PRERMANENT EXEMPTION OF ACCUSED IN SUMMON CASE

 

PRERMANENT EXEMPTION OF ACCUSED IN SUMMON CASE

In a criminal cases, the accused persons are required to appear in courts, whether in F.I.R cases or in complaint cases after summoning. However, in apt cases, more particularly, in complaint cases, the accused may be exempted from personal appearances, permanently, if there are compelling reasons of that and if the courts are satisfied to that effect. Though, permanent cannot be claimed as a matter of right. Even when the permanent exemption is granted to an accused, certain conditions are laid down so as to ensure that the proceedings are not stalled. An application under Section 205 of Cr.P.C is generally moved for exemption from personal appearance for the concerned day before the courts of Judicial Magistrate or Metropolitan Magistrate, as the case may be. Similarly, section 317 of Cr.P.C deals with permanent exemption in the Court of Sessions. The exemption for a day or longer exemption may be granted by ld Sessions Court. The issue of permanent exemption, essentially relates to summons cases, more particularly, in complaints u/s 138 of Negotiable instruments Act and such application for permanent exemption is preferred before the court of Magistrates u/s 317 of Cr.P.C

Before going further, it may be worthwhile to cull out the provisions regarding exemption to the accused after summoning and during trial. To begin with, Section 205 of Code of Criminal Procedure for seeking day to day exemption is reproduced herein:

Magistrate  may dispense with personal attendance of accused

 

1.     Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader

2. But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided.

 

Similarly, provisions under Section 317 of Cr.P.C is much wider as the provision does not merely contemplate a court of Magistrates, but includes all other judges. The provision is as under

317. Provision for inquiries and trial being held in the absence of accused in certain cases.

(1)  At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.

(2)  If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.

 

Recently, the hon’ble Supreme Court in 1 2022 LiveLaw (SC) 394 MAHESH KUMAR KEJRIWAL & ANR. VERSUS BHANUJ JINDAL & ANR in (Special Leave to Appeal (Crl.) No. 3382/2022) has dealt with the issue of permanent exemption to the accused. While so doing, reliance was placed on M/s Bhaskar Industries Ltd. v. M/s Bhiwani Denim Apparels Ltd.: (2001) 7 SCC 401, which is a precedent in this regard. It is held in paragraph no.17 of the judgment that:

“ 17. The Magistrate is empowered to record the plea of the accused even when his counsel makes such plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with. Section 317 of the Code has to be viewed in the above perspective as it empowers the court to dispense with the personal attendance of the accused (provided he is represented by a counsel in that case) even for proceeding with the further steps in the case. However, one precaution which the court should take in such a situation is that the said benefit need be granted only to an accused who gives an undertaking to the satisfaction of the court that he would not dispute his identity as the particular accused in the case, and that a counsel on his behalf would be present in court and that he has no objection in taking evidence in his absence. This precaution is necessary for the further progress of the proceedings including examination of the witnesses".

In The Bhaskar Industries (Supra) the hon’ble Supreme Court has further held that:

"The normal rule is that the evidence shall be taken in the presence of the accused. However, even in the absence of the accused such evidence can be taken but then his counsel must be present in the court, provided he has been granted exemption from attending the court. The concern of the criminal court should primarily be the administration of criminal justice. For that purpose the proceedings of the court in the case should register progress. Presence of the accused in the court is not for marking his attendance just for the sake of seeing him in the court. It is to enable the court to proceed with the trial. If the progress of the trial can be achieved even in the absence of the accused the court can certainly take into account the magnitude of the sufferings which a particular accused person may have to bear with in order to make himself present in the court in that particular case."

The bare perusal of above shall display that hon’ble Supreme Court has categorically held that generally blanket exemption from personal appearance of accused is not permitted. However, in apt cases craving for such order the Magistrate can allow an accused to make even the first appearance through a counsel, though, such discretion has to be exercised rarely and with a view to do substantive justice and there ought to be good reasons for dispensing with the presence of the accused.

In Mahesh Kumar Kejriwal (Supra) the Special leave Petition was preferred against Punjab & Haryana High Court judgment which refused petitioner's claim of blanket exemption from personal appearance in a complaint under Section 138 of Negotiable Instruments Act. The hon’ble Supreme Court has held referring to Bhaskar Industries Ltd (Supra) that as the said decision was cited before the High Court too and the High Court has rightly indicated that the Supreme Court was not dealing with a claim for blanket exemption from personal appearance in that case. It was further held that Bhaskar Industries (Supra) judgment was passed in respect of the facts of the said case. Though,  in an appropriate case the Magistrate can allow an accused to make even the first appearance through a counsel, but it was clearly indicated that such discretion needs to be exercised only in rare instances and there ought to be good reasons for dispensing with the presence of accused.

It is observed that Bhaskar Industries (Supra) was often relied on behalf of the accused to canvass that even notice cannot be framed against the accused, once permanent exemption is granted and in any event presence of accused shall not be necessary, even if notice is to be framed u/s 251 of Cr.P.C. The predicament was answered by hon’ble Delhi High Court in Kajal Sengupta V Ahlcon Ready Mix Concrete Ltd Crl M.C 1640/2011 dated 27.04.2012:

"11. The concept and purpose of securing bail by the accused person from the concerned Court is mutually exclusive to the purpose of grant of personal exemption from appearance. It is a part of court proceeding when a person is enlarged on bail by the Court, with an undertaking to the Court he, being an accused in the offence, shall attend the Court during trial. Furnishing of bail bonds and surety, by the accused, ensures that the accused shall abide by the conditions of bail and any subsequent order of the Court requiring his attendance in Court. On the other hand, personal exemption from appearing can be requested by the accused to the Magistrate, either permanently or on a particular date. The Magistrate may, subject to certain conditions and directions, allow the personal exemption of the accused. However, such permanent personal exemption cannot be construed or understood to be a blanket order dispensing with the appearance of the accused and shall be subject to Section 205(2) and Section 317 (1)  of the Cr.P.C. Now, if at any subsequent stage, the Magistrate desires the presence of the accused person, he may summon him to appear in­ person, and in failure to do so, he may take coercive steps by forfeiting the bail bond or attach his movable property. This procedure, could only be effective if the accused had previously surrendered to the Court and obtained bail by furnishing bail bond and surety. The two proceedings, which are apparently independent, seem to converge at this juncture.

Therefore, the processes of bail and personal exemption from appearance, broadly operate in different spheres of the trial, though are intrinsically connected."

REMARK

The conclusion that emerges from the aforesaid precedents is that generally exemption may be granted for a day, but, accused could be exempted permanently as well, through counsel, if duly appointed and by analogy the counsel shall have necessary authorisation to get even a notice u/s 251 of Cr.P.C served upon him as the counsel statutorily personates the accused for all intents and purposes. If seen from the above backdrop the words "accused" in Section  251 CrPC is not limited to the person of the accused, but may include a pleader where he is permitted by the court to appear through him. However, what, if the counsel refuses to get the notice served upon him that will imply that the accused has not been represented and therefore in such a situation, the presence of accused is to be secured so as to continue with the trial. The accused thus shall have to appear for the purpose of framing of notice. In any case, law and procedure that has evolved in sync with Bhaskar Industries (Supra) that whereas, permanent exemption could be granted to accused in apt case or cases, and the accused can even be exempted from first appearance, but with a view to continue with the process of trial, if and when presence of accused shall be necessary, the courts of Magistrate is empowered to secure presence of accused, such as for furnishing bail Bonds, framing of notice and statement of accused and permanent exemption shall not be construed to mean blanket exemption from personal presence of accused.

                                                       --------

Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

 

 

SECTION 138 NEGOTIABLE INSTRUMENTS ACT & TYPOGRAPHICAL ERROR IN COMPLAINT

 

Section 138 Negotiable Instruments Act & typographical error IN COMPLAINT

The complaints due to bouncing of cheques are filed in the courts of Chief Judicial Magistrates or Chief Metropolitan Magistrates, as the case may be, depending on the location being Metropolitan Cities or other locations. The cause and mode of filing complaint is contained in Negotiable Instruments Act and Code of Criminal Procedure. Earlier, the complaints upon dishonor of cheques used to be treated as summary proceedings and the further examination of complainant post summoning of accused was not necessary. However, in due course , the complaints are being treated as summon case, in case, the accused files application under section 145(2) of Negotiable Instruments Act, seeking further examination of complainant’s witness. The permission for such cross examination of complainant witness are generally granted in terms of judgment rendered by hon’ble Supreme Court in Mandvi Co-Op Bank Ltd Vs Nimesh B Thakore (2010) 1 DCR 177. The complainant is therefore examined in the pres-summoning stage and in post summoning stage as well and in this backdrop, complaints u/s 138 of Negotiable Instruments Act are treated as summons case.

The examination in chief is filed in affidavit on behalf of the complainant and the documents relied upon by the complainant in original or certified copy, as the case may be are duly exhibited. The cheque and bank memo relating to communication regarding dishonor of cheque/s,  in particular are filed in original. If on the basis of averments, more particularly, if prima facie consideration is made out apart from the other requisites as per section 138 of Negotiable Instruments Act, summons to the accused are issued. There is also a presumption in law, as per section 139 of Negotiable Instruments Act to the effect that, unless, contrary is proved, the cheques shall be deemed to be issued towards liability. The onus of rebuttal shifts on the accused and unless adequate rebuttal is made during trial, the presumption shall hold good, provided other requisites are duly proved as well.

The affidavit of evidence and the documents exhibited or marked is required to be in sync with each other. However, there may be instances, though rare, that the cheque number in several paces of complaint and affidavit or dates are wrong and the cheque number or date did not match with the cheque filed in original. Though, essentially, the cheque in original filed shall be the cheque in respect whereof complaint u/s 138 of Negotiable Instruments Act is deemed to be filed. The issue that whether  wrong cheque number mentioned in the legal notice , complaint or in affidavit shall be fatal to the prosecution case? Still further, whether,  upon taking of cognizance of complaint that should be treated as valid complaint or valid cognizance. Whether on the aforesaid premise, the complaint could be quashed. In other words, whether such error (typographical error) shall be fatal to the complaint case and that too, when the original cheque and bank memo are duly exhibited and cause sought to be portrayed are on the basis of such exhibited documents.

The hon’ble Delhi High Court has dealt with the issue recently in a matter captioned as Naresh Chand Tyagi  Versus Devender Kumar Tyagi CRL.M.C. 3367/2021. The case law in this regard was also analysed and a decision was arrived at.

The contention of the petitioner /accused before the high court

(i)           Cognizance of offence was wrongly taken by the Magistrate of, District: North West, Rohini, Delhi.

(ii)         The concerned cheque was never issued by the petitioner.

(iii)        the cheque numbers mentioned everywhere, whether  it is the notice or the pleadings of the complaint or even the evidence by way of affidavit did not fulfill the ingredients of Section 138 NI Act,

(iv)        the proper statutory legal notice of Thirty (30) from the date of receipt of bank memo is the sine qua non of a complaint

(v)          The notice is bad in law, since, the cheque number itself mentioned in the notice was incorrect and that alleged cheque was never dishonoured;

(vi)        Once, a complaint is filed in the trial court, the complainant cannot amend it at any stage of the trial.

(vii)       That the respondent has not approached the Trial Court with clean hands as the cheque number mentioned itself is wrong and that was not dishonoured.   

The contention of the respondent/complainant before the high court were as under:

(i)          Incorrect mentioning of cheque it is only a typographical error.

(ii)        The cheque along with the bank return memo was duly annexed with the complaint displaying the correct cheque number which was issued by the petitioner herein to discharge his liability.

(iii)       After going through all the annexed documents only, the concerned magistrate had correctly summoned the petitioner/accused and it was observed that there are sufficient grounds to issue summons as the cheque was returned dishonoured as funds insufficient.

Reliance

i.            Veena Vs. State and Anr. 2017 SCC Online Del 9926.

ii.           ii. Babli Majumder V. State of West Bengal 2008 SCC Online Cal 273

iii.          Bhim Singh V. Kan Singh 2003 SCC Online Raj 326.

iv.           Nilesh Kumar Lukand V. Nirmal Bardiya 2010 SCC Online CHH 54.

v.            Pandit Gorelal V. Rahul Punjabi 2010 (2) M.P. L.J. 6.

In Veena Vs. State and Anr. 2017 SCC Online Del 9926 para no. 7 may be reproduced for reference:

“7.That a wrong cheque no. was stated in the complaint may not be the end-all and be-all of the case of the appellant/complainant. The other factors are also required to be seen to decide as to whether the appellant/complainant has been able to prove his case. The original cheque was placed before the trial court and the same was proved as Ex CW/q. Thus, the wrong number of chreque in the complaint would not make any difference and has to be taken a typographical inadvertent mistake”.

What are borne out of record is Naresh Chand Tyagi  (Supra) that the petitioner has not denied signature on the annexed cheque. No FIR has been registered with regard to the issue that respondent has filed a complaint against the petitioner pertaining to a different cheque number or on the basis of cheque not bearing his signature. It is also not the case of the petitioner that cheques were lost or stolen which is evident from the fact that no letter/communication has been sent to bank to stop the payment of the cheques concerned.

It is held by the hon’ble Delhi High Court that typographical error, though, repeated at several places cannot be the reason for quashing of the proceedings. In this context, reference was made to Rajasthan High Court in Oswal Finlease Private Limited V. State of Rajasthan and Another 2014 SCC Online Raj 6663 and it is held as under:

“6. Contention of the learned counsel for petitioner that mistake is bona fide seems to be true. Respondent has relied on 2012(2) Cr. L. R. (Raj) 904, M. R. Choudhary v. State of Rajasthan, where the complaint was filed about a particular cheque whereas cheque submitted before the trial court was different. Hence, the accused was acquitted, but here in the present case, present petitioner wants to rectify his bona fide mistake. Further reliance has been placed on AIR 2008 SC 3086, Subodh S. Salaskar vs. Jaiprakash M. Shah &Or,. where on the facts of the case, amendments on the complaint has been disallowed. But here in the present case, when complainant has been cross examined, the mistake came to the notice of complainant and application for the rectification has been moved and no person could be penalized for his bona fide mistake”.

The Rajasthan High Court had therefore allowed the petition and petitioner(complainant)  was permitted to make necessary amendments in the complaint as about the details of bounced cheque and he was further allowed to file a fresh affidavit in support of his complaint and the respondent is free to cross examine on the same. It was further held in the aforesaid case  that trial court must look into this aspect and mentioning of wrong number of the cheque in the complaint would not make any difference as there are documents placed by respondent on record which gives the correct position and has to be taken as a typographical/inadvertent mistake.

Upon perusal of facts and judicial precedents, substance of law and citations relied upon in this regard, the hon’ble Delhi High Court in Naresh Chand Tyagi  (Supra) was pleased to dismiss the petition filed by the accused /petitioner and directed the concerned trial court to look into this aspect and held that mere mentioning of wrong number of the cheque in the complaint would not make any difference as there are documents placed by respondent on record which gives the correct position and has to be taken as a typographical/inadvertent mistake.

CONCLUSION

What therefore emerges on the basis of the precedents narrated above is that complaint under section 138 of Negotiable Instruments Act shall not be liable to be quashed on account of typographical error to the effect that cheque numbers given on the legal notice or complaint in several places are wrong, so long as cheque annexed and bank memo shows the cheque and the cognizance are taken on the basis of documents annexed and duly exhibited. Mere typographical error as regards the number of cheque shall not be fatal in any case. The section 138 of Negotiable Instruments Act is invariably being tried as a summon case and the complainant shall have the option to lead evidence and prove his case pursuant to his cross examination even subsequent to application filed u/s 145(2) of Negotiable Instruments Act. In summons case, the accused is required to file application u/s 145(2) of Negotiable Instruments Act, if the accused intends to examine the complainant and that is done invariably. At that stage the document placed on record could be again reiterated in support of the complaint and the witness could be confronted with such documents. Moreover, even in pre summoning evidence, so long as the cheque and bank memo is correct and exhibited, merely because, due to typographical error cheque bears different number, that in itself shall not negate the case of complainant. In this perspective, what is of further importance that Section 91 and 92 of evidence Act shall also come in play as what shall be relevant is a document and oral averment contrary to written document shall be meaningless. Apart from that, the complaint, if allowed to be quashed on the premise of wrong number of cheque shown in the complaint, the same shall not aid to the cause of justice, rather shall inhibit that. Therefore, with a view to do substantive justice typographical error of such natures as narrated above, shall not be fatal to the case and rectification in pleadings in the above backdrop could be allowed.

                                                   ---------

Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

Section 430 of companies Act: does it bar jurisdiction of Civil Court?

 

 

Section 430 of companies Act: does it bar jurisdiction of Civil Court?  There are instances, where, recourse is taken to section 430 of Companies Act 2013, in a pending civil suit, to the effect that any issues related to share transactions  of a company shall only be within the ambit of section 430 of Companies Act 2013 and the only forum to agitate such an issue shall be National Company Law Tribunal (NCLT) and the civil remedy shall be expressly barred, in the face of  blanket inhibition to institution of civil suit, if it falls within the meaning of section 430 of Companies Act 2013.  No doubt, Section 9 of Code of Civil Procedure, clearly prescribes that civil suit shall be maintainable in all disputes, if it is not specifically or impliedly barred. The refuge is therefore taken to the Section 430 of Companies Act 2013 by an aggrieved party, who seeks to proscribe all cases related to Companies Act 2013 pending in civil courts. It is however noticed that the section 430 of Companies Act 2013 is invoked with impunity without any corresponding fact or situation, as if the issues related to shares in a company shall inevitably fall within the jurisdiction of NCLT. That is not correct in all cases and jurisdiction of NCLT shall only be invoked in case the disputes essentially arise within the limits and contour of Companies Act 2013 and relates to the disputes as regards wrongful transfer of share or oppression and mismanagement to list a few. It is worthwhile to refer to the provision as contained in Section 430 of Companies Act,2013:    430. Civil court not to have jurisdiction— “No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Tribunal or the Appellate Tribunal is empowered to determine by or under this Act or any other law for the time being in force and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or any other law for the time being in force, by the Tribunal or the Appellate Tribunal”. The very recitation of the aforesaid section, if perused meticulously, shall reveal that only such action taken or to be taken in pursuance of any power conferred by or under the Companies Act and makes it abundantly clear that the matter shall  fall within the trap of Companies Act and shall only be adjudicated by NCLAT or NCLAT i.e Appellate Tribunal. The fallacy that is sought to be perpetuated is that any issue regarding the company or arising out of company affairs, more so, in respect of shares shall only fall within the trap of Companies Act and NCLT shall be the only forum. Merely because, the disputes may be regarding shares or debentures and recovery or wrongful action on the part of a company, the matter shall not fall within the domain of NCLT. There may be issues and it is generally evident in many cases that some disputes may require leading of comprehensive evidence and in such cases civil court shall only have the wherewithal to deal with that, hence, there is no straight jacket formula to relegate the matter to NCLT or NCLAT even if the same relates to transactions in shares.    JUDICIAL WINDOW Interestingly, very recently, Hon’ble Delhi High Court in a matter captioned as DR RAMESH CHANDER MUNJAL & ORS. Vs DR SURAJ MUNJAL & ORS CS No. 22/2021 had dealt with somewhat similar issues. The issue inter alia raised in the captioned case was in respect of the title of the suit properties. Under the Companies Act, the NCLT does not have the jurisdiction to grant declaratory reliefs in respect of immovable properties, though, a company may claim ownership. As narrated above, adjudication of such dispute shall entail detail evidence and only civil court shall be a proper forum of adjudication. It is held by hon’ble Supreme Court in Aruna Oswal Vs. Pankaj Oswal and Ors, (2020) 8 SCC 79 that filing of a plaint by the majority shareholder or by a minority shareholder shall make no difference so far as the Proceedings under Sections 241 and 242 of the Companies Act 2013 are concerned, in as much as, primarily, proceedings between the members of the Company and that may also extend to employees, directors and management of the said Company, whereas, all  related or unrelated reliefs can be granted by civil courts. Just because, one of the shareholders has chosen to invoke their grievance under the provisions of the Companies Act, 2013 that shall not imply that another shareholder with similar grievance cannot invoke their grievance before a Civil Court, if the jurisdiction of the Civil Court is otherwise made out. It is held as under: “29. It is also not disputed that the High Court in the pending civil suit passed an order maintaining the status quo concerning shareholding and other properties. Because of the status quo order, shares have to be held in the name of Mrs Aruna Oswal until the suit is finally decided. It would not be appropriate given the order passed by the civil court to treat the shareholding in the name of Respondent 1 by NCLT before ownership rights are finally decided in the civil suit, and propriety also demands it. The question of right, title, and interest is essentially adjudication of civil rights between the parties, as to the effect of the nomination decision in a civil suit is going to govern the parties' rights. It would not be appropriate to entertain these parallel proceedings and give waiver as claimed under Section 244 before the civil suit's decision. Respondent 1 had himself chosen to avail the remedy of the civil suit, as such filing of an application under Sections 241 and 242 after that is nothing but an afterthought. xxxx xxxx xxxx 31. We refrain to decide the question finally in these proceedings concerning the effect of nomination, as it being a civil dispute, cannot be decided in these proceedings and the decision may jeopardise parties' rights and interest in the civil suit. With regard to the dispute as to right, title, and interest in the securities, the finding of the civil Court is going to be final and conclusive and binding on parties. The decision of such a question has to be eschewed in instant proceedings. It would not be appropriate, in the facts and circumstances of the case, to grant a waiver to the respondent of the requirement under the proviso to section 244 of the Act, as ordered by the NCLAT.” In this regard, it may be relevant to refer to the observations made by the High Court of Calcutta in Starlight Real Estate (Ascot) Mauritius Limited 2015 SCC OnLine Cal 6583:                      “23. While making an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 a defendant has to show that the plaint filed in the suit and the statements contained therein are clearly barred by law… …There is no bar in the majority shareholders of a company filing a suit to protect the interest of the company by joining the company as a proforma defendant, particularly, when the directors on record of the company are the persons who are acting contrary to the interest of the company”. The Supreme Court of India in Shashi Prakash Khemka V. NEPC Micon & Others CA No. 1965-66/2014, while dealing with an issue relating to transfer of shares has held that held that in such matters where power has been specifically conferred on the National Company Law Tribunal, the jurisdiction of the Civil Courts shall be ousted. The dispute relating to the title of shares should also be decided by NCLT and civil suit shall not be an appropriate remedy, in view of Section 430 of the Companies Act, 2013 ("Act"). It is held as under: “The subject matter of dispute before us is the exercise of power under Section 111-A of the Companies Act, 1956 (as amended in 1988) and the Depositories Related Laws (Amendment) Act, 1997. In terms of the impugned order of the Madras High Court, on an appeal filed against the order of the Company Law Board, the view taken by the Company Law Board has been reversed and thus, in effect, the appellants have been left to a remedy of civil suit”. After analyzing Section 430 of Companies Act 2013, the hon’ble Supreme Court has held as under: “The effect of the aforesaid provision is that in matters in respect of which power has been conferred on the NCLT, the jurisdiction of the civil court is completely barred”. The law as laid down before the enactment of Companies Act 2013 may also be analysed in the context. The Supreme Court in the case of Dhulabhai v. State of Madhya Pradesh and others AIR 1969 SC 78 (Constitutional Bench) has held that  the pith and substance of the principles of the primary indicia, which governs determination of the question whether the jurisdiction of Civil Courts is, in any particular case, ousted, or not, would appear to be (i) whether the decision of the tribunal, on which jurisdiction is conferred, is also attributed finality by the statute, and (ii) whether such tribunal can do what the Civil court would be able to do and is, therefore, an efficacious alternative to the Civil Court. In the case of Abdul Gafur v. State of Uttarakhand 2008 (10)SCC 97 , the Supreme Court, on recourse to the jurisdiction of Civil Court, has observed the right to bring a suit of civil nature of one's choice, at one's peril, howsoever frivolous the claim may be, unless it is barred by a statute. On the other hand, in Santhosh Poddar vs Kamal Kumar Poddar (1992) 3 BCR310 (Bom) DB, the Court held that there is no ouster of jurisdiction of a Civil Court in the cases where the provisions of the Companies Act may be attracted. It is only in respect of those proceedings which are expressly contemplated under the Act, under any specific provision that the court which is referred to in that section would be the special court, namely the High Court or the notified District Court. In all other cases, ordinary Civil Courts would continue to have the jurisdiction. In Jai Kumar Arya & Ors. vs Chhaya Devi & Anr (2018) 142 CLA 365, the Division Bench of Bombay High Court, while dealing with the bar under  Section  430  of the 2013 Act, held that, "While examining the merits of these rival contentions, we are fully aware of the interpretative principle, now trite in law, that provisions which operate to exclude the ordinary jurisdiction of civil courts are to be strictly construed, and exclusion of such jurisdiction is not to be lightly inferred. The principle of exclusion of jurisdiction is, moreover, never absolute." CONCLUSION From the bare perusal of the case laws as elucidated above, it is clear that as regards pre 2013 period or subsequent to enactment of Companies Act 2013 what really emerges is that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but only when such exclusion must either be explicitly expressed or clearly implied, the same should be construed as such. It is also no res integra that even if jurisdiction is so excluded, the Civil Courts shall have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure or where leading of evidence shall be necessary or still further, when fraud is alleged and mechanism of civil courts shall have to be set in motion, since jurisdiction of NCLT constituted under the Companies Act 2013 shall be limited to summary jurisdiction. The discussion aforesaid in the light of judicial precedents shall make it clear that the Civil Court can adjudicate upon all the suits of civil nature, unless, its jurisdiction is expressly or impliedly barred. While doing so, the courts are unanimous in holding that the term 'impliedly' should not be given liberal interpretation, rather strict approach should be adopted and clear implication from the statute is mandatory for ousting the jurisdiction of Civil Court. What is of further significance that individual claim of Directors of a company in respect of shares of the said company held by other Director or by any third party and money dispute arising there from, including on the aspect of fraud and manipulation shall not fall within the ambit of NCLT and Civil Courts in such a situation shall only have the wherewithal to deal with the disputes. The National Company Law Tribunal (NCLT) or Appellate Tribunal (NCLAT) shall however exclusively deal with any issues that the tribunal is specifically empowered with.   Anil K Khaware Founder & Senior Associate Societylawandjustice.com

 

DOMESTIC VIOLENCE IN LIVE IN RELATIONSHIP

 

DOMESTIC VIOLENCE In LIVE IN RELATIONSHIP

The wheel of time has run a full circle. Close on the heels of fast paced life the bye product of it is attitudinal change and extent of care towards their respective spouse. The matrimonial relationship thus have undergone such attitudinal changes across the gender leading to a relationship on a short fuse. The one such relationship though not per se a matrimonial relationship, but have the trap of it is a Live In Relationship. There may be various exponents of live in relationship and also those who detest it. The fait accompli, though, remains that there are scores of people who are in live in relationship and therefore, no one can be oblivious to the nuances of it. In this backdrop, though, sexual relationship beyond the ties of marriage may not be widely accepted even today, but its existence across societies is not in dispute. Several times it posed situations leading to conflict between law and morality. It is often seen that a female partner is at the receiving end in the live in relationship as well and available legal remedies for such female partner are limited and that renders a female prone to exploitation. Though, sometime, even converse are true, but that is relatively rare.

OBJECT OF DV ACT 2005

The objects and reasons of the Domestic Violence Act (In short “DV Act”) have its genesis from the basic tenets of human rights. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The gender issue is an offshoot of human rights. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in its General Recommendation No.XII (1989), has recommended that State parties should act to protect women against violence of any kind, especially that occurring within the family.

In the above backdrop, the Protection of Women from Domestic Violence Act ( In short “DV Act”) was enacted in the year 2005 with a view to alleviate the difficulties of women. The D.V. Act recognizes certain rights of a woman who is in live in relationship, if domestic violence is committed on her by her male partner and his family members during such relationship. Since the DV law, as enacted is still in the transition stage, and as elucidated above, hence, it poses certain novel situations leading to intrigue and thus craves for adequate and effective remedy. For instance, in a situation, where, a woman during existence or subsistence of her previous marriage entered into relationship with unmarried man, lived with him and gave birth to a child, that situation needs analysis. Since, that is a new dimension even in live in relationship.  

The question, often hinges, nevertheless as to– (a) Whether the live-in relationship could be construed as a relationship in the nature of marriage?  (b) Whether, the provisions of D.V. Act can be invoked only by aggrieved person and that too if there is an act of domestic violence, committed during domestic relationship i.e. the parties must be related by - i. consanguinity, or ii. marriage, or iii. through a relationship in the nature of marriage, or iv. adoption, or v. any family members living together as a joint family.

THE CASE LAWS

The case law depicted herein shall throw light on the domestic violence law in general, with particular emphasis on live in relationship. It is apt to find out the guidelines laid down by courts, based on the experience over the years. The Supreme Court in the case of Krishna Bhattacharjee Vs. Sarathi Choudhury, (2016) 2 SCC 705, has observed as under:

“Regard being had to the nature of the legislation, a more sensitive approach is expected from the courts where under the 2005 Act no relief can be granted, it should never be conceived of but, before throwing a petition at the threshold on the ground of maintainability, there has to be an apposite discussion and thorough deliberation on the issues raised. It should be borne in mind that helpless and hapless aggrieved person under the 2005 Act approaches the court under the compelling circumstances. It is the duty of the court to scrutinise the facts from all angles whether a plea advanced by the respondent to nullify the grievance of the aggrieved person is really legally sound and correct. The principle justice to the cause is equivalent to the salt of ocean should be kept in mind. The court of law is bound to uphold the truth which sparkles when justice is done. Before throwing a petition at the threshold, it is obligatory to see that the person aggrieved under such a legislation is not faced with a situation of non-adjudication, for the 2005 Act as we have stated is a beneficial as well as assertively affirmative enactment for the realisation of the constitutional rights of women and to ensure that they do not become victims of any kind of domestic violence”.

In Lata Singh Vs. State of U.P. & Anr., AIR 2006 SC 2522, the hon’ble Supreme Court has observed that a live-in relationship between two consenting adults of heterogenic sex does not amount to any offence (with the obvious exception of `adultery'), even though it may be perceived as immoral. A major girl is free to marry anyone she likes or "live with anyone she likes". In that case, the petitioner was a woman who had married a man belonging to another caste and had begun cohabitation with him. The petitioner's brother had filed a criminal complaint accusing her husband of offences under Sections 366 and 368 IPC, thereby leading to the commencement of trial proceedings. The Supreme Court had entertained a writ petition and granted relief by quashing the criminal trial. Furthermore, the Court had noted that `no offence was committed by any of the accused and the whole criminal case in question is an abuse of the process of the Court.’’

In case of D. Velusamy (Supra) Supreme Court, in Para No.33 observed, as follows –

“In our opinion a ‘relationship in the nature of marriage’ is akin to a common law marriage. Common law marriages require that although not being formally married :- (a) The couple must hold themselves out to society as being akin to spouses. (b) They must be of legal age to marry. (c) They must be otherwise qualified to enter into a legal marriage, including being unmarried. (d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time”.

This follows therefore that a ‘relationship in the nature of marriage’ under the 2005 Act must fulfill the above requirements, and in addition the parties must have lived together in a ‘shared household’ as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’.

It is generally observed that a male partner in live in relationship often disputes the tenability of the application u/s 12 of DV Act and claims that their relationship in the nature of marriage as defined in Section 2(f) of D.V. Act did not exist. Such a plea gets further attention, if the earlier marriage of female partner is not terminated. The plea also comes that deceitfully, the female partner did not disclose about earlier divorce and/or the fact that they were divorced. It is also pleaded that the female wanted to have a child but did not want any commitment to a relationship. The child is born out of said relationship and since the birth of daughter the relationship between both the partners are irretrievably broken down and there was no emotional or physical or otherwise any relationship. It is also often a broad contour of pleading that the female partner had a wayward life on her own terms and conditions, totally unconcerned about the male partner. The allegation also revolves around that no domestic chores and household was maintained by the female partner. These are generic allegations often finds mention in the plea against the domestic violence.

Taking note of situation and plausible pleas of parties, the legislature in its wisdom have enumerated circumstances, in relation to domestic violence and empowered the Court to pass just and proper orders, to redress the grievance of the aggrieved person. The bare reading of DV Act 2005, makes it abundantly clear that the Domestic Violence Act, is independent of other laws. It is a complete code in itself, dealing with the entire gamut of family relationship between Husband, Wife and Children and the remedies available to an aggrieved person, on account of domestic violence. The D.V. Act is a beneficial legislation, its provisions needs to be interpreted liberally in larger interest to benefit the women in distress to address the issue of domestic violence. It is not a penal statute which can be interpreted strictly. What is of significance in the context is that social morality, deploring adultery shall be in conflict with the constitutional morality, recognizing it to certain extent as relationship in the nature of marriage, are in conflict with each other. In such a situation when constitutional morality conflicts with social morality, the constitutional morality always prevails. In the case of Indra Sarma Vs. V.K.V.Sarma (2013) (15) SCC 755 the Supreme Court, while recognizing constitutional morality above it, put the factor of adultery on lighter note, it is observed that:

“2. Live-in or marriage like relationship is neither a crime nor a sin though socially unacceptable in this country. The decision to marry or not to marry or to have a heterosexual relationship is intensely personal.’’

Similarly, in the case of S. Khushboo Vs. Kanniammal & ors (2010) (5) SCC 600,  it is held in para no. 21:

“21. While it is true that the mainstream view in our society is that sexual contact should take place only between marital partners, there is no statutory offence that takes place when adults willingly engage in sexual relations outside the marital setting, with the exception of `adultery' as defined under Section 497 IPC”.

In Navtej Singh Johar & Ors. Vs. Union of India (2018(10) SCC1), the Supreme Court, came across the issue of human rights of transgenders and constitutional validity of Section 377 of Indian Penal Code. In somewhat different aspect of sexual orientation of human beings, the following observations made in para no. 9: –

“9.…... When we talk about identity from the constitutional spectrum, it cannot be pigeon-holed singularly to one‘s orientation that may be associated with his/her birth and the feelings he/she develops when he/she grows up. Such a narrow perception may initially sound to subserve the purpose of justice but on a studied scrutiny, it is soon realized that the limited recognition keeps the individual choice at bay. The question that is required to be posed here is whether sexual orientation alone is to be protected or both orientation and choice are to be accepted as long as the exercise of these rights by an individual do not affect another‘s choice or, to put it succinctly, has the consent of the other where dignity of both is maintained and privacy, as a seminal facet of Article 21, is not dented. At the core of the concept of identity lies self-determination, realization of one‘s own abilities visualizing the opportunities and rejection of external views with a clear conscience that is in accord with constitutional norms and values or principles that are, to put in a capsule, ―constitutionally permissible . As long ‖ as it is lawful, one is entitled to determine and follow his/her pattern of life. And that is where the distinction between constitutional morality and social morality or ethicality assumes a distinguished podium, a different objective”.

THE DIVORCE IN EARLIER MARRIAGE AND DOMESTIC VIOLENCE IN LIVE IN RELATIONSHIP

The another issue which causes consternation is tenability of the DV petition on the ground of nature of relationship, the ground of validity of divorce without waiver waiting period. Whether such a plea can be raised in a DV Petition? The fact remains that decree of divorce, if not challenged or set aside shall remain in existence and shall have a binding effect on all parties concerned and therefore, marriage shall be treated as not subsisting if there is divorce even by waiver of statutory period.  The Supreme Court in the case of Amardeep Singh Vs. Harveen Kaur (2017(8)SCC746 has held as under:

“The question which arises for consideration in this appeal is whether the minimum period of six months stipulated under Section 13B(2) of the Hindu Marriage Act, 1955 (the Act) for a motion for passing decree of divorce on the basis of mutual consent is mandatory or can be relaxed in any exceptional situations.. Since we are of the view that the period mentioned in Section 13B(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.’’

What is of pertinence is that if it is alleged that no divorce was granted to a female from the earlier marriage on the date of initiation of live in relationship , the same should be clearly borne out of record , including the element of concealment, else, it may be construed that the male partner had acquiesced to that and accepted the other partner with this legal defect and the plea to the contrary, shall be of no aid to the one who raises such allegation without corresponding material to that effect. Even if it is assumed that the pre-divorce relationship was not a relationship in the nature of marriage as contemplated under provisions of D.V. Act, the post-divorce relationship and co-habitation of both the parties with each other and their family members under same roof shall in any case constitute a domestic relationship.  

The guidelines issued by Supreme Court, in the case of Indra Sarma(Supra) , particularly, about domestic relationship between a married adult woman and an unmarried adult male knowingly entered into relationship is of immense significance. Moreover, guidelines contained in D. Velusamy (Supra) , relates to parties entering into such relationship must be otherwise qualified to enter into a legal marriage is also of some substance.

REMARK

The age old conflict of law and social change is pervasive. Either law is supposed to change the society i.e. norms of behavior of society or the law should be changed as per norms of changing social scenario. The conflict is ongoing, since time immemorial, however, in modern context as narrated above, constitutional morality shall have precedence to social morality and the Domestic Violence Act 2005 and judicial precedents as enumerated above are a reflection of that.

                                                   -------

Anil k Khaware

Founder & Senior Associate      

Societylawandjustice.com