Relevant paragraphs. 18. In the backdrop of aforesaid relevant statutory provisions referred to supra, we may advert to well settled principles of construction of taxing statutes. It is well established rule of interpretation of taxing statutes in words of Lord Simonds that subject is not to be taxed without clear words for that purpose and that every Act of Parliament must be read according to natural construction of its words. The aforesaid principle was referred to with approval by Supreme Court in ‘MEMBER SECRETARY, ANDHRA PRADESH STATE BOARD FOR PREVENTION AND CONTROL OF WATER POLLUTION VS. ANDHRA PRADESH RAYONS LTD.’, AIR 1989 SC 611, ‘SARASWATI SUGAR MILLS VS. HARYANA STATE BOARD’, AIR 1992 SC 224, ‘INDIA CINE AGENCIES VS. COMMISSIONER OF INCOME TAX, MADRAS’, (2008) 17 SCC 385, ‘MAMTA SURGICAL COTTON INDUSTRIES, RAJASTHAN VS. ASSISTANT COMMISSIONER (ANTI EVASION), BHILWARA, RAJASTHAN’, (2014) 4 SCC 87. It is equally well settled legal position that in a taxing Act, one has to look at merely what is clearly said. There is no rule for any intendment. There is no equity about a tax. There is no presumption as to tax. Nothing has to be read in, nothing is to be implied, one can only look fairly at the language used. [See: ‘UNION OF INDIA VS. IND-SWIFT LABORATORIES LTD.’, (2011) 4 SCC 635 AND ‘BANSAL WIRE INDUSTRIES LTD. VS. STATE OF UTTAR PRADESH’, (2011) 6 SCC 545, ‘CIT VS. CALCUTTA KNITWEARS’, 2014 (6) SCC 444] [See: Principles of Statutory Interpretation, Justice G.P.Singh, 14th Edition, Page 879].
Text of Judgment. The petitioner Tarabai is present along with her son Suresh. This Habeas Corpus writ petition was filed on account of her son Suresh going missing on 20.10.2020. Subsequently, he was produced before the court on 03.11.2020. The entire development in the case after Suresh going missing discloses to us a very disturbing facet of the functioning of the police stations in this area of the State. The problem, primarily, is one of police officers not complying with the procedure prescribed under the Code of Criminal Procedure, which places a high premium on the guarantee of liberty of the individuals. In our proceedings dated 03.11.2020, we had noted that respondent no.3 in these proceedings has admitted that the petitioner Tarabai had approached him in the police station with a grievance that her son had been abducted and thereafter he was not found. The respondent no.3, at that point of time, was quite conscious that what was conveyed to him by the petitioner Tarabai constituted a cognizable offence and, therefore, he was obliged to make an entry in the Station House Diary in regard to the same and further he was required to register FIR. If the facts disclosed to him amounted to an offence taking place within the limits of his police station, then he should have proceeded with the investigation of the case and if the offence disclosed took place outside his jurisdiction, then he was obliged to transfer the FIR to the jurisdictional police station for further investigation of the case. Inspite of the same, he has overlooked the mandate of law in as much as he has not made an entry in the Station House Diary regarding the substance of the information received nor has he registered FIR which has resulted in stultifying the precious right of the petitioner and her son Suresh. When we called upon the respondent no.3 who is present before the court to account for the said infraction of the law affecting the liberty of Suresh, the learned AGA representing him submits that a lenient view may be taken for the said violation of the procedure notwithstanding the serious implications for the liberty of Suresh and she further submits that respondent no.3 is prepared to file an undertaking to do some community service to atone for the same. We permit him to do so. The respondent no.3 has now filed an undertaking which reads as under:
“I the undersigned do hereby state that, as per the direction of the Hon’ble Court, I am ready to comply with the direction issued by the Hon’ble Court by cleaning the road in front of my Police Station for one week. That I render my unconditional apology for not registering the First Information Report and assure the Hon’ble Court that I will not repeat the same in future.”
We accept the same and direct the respondent no.3 to comply with the undertaking by cleaning the road in front of his police station for a period of one week. However, this aspect of the matter requires serious consideration by the superior officers of the department. Therefore, we direct the Superintendent of Police, Kalaburagi District to hold a Workshop/ Orientation course to all the police officers working within the Kalaburagi District on the subject of “Zero FIR” vide 1) KIRTI VASHIST v. STATE AND OTHERS [ 2019 SCC OnLine Del 11713 Para 16 to 20] and 2) RHEA CHAKRABORTY V. STATE OF BIHAR AND OTHERS [2020 SCC OnLine SC 654 Para 23, 28] and the provisions under the Code of Criminal Procedure, 1973 pertaining to registration of FIR and investigation of cases
Relevant paragraphs: 41. By a careful reading of the provisions of Section 149 of IPC, it clearly depicts that every member of unlawful assembly guilty of offence committed in prosecution of common object – if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. This provision appears under the heading “offences against public tranquility” in the IPC. The present day Indian Penal Code derives its genesis from the Draft Penal Code for India commonly called the Macaulay Code. Those were the times during the middle of the 19th century when Indian opposition to the British rule was taking its baby steps. As the opposition became stronger, the British rulers felt an emergent need for devising a deterrent penalty which could contain the opposition at the nascent stage. In an attempt to do so, the concept of vicarious liability was introduced, unlike the modern day section 149, the sentence was restricted. With the passage of time, as the freedom movementgained momentum, the erstwhile British Government needed sterner punishments and deterrents to suppress the struggles with “iron hand”. The year 1857 witnessed the first organized attempt at independence – the Indian Mutiny of 1857. The startled British governance brought in section 149 exactly in the fashion as it stands in the statute book today. The provisions of Section 149 was enacted as a tool to curtail the freedom movement with an “iron hand” and has continued in the statute book since then. Though India got independence in the year 1947, still the said provision continued in the IPC even today.
42. The scrutiny of the provisions of section 149 on the touchstone of fundamental rights has become the need of the hour because of the alarming misuse of the said section by the prosecuting agencies. The Investigating Officers sometime would violate the fundamental rights guaranteed in the Constitution under Articles 14, 19 and 21 of the Constitution of India. In complete disregard of Article 21 and the promise of individual liberty, the police and prosecution are now using section 149 as a presumption of guilt of all persons who happen to be present at the spot, including those who become part of assembly oblivious to its unholy intentions or as curious onlookers. In rural India, people usually carry agricultural equipments like farsa/axe/lathis, hand sickle, shovel, spade, pickaxe, Hoe, mattock etc., with them. In any heated exchange it is not unlikely that the other residents of village are vocal about their “views” on the issue between the warring parties. In such an assembly when an offence takes place due to miscreance of one of the erring members the brunt is borne by all members of the assembly including all the onlookers who happened to carry a farsa/lathi with them and were curious enough to stop and look at what is happening. And if any of them has uttered a sentence then he is doomed for life imprisonment if ultimately an offence of murder is committed by one of the person. Over implication and subsequent arrest is rampant because of rival/ jealous/ motivated/interested parties are eager to volunteer as eye- witnesses thereby improving the “conviction rate” for the prosecution.
43. It is high time for the investigating agency to conduct proper investigation whenever the provisions of Section 149 are invoked along with the other provisions of IPC to ensure that there should not be any violation of fundamental rights guaranteed to the citizens under Articles 14, 19 and 21 of the Constitution of India and also to ensure that innocent people should not be implicated. While invoking the provisions of Section 149 of IPC, the investigating agency shall confirm after investigation as to whether such persons really committed an offence along with the other co- accused, if any. Otherwise, the rival/jealous/motivated/interested parties are eager to implicate innocent people, sometimes with the influence of local politicians also.
44. It is the bounden duty of the Court, while considering the cases arising out of the provisions of Section 307 or Section 302 r/w 149 of IPC that the Court should act as societal parents and ensure a proper analysis of the evidence on record and merely because one of the accused committed the alleged offence, the other members of the unlawful assembly should not unnecessarily be punished with imprisonment for life, without there being any contribution of other members with the common object for commission of the offence, in order to protect liberty of the citizens. Of course, such members are separately punishable for minor offences under Sections 143, 147,148,323,341 and 504 of IPC etc
49. It is also relevant to consider that the common object is necessary to invoke the provisions of Section 149 of IPC. For “common object”, it is not necessary that there should be a prior concert in the sense of a meeting of the members of the unlawful assembly, the common object may form on spur of the moment; it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part of Section 149 of IPC, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. It is not the case of the prosecution that there was a common object of all the accused persons prior to the concert of meeting of the members of unlawful assembly to cause death of the deceased. It is also not the case of the prosecution that the common object formed on spur of the moment and it is adopted by all the members and is shared by all of them for the commission of the offence. Admittedly as soon as the incident occurred, the accused persons ran away. Considering the totality of the facts and circumstances of the case, thelearned Sessions Judge is not justified in convicting AccusedNos.2 to 5 under Section 302 of IPC with the aid of Section –149 of IPC and sentencing them to undergo imprisonmentfor life with fine and the same is liable to be set aside.
51.As we have already stated supra, the trial Court acquitted all the accused persons under Section 120B of IPC holding that the prosecution failed to prove the conspiracy among the accused persons to kill the deceased beyond reasonable doubt. Admittedly, the State has not filed any appeal against the acquittal of Accused No.1 to 5 for the offence punishable under Section 120B of IPC. Therefore, the impugned Judgment and Order of conviction under Section 302 read with Section 149 of IPC against the Accused Nos.2 to 5 is liable to be set aside.
Relevant paragraphs: 17. It is not in dispute that the present appeal came to be filed by the appellant under the proviso to Section 372 of the Cr.P.C. The proviso to Section 372 of the Cr.P.C. came into force with effect from 31-12-2009, thereby the victim shall have a right to file an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. Earlier to amendment, there was no provision for the appellant to file an appeal. The definition of ‘victim’, as defined under Section 2(wa) of the Cr.P.C. came to be amended with effect from 31-12-2009, means “a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir.”
19. ……A reading of Section 394 of the Cr.P.C. depicts that once an appeal against acquittal is entertained by this Court, this Court is bound to consider and dispose of the same in accordance with law and the same will not abate on account of the death of the appellant-complainant.
20. As on the date, the appellant was not available, the proceedings before this Court cannot be abated as the appeal against acquittal is already entertained; it becomes the duty of this Court to decide the same irrespective of the fact that the appellant either does not choose to prosecute it or unable to prosecute it for one reason or the other. The sole appellant died subsequent to the decision on merits will not abate the appeal. Once an appeal is entertained, it is the Court and the accused and even assuming that the sole appellant died, his legal heirs can prosecute the appeal.
Bir Singh v. Mukesh Kumar(2019) 4 SCC 197 : (2019) 2 SCC (Cri) 40 : (2019) 2 SCC (Civ) 309
HELD. Para 36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.
Relevant paragraphs: Learned Judge found that petitioner’s mother has established that respondent has willfully neglected and refused to maintain his child.
This is an interesting case to address the question whether a father can shirk his responsibility from maintaining his minor son under the garb of doing Coolie job.
It’s no secret that being a parent is one of the most challenging roles in the world. The relationship between a parent and their child is a unique bond that nurtures the holistic growth and development of a child. It lays the foundation for their behavior, personality, traits and values.
Strengthening the parent-child relationships requires work, mutual understanding and efforts.Parenting is a tough job, but by maintaining a close relationship and open communication with your children, parents can stay connected to them during all stages of life.
A Hindu is under a legal obligation to maintain his wife, his minor sons, his unmarried daughters and his aged parents, whether he possess any property or not. The obligation to maintain these relations is personal, legal and absolute in character and arises from the very existence of the relationship between the parties.
It is needless to observe that a father is under a personal obligation to maintain his minor child. Hence, factors like unemployment, earning a meager income can’t be an excuse for not maintaining wife and children. He cannot shirk his responsibility from maintaining the family, in particular, his minor son under the garb of doing a coolie job.
It is perhaps well to observe that the power to make an order under Section 125 of Cr.P.C is discretionary. This Court find it necessary to say only this much that High Court in exercising its revisional powers should not interfere with the discretion of a Judge acting within his jurisdiction unless the Court is clearly satisfied that he was wrong.
Relevant paragraphs: The real question to be answered is whether a son can contend that he is under no obligation to maintain his aged parents? This Court may venture to say that this is an interesting case to address the question as to what filial obligations are?
A continuing need for care for elderly, combined with loosely knit family structures prompt the question what filial obligations are. Do adult children of elderly have a duty to care?
The phrase “filial obligations” is generally understood to refer to special duties—specific kinds of actions, services, and attitudes—that children must provide to their parents simply because they are those parents’ offsprings. Filial responsibility refers to the sense of obligation experienced by adult children to meet their older parents’ physical and emotional needs.
Contemporary societies, both west and east, retain a significant interest in how filial responsibility is maintained and experienced as an attitudinal basis for action to care for and support older adults. In increasingly aging societies, where we have seen increased life span in majority of adults what with new lifestyle management including yoga are in practice and consequential addition of years to their other wise shorter life span, the burden of filial responsibility on the children has increased considerably. Nevertheless, relative disability and filial responsibility and how they are associated with filial care giving and filial support to aging parents, are of major public interest and importance.
A son is under a personal obligation to maintain his aged parents. It is a legal obligation not dependent on his possession of property but arising out of the mere relationship between the parties.
In conclusion, this Court is of the view that the object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and who have a moral claim to support.
Relevant portion. In the last resort, learned counsel argued that at present, respondent is unemployed due to Covid-19 Pandemic. Therefore, counsel submitted that respondent is not in a position to pay maintenance to petitioner No.2 as ordered by the Family Court.
I may venture to say that this is an interesting case to address the question whether a father can shirk his responsibility from maintaining his minor son under the guise of pandemic? It is true that the world is facing an unprecedented crisis.
No doubt, COVID-19 has brought several parts of the globe almost to the brink of extinction of mankind what with scientists, doctors et al, toiling day and night for not only the treatment of patients but also in search of vaccine for the effective treatment of the pandemic.
It is also true that the COVID-19 pandemic has left millions of people around the world jobless and are coping with trauma caused by the pandemic. Whether it’s temporary or permanent, unemployment can lead to stress, anxiety, depression and other mental health challenges. Uncertainty related to the COVID-19 pandemic only adds to the angst. But one must learn how to cope with the mental and emotional effects of unemployment during this pandemic.
It is perhaps well to observe that insofar as a family is concerned, the head of the family [particularly, if it is a male member], has the onus of maintaining his family. He cannot shirk his responsibility from maintaining the family under the garb of pandemic. Every person has to develop multi-tasking skills so that if he loses one vocation, he should be able to switch over to the other.
Alternatively, one option is that every person has to search for alternative mode of employment at least as a temporary measure [or till he is restored to his original vocation] and try to fill not only his stomach but also of those who are dependent on them, be it employees or family members.
Relevant paragraphs:7. Skimmer is used for collecting the data stored in an ATM card and the camera, for capturing the password, when the account holder operates the teller machine using his card. The data then collected is used for forging the cards to be used for withdrawing the money from the accounts of the customers of the bank without their knowledge. Perpetration of crime in this manner fits into ingredients of Section 468 of IPC, for the genuine card holder operates the machine under the belief that his transaction is fully secured; but without his knowledge, the data in the card is captured by the skimmer; this modus operandi is nothing but dishonestly inducing the ATM card holder to operate a teller machine which is tampered.
9. Bail is not a licence for committing any number of crimes. Though bail is related to liberty of a person, misuse of liberty is not justifiable. And crimes which are not targeted against an individual, but perpetrated against society must be viewed quite differently. It is held by the Supreme Court in that cancellation of bail by the High Court under its inherent power does not deprive the personal liberty of an individual; and likely so, denial of bail to an accused who frequently commits bailable offences, does not violate Article 21 of the Constitution of India.
10. As a concomitant to this analysis, it may be stated that a person being on bail in relation to bailable offence and applies for bail having again committed a bailable offence cannot as a matter of right claim bail. Any attempt to liberally interpret the right in this manner without having idea of far-reaching consequences will have disastrous effect on the society or a system, as for instance how the case on hand may adversely affect the banking system. Therefore, the right to claim bail under section 436 of Cr.P.C becomes circumscribed when an accused repeatedly commits bailable offence/s.
Daksha Legal 