Sunday, October 23, 2005

Some observation from various High and Supreme Courts Courts

A criminal Case is not a matter of IDLI Sambar

Pepsi Food Limited and Another Vs Special Judicial Magistrate and others reported in AIR 1998 SC128
Summoning and Accussed in a criminal case is serious matter .Criminal Law cannot be set into Motion as matter of course . It is not that complainant has to bring only two witnesses to support his allegations in the complaint to have criminal law set inot motion . The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable there to .He has to examint eh nature of the of allegations made in the complaint and the evidence both orala nd documetary in support there on and would that be sufficient to for the complainant to succeed in brionging charge home to the accused.

If a demand is not for dowry then now 498a and Dp act is not applicable

High court of Karnataka April 2005
But in cases where allegations of dowry demand and dowry harassment are made by aggrived wife , if the complaint itslef shows that the demand was not for dowry and that the alleged dowry harassment was not dowry harassment but material dispute the , the courts can certainly interfere

Every Quarrel cannot be termed as 498a ,dowry harassment or violence
High court of Karnataka April 2005
There may arise Quarrle between husband and equally or more qualified and earning wife for many reasons and unless such quarrels , where in wife alleges harassment by husbands and relatives , is relatable to dowry demands , such harassment cannot be termed as dowry harassment

If a women misuse the law the court are losing their moral authority in asking a husband to reconcile
Andhra PRadesh High court Saritha Vs Ramachandra reported in I ( 2003 ) DMC 37 DB
The court would like to go on record that for nothing teh educated women are approaching the courts for divorce and resorting to proceedings against in-laws under section 498a , IPC implicating not only the husbands but also their family members whether in India or Abroad. This is nothing but misus eof the beneficial provision intended to save the women from unscrouplous husbands . It has taken a reverse trend now. In some cases this kind of actions is coming as a formidable hurdle in the reconciliation efforts made by either well maening people or the courts.and the sanctitiy attached to the marriage in Hindu Religion and the statutory mandate that the courts try to save the marriage through concilliatory efforts till last , are being buried neck-deep . It is for the law commision and the parliament either to continue that provision ( section 498a IPC ) in the same form or to make that offense non cognisable and bailable so that ill-educated women of this country do not misuse the provision to harass innocent people for the sin of contracting marriage with egositic women

Dowry and 498a are being used by legal terrorists but a furthur PIL is need ed to clarify & follow up what is the protection supreme court can provide to the innocent so that inocent are not dragged throught he innocence t cases
Writ Petition no. 141 of 2005 in Supreme court
It may, therefore become necessary for the legislature to find out ways How the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the courts have to take care of the situation within the existing framework. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism cam be unleashed. The provision is intended to be used as a shield and not as an assassin's weapon. If cry of wolf is made too often as a prank assistance and protection may not be available when the actual wolf appears. There is no question of investigation agency and courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and courts start with the presumption that accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally indisputable that in many cases no direct evidence is available and the courts have t ace on circumstantial evidence while dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.

Finally kiran bedi's explanation that her genuine iuntention was to reconcile . But I wonder how can a reconcilation be effected by a party and how genuine can such intentions be which threatens to take action. Nornmally the NGOs send a very bland statement and the navajyoti or navashakti or whatever is its name awas cought with red face. Any ways it is a warning for everyone concerned that be carefull of NGOs trying to effect a reconcilition.


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