Dhananjay Mahapatra, TNN, 13 February 2010, 12:56am IST
NEW DELHI: Silence is golden. But married couples shouldn’t take it literally. The Supreme Court has said silence of a partner could amount to cruelty, which under the Hindu Marriage Act is a ground for divorce.
Section 13 of the Act says a person can move a divorce petition if he or she has been treated with cruelty by the spouse or has been deserted for a continuous period of not less than two years.
Delivering its judgment in a matrimonial case, a bench comprising Justices P Sathasivam and Ashok Kumar Ganguly said:
‘‘At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed.’’
That is why, the court said, the Act deliberately did not define ‘cruelty’. ‘‘In a marriage, cruelty would obviously mean absence of mutual respect and understanding between spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed cruel,’’ it said.
This judgment came in a case where the husband after forcing the wife to live separately because of his ill-treatment moved the court for divorce saying she had treated him with cruelty by deserting him. The Mandi district magistrate granted divorce terming the desertion as cruelty on her part.
But Himachal Pradesh HC saw through the design by noticing that the daughter was unambiguous in her statement that her father used to beat her mother and that’s why she left her home. It said whether a husband or wife was cruel to the partner had always to be judged taking into account the facts and circumstances.
http://timesofindia.indiatimes.com/india/Spouses-silence-may-amount-to-cruelty-says-SC/articleshow/5566526.cms
Mr.Rebates
Saturday, February 13, 2010
Wednesday, February 10, 2010
SC wants views of HCs on RTI queries about judges' appointment
TNN, 9 February 2010, 01:58am IST
NEW DELHI: Faced with increasing number of queries under Right to Information (RTI) Act on judges' appointment to higher judiciary, the Supreme Court on Monday sought the views of all High Courts on this issue.
Responses of HCs were sought by a Bench comprising Justices B Sudershan Reddy and S S Nijjar, which was hearing a petition filed by the CPIO of the apex court challenging an order of the Central Information Commission directing making public such information.
"We see that such matters frequently arise and High Courts are dealing with these problems. Why should we not issue notice to the registrar generals of all High Courts," the Bench asked.
On an application from S C Agarwal, the CIC, apart from asking the SC to give information about the appointment process of judges, had also directed the apex court to furnish information under RTI about the correspondence between the Chief Justice of India and the CJs of HCs.
It had also allowed the plea of Agarwal asking the SC to disclose the communication between Justice R Regupathy of Madras HC to the CJI after he alleged that a central minister had tried to influence him in a case.
Attorney general G E Vahanvati, who questioned the CIC decision, argued that if opinions expressed by judges were to be laid out in the public domain, nobody could expect a frank opinion.
Defending the sanctity to be attached to collegium decisions and other communication exchanged between CJI and CJs of HCs and other judges, Vahanvati said, "The consultor and consultee must be in a position to speak frankly. The difficulty is that if these communication are put in public domain, nobody will express an honest opinion."
Appearing for Agarwal, advocate Prashant Bhushan said these arguments held no merit as in a democracy, the public had the first right to know how top judicial appointments were carried out, as ultimately such information benefited the public at large.
http://timesofindia.indiatimes.com/india/SC-wants-views-of-HCs-on-RTI-queries-about-judges-appointment/articleshow/5549332.cms
NEW DELHI: Faced with increasing number of queries under Right to Information (RTI) Act on judges' appointment to higher judiciary, the Supreme Court on Monday sought the views of all High Courts on this issue.
Responses of HCs were sought by a Bench comprising Justices B Sudershan Reddy and S S Nijjar, which was hearing a petition filed by the CPIO of the apex court challenging an order of the Central Information Commission directing making public such information.
"We see that such matters frequently arise and High Courts are dealing with these problems. Why should we not issue notice to the registrar generals of all High Courts," the Bench asked.
On an application from S C Agarwal, the CIC, apart from asking the SC to give information about the appointment process of judges, had also directed the apex court to furnish information under RTI about the correspondence between the Chief Justice of India and the CJs of HCs.
It had also allowed the plea of Agarwal asking the SC to disclose the communication between Justice R Regupathy of Madras HC to the CJI after he alleged that a central minister had tried to influence him in a case.
Attorney general G E Vahanvati, who questioned the CIC decision, argued that if opinions expressed by judges were to be laid out in the public domain, nobody could expect a frank opinion.
Defending the sanctity to be attached to collegium decisions and other communication exchanged between CJI and CJs of HCs and other judges, Vahanvati said, "The consultor and consultee must be in a position to speak frankly. The difficulty is that if these communication are put in public domain, nobody will express an honest opinion."
Appearing for Agarwal, advocate Prashant Bhushan said these arguments held no merit as in a democracy, the public had the first right to know how top judicial appointments were carried out, as ultimately such information benefited the public at large.
http://timesofindia.indiatimes.com/india/SC-wants-views-of-HCs-on-RTI-queries-about-judges-appointment/articleshow/5549332.cms
Spent a lot on wedding? Show us proof: Court
Sumit Saxena, Hindustan Times
Email Author
New Delhi, February 07, 2010
First Published: 22:45 IST(7/2/2010)
Last Updated: 22:49 IST(7/2/2010)
Planning a lavish wedding? Just keep the tax-returns ready. A city court judge has asked a woman and her parents to disclose their source of money for arranging a wedding that reportedly cost them Rs 60 lakh, on Saturday. Moreover, the court refused to register a criminal case against the groom for accepting dowry in the absence of these financial proofs.
Additional Chief Metropolitan Magistrate Rakesh Pandit said “Huge claims are made regarding giving of dowry which are sometimes are astronomical in nature as far as the financial condition of parents are concerned”.
Laviral Kalra (name changed) a resident of Anand Vihar, East Delhi got married to Pooja (name changed) in December 2008. Pooja alleged that her father, a property dealer spent Rs 60 lakh on her wedding, and also gifted a Maruti SX4 car to the groom.
Counsel for Laviral (who wished to remain unidentified) said, “The girl and her parents have not produced any financial documents to support their claims”. The court upheld his argument, and the judge said, “In these circumstances it is very difficult to ascertain whether this much amount was ever spent or any alleged demands were raised.”
The court noted that in matrimonial offences, it is essential to identify the source of money of parents who claim to host an expensive wedding. Pooja’s counsel argued that her parents literally “bowed to Laviral and his family’s wishes”, and the court should order criminal proceedings against him.
In the absence of financial returns or any other documents, the court dismissed Pooja’s counsel’s plea for registration of an FIR against Laviral and his family members.
http://www.hindustantimes.com/rssfeed/newdelhi/Spent-a-lot-on-wedding-Show-us-proof-Court/Article1-506462.aspx
Email Author
New Delhi, February 07, 2010
First Published: 22:45 IST(7/2/2010)
Last Updated: 22:49 IST(7/2/2010)
Planning a lavish wedding? Just keep the tax-returns ready. A city court judge has asked a woman and her parents to disclose their source of money for arranging a wedding that reportedly cost them Rs 60 lakh, on Saturday. Moreover, the court refused to register a criminal case against the groom for accepting dowry in the absence of these financial proofs.
Additional Chief Metropolitan Magistrate Rakesh Pandit said “Huge claims are made regarding giving of dowry which are sometimes are astronomical in nature as far as the financial condition of parents are concerned”.
Laviral Kalra (name changed) a resident of Anand Vihar, East Delhi got married to Pooja (name changed) in December 2008. Pooja alleged that her father, a property dealer spent Rs 60 lakh on her wedding, and also gifted a Maruti SX4 car to the groom.
Counsel for Laviral (who wished to remain unidentified) said, “The girl and her parents have not produced any financial documents to support their claims”. The court upheld his argument, and the judge said, “In these circumstances it is very difficult to ascertain whether this much amount was ever spent or any alleged demands were raised.”
The court noted that in matrimonial offences, it is essential to identify the source of money of parents who claim to host an expensive wedding. Pooja’s counsel argued that her parents literally “bowed to Laviral and his family’s wishes”, and the court should order criminal proceedings against him.
In the absence of financial returns or any other documents, the court dismissed Pooja’s counsel’s plea for registration of an FIR against Laviral and his family members.
http://www.hindustantimes.com/rssfeed/newdelhi/Spent-a-lot-on-wedding-Show-us-proof-Court/Article1-506462.aspx
Monday, February 8, 2010
498a by "unloyal, money hungry family" What you should do first
1) TOP PRIORITY Get AB for all concerned relatives in India.
2) Use all methods, political influence, money (one or both) to get the chargesheet manipulated. By that i mean generally all the police want is to get some money out of this situation (from both parties). Once the matter goes to court, then it goes out of their hands. They are known to file chargesheets with certain inherent loopholes which can be easily used by your lawyer in court. Trust me! Even you can get Bail if the chargesheet is favourable. The best way to settle this will be in court with the amount of proof/evidence you have at your disposal. Also remember that chargesheet once filled cannot be changed under any circumstances and police will stick to its finding no matter what.
3) Do not compromise & go for out of court settlement. It may hurt you in the long run.
4) Be paitient & be afraid. By that i mean don't get complacent under any situation & do not underestimate anybody. Small things going right/wrong for you at this stage will have huge implications later in court.
5) Protect all the evidence that you have got & keep a very watchfull eye on your lawyer. Lawyers tend to sell out when they get opportunity to do so.
2) Use all methods, political influence, money (one or both) to get the chargesheet manipulated. By that i mean generally all the police want is to get some money out of this situation (from both parties). Once the matter goes to court, then it goes out of their hands. They are known to file chargesheets with certain inherent loopholes which can be easily used by your lawyer in court. Trust me! Even you can get Bail if the chargesheet is favourable. The best way to settle this will be in court with the amount of proof/evidence you have at your disposal. Also remember that chargesheet once filled cannot be changed under any circumstances and police will stick to its finding no matter what.
3) Do not compromise & go for out of court settlement. It may hurt you in the long run.
4) Be paitient & be afraid. By that i mean don't get complacent under any situation & do not underestimate anybody. Small things going right/wrong for you at this stage will have huge implications later in court.
5) Protect all the evidence that you have got & keep a very watchfull eye on your lawyer. Lawyers tend to sell out when they get opportunity to do so.
Delhi hc-slams mother-advocate-judges nexus on culture of adjournments
http://lobis. nic.in/dhc/ SND/judgement/ 30-01-2010/ SND28012010CMM92 010.pdf
CM(M) No. 9/2010 Puja Kakar v. Arjun Kakar Page 1 of 7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 27th
January, 2010
Date of Order: January 28, 2010
CM(M) No. 9/2010 & CM No. 77/2010
% 28.01.2010
Puja Kakar ... Petitioner
Through: Mr. Amit K. Chadha, Sr. Advocate with
Mr. Arun Batta, Advocate
Versus
Arjun Kakar ... Respondents
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
JUDGMENT
By the present petition, the petitioner has assailed orders dated 20th
March, 2009 and 23rd
July, 2009 passed by the Guardianship Court.
2. A perusal of order dated 20th
March, 2009 would show that the matter
on that day case was listed for cross examination of witnesses of petitioner
(respondent herein) Five witnesses viz. Shri Arjun Kakar, Shri B.M.Kakar, Ms. Uma
Kakar, Shri Kapil Gupta and Shri Kunj Lal were present for their cross examination.
Proxy Counsel for respondent/petitioner appeared and moved an application for
adjournment on the ground that the car of main Counsel was stolen on 10th
March,
2009 and in the car file of the present case was also lying due to which Counsel for
respondent/petitioner required time to reconstruct the file and to prepare the cross
examination. The application was opposed by the Counsel for the plaintiff stating
that it was a false plea. He showed that throughout the conduct of the petitioner had
been to somehow prolong the proceedings and the petitioner had deliberately not CM(M) No. 9/2010 Puja Kakar v. Arjun Kakar Page 2 of 7
been cross examining the witnesses of the plaintiff since she was having custody of
child in question and she wanted to prolong the proceedings. On various earlier
occasions the petitioner had been burdened with costs but the same had no affect on
the petitioner and the cross examination should be closed.
3. The learned trial Court went through the record and found that on
framing of issues by the Court, the parties were granted two opportunities each to
conclude the evidence. The petitioner/respondent filed affidavits of three witnesses
on 20th
October, 2008 and the matter was adjourned for cross examination of
witnesses to 19th
December, 2008. On 19th
December, 2008, adjournment was
sought on behalf of petitioner herein on the ground that copies of affidavits of PWs
got misplaced and the Counsel could not prepare the cross examination. The Court
therefore adjourned the case for 20th
March, 2009 for cross examination of witnesses
subject to cost of Rs.2,000/- and granted a last opportunity to the petitioner to cross
examine the witnesses. On 20th
March, 2009 when five witnesses were present in
the Court, the application was made for adjournment on the ground of loss of file due
to theft of car. The trial Court noted that the file was allegedly stolen on 10th
March,
2009, but the advocate whose car was stolen with file had not signed the application
neither he furnished the affidavit and there was no reason to believe that the file of
the case, which was fixed before the Court on 20th
March, 2009 was lying in the car
on 10th
March 2009. The last date of the case was 19th
December, 2008 and next
date was 20th
March, 2009. No reason was furnished by the Counsel as to why the
file was lying in the car when the date of theft of car was neither the last date nor the
next date. It was found by the Court that there was force in the arguments of the
plaintiff that the Counsel for petitioner had sufficient time to reconstruct the file.
There were about 10 days available to the Counsel for reconstruction of the file even
if it had been stolen. The court found ground for adjournment frivolous and CM(M) No. 9/2010 Puja Kakar v. Arjun Kakar Page 3 of 7
dismissed the application for adjournment and closed the cross examination of the
witnesses and fixed the case for respondent’s (petitioner herein) evidence.
4. A review application was filed on 20th
April, 2009 for reviewing the
order dated 20th
March 2009 just on the last day of limitation. This application was
dismissed vide order dated 23rd
July, 2009 and in the order for review, it was
observed by the Court that there was no force in the review petition. The Court also
found that on the one hand the plea taken was that all the files of petitioner herein
pertaining to different cases with respondent were tagged together and lying in the
car which got stolen whereas the same Counsel for the respondent argued the
matter for the petitioner before the High Court on 12th
March, 2009 and 20th
March,
2009 in pending litigations between the parties arising out of the divorce petition. If
the files had been tagged together and lost, the Counsel for the petitioner herein
would not have been in a position to argue the matter in the High Court on 12th
March
2009 and 20th
March, 2009. It was observed by the learned ADJ that the Counsel for
the petitioner tried to wriggle out of this situation by stating that one of the files
containing certain proceedings concerning divorce was lying at his office. The Court
observed that the plea taken by the petitioner’s counsel that all the files pertaining to
various litigation between petitioner and respondent tagged together were lying in the
car, was not convincing and it was difficult to swallow that files fixed for different
cases in different Courts could have been tagged together and could have been just
dumped in the car when there was no date. The Court found that there was no
ground for review and dismissed the application.
5. Before this Court the Senior Counsel Mr. Amit K. Chadha argued that
the petitioner had engaged a Counsel for conducting trial at the lower Court and for
the negligence of the Counsel of the petitioner the petitioner should not suffer. A
plea was also taken that because this Court observed on 7th
January, 2010 that no
complaint had been filed against the previous counsel, the petitioner after 7th
CM(M) No. 9/2010 Puja Kakar v. Arjun Kakar Page 4 of 7
January, 2010 also filed a complaint against the previous Counsel to the Bar Council.
It is submitted that the Court should grant one more opportunity to the petitioner for
cross examination of witnesses since it would cause great prejudice to the petitioner
as non cross-examination of witnesses shall in fact amount to admission of testimony
of the witnesses.
6. It is submitted that the case was fixed for respondent’s evidence on
28th January, 2010.
7. It is apparent from the order dated 20th
March, 2009 of the trial Court
that the efforts of the petitioner had been to drag the case. She first did not file WS,
her defence was struck off, she made an application for reviving the defence and
recalling the order by which defence was struck off, which was allowed subject to
cost and she was given time to file WS. Again she did not file WS in the time given
and made an application for allowing more time for filing of WS, which was allowed
subject to cost. Even thereafter her sole concern had been to drag the litigation.
When the witnesses of the petitioner/respondent appeared in the Court for their cross
examination they were sent back because the Counsel took the plea that he had
misplaced the affidavits.
8. Every Counsel who has to cross examine the witnesses has to
prepare cross examination in advance on the basis of affidavits supplied to him. The
cross examination is not prepared in the Court or on the very date of hearing. If the
Counsel wanted to cross examine the witnesses, he could have requested opposite
side Counsel for giving him another copy of the affidavit but as it goes, the effort was
to seek adjournment. The adjournment was granted subject to paltry cost, which did
not have affect on the petitioner. On next date of hearing, when the respondent’s five
witnesses were present in the Court for cross examination, a proxy counsel is sent
for taking adjournment on the plea that the car was stolen about 11 days back and CM(M) No. 9/2010 Puja Kakar v. Arjun Kakar Page 5 of 7
the file of the petitioner was also stolen along with the car. The trial Court vide
detailed order dismissed the application. The order of the trial Court was perfectly
justified. There was no reason that the trial Court should have believed the story put
forward by the petitioner’s proxy counsel or the petitioner’s counsel. Then a review is
filed on the last date of limitation, in the meantime, the proceedings remain standstill.
The review is dismissed on 23rd
July, 2009. Against the dismissal of review, this
petition under Article 227 is filed after about five months, few days before the next
date fixed before trial Court. This conduct of petitioner itself shows that the efforts
have been to make applications on the last date or with a delay and obtain orders
from the Court pleading mercy. In the present petition also, the plea of illness of
father and other mercy pleas have been raised by the petitioner. The petitioner’s
Counsel before trial Court took patently frivolous pleas of having misplaced the
affidavits and having lost the files in a car stolen on 9th
March, 2009, when the case
was fixed on 20th
March, 2009. This despite the fact that the same Counsel though
had taken plea that all files were tagged together and lost, had argued the case of
the petitioner in High Court on 12th
March, 2009 and 20th
March, 2009. The entire
efforts of the petitioner have been to drag the case, even if some cost was imposed.
9. It is seen that these efforts of dragging the case succeeds because of
the latitude shown by the High Court in allowing such mercy pleas and in acceding to
requests of granting one more opportunity. It looks as if there is an understanding
between the Courts and the advocates that come what may, the orders of trial Court
refusing adjournments shall be set aside on mercy pleas and one more opportunity
shall be granted. It is because of this attitude that in almost all cases where the
advocates intend to drag the case either they let the case get proceeded ex parte or
they don’t examine the witnesses on one or the other pretext or seek adjournment
subject to cost, then don’t pay cost and when the evidence is closed or cross
examination is closed, they rush to High Court and pray for one more opportunity, CM(M) No. 9/2010 Puja Kakar v. Arjun Kakar Page 6 of 7
which they normally get with some more costs. This entire unwritten procedure
which is followed on the basis of previous precedents has created bottlenecks in the
entire judicial system and a lot of trial Courts’ efforts and time is wasted. Efficiency
comes down. A host of frivolous applications are moved and a lot of time first of trial
Court and then the High Court is wasted in entertaining petitions. A case which
normally should not take more than one year in decision keeps dragging for years
and years. The witnesses keep on appearing in the Courts and adjournments are
granted in the name of strike or in the name of elections or in the name of personal
difficulty of the Senior Counsel or in the name of personal difficulties of briefing
Counsel or because the two Counsel agree for adjournment. This whole culture of
adjournment is one of the big reasons that a case or a petition which should be
decided in two or three hearings keeps pending for more than 100 hearings. A
separate breed of advocates have cropped up, who are ‘adjournment experts’ and
‘case dragging expert’. Such advocates are deliberately engaged, who put forward
all kinds of excuses to see that the case is adjourned. I consider that this culture has
to be brought to an end and no petition for setting aside such orders of the trial Court,
where cross examination is closed or other steps are taken by the trial court to
enforce the procedure as laid down by CPC, should be allowed on the ground that
the petitioner should not suffer for the negligence of the Counsel. A litigant has to
be vigilant and has to pursue the case diligently on all hearings. Where a litigant does
not appear in the Court and leaves the case at the mercy of his Counsel without
bothering as to what different frivolous pleas were being taken by his/her Counsel for
adjournments is bound to suffer.
10. Counsel is engaged only for giving expert legal advice and on all
hearing litigants must be present in the court and if he/she finds that the Counsel was
not diligently following the case, the litigant should withdraw the case from the CM(M) No. 9/2010 Puja Kakar v. Arjun Kakar Page 7 of 7
Counsel immediately and give it to other Counsel and should also claim suitable
compensation from such Counsel.
11. In this case filing of present petition after five months of the passing of
the order itself shows that the effort of the petitioner was to prolong the proceedings
and not to allow the proceedings to proceed. In this effort, the earlier Counsel had
only been trying to prolong the case and this prolongation of the case could not have
been done without consent of the petitioner. I find no force in the petition. The
petition is hereby dismissed.
Janaury 28, 2010
SHIV NARAYAN DHINGRA, J.
CM(M) No. 9/2010 Puja Kakar v. Arjun Kakar Page 1 of 7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 27th
January, 2010
Date of Order: January 28, 2010
CM(M) No. 9/2010 & CM No. 77/2010
% 28.01.2010
Puja Kakar ... Petitioner
Through: Mr. Amit K. Chadha, Sr. Advocate with
Mr. Arun Batta, Advocate
Versus
Arjun Kakar ... Respondents
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
JUDGMENT
By the present petition, the petitioner has assailed orders dated 20th
March, 2009 and 23rd
July, 2009 passed by the Guardianship Court.
2. A perusal of order dated 20th
March, 2009 would show that the matter
on that day case was listed for cross examination of witnesses of petitioner
(respondent herein) Five witnesses viz. Shri Arjun Kakar, Shri B.M.Kakar, Ms. Uma
Kakar, Shri Kapil Gupta and Shri Kunj Lal were present for their cross examination.
Proxy Counsel for respondent/petitioner appeared and moved an application for
adjournment on the ground that the car of main Counsel was stolen on 10th
March,
2009 and in the car file of the present case was also lying due to which Counsel for
respondent/petitioner required time to reconstruct the file and to prepare the cross
examination. The application was opposed by the Counsel for the plaintiff stating
that it was a false plea. He showed that throughout the conduct of the petitioner had
been to somehow prolong the proceedings and the petitioner had deliberately not CM(M) No. 9/2010 Puja Kakar v. Arjun Kakar Page 2 of 7
been cross examining the witnesses of the plaintiff since she was having custody of
child in question and she wanted to prolong the proceedings. On various earlier
occasions the petitioner had been burdened with costs but the same had no affect on
the petitioner and the cross examination should be closed.
3. The learned trial Court went through the record and found that on
framing of issues by the Court, the parties were granted two opportunities each to
conclude the evidence. The petitioner/respondent filed affidavits of three witnesses
on 20th
October, 2008 and the matter was adjourned for cross examination of
witnesses to 19th
December, 2008. On 19th
December, 2008, adjournment was
sought on behalf of petitioner herein on the ground that copies of affidavits of PWs
got misplaced and the Counsel could not prepare the cross examination. The Court
therefore adjourned the case for 20th
March, 2009 for cross examination of witnesses
subject to cost of Rs.2,000/- and granted a last opportunity to the petitioner to cross
examine the witnesses. On 20th
March, 2009 when five witnesses were present in
the Court, the application was made for adjournment on the ground of loss of file due
to theft of car. The trial Court noted that the file was allegedly stolen on 10th
March,
2009, but the advocate whose car was stolen with file had not signed the application
neither he furnished the affidavit and there was no reason to believe that the file of
the case, which was fixed before the Court on 20th
March, 2009 was lying in the car
on 10th
March 2009. The last date of the case was 19th
December, 2008 and next
date was 20th
March, 2009. No reason was furnished by the Counsel as to why the
file was lying in the car when the date of theft of car was neither the last date nor the
next date. It was found by the Court that there was force in the arguments of the
plaintiff that the Counsel for petitioner had sufficient time to reconstruct the file.
There were about 10 days available to the Counsel for reconstruction of the file even
if it had been stolen. The court found ground for adjournment frivolous and CM(M) No. 9/2010 Puja Kakar v. Arjun Kakar Page 3 of 7
dismissed the application for adjournment and closed the cross examination of the
witnesses and fixed the case for respondent’s (petitioner herein) evidence.
4. A review application was filed on 20th
April, 2009 for reviewing the
order dated 20th
March 2009 just on the last day of limitation. This application was
dismissed vide order dated 23rd
July, 2009 and in the order for review, it was
observed by the Court that there was no force in the review petition. The Court also
found that on the one hand the plea taken was that all the files of petitioner herein
pertaining to different cases with respondent were tagged together and lying in the
car which got stolen whereas the same Counsel for the respondent argued the
matter for the petitioner before the High Court on 12th
March, 2009 and 20th
March,
2009 in pending litigations between the parties arising out of the divorce petition. If
the files had been tagged together and lost, the Counsel for the petitioner herein
would not have been in a position to argue the matter in the High Court on 12th
March
2009 and 20th
March, 2009. It was observed by the learned ADJ that the Counsel for
the petitioner tried to wriggle out of this situation by stating that one of the files
containing certain proceedings concerning divorce was lying at his office. The Court
observed that the plea taken by the petitioner’s counsel that all the files pertaining to
various litigation between petitioner and respondent tagged together were lying in the
car, was not convincing and it was difficult to swallow that files fixed for different
cases in different Courts could have been tagged together and could have been just
dumped in the car when there was no date. The Court found that there was no
ground for review and dismissed the application.
5. Before this Court the Senior Counsel Mr. Amit K. Chadha argued that
the petitioner had engaged a Counsel for conducting trial at the lower Court and for
the negligence of the Counsel of the petitioner the petitioner should not suffer. A
plea was also taken that because this Court observed on 7th
January, 2010 that no
complaint had been filed against the previous counsel, the petitioner after 7th
CM(M) No. 9/2010 Puja Kakar v. Arjun Kakar Page 4 of 7
January, 2010 also filed a complaint against the previous Counsel to the Bar Council.
It is submitted that the Court should grant one more opportunity to the petitioner for
cross examination of witnesses since it would cause great prejudice to the petitioner
as non cross-examination of witnesses shall in fact amount to admission of testimony
of the witnesses.
6. It is submitted that the case was fixed for respondent’s evidence on
28th January, 2010.
7. It is apparent from the order dated 20th
March, 2009 of the trial Court
that the efforts of the petitioner had been to drag the case. She first did not file WS,
her defence was struck off, she made an application for reviving the defence and
recalling the order by which defence was struck off, which was allowed subject to
cost and she was given time to file WS. Again she did not file WS in the time given
and made an application for allowing more time for filing of WS, which was allowed
subject to cost. Even thereafter her sole concern had been to drag the litigation.
When the witnesses of the petitioner/respondent appeared in the Court for their cross
examination they were sent back because the Counsel took the plea that he had
misplaced the affidavits.
8. Every Counsel who has to cross examine the witnesses has to
prepare cross examination in advance on the basis of affidavits supplied to him. The
cross examination is not prepared in the Court or on the very date of hearing. If the
Counsel wanted to cross examine the witnesses, he could have requested opposite
side Counsel for giving him another copy of the affidavit but as it goes, the effort was
to seek adjournment. The adjournment was granted subject to paltry cost, which did
not have affect on the petitioner. On next date of hearing, when the respondent’s five
witnesses were present in the Court for cross examination, a proxy counsel is sent
for taking adjournment on the plea that the car was stolen about 11 days back and CM(M) No. 9/2010 Puja Kakar v. Arjun Kakar Page 5 of 7
the file of the petitioner was also stolen along with the car. The trial Court vide
detailed order dismissed the application. The order of the trial Court was perfectly
justified. There was no reason that the trial Court should have believed the story put
forward by the petitioner’s proxy counsel or the petitioner’s counsel. Then a review is
filed on the last date of limitation, in the meantime, the proceedings remain standstill.
The review is dismissed on 23rd
July, 2009. Against the dismissal of review, this
petition under Article 227 is filed after about five months, few days before the next
date fixed before trial Court. This conduct of petitioner itself shows that the efforts
have been to make applications on the last date or with a delay and obtain orders
from the Court pleading mercy. In the present petition also, the plea of illness of
father and other mercy pleas have been raised by the petitioner. The petitioner’s
Counsel before trial Court took patently frivolous pleas of having misplaced the
affidavits and having lost the files in a car stolen on 9th
March, 2009, when the case
was fixed on 20th
March, 2009. This despite the fact that the same Counsel though
had taken plea that all files were tagged together and lost, had argued the case of
the petitioner in High Court on 12th
March, 2009 and 20th
March, 2009. The entire
efforts of the petitioner have been to drag the case, even if some cost was imposed.
9. It is seen that these efforts of dragging the case succeeds because of
the latitude shown by the High Court in allowing such mercy pleas and in acceding to
requests of granting one more opportunity. It looks as if there is an understanding
between the Courts and the advocates that come what may, the orders of trial Court
refusing adjournments shall be set aside on mercy pleas and one more opportunity
shall be granted. It is because of this attitude that in almost all cases where the
advocates intend to drag the case either they let the case get proceeded ex parte or
they don’t examine the witnesses on one or the other pretext or seek adjournment
subject to cost, then don’t pay cost and when the evidence is closed or cross
examination is closed, they rush to High Court and pray for one more opportunity, CM(M) No. 9/2010 Puja Kakar v. Arjun Kakar Page 6 of 7
which they normally get with some more costs. This entire unwritten procedure
which is followed on the basis of previous precedents has created bottlenecks in the
entire judicial system and a lot of trial Courts’ efforts and time is wasted. Efficiency
comes down. A host of frivolous applications are moved and a lot of time first of trial
Court and then the High Court is wasted in entertaining petitions. A case which
normally should not take more than one year in decision keeps dragging for years
and years. The witnesses keep on appearing in the Courts and adjournments are
granted in the name of strike or in the name of elections or in the name of personal
difficulty of the Senior Counsel or in the name of personal difficulties of briefing
Counsel or because the two Counsel agree for adjournment. This whole culture of
adjournment is one of the big reasons that a case or a petition which should be
decided in two or three hearings keeps pending for more than 100 hearings. A
separate breed of advocates have cropped up, who are ‘adjournment experts’ and
‘case dragging expert’. Such advocates are deliberately engaged, who put forward
all kinds of excuses to see that the case is adjourned. I consider that this culture has
to be brought to an end and no petition for setting aside such orders of the trial Court,
where cross examination is closed or other steps are taken by the trial court to
enforce the procedure as laid down by CPC, should be allowed on the ground that
the petitioner should not suffer for the negligence of the Counsel. A litigant has to
be vigilant and has to pursue the case diligently on all hearings. Where a litigant does
not appear in the Court and leaves the case at the mercy of his Counsel without
bothering as to what different frivolous pleas were being taken by his/her Counsel for
adjournments is bound to suffer.
10. Counsel is engaged only for giving expert legal advice and on all
hearing litigants must be present in the court and if he/she finds that the Counsel was
not diligently following the case, the litigant should withdraw the case from the CM(M) No. 9/2010 Puja Kakar v. Arjun Kakar Page 7 of 7
Counsel immediately and give it to other Counsel and should also claim suitable
compensation from such Counsel.
11. In this case filing of present petition after five months of the passing of
the order itself shows that the effort of the petitioner was to prolong the proceedings
and not to allow the proceedings to proceed. In this effort, the earlier Counsel had
only been trying to prolong the case and this prolongation of the case could not have
been done without consent of the petitioner. I find no force in the petition. The
petition is hereby dismissed.
Janaury 28, 2010
SHIV NARAYAN DHINGRA, J.
How to use recorded statements/videos as evidence?
You can use under section 65(B)as a secondary evidence
and in this u have no need to prove its original or not also
After section 65, section
65A and 65B have been added laying down the provisions about Admissibility of electronic records.
Moreover, the concept of electronic evidence
fails to identify the kinds of documentary evidence namely the primary and the
secondary evidence as every electronic record is an original as well as in duplicate.
However, the provisions of section 65A and 65B help to overcome this complex
situation.
The AMENDMENTS TO THE INDIAN EVIDENCE ACT, 1872 introduced
this new section which states:- Admissibility of electronic records.
65B. (1) Notwithstanding anything contained in this Act, any information
contained in an electronic record which is printed on a paper, stored, recorded
or copied in optical or magnetic media produced by a computer (hereinafter
referred to as the computer output) shall be deemed to be also a document, if
the conditions mentioned in this section are satisfied in r production of that
electronic record as may be appropriate for the purpose of showing that the
electronic record was produced by a computer;
(c)
dealing with any of the matters to which the conditions mentioned in sub
section (2) relate, and purporting to be signed by a person occupying a
responsible official position in relation to the operation of the relevant
device or the management of the relevant activities (whichever is appropriate)
shall be evidence of any matter stated in the certificate; and for the purposes
of this sub-section it shall be sufficient for a matter to be stated to the
best of the knowledge and belief of the person stating it.
(5)
For the purposes of this section, -
(a)
information shall be taken to be supplied to a computer if it is supplied
thereto in any appropriate form and whether it is so supplied directly or (with
or without human intervention) by means of any appropriate equipment;
(b)
whether in the course of activities carried on by any official, information is
supplied with a view to its being stored or processed for the purposes of those
activities by a computer operated otherwise than in the course of those
activities, that information, if duly supplied to that computer, shall be taken
to be supplied to it in the course of those activities;
(c)
a computer output shall be taken to have been produced by a computer whether it
was produced by it directly or (with or without human intervention) by means of
any appropriate equipment. Explanation.-For the purposes of this section any
reference to information being
derived from other information shall be a reference to its being derived
therefrom bycalculation, comparison or any other process.
The phenomenon of tendering tape recorded
conversation before law courts as evidence, particularly in cases arising under
the Prevention of Corruption Act, where such conversation is recorded by sending
the complainant with a recording device to the person demanding or offering
bribe has almost become a common practice now. In civil cases also parties may
rely upon tape records of relevant conversation to support their version. In
such cases the court has to face various questions regarding admissibility,
nature and evidentiary value of such a tape- recorded conversation. The Indian
Evidence Act, prior to its being amended by the Information Technology Act,
2000, mainly dealt with evidence, which was in oral or documentary form. Nothing
was there to point out about the admissibility, nature and evidentiary value of
a conversation or statement recorded in an electro-magnetic device. Being
confronted with the question of this nature and called upon to decide the same,
the law courts in India as well as in England devised and developed principles
so that such evidence, mat be received in law courts and acted upon.
The relationship between law and technology
has not always been an easy one. However, the law has always yielded in favour
of technology whenever it was found necessary. The concern of the law courts
regarding utility and admissibility of tape recorded conversation, from time to
time found its manifestation in various pronouncement. In
Hopes v. H.M. Advocate, 1960 Scots Law Times 264, the court while dealing
with the question of admissibility of tape recorded conversation observed as
under:
New techniques and new devises are the order
of the day. I can´t conceive, for example, of the evidence of a ship´s captain
as to what he observed being turned down as inadmissible because he had used a
telescope, any more than the evidence of what an ordinary person sees with his
eyes becomes incompetent because he was wearing spectacles. Of course, comments
and criticism can be made, and no doubt will be made, on the audibility or the
intelligibility, or perhaps the interpretation, of the results of the use of a
scientific method; but that is another matter and that is a matter and that is a
matter of value, not of competency.
An authoritative and categorical exposition
this point is found in Rex v. Maqsud, 1965(2) All
ER,461 wherein the Court of Criminal Appeal observed that the time has come when
this court should state its views of the law matter which is likely to be
increasingly raised as time passes. For many years now photographs have been
admissible in evidence on proof that they are relevant to the issues in involved
in the case and that the print as seen represents situations that have been
reproduced by means of mechanical and chemical devices. Evidence of things seen
through telescopes or binoculars which otherwise could not be picked up by the
naked eye have been admitted, and now there are devices for picking up,
transmitting and recording conversations. In principle no difference can be made
between a tape recording and a photograph. The court was of the view that it
would wrong to deny to the law of evidence advantages to be gained by new
techniques and devises.
In India, the earliest case in which issue
of admissibility of tape-recorded conversation came for consideration is
Rupchand v. Mahabir Prasad, AIR 1956 Punjab 173.
The court in this case though declined to treat tape-recorded conversation as
writing within the meaning of section 3 (65) of the General Clauses Act but
allowed the same to be used under section 155(3) of the Evidence Act as previous
statement to shake the credit of witness. The Court held there is no rule of
evidence, which prevents a party, who is endeavoring to shake the credit of a
witness by use of former inconsistent statement, from deposing that while he was
engaged in conversation with the witness, a tape recorder was in operation, or
from producing the said tape recorder in support of the assertion that a certain
statement was made in his presence.
In S. Pratap Singh v.
State of Punjab, AIR 1964 SC 72 a five judges bench of Apex Court
considered the issue and clearly propounded that tape recorded that tape
recorded talks are admissible in evidence and simple fact that such type of
evidence can be easily tampered which certainly could not be a ground to reject
such evidence as inadmissible or refuse to consider it, because there are few
documents and possibly no piece of evidence, which could not be tempered with.
In this case the tape record of the conversation was admitted in evidence to
corroborate the evidence of witnesses who had stated that such a conversation
has taken place.
The Apex Court in
Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 SC147
considered various aspects of the issue relating to admissibility of tape
recoded conversation. This was a case relating to an offence under section 165-A
of Indian Penal Code and at the instance of the Investigating Agency, the
conversation between accused, who wanted to bribe, and complainant was tape
recorded. The prosecution wanted to use this tape recorded conversation as
evidence against accused and it was argued that the same is hit by section 162
CrPC as well as article 20(3) of the constitution. In this landmark decision,
the court emphatically laid down in unequivocal terms that the process of tape
recording offers an accurate method of storing and later reproducing sounds. The
imprint on the magnetic tape is direct effect of the relevant sounds. Like a
photograph of a relevant incident, a contemporaneous tape record of a relevant
conversation is a relevant fact and is admissible under section 7 of the Indian
Evidence Act. The Apex Court after examining the entire issue in the light of
various pronouncements laid down the following principles:
a) The contemporaneous dialogue, which was tape recorded, formed part of
res-gestae and is relevant and admissible under section 8 of the Indian Evidence
Act.
b) The contemporaneous tape record of a
relevant conversation is a relevant fact and is admissible under section 7 of
the Indian Evidence Act.
c) Such a statement was not in fact a
statement made to police during investigation and, therefore, cannot be held to
be inadmissible under section 162 of the Criminal Procedure Code.
d) Such a recorded conversation though
procured without the knowledge of the accused but the same is not elicited by
duress, coercion or compulsion nor extracted in an oppressive manner or by force
or against the wishes of the accused. Therefore the protection of the article
20(3) was not available.
e) One of the features of magnetic tape
recording is the ability to erase and re-use the recording medium. Therefore,
the evidence must be received with caution. The court must be satisfied beyond
reasonable doubt that the record has not been tampered with.
Conditions Of
Admissibility:
The tape recorded conversation can be erased with ease by subsequent recording
and insertion could be superimposed. However, this factor would have a bearing
on the weight to be attached to the evidence and not on its admissibility.
Ultimately, if in a particular case, there is a well grounded suspicion not even
say proof, that the tape recording has been tampered with that would be a good
ground for the court to discount wholly its evidentiary value as in
Pratap Singh v. State of Punjab, AIR 1964 SC 72. in
the case of Ram Singh v. Col. Ram Singh, AIR 1986
SC 3, following conditions were pointed out by the Apex Court for admissibility
of tape recorded conversation:
a) the voice of the speaker must be duly identified by the maker of the record
or by others who recognize his voice. Where the maker has denied the voice it
will require very strict proof to determine whether or not it was really the
voice of the speaker.
b) The accuracy of the tape recorded statement has to be proved by the maker of
the record by satisfactory evidence direct or circumstantial.
c) Every possibility of tempering with or erasure of a part of a tape recorded
statement must be ruled out otherwise it may render the said statement out of
context and, therefore, inadmissible.
d) The statement must be relevant according to the rules of Evidence Act.
e) The recorded cassette must be carefully sealed and kept in safe or official
custody.
f) The voice of the speaker should be clearly audible and not lost or distorted
by other sounds or disturbance.
Identification Of
Voice:
As regards the identification of the taped voice, proper identification of such
voice is a sine qua non for the use of such tape recording, therefore, the time
and place and accuracy of the recording must be proved by a competent witness
and the voices must be properly identified. [(See: Yusufalli Esmail Nagree)
(Supra)]
Transcript:
The importance of having a transcript of the tape-recorded conversation cannot
be under estimated because the same ensures that the recording was not tampered
subsequently. In the case of Ziyauddin Burhanuddin Bukhari
v. Brijmohan Ramdas Mehta, AIR 1975 SC 1788, the Apex Court considered
the value and use of such transcripts and expressed the view that transcript
could be used to show what the transcriber has found recorded there at the time
of transcription and the evidence of the makers of the transcripts is certainly
corroborative because it goes to confirm what the tape record contained. The
Apex Court also made it clear that such transcripts can be used by a witness to
refresh his memory under section 159 of the Evidence Act and their contents can
be brought on record by direct oral evidence in the manner prescribed by section
160 of Evidence Act.
Nature:
Tape-recorded conversation is nothing but information stored on a magnetic
media. In the case of Roopchand (Supra), though, Punjab High Court declined to
treat tape recorded conversation as a writing within the meaning of section 3
(65) of the General Clauses Act but this view could not be survive for a long
and the Apex Court in Ziyauddin Burhanuddin Bukhari
(Supra) clearly laid down that the tape recorded speeches were
"documents as defined by section 3 of the Evidence Act",
which stood on no different footing than photographs.
After coming into force of the Information
Technology Act, 2000, (w.e.f. 17.10.2000) the traditional concept of evidence
stands totally reformed. Section 2(r) of this Act is relevant in this respect
which defines information in electronic form as information generated, sent,
received or stored in media, magnetic, optical, computer memory, micro film,
computer generated micro fiche or similar device. Under section 2 (t) `
electronic record ´ means data, record or data generated, image or sound stored,
received or sent in an electronic form or micro film or computer generated micro
fiche. Section 92 of this Act read with Schedule (2) amends the definition of
`evidence´ as contained in section 3 of the Indian Evidence Act. The amended
definition runs as under:
"Evidence:- `Evidence´ means and includes-
(1) all statements which the court permits or requires to be made before it by
witness, in relation to matters of fact under inquiry;
such statement is called oral evidence;
(2) all documents including electronic records produced for the inspection of
the Court; such documents are called documentary
evidence.
From the aforesaid provisions it becomes
amply clear that the law, as it prevails today, takes care of information stored
on magnetic or electronic device and treats it as documentary evidence within
the meaning of section 3 of the Indian Evidence Act.
Utility/
Evidentiary Value:
The next question regarding evidence of the tape-recorded information, is about
utility and evidentiary value. In this respect following points require
consideration:
a) Whether such evidence is primary or secondary?
b) Whether such evidence is direct or hearsay?
c) Whether such evidence is corroborative or substantive?
The point whether such evidence is primary
and direct was dealt with by the Apex Court in N. Sri Rama
Reddy v. V.V. Giri, AIR 1971 SC 1162. the court held that like any
document the tape record itself was primary and direct evidence admissible of
what has been said and picked up by the receiver. This view was reiterated by
the Apex Court in R.K. Malkani v. State of Maharashtra,
AIR 1973 SC 157. in this case the court ordained that when a court permits a
tape recording to be played over it is acting on real evidence if it treats the
intonation of the words to be relevant and genuine. Referring to the proposition
of law as laid down in Rama Reddy´s case (Supra), a three judges bench of the
Apex Court in the case of Ziyauddin Burhanuddin Bukhari v.
Brijmohan Ramdas Mehta, AIR 1975 SC 1788 propounded that the use of tape
recorded conversation was not confined to purpose of corroboration and
contradiction only, but when duly proved by satisfactory evidence of what was
found recorded and of absence of tampering, it could, it could subject to the
provisions of the Evidence Act, be used as substantive evidence. Giving an
example, the Court pointed out that when it was disputed or in issue whether a
person´s speech on a particular occasion, contained a particular statement there
could be no more direct or better evidence of it than its tape recorded,
assuming its authenticity to be duly established.
From the aforesaid it can well be gathered as a settled legal proposition that
evidence of tape recorded conversation being primary and direct one it can well
be used to establish what was said by a person at a particular occasion.
Corroboration/ Contradiction:
Under section 157 of the Indian Evidence Act, a witness may be corroborated by
his/her previous statement. Section 145 of the Act permits use of a previous
statement for contradiction of a witness during cross-examination. Again clause
(1) of section 146 provides that during cross examination, question may be put
to a witness to test his veracity. Section 153 generally deals with exclusion of
evidence to contradict answers to questions testing veracity. However, exception
(2) of it permits a witness being contradicted if he has denied any fact which
was put to him to impeach his impartiality. Section 155 (3) deals with
impeaching the credit of a witness liable to be contradicted.
The Apex Court in N.
Sri Rama Reddy (Supra) after considering the matter laid down that the
evidence of the tape recorded conversation/ statement apart from being used for
corroboration is admissible for the purposes stated in Section 146 (1),
Exception (2) to section 153 and section 155 (3) of the Evidence Act.
also see this judgement also
IN THE HIGH
COURT OF JUDICATURE AT MADRAS
DATED :
20/11/2007
CORAM :
THE
HONOURABLE MR. JUSTICE A. KULASEKARAN
C.R.P.
(PD) No. 2657 of 2007
and
M.P. No.1 of 2007
G. Shyamala Ranjini .. Petitioner
Versus
M.S. Tamizhnathan
.. Respondent
and in this u have no need to prove its original or not also
After section 65, section
65A and 65B have been added laying down the provisions about Admissibility of electronic records.
Moreover, the concept of electronic evidence
fails to identify the kinds of documentary evidence namely the primary and the
secondary evidence as every electronic record is an original as well as in duplicate.
However, the provisions of section 65A and 65B help to overcome this complex
situation.
The AMENDMENTS TO THE INDIAN EVIDENCE ACT, 1872 introduced
this new section which states:- Admissibility of electronic records.
65B. (1) Notwithstanding anything contained in this Act, any information
contained in an electronic record which is printed on a paper, stored, recorded
or copied in optical or magnetic media produced by a computer (hereinafter
referred to as the computer output) shall be deemed to be also a document, if
the conditions mentioned in this section are satisfied in r production of that
electronic record as may be appropriate for the purpose of showing that the
electronic record was produced by a computer;
(c)
dealing with any of the matters to which the conditions mentioned in sub
section (2) relate, and purporting to be signed by a person occupying a
responsible official position in relation to the operation of the relevant
device or the management of the relevant activities (whichever is appropriate)
shall be evidence of any matter stated in the certificate; and for the purposes
of this sub-section it shall be sufficient for a matter to be stated to the
best of the knowledge and belief of the person stating it.
(5)
For the purposes of this section, -
(a)
information shall be taken to be supplied to a computer if it is supplied
thereto in any appropriate form and whether it is so supplied directly or (with
or without human intervention) by means of any appropriate equipment;
(b)
whether in the course of activities carried on by any official, information is
supplied with a view to its being stored or processed for the purposes of those
activities by a computer operated otherwise than in the course of those
activities, that information, if duly supplied to that computer, shall be taken
to be supplied to it in the course of those activities;
(c)
a computer output shall be taken to have been produced by a computer whether it
was produced by it directly or (with or without human intervention) by means of
any appropriate equipment. Explanation.-For the purposes of this section any
reference to information being
derived from other information shall be a reference to its being derived
therefrom bycalculation, comparison or any other process.
The phenomenon of tendering tape recorded
conversation before law courts as evidence, particularly in cases arising under
the Prevention of Corruption Act, where such conversation is recorded by sending
the complainant with a recording device to the person demanding or offering
bribe has almost become a common practice now. In civil cases also parties may
rely upon tape records of relevant conversation to support their version. In
such cases the court has to face various questions regarding admissibility,
nature and evidentiary value of such a tape- recorded conversation. The Indian
Evidence Act, prior to its being amended by the Information Technology Act,
2000, mainly dealt with evidence, which was in oral or documentary form. Nothing
was there to point out about the admissibility, nature and evidentiary value of
a conversation or statement recorded in an electro-magnetic device. Being
confronted with the question of this nature and called upon to decide the same,
the law courts in India as well as in England devised and developed principles
so that such evidence, mat be received in law courts and acted upon.
The relationship between law and technology
has not always been an easy one. However, the law has always yielded in favour
of technology whenever it was found necessary. The concern of the law courts
regarding utility and admissibility of tape recorded conversation, from time to
time found its manifestation in various pronouncement. In
Hopes v. H.M. Advocate, 1960 Scots Law Times 264, the court while dealing
with the question of admissibility of tape recorded conversation observed as
under:
New techniques and new devises are the order
of the day. I can´t conceive, for example, of the evidence of a ship´s captain
as to what he observed being turned down as inadmissible because he had used a
telescope, any more than the evidence of what an ordinary person sees with his
eyes becomes incompetent because he was wearing spectacles. Of course, comments
and criticism can be made, and no doubt will be made, on the audibility or the
intelligibility, or perhaps the interpretation, of the results of the use of a
scientific method; but that is another matter and that is a matter and that is a
matter of value, not of competency.
An authoritative and categorical exposition
this point is found in Rex v. Maqsud, 1965(2) All
ER,461 wherein the Court of Criminal Appeal observed that the time has come when
this court should state its views of the law matter which is likely to be
increasingly raised as time passes. For many years now photographs have been
admissible in evidence on proof that they are relevant to the issues in involved
in the case and that the print as seen represents situations that have been
reproduced by means of mechanical and chemical devices. Evidence of things seen
through telescopes or binoculars which otherwise could not be picked up by the
naked eye have been admitted, and now there are devices for picking up,
transmitting and recording conversations. In principle no difference can be made
between a tape recording and a photograph. The court was of the view that it
would wrong to deny to the law of evidence advantages to be gained by new
techniques and devises.
In India, the earliest case in which issue
of admissibility of tape-recorded conversation came for consideration is
Rupchand v. Mahabir Prasad, AIR 1956 Punjab 173.
The court in this case though declined to treat tape-recorded conversation as
writing within the meaning of section 3 (65) of the General Clauses Act but
allowed the same to be used under section 155(3) of the Evidence Act as previous
statement to shake the credit of witness. The Court held there is no rule of
evidence, which prevents a party, who is endeavoring to shake the credit of a
witness by use of former inconsistent statement, from deposing that while he was
engaged in conversation with the witness, a tape recorder was in operation, or
from producing the said tape recorder in support of the assertion that a certain
statement was made in his presence.
In S. Pratap Singh v.
State of Punjab, AIR 1964 SC 72 a five judges bench of Apex Court
considered the issue and clearly propounded that tape recorded that tape
recorded talks are admissible in evidence and simple fact that such type of
evidence can be easily tampered which certainly could not be a ground to reject
such evidence as inadmissible or refuse to consider it, because there are few
documents and possibly no piece of evidence, which could not be tempered with.
In this case the tape record of the conversation was admitted in evidence to
corroborate the evidence of witnesses who had stated that such a conversation
has taken place.
The Apex Court in
Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 SC147
considered various aspects of the issue relating to admissibility of tape
recoded conversation. This was a case relating to an offence under section 165-A
of Indian Penal Code and at the instance of the Investigating Agency, the
conversation between accused, who wanted to bribe, and complainant was tape
recorded. The prosecution wanted to use this tape recorded conversation as
evidence against accused and it was argued that the same is hit by section 162
CrPC as well as article 20(3) of the constitution. In this landmark decision,
the court emphatically laid down in unequivocal terms that the process of tape
recording offers an accurate method of storing and later reproducing sounds. The
imprint on the magnetic tape is direct effect of the relevant sounds. Like a
photograph of a relevant incident, a contemporaneous tape record of a relevant
conversation is a relevant fact and is admissible under section 7 of the Indian
Evidence Act. The Apex Court after examining the entire issue in the light of
various pronouncements laid down the following principles:
a) The contemporaneous dialogue, which was tape recorded, formed part of
res-gestae and is relevant and admissible under section 8 of the Indian Evidence
Act.
b) The contemporaneous tape record of a
relevant conversation is a relevant fact and is admissible under section 7 of
the Indian Evidence Act.
c) Such a statement was not in fact a
statement made to police during investigation and, therefore, cannot be held to
be inadmissible under section 162 of the Criminal Procedure Code.
d) Such a recorded conversation though
procured without the knowledge of the accused but the same is not elicited by
duress, coercion or compulsion nor extracted in an oppressive manner or by force
or against the wishes of the accused. Therefore the protection of the article
20(3) was not available.
e) One of the features of magnetic tape
recording is the ability to erase and re-use the recording medium. Therefore,
the evidence must be received with caution. The court must be satisfied beyond
reasonable doubt that the record has not been tampered with.
Conditions Of
Admissibility:
The tape recorded conversation can be erased with ease by subsequent recording
and insertion could be superimposed. However, this factor would have a bearing
on the weight to be attached to the evidence and not on its admissibility.
Ultimately, if in a particular case, there is a well grounded suspicion not even
say proof, that the tape recording has been tampered with that would be a good
ground for the court to discount wholly its evidentiary value as in
Pratap Singh v. State of Punjab, AIR 1964 SC 72. in
the case of Ram Singh v. Col. Ram Singh, AIR 1986
SC 3, following conditions were pointed out by the Apex Court for admissibility
of tape recorded conversation:
a) the voice of the speaker must be duly identified by the maker of the record
or by others who recognize his voice. Where the maker has denied the voice it
will require very strict proof to determine whether or not it was really the
voice of the speaker.
b) The accuracy of the tape recorded statement has to be proved by the maker of
the record by satisfactory evidence direct or circumstantial.
c) Every possibility of tempering with or erasure of a part of a tape recorded
statement must be ruled out otherwise it may render the said statement out of
context and, therefore, inadmissible.
d) The statement must be relevant according to the rules of Evidence Act.
e) The recorded cassette must be carefully sealed and kept in safe or official
custody.
f) The voice of the speaker should be clearly audible and not lost or distorted
by other sounds or disturbance.
Identification Of
Voice:
As regards the identification of the taped voice, proper identification of such
voice is a sine qua non for the use of such tape recording, therefore, the time
and place and accuracy of the recording must be proved by a competent witness
and the voices must be properly identified. [(See: Yusufalli Esmail Nagree)
(Supra)]
Transcript:
The importance of having a transcript of the tape-recorded conversation cannot
be under estimated because the same ensures that the recording was not tampered
subsequently. In the case of Ziyauddin Burhanuddin Bukhari
v. Brijmohan Ramdas Mehta, AIR 1975 SC 1788, the Apex Court considered
the value and use of such transcripts and expressed the view that transcript
could be used to show what the transcriber has found recorded there at the time
of transcription and the evidence of the makers of the transcripts is certainly
corroborative because it goes to confirm what the tape record contained. The
Apex Court also made it clear that such transcripts can be used by a witness to
refresh his memory under section 159 of the Evidence Act and their contents can
be brought on record by direct oral evidence in the manner prescribed by section
160 of Evidence Act.
Nature:
Tape-recorded conversation is nothing but information stored on a magnetic
media. In the case of Roopchand (Supra), though, Punjab High Court declined to
treat tape recorded conversation as a writing within the meaning of section 3
(65) of the General Clauses Act but this view could not be survive for a long
and the Apex Court in Ziyauddin Burhanuddin Bukhari
(Supra) clearly laid down that the tape recorded speeches were
"documents as defined by section 3 of the Evidence Act",
which stood on no different footing than photographs.
After coming into force of the Information
Technology Act, 2000, (w.e.f. 17.10.2000) the traditional concept of evidence
stands totally reformed. Section 2(r) of this Act is relevant in this respect
which defines information in electronic form as information generated, sent,
received or stored in media, magnetic, optical, computer memory, micro film,
computer generated micro fiche or similar device. Under section 2 (t) `
electronic record ´ means data, record or data generated, image or sound stored,
received or sent in an electronic form or micro film or computer generated micro
fiche. Section 92 of this Act read with Schedule (2) amends the definition of
`evidence´ as contained in section 3 of the Indian Evidence Act. The amended
definition runs as under:
"Evidence:- `Evidence´ means and includes-
(1) all statements which the court permits or requires to be made before it by
witness, in relation to matters of fact under inquiry;
such statement is called oral evidence;
(2) all documents including electronic records produced for the inspection of
the Court; such documents are called documentary
evidence.
From the aforesaid provisions it becomes
amply clear that the law, as it prevails today, takes care of information stored
on magnetic or electronic device and treats it as documentary evidence within
the meaning of section 3 of the Indian Evidence Act.
Utility/
Evidentiary Value:
The next question regarding evidence of the tape-recorded information, is about
utility and evidentiary value. In this respect following points require
consideration:
a) Whether such evidence is primary or secondary?
b) Whether such evidence is direct or hearsay?
c) Whether such evidence is corroborative or substantive?
The point whether such evidence is primary
and direct was dealt with by the Apex Court in N. Sri Rama
Reddy v. V.V. Giri, AIR 1971 SC 1162. the court held that like any
document the tape record itself was primary and direct evidence admissible of
what has been said and picked up by the receiver. This view was reiterated by
the Apex Court in R.K. Malkani v. State of Maharashtra,
AIR 1973 SC 157. in this case the court ordained that when a court permits a
tape recording to be played over it is acting on real evidence if it treats the
intonation of the words to be relevant and genuine. Referring to the proposition
of law as laid down in Rama Reddy´s case (Supra), a three judges bench of the
Apex Court in the case of Ziyauddin Burhanuddin Bukhari v.
Brijmohan Ramdas Mehta, AIR 1975 SC 1788 propounded that the use of tape
recorded conversation was not confined to purpose of corroboration and
contradiction only, but when duly proved by satisfactory evidence of what was
found recorded and of absence of tampering, it could, it could subject to the
provisions of the Evidence Act, be used as substantive evidence. Giving an
example, the Court pointed out that when it was disputed or in issue whether a
person´s speech on a particular occasion, contained a particular statement there
could be no more direct or better evidence of it than its tape recorded,
assuming its authenticity to be duly established.
From the aforesaid it can well be gathered as a settled legal proposition that
evidence of tape recorded conversation being primary and direct one it can well
be used to establish what was said by a person at a particular occasion.
Corroboration/ Contradiction:
Under section 157 of the Indian Evidence Act, a witness may be corroborated by
his/her previous statement. Section 145 of the Act permits use of a previous
statement for contradiction of a witness during cross-examination. Again clause
(1) of section 146 provides that during cross examination, question may be put
to a witness to test his veracity. Section 153 generally deals with exclusion of
evidence to contradict answers to questions testing veracity. However, exception
(2) of it permits a witness being contradicted if he has denied any fact which
was put to him to impeach his impartiality. Section 155 (3) deals with
impeaching the credit of a witness liable to be contradicted.
The Apex Court in N.
Sri Rama Reddy (Supra) after considering the matter laid down that the
evidence of the tape recorded conversation/ statement apart from being used for
corroboration is admissible for the purposes stated in Section 146 (1),
Exception (2) to section 153 and section 155 (3) of the Evidence Act.
also see this judgement also
IN THE HIGH
COURT OF JUDICATURE AT MADRAS
DATED :
20/11/2007
CORAM :
THE
HONOURABLE MR. JUSTICE A. KULASEKARAN
C.R.P.
(PD) No. 2657 of 2007
and
M.P. No.1 of 2007
G. Shyamala Ranjini .. Petitioner
Versus
M.S. Tamizhnathan
.. Respondent
498A- Legal Terrorism - Let it work for you.
FIR u/s 498A and 3 & 4 registered ?
Yes
then
1. Do you have Brother in Law and he is married ?
2. Do you have Sister in law and she is married ?
If answer is Yes to either then:
1. Take contents from your FIR, change the fact related to marriage place
and date of your Brother-in-law or sister-in-law lodge a complaint against
your
a. Brother-in-law on behalf of her wife. and /or
b. Sandu (sister-in-law' s husband) on behalf of your sister-in-law.
1. In P.S. where jurisdiction is there and get the DD Entry.
2. CAW Cell.
3. Dowry Prohibition officer of your reagion.
Bombard them with ur RTI regarding action taken.
Outcome:
1. They will call your bother-in-law and her wife for enquiry and/or
they will call ur sister-in-law and her husband (sandu) for enquiry.
2. you SIL and her husband / BIL and her wife will say complaint is false
and no dowry etc etc ever given or demanded and no disputeetc.
3. You file RTI before hand and ask them to give in laws statement on
Affidavit denying the complaint and dowry allegations and provide the copy
to Affidavit.
4. If sister-in-law gives this affidavit they would never be able to file
498A on Brother in law (your sandu)
5. Why would wife/ in laws of your Brother-in-law will give this statement
on affidavit that no harassment / dowry was ever given. by this they later
never be able to invoke dowry related laws.
I did it and I got those affidavit after long battle.
Remember: who can lodge dowry related complaint: Distress Women, her
parents, her any relative or NGO
and both cases you are her relative.... ..
Cut their wings by their own strategies.
regards,
Crime Cell.
Yes
then
1. Do you have Brother in Law and he is married ?
2. Do you have Sister in law and she is married ?
If answer is Yes to either then:
1. Take contents from your FIR, change the fact related to marriage place
and date of your Brother-in-law or sister-in-law lodge a complaint against
your
a. Brother-in-law on behalf of her wife. and /or
b. Sandu (sister-in-law' s husband) on behalf of your sister-in-law.
1. In P.S. where jurisdiction is there and get the DD Entry.
2. CAW Cell.
3. Dowry Prohibition officer of your reagion.
Bombard them with ur RTI regarding action taken.
Outcome:
1. They will call your bother-in-law and her wife for enquiry and/or
they will call ur sister-in-law and her husband (sandu) for enquiry.
2. you SIL and her husband / BIL and her wife will say complaint is false
and no dowry etc etc ever given or demanded and no disputeetc.
3. You file RTI before hand and ask them to give in laws statement on
Affidavit denying the complaint and dowry allegations and provide the copy
to Affidavit.
4. If sister-in-law gives this affidavit they would never be able to file
498A on Brother in law (your sandu)
5. Why would wife/ in laws of your Brother-in-law will give this statement
on affidavit that no harassment / dowry was ever given. by this they later
never be able to invoke dowry related laws.
I did it and I got those affidavit after long battle.
Remember: who can lodge dowry related complaint: Distress Women, her
parents, her any relative or NGO
and both cases you are her relative.... ..
Cut their wings by their own strategies.
regards,
Crime Cell.
Suicide threats amount to cruelty, can be a divorce ground: HC
Posted: Saturday , Jan 02, 2010 at 1136 hrs
Repeated attempts to commit suicide as well the threats to commit suicide could amount to "cruelty", and it can very well be a ground for seeking divorce, the Bombay High Court has held.
The family court in Pune granted divorce to Varsha and Prakash (both names changed) on the application made by Prakash in 2002, against which Varsha had filed appeal.
Both had been living separately for the last seventeen years.
Prakash's application for divorce was on the ground that his wife was temperamental, she frequently fought with him, and threatened to commit suicide.
In her statement before the family court, Varsha admitted that she had, in fact, attempted suicide twice. Once she tried to jump from a bridge, on another occasion she tried to drink an insecticide, but was saved both the times.
High Court held that family court was right in granting divorce to Prakash, "because the behaviour of the appellant in persistently threatening and attempting suicide would constitute mental cruelty in law".
A husband can not be expected to continue living with the wife in such circumstances, said the division bench of Justices S A Bobde and S J Kathawala.
Varsha's lawyer argued that she was driven to suicide because of her in-laws ill-treated her, but High Court refuted this line of argument, pointing out that "the attempts to commit suicide continued even after the couple moved to a new place and began to live separately from the family of the husband."
http://www.indianexpress.com/news/suicide-threats-amount-to-cruelty-can-be-a/562482/
Repeated attempts to commit suicide as well the threats to commit suicide could amount to "cruelty", and it can very well be a ground for seeking divorce, the Bombay High Court has held.
The family court in Pune granted divorce to Varsha and Prakash (both names changed) on the application made by Prakash in 2002, against which Varsha had filed appeal.
Both had been living separately for the last seventeen years.
Prakash's application for divorce was on the ground that his wife was temperamental, she frequently fought with him, and threatened to commit suicide.
In her statement before the family court, Varsha admitted that she had, in fact, attempted suicide twice. Once she tried to jump from a bridge, on another occasion she tried to drink an insecticide, but was saved both the times.
High Court held that family court was right in granting divorce to Prakash, "because the behaviour of the appellant in persistently threatening and attempting suicide would constitute mental cruelty in law".
A husband can not be expected to continue living with the wife in such circumstances, said the division bench of Justices S A Bobde and S J Kathawala.
Varsha's lawyer argued that she was driven to suicide because of her in-laws ill-treated her, but High Court refuted this line of argument, pointing out that "the attempts to commit suicide continued even after the couple moved to a new place and began to live separately from the family of the husband."
http://www.indianexpress.com/news/suicide-threats-amount-to-cruelty-can-be-a/562482/
Mumbai High Court Judgement(Threat To Sucide Comes under Cruelty)
Here is the Judgement for your viewing. Use the bottom link if you have
no Adobe PDF software or its too slow to download file, use the second
link for quick download from Google Documents. Ten page judgement.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 32 OF 2002
http://bombayhighcourt.nic.in/data/judgements/2009/CFCA1430902.pdf
http://docs.google.com/viewer?a=v&q=cache:S3mNMQEn1WQJ:bombayhighcourt.n\
ic.in/data/judgements/2009/CFCA1430902.pdf+Mumbai+High+Court+Judgement(T\
hreat+To+Sucide+Comes+under+Cruelty&hl=en&sig=AHIEtbS7TVjkf86YeLExKHaxJE\
oBzfD8WA
no Adobe PDF software or its too slow to download file, use the second
link for quick download from Google Documents. Ten page judgement.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 32 OF 2002
http://bombayhighcourt.nic.in/data/judgements/2009/CFCA1430902.pdf
http://docs.google.com/viewer?a=v&q=cache:S3mNMQEn1WQJ:bombayhighcourt.n\
ic.in/data/judgements/2009/CFCA1430902.pdf+Mumbai+High+Court+Judgement(T\
hreat+To+Sucide+Comes+under+Cruelty&hl=en&sig=AHIEtbS7TVjkf86YeLExKHaxJE\
oBzfD8WA
Sex before marriage is rape: Delhi high court
Rakesh Bhatnagar / DNA
Tuesday, February 2, 2010 1:24 IST
New Delhi: The Delhi high court on Monday held that sex without marriage
amounted to rape.
The court rejected pre-arrest bail to a man who repeatedly had sex with
a woman but refused to marry her even after their engagement.
The woman stayed with her fiance, Nikhil Prasar, in Mumbai for a few
days, "where they had fun, and then went to Delhi and stayed in a
hotel where they had sex".
When it came to fixing a date for marriage, however, Nikhil refused, on
the grounds that he had learned that she belonged to a different caste.
The woman complained to the police and a rape case was registered.
Justice VK Jain said the caste factor was an afterthought by Prasar, who
then absconded. Could he marry "any girl merely because she belonged
to a particular caste or sub-caste, even if he did not approve of her
personality, temperament, education, culture, upbringing, and family
background", the court asked.
"The answer can, obviously, be in the negative," justice Jain said.
He said it appears that the man did not intend to marry the woman and
that was why he did not wait for sex even till his formal engagement
with her.
If he were so orthodox and conservative that he broke the marriage owing
to caste differences, he should not have hurried in for sexual
intercourse before marriage, the justice said.
The court held that if it was not held as rape, it would "result in
unscrupulous and mischievous persons taking undue advantage of innocent
girls by promising marriage with them".
Sexual intercourse before marriage amounts to rape or it will result in
victimisation or exploitation of innocent girls, justice Jain said.
http://timesofindia.hotklix.com/Hotklix/link/News/India/Sex-before-marri/
Tuesday, February 2, 2010 1:24 IST
New Delhi: The Delhi high court on Monday held that sex without marriage
amounted to rape.
The court rejected pre-arrest bail to a man who repeatedly had sex with
a woman but refused to marry her even after their engagement.
The woman stayed with her fiance, Nikhil Prasar, in Mumbai for a few
days, "where they had fun, and then went to Delhi and stayed in a
hotel where they had sex".
When it came to fixing a date for marriage, however, Nikhil refused, on
the grounds that he had learned that she belonged to a different caste.
The woman complained to the police and a rape case was registered.
Justice VK Jain said the caste factor was an afterthought by Prasar, who
then absconded. Could he marry "any girl merely because she belonged
to a particular caste or sub-caste, even if he did not approve of her
personality, temperament, education, culture, upbringing, and family
background", the court asked.
"The answer can, obviously, be in the negative," justice Jain said.
He said it appears that the man did not intend to marry the woman and
that was why he did not wait for sex even till his formal engagement
with her.
If he were so orthodox and conservative that he broke the marriage owing
to caste differences, he should not have hurried in for sexual
intercourse before marriage, the justice said.
The court held that if it was not held as rape, it would "result in
unscrupulous and mischievous persons taking undue advantage of innocent
girls by promising marriage with them".
Sexual intercourse before marriage amounts to rape or it will result in
victimisation or exploitation of innocent girls, justice Jain said.
http://timesofindia.hotklix.com/Hotklix/link/News/India/Sex-before-marri/
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