with sharp edged weapons on his head, he become unconscious thereafter. On hearing the noise of gunshot, Ram Naresh son of Banwari Lal and Kedar Singh son of
Gurudayal Singh came at the spot and picked up the complainant-injured Om Prakash. The accused-persons hurling abusive words threatened that if any one comes forward to become witness of this incident, will have to face dire consequences. In the incident, three persons, namely, Rakesh Yadav, Om Prakash and Navichand have sustained injuries. 4. The alleged incident occurred on 15.03.2006 at 04:30 PM and the First Information Report was also lodged promptly on the same day at 05:30 PM. The injured persons, namely, Rakesh Yadav, Om Prakash and Navichand were examined at C.H.C., Bah, Agra on 15.03.2006. 5. Injured Om Prakash was examined by Medical Officer (E.D.), C.H.C., Bah, Agra on 15.03.2006 at about 10:40 PM. He prepared injury report annexed as Annexure-2 to the affidavit and found following injuries on the person of Om Prakash :- (i) An incised wound at radial side of dorsal aspect of lower part of left forearm; size 4.2 X 0.5 cm X muscle deep. Margins are clean cut & fresh bleeding present. Adv. X-ray left wrist c hand & lower ½ of forearm. (ii) A red contusion at lateral aspect of right knee; size 4.5 X 0.9 cm. In the opinion of the Medical Officer (E.D.), injury no.1 was kept under observation and injury no.(ii) is simple in nature. Caused No. (i) by sharp edged object and No. (ii) by hard blunt object and are about fresh in duration. 6. The X-ray report of injured Om Prakash dated 18.03.2006 indicates “a radio opaque, round metallic density, foreign body particle in visualised area; there is no bony injury seen.” 7. The submission of the learned counsel for the applicants is that there is a discrepancy in the injury report and the X-ray report of injured Om Prakash. The Injury Report of Om Prakash does not indicate any gunshot injury. He further argued that on the basis of the said discrepancy, a charge under Section 307 IPC could not be framed against the applicants and the learned Trial Court has committed manifest error in doing so. Learned counsel for the applicants also placed reliance upon the judgement of Apex Court in the case of P. Kartikalakshmi Vs. Sri Ganesh and another reported in (2017) 3 SCC 347, wherein it has been held that the power to alter the charge is vested only in court as per the intent and purpose of Section 216 of Cr.P.C. and it is not open for the prosecution or the accused to pray for alteration of charge. However, the said case law is limited only to the provisions of Section 216 of Cr.P.C. which states about adding or altering the charge. The word “adding” means addition of new charge/section and the word “alter” indicates to correct any typographical error committed in the charge framed. The intent of the legislature was not at all to alter the sections of the charge framed. It is settled law that charge once framed can never be deleted before the pronouncement of judgement and, therefore, this case law does not help the applicants at all in the present case. 8. Learned counsel for the applicants also prayed that the charge framed on 20.04.2007 may be quashed by invoking inherent powers of the High Court under Section 482 Cr.P.C.
9. Learned counsel has also placed reliance on (2008) 14 SCC 1 Rukmini Narvekar Vs. Vijaya Satardekar and Others, wherein it has been laid down that the High Court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained.
10. The said case law is also not applicable to the present case as it is concerned to the fact that extraneous material other than the charge-sheet can be looked into at the stage of framing of charge. It is not the case here in the subject matter and the same is regarding the discrepancy in the injury report and the X-ray report.
11. On the other hand, Sri Vikas Goswami, learned A.G.A. has opposed the prayer of the applicants and argued that if there is any doubt as to what offence has been committed, the Court may frame charge for or any of such offences as has been provided under Section 221 of Cr.P.C.
12. Sri Jata Shankar Pandey, learned counsel for the respondent no.2 has also placed reliance of two judgements of the Apex Court in the case of Amit Kapoor Vs. Ramesh Chander and another reported in (2012) 9 SCC 460, wherein it has been held as under:“At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guiltyAll that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not.”
13. In the case of Sri Kali Charan Shaw Vs. The State of West Bengal and Another reported in (2017) CriLJ 2385, it has been stated that any defect in framing of charge does not invalidate a criminal proceeding. 14. On perusal of impugned order dated 20.04.2007, it transpires that charge under Sections 324/34, 307/34, 504 and 506 IPC have been framed against the applicants after proper application of mind.
15. Except the said discrepancy in framing of charge under Section 307/34 IPC, the learned counsel for the applicants could not indicate any other illegality or irregularity in framing of charge.
16. Since the controversy is centred around the relevant provisions of Sections 221, 222 and 224 of Cr.P.C., I proceed to consider the same one by one. 17. Section 221 of Cr.P.C. provides where it is doubtful what offence has been committed. “221. Where it is doubtful what offence has been committed.(1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences. (2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.”
18. A bare perusal of Section 221 Cr.P.C. states that if at the trial, the facts prove one or more offences and doubt exists as to the particular offence or offences with which the accused should be charged, he may be charged with, and at one trial for all or any of such offences or he may be charged with, he may have committed in the alternative for one or other such offences.
19. Section 222 of Cr.P.C. also states that the conviction can be accorded for an offence proved and included in the offence charged. For ready reference, Section 222 of Cr.P.C. is reproduced as under:“222. When offence proved included in offence charged. (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. (3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied.”
20. The accused can be charged for major offence and may not be found guilty thereunder but he may be convicted for a minor offence, if facts established indicate that such minor offence has been committed. This law has also been propounded by the Hon’ble Apex Court in Devinder Mohan Zakhmi Vs. Amritsar Improvement Trust and Others (2002) CriLJ 4485; Dalbir Singh Vs. State of U.P. (2004) CriLJ 2025 and Virendra Kumar Vs. State of U.P. (2007) CriLJ 1435, wherein the charge framed under major offence was not proved and the accused was convicted for a minor offence.
21. Section 224 of Cr.P.C. provides that at the time of pronouncement of judgement, the Court may acquit the accused of any of the offence for which he has been charged with. For ready reference, Section 224 of Cr.P.C is reproduced as under:"224. Withdrawal of remaining charges on conviction on one of several charges. When a charge containing more heads than one is framed against the same person, and when a conviction has been had on one or more of them, the complainant, or the officer conducting the prosecution, may, with the consent of the Court, withdraw the remaining charge or charges, or the Court of its own accord may stay the inquiry into, or trial of, such charge or charges and such withdrawal shall have the effect of an acquittal on such charge or charges, unless the conviction be set aside, in which case the said Court (subject to the order of the Court setting aside the conviction) may proceed with the inquiry into, or trial of, the charge or charges so withdrawn.”
22. Thus, from the above discussion of the statutory provisions of the Code and the case laws relied upon, it is established that the discrepancy in the medical examination report can be properly addressed to by the Trial Court at the stage of pronouncement of judgement during the course of trial by just and fair analysis of ocular and expert evidence produced thereto by either parties. At that stage, the said defect, if any, in framing of charge can be cured by invoking the powers vested in the Trial Court under Sections 221, 222 and 224 of Cr.P.C.
23. The inherent powers of the High Court provided under Section 482 Cr.P.C. could be exercised only when there is an abuse of process of the Code or where interference is absolutely necessary for securing the ends of justice. It is also settled that the inherent powers under Section 482 Cr.P.C. must be exercised very sparingly where proceedings have been initiated illegally, vexatiously or without jurisdiction. In the case of Amar Nath Vs. State of Haryana reported in (1977) 4 SCC 551, the Apex Court has held that the power conferred upon the High Court under Section 482 Cr.P.C. should be exercised sparingly and cautiously. However, in order to meet the ends of justice, the inherent powers should be exercised irrespective of anything contained under Section 397(2) of Cr.P.C. The delay in a criminal trial has deleterious effect on the administration of justice in which the society has a vital interest as the crime is not against an individual, it is against the society itself. The delay in trial affects the faith in the rule of law and efficacy of the legal system. The occurrence in the subject matter is of 15.03.2006 and the charge was framed on 20.04.2007 the stalling of such matters should not be allowed to continue on hyper-technical grounds.
24. Without expressing any opinion on the merits of the case, the instant application is found devoid of merits and is, accordingly, dismissed.
25. Interim order already stood vacated vide order dated 22.04.2019 passed by this Court. Order Date :- 02.11.2021
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