sec.125 of Cr.P.C. - any agreement not to claim maintaenance - is void under sec.23 of contract act. even divorced wife is entitled to maintenance as long as she remains unmarried and unable to maintain herself - mere divorce does not end right to maintenence - a clause in an agreement that wife shall not be entitled to claim maintenance from the husband cannot be used as a defence under sec.125 proceedings since it is opposed to public policy 23. What consideration and objects are lawful, and what not.—The consideration or object of an agreement is lawful, unless-

It is forbidden by law;1or

Is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.

In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.

ILLUSTRATIONS

(a) A agrees to sell his house to B for 10,000 rupees. Here, B’s promise to pay the sum of 10,000 rupees is the consideration for as promise to sell the house and as promise to sell the house is the consideration for B’s promise to pay the 10,000 rupees. These are lawful considerations.

(b) A promises to pay 1,000 rupees at the end of six months, if C, who owes that sum to B, fails to pay it. B Promises to grant time e to C accordingly. Here, the promise of each party is the consideration for they promise of the other party, and they are lawful considerations.

(c) A Promises for a certain sum paid to him by B, to make good to B the value of his ship if it is Wrecked on a certain voyage. Here, A’s promise is the consideration for B’s payment, and B’s Payment is the consideration for A’s Promise, and these are lawful considerations.

(d) A promises to maintain B’s child, and B promises to pay 1,O00 rupees yearly for the purpose. Here, the promise of each party is the consideration for the Promise of the other party. They are lawful considerations.

(e) A, B and C enter into an agreement for the division among them of gains acquired or to be acquired, by them by fraud. The agreement is void, as its object is unlawful.

(f) A promises to obtain for B an employment in the public service and B promises to pay 1,000 rupees to A. The agreement is void, as the consideration for it is unlawful.

(g) A, being agent for a landed proprietor, agrees for money, without the knowledge of his principal, to obtain for B a lease of land belonging to his principal. The agreement between A and B is void, as it implies a fraud by concealment, by A, on his principal.

(h) A promises B to drop a prosecution which he has instituted against B for robbery, and B promises to restore the value of the things taken. The agreement is void, as its object is unlawful.

(i) A’s estate is sold for arrears of revenue under the provisions of an Act of the Legislature, by which the defaulter is prohibited front purchasing the estate. B, upon an understanding with A becomes the purchaser, and agrees to convey the estate to A upon receiving from him the price which B has paid. The agreement is void, as it renders the transaction, in effect, a purchase by the defaulter and would so defeat the object of the law.

(j) A, who is B’s mukhtar, promises to exercise his influence, as such, with B in favour of C, and C promises to pay 1,000 rupees to A. The agreement is void, because it is immoral.

(k) A agrees to let her daughter to hire to B for concubinage. The agreement is void, because it is immoral, though the letting may not be punishable under the Indian Penal Code (45 of 1860).

1. See S. 26, 27, 28, and 30, infra.

---2009[1]ALDCri.855. ============================ sec.154 of cr.p.c. F.I.R. omission of material facts pertaining to crime in first information report is fatal to the prosecution CHAPTER-XII

INFORMATION TO THE POLICE AND THEIR POWERS TO

INVESTIGATE

154. Information in cognizable cases. – (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informants and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.

(3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer Subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.

COMMENTS

Omission of overt acts of accused in FIR is not fatal. [Podda Narayama v. State of Andh Prad, AIR 1975 SC 1252: 1975 Cr LJ 1062(1065); Dadi Nassi Reddy v. State of A.P., 1999 Cr LJ 2055 (DB) (A.P.)

155. Information as to non-cognizable cases and investigation of such cases.— (1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer, the informant to the Magistrate.

(2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.

(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.

(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable

156. Police officer's power to investigate cognizable cases.—(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one, which such officer was not empowered under this Section to investigate.

(3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.

157. Procedure for investigations.– (1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may by general order, prescribe in this behalf, to proceed, to the spot, to investigate circumstances of the case, and, if necessary to take measures for the discovery of the offender.—

Provided that-

(a) When information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the office in-charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;

(b) If it appears to the officer in charge of a police station that there is sufficient ground for entering off an investigation, he shall not investigate the case.

(2) In each of the cases mentioned in clauses (a) and (b) of the proviso sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements to that sub-section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the information, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case of cause it to be investigated.

158. Report how submitted.—(1) Every report sent to a Magistrate under Section 157 shall, if the State Government so directs, be submitted through such superior officer of police as the State Government, by general or special order, appoints in that behalf.

(2) Such superior officer may give such instructions to the officer in charge or the police station as he thinks fit, and shall, after recording such instructions on such report, transmit the same without delay to the Magistrate.

159. Power to hold investigation or preliminary inquiry.—Such Magistrate, on receiving such report, may direct an investigation, or, if he thinks fit, at once proceed of depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry into or otherwise to dispose of, the case in the manner provided in this Code.

2009 [1] A.L.D.Cri.S.C.239. =========================== SEC.154 and 162 - first information report if prepared after police investigation, it is hit by sec.162 .sec.154 is a mandatory one as soon as information received , one has to register FIR, if it is registered after investigation, the only conclusion is that the FIR was prepared to suit the case and not guinene one- 154. Information in cognizable cases. – (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informants and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.

(3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer Subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence. 162. Statements to police not to be signed.— Use of statements in evidence.— (1) No statement made by any person to a police officer in the course of' an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.—

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of' his statement, if duly proved, may be used by the accused, and with the permission of' the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872) and when any part of' such statement is so used, any part thereof' may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.

(2) Nothing in this Section shall be deemed to apply to any statement failing within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.

Explanation.—An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.

2009[1] A.L.D.Cri. S.C.730

=================== sec.407 deals with power of high court and sec.408 cr.p.c deals with the power of sessions court while transfering one case from one place to another place . 407. Power of High Court to transfer cases and appeals.— (1) Whenever it is made to appear to the High Court-

(a) That a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or

(b) That some question of law of unusual difficulty is likely to arise; or

(c) That an order under this Section is required by any provision of this Code, or will tend be the general convenience of the parties or witnesses, or is expedient for the ends of, justice, it may order-

(i) That any offence be inquired into or tried by any Court not qualified under Sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;

(ii) That any particular case, or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;

(iii) That any particular case be committed for trial of to a Court of Session; or

(iv) That any particular case or appeal be transferred to and tried before itself

(2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative.—

Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.

(3) Every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation.

(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Curt may award under sub-section (7).

(5) Every accused person making such application shall give to the Public Prosecutor, notice in, writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the applications unless at least-twenty-four hours have elapsed between the giving of such notice and the hearing of the application.

(6) Where the application is for the transfer of a case of appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose.—

Provided that such stay shall not affect the subordinate Court’s power of remand under Section 309.

(7) Where an application for an order under sub-section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the such sum not exceeding one thousand rupees as it may consider proper in the circum­stances of the case.

(8) When the High Court orders under sub-section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.

(9) Nothing in this Section shall be deemed to affect any order of Government under Section 197.

408. Power of Sessions Judge to transfer cases and appeals.— (1) Whenever it is made to appear to a Sessions Judge that an order under this sub-section is expedient for the ends of justice, he may order that any particular case be transferred from one Criminal Court to another Criminal Court in his session’s division.

(2) The Sessions Judge may act either on the report of the lower Court, or on the application of a party interested or on his own initiative.

(3) The provisions of sub-sections (3), 4), (5), (6), (7) and (9) of Section 407 shall apply in relation to an application to the Sessions Judge for an order under sub-section (1) as they apply in relation to an application to the High Court for an order under sub-section (1) of Section 407, except that sub-section (7) of that Section shall so apply as if for the words “one thousand” rupees occurring therein, the words “two hundred and fifty rupees” were substituted.

2009[1] A.L.D. AP174. ============== SEC.482 OF Cr.p.c - when a case is filed as a counter blast to the case of other side, the later case is liable to be quashed . WHEN a cheque bouns case is filed against the one "x", later Mr.x filed private complaint against the payee, is not mainatainable and is liable to quashed. -482. Saving of inherent power of High Court.— Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

COMMENTS

Quashing proceedings.—The Court should not, except in extraordinary circumstances, exercise its jurisdiction, under Section 482, Cr. P.C., so as to quash the prosecution proceeding after they have been launched. The power of quashing criminal proceedings should be exercised very sparingly and with circumspection and that too, in the rarest of rare cases; the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint. The extraordinary or inherent power does not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. [State of Maharashtra v. Ishwar Piraji Kalpatu, 1996 Cr LJ 1127 (SC).

Where prima facie case is made out, FIR cannot be quashed under Section 482 Cr. P.C. [Vivay Kumar v. State of Punjab, 1996 Cr LJ 3070 (P &H).]

2009[1]A.L.D.S.C.200. ========== sec.482 of cr.p.c. - when there is a possibility of maintaining both civil and criminal cases = cheque bouns case UNDER SEC.405 AND 420 OF IPC and a suit for recovery of cheque amount = criminal proceedings are not liable to be quashed as it is a civil remedy case- 2009[1]A.L.D. S.C.83. ======== sec.482 cr.p.c. - while obtaining loan, and in collusion with bank officials , falsefication and forgery of accounts were taken place, then it is a criminal case and as such both civil and criminal cases are maintainable - civil case before debt recovery tribuanl and later compromise land setteled ,is no significance while taking cognizance of criminal case for the already commenced offences -2009 ALD [1] S.C. 976, ============ ===============================================shifted to blog upto this. sec. 498A,306 ipc and sec.113A of evidence act- when a women died by commiting suicide or by accident died, doesnot automatically give a presumption of illtreatment of husband and his relatives. the letters written by deceased only shows the attitude of herinlaws against her and no allegations were made in dyingdeclaration and as such the accused are entitled for acquital == sec.113A.Presumption as to abetment of suicide by a married woman.—When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation.—For the purposes of this Section “cruelty” shall have the same meaning as in Section 498A of the Indian Penal Code (45 of 1860).]

3[113B.Presumption as to dowry death.—When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

Explanation.—For the purposes of this Section “dowry death” shall have the same meaning as in Section 304B, of the Indian Penal Code (45 of 1860).]

-----2009 [1] ALD Cri. SC122.