Case BriefsHigh Courts

Rajasthan High Court: Sanjeev Prakash Sharma, J. dismissed a petition filed by a man who assailed the lower court’s order rejecting an application for conducting a DNA test of his wife’s son, holding that the petition was devoid of merits.

Petitioner herein had filed an application before the learned Civil Judge praying for conducting a DNA test of a son born to his wife on the ground that his wife (respondent herein) was pregnant prior to getting married and therefore, the child born was not his child. He pleaded that the sonography examination of his wife during pregnancy reported that she was pregnant for 35 weeks and 06 days. His application was rejected holding that as the petitioner was living as the husband with the respondent during the period of pregnancy, and their marriage was still subsisting, the child borne from her would be presumed to be the petitioner’s son in terms of Section 112 of the Evidence Act, 1872. Aggrieved by the said order, instant petition was filed.

Petitioner’s counsel, Rajneesh Gupta, relied on the judgment passed by Coordinate Bench of the Rajasthan High Court, in Dalip Singh v. Ramesh, 2017 SCC OnLine Raj 2720, whereby it was held, “If the factum or presumption of paternity is disputed by someone, more particularly by the alleged father, it is difficult nay impossible for the party alleging such paternity to prove it without any scientific investigation.” The respondent contended that the application contained false averments. She asserted that the pregnancy and birth of her son were on account of marriage and relationship with the petitioner. There was no report from the hospital where she had been undertaking her treatment and the said report obtained was fictitious.

The Court relied on the judgments in Narayan Dutt Tiwari v. Rohit Shekhar, (2012) 12 SCC 554, and Goutam Kundu v. State of W.B, (1993) 3 SCC 418, and concluded that the reasoning adopted by the trial court for rejecting the application was incorrect. Merely because of presumption to be drawn under Section 112 of the Evidence Act, an application for seeking a DNA test could not be ousted.

However, deciding on the merits of the case, the Court observed, “it would not be appropriate to allow a DNA test to be conducted at the stage merely on the basis of the bland statement of the husband making allegations without appropriate legal evidence on record.”  It further held that the petitioner had to establish beyond reasonable doubt about his non-access to his wife during the entire period. Reliance was also placed on the recent judgment of this court in Mahesh Chand Sharma v. State, SBCW Pet. No. 2067 of 1999 (decided on 07-03-2019), where the Court observed, “In the circumstances, an order of getting DNA test of a child goes contrary to the basic fundamental right of the said individual child.”

The Court specified that in any case where such application for conducting DNA test of a minor is filed, it would be first examined, “(a) whether there is an imminent need to conduct such DNA test; (b) Whether such test would result in harming the status of the minor in any form; (c) such report is not to be made public.”

In the light of the above, the application moved by the petitioner was rejected, though on the different ground; and the writ petition was dismissed.[Mahendra v. Mamta, 2019 SCC OnLine Raj 584, decided on 23-05-2019]

Case BriefsHigh Courts

Madras High Court: S.M. Subramanium, J., dismissed a petition filed against the transfer order of passed against the petitioner, an Assistant Executive Engineer.

The petitioner was transferred from Madhuranthagam Sub-Division, Kancheepuram District to Krishnagiri Sub-Division, Krishnagiri District. The transfer order was challenged by the petitioner. Ravi Shanmugam, Advocate appearing for the petitioner stated that the reasons stipulated in the impugned order were false and far beyond the truth. Allegations were also made against officials of the Department.

The High Court was of the view that unsubstantiated allegations can never be considered in the writ petition, more so when the impugned order was an administrative transfer. It was noted that a total of 69 officials were transferred pursuant to instructions made by the Election Commission of India. Reiterating that transfer is a condition of service, the Court stated, “Transfer is not only an administrative necessity, but required to avoid all sort of familiarity of these public officials with the public of that locality. Thus, administrative transfers are issued uniformly and by adopting a consistent principle.” Also, the Court was of the considered opinion that “in case of raising allegations of mala fides, the authority against whom such an allegation is made ought to be impleaded as a party respondent in the writ petition in his personal capacity.” In such view of the matter, the Court found no reason to entertain the present petition and the same was dismissed. [N. Babu v. Department of Rural Development and Panchayati Raj, 2019 SCC OnLine Mad 710, dated 07-03-2019]

Case BriefsHigh Courts

Gujarat High Court: The Bench of A.Y. Kogje, J., allowed the application for bail sought under Section 439 of the Code of Criminal Procedure, 1973 for regular bail in connection with FIR registered for the offence punishable under Sections 395, 397 and 452 of the Indian Penal Code and under Section 135 of the Gujarat Police Act.

Additional Public Prosecutor appearing for the respondent-State opposed grant of regular bail looking to the nature and gravity of the offence.

The Court considered that there was no recovery or discovery from the applicant regarding the offence. No identification was carried out. Further, there was no evidence connecting the applicant with the offence. Basically, the opposite party was unable to bring on record any special circumstances against the applicant. The court while allowing the application held that the nature of the allegations made against the applicant in the First Information Report were bald and thus it was a fit case to exercise the discretion and enlarge the applicant on regular bail. [Anil Bhawan Vaskeliya v. State of Gujarat, 2019 SCC OnLine Guj 38, decided on 11-01-2019]

Case BriefsHigh Courts

Allahabad High Court: A Single Judge Bench of Karuna Nand Bajpayee, J., dismissed an application filed seeking the quashing of summoning order and the entire complaint which was pending in the court of Special Judge.

The question under determination was the testimonial worth of prosecution evidence. The veracity and credibility of material furnished on behalf of the prosecution was questioned and false implication had been pleaded.

The High Court relying on a plethora of cases observed that the cases where the allegations made against the accused or the evidence collected by the Investigating Officer do not constitute any offence or where the allegations are absurd or extremely improbable impossible to believe or where prosecution is legally barred or where criminal proceeding is malicious and malafide instituted with ulterior motive of grudge and vengeance alone may be the fit cases for the High Court in which the criminal proceedings may be quashed. However, in the present case on perusal of record, the Court found a prima facie case established against the accused and therefore declined to quash the complaint. [Anil v. State of U.P., 2018 SCC OnLine All 3366, decided on 01-10-2018]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Rajendra Menon, J., allowed an application filed under Section 482 CrPC seeking to quash the criminal proceedings pending against the applicants.

The applicants were the sister-in-law of the complainant and her husband. It was alleged by the complainant that soon after their marriage, her husband and his family started to demand dowry from the complainant and harass her. There were allegations not only against the husband but also against his father, mother, including current applicants.

The High Court found that the allegations against the applicants appeared to be very general in nature, no specific allegations were made. A perusal of the complaint shows that specific acts were attributed to the husband and his parents. However, against the applicants, there was a general omnibus allegation that they also harassed the complainant. The Court was of the view that to make a person liable under Section 498A CrPC, specific allegations of overt acts against such person are necessary. General omnibus allegations, as is the case here, do not suffice to make a person liable under the said section. Therefore, the application was allowed and the prosecution initiated against the applicants was quashed holding it to be unsustainable. [Guddi Kumari v. State of Bihar,2018 SCC OnLine Pat 1074, decided on 22-06-2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of K.N. Phaneendra, J., decided a criminal petition filed under Section 482 of CrPC, wherein the proceedings against the petitioner before the trial court under Section 498-A IPC and other sections were quashed.

The petitioner was the brother of Accused 1 and a co-accused in a criminal case under Section 498-A of IPC along with other sections. The deceased was the wife of Accused 1 who committed suicide allegedly due to harassment and demand of dowry by the family of Accused 1 which was mentioned in the suicide note. No specific acts were mentioned against the petitioner even in the said note except that he once abused the deceased. No allegation with regard to demand of dowry was attributable to the petitioner.

The Court considered whether the said allegation was sufficient to attract Section 498-A. After perusing the section, the Court was of the view that ‘wilful misconduct’ of the petitioner herein must have been of such a nature that was likely to drive a woman to commit suicide. It was also observed that in order to felicitate a person to commit suicide, there must be abetment thereof. The Court also perused Section 107 of IPC and observed that there must be some nexus between the abetment and the suicide caused as a result thereof. The Court found that in the instant case the nature of the act alleged against the petitioner was not such that would amount to willful misconduct that was likely to drive a woman to commit suicide; it seemed that the petitioner was arraigned as an accused to bring him to books only because he was related to Accused 1.

Since the allegations were not sufficient to constitute an offence under the said section, the proceedings against the petitioner were quashed. [Chethan v. State, Crl. Petition No. 5185 of 2017, order dated 7.2.2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: The High Court recently addressed the case of petitioners under Section 482 CrPC for quashing the FIR filed under Sections 323, 406, 498-A, 420, 506 and 120-B IPC on the ground that they had been falsely implicated in the case. Petitioner 1  was the mother-in-law of the complainant who lodged complaint against her as well as her husband after the matrimonial relations of complainant and her husband did not remain cordial any more.

After the registration of FIR, when the DSP thoroughly investigated into the matter, he concluded that the dispute was between the husband and wife and no role could be attributed to Kamaljit Kaur- the petitioner. After this, the complainant prepared a Divorce Deed in which she had clearly testified that she was giving divorce to her husband and had received lump sum money from the petitioner as life time maintenance as well as alimony.

However after this, the complainant filed a complaint against the petitioner under Section 156(3) CrPC before the Magistrate alleging the demand of dowry from her. The petitioner now before the High Court contended that she had been roped in the case without any adequate reasons and that the dispute was between her daughter-in-law and the son who does not even reside with them, but in Canada. The petitioner also highlighted the contents of the ‘Divorce Deed’ that had been signed by the complainant.

The Court looked into the antecedents of the case and found that main allegations of the complainant have been against her husband that he solemnized another marriage in Canada after taking dowry from her father and did not talk to her after that and so on. The Court observed that the allegations were general in nature qua the petitioners and thus, not sustainable. Also, the Bench of Jaishree Thakur, J. said that details made out in the FIR do not satisfy the ingredients of Sections 406 and 498-A against the petitioners.

The Bench cited Preeti Gupta v. State of Jharkhand, (2010) 7 SCC 667 in support of its observations in which it has been laid down by the Supreme Court that the allegations of harassment of husband’s close relations to the complainant filing under Section 498-A, should be scrutinized with great care and circumspection. It further considered the fact that the petitioner had already paid maintenance to the complainant and was also looking after the minor child of complainant and her husband, it decide to accept the petition and quash the FIR against petitioners. [Kamaljit Kaur @ Kamla Devi v. State of Haryana, 2017 SCC OnLine P&H 2344, decided on 15.09.2017]