26 December, 2011

Legal Knowledge::::Warrant of Arrest


A warrant is an order of the Court to arrest a person at any place he is found for being accused of an offence.
  1. The warrant of arrest is in prescribed form.
  2. The requisites of a valid warrant are as given below:
  3. The warrant of arrest shall be in writing.
  4.  It shall be signed by the presiding officer of the court.
  5.  It shall bear the name and designation of the person who is to execute it.
  6. It must indicate the clear name and address of the accused.
  7. It should state the offence with which those accused are charged.
  8. It should indicate the date of the issue of the warrant of arrest.

The warrant once issued will remain in force till it is executed or cancelled.
A magistrate is competent to issue a warrant of arrest for the production of a person before his own court.
The magistrate is not competent to issue a warrant of arrest for the production of a person before a police official.

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Legal Knowledge::::: The customer is liable to pay the extra price when the excise duty had been enhanced prior to the delivery of the vehicle


  1. Customer booked a car with the manufacturer
  2. Customer was asked to complete the modalities for delivery of the car
  3. Indication in the proforma invoice that the price prevailing at the time of billing would be applicable
  4. Billing of the car done a year later
  5. Meanwhile, increase in excise duty resulting in price hike
  6. Deposit of the excess amount  by customer under protest
  7. Plea of the customer that since he was not responsible for the delay in the delivery of the vehicle, he was not liable to bear the increase the price
  8. Held: In terms of s. 64-A (1)(a), it is the liability of the customer to pay  the extra price when  the excise duty had been enhanced prior to the delivery of the vehicle
  9. On facts, no evidence to show that there was any deliberate intention on the part of the manufacturer and the dealer to delay the delivery of the vehicle
  10. Thus, the order passed by the National Commission that the increase in price by way of additional taxes is to be borne by the customer and not by the manufacturer, upheld by Supreme Court.

Case Name:- RAVINDER RAJ v. M/S. COMPETENT MOTORS CO. PVT. LTD. & ANR.
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14 December, 2011

Legal Alert:::: Domestic Violence Complaint could be filed only within a period of one year from the date of incident-Under Rule 15(6) of The Protection of Women from Domestic Violence Rules, 2006 provision of Cr.P.C. are applicable


The Hon’ble Supreme Court  indirectly hit the issue of limitation of filing complaint under The Protection of Women from Domestic Violence Act, 2005.
Inderjit Singh Grewal vs State of Punjab

Facts and Circumstances of the Case:-
  • That   the   appellant   and   respondent   no.   2   got   married   on 23.9.1998 at Jalandhar as per Sikh rites and from the said wedlock a son, namely, Gurarjit Singh was born on 5.10.1999.  The parties to the marriage   could   not   pull   on   well   together   because   of   temperamental differences and decided to get divorce and, therefore, filed HMA Case No.   168   of   19.9.2007   before   the   District   Judge,   Ludhiana   under Section 13-B of Hindu Marriage Act, 1955 (hereinafter called the `Act 1955')   for   dissolution   of   marriage   by   mutual   consent.     In   the   said case, statements of appellant and respondent no. 2 were recorded on 19.9.2007 and proceedings were adjourned for a period of more than six months to enable them  to ponder over the issue. 
  • The   parties   again   appeared   before   the   court   on   20.3.2008   on second motion and their statements   were recorded and both of them affirmed   that   it   was   not   possible   for   them   to   live   together   and, therefore,   the   learned   District   Judge,   Ludhiana   vide   judgment   and order   dated   20.3.2008   allowed   the   said   petition   and   dissolved   their marriage. 
  • Respondent no. 2 filed a complaint before Senior Superintendent of   Police,   Ludhiana   against   the   appellant   on   4.5.2009   under   the provisions of the Act 2005 alleging that the decree of divorce obtained by them was a sham transaction.   Even after getting divorce, both of them had been living together as husband and wife.  She was forced to leave the matrimonial  home. Thus, she prayed for justice.    The said complaint   was   sent   to   SP,   City-I,   Ludhiana   for   conducting   inquiry.
  • The said SP, City-I conducted the full-fledged inquiry and submitted the report  on 4.5.2009   to the effect that the parties  had been living separately after divorce and,  no case was made out against the present appellant. However, he suggested  to seek legal opinion  in the matter.
  • Accordingly, legal opinion dated 2.6.2009 was sought, wherein it   was   opined   that   the   parties   had   obtained   the   divorce   decree   by mutual consent and the allegations made by  respondent no. 2 against the   appellant   were   false   and   baseless   and   the   purpose   of   filing   the complaint was only to harass the appellant.
  • Respondent no. 2 subsequently  filed a complaint under the Act 2005   on   12.6.2009.     The   learned   Magistrate   issued   the   summons   to the   appellant   on   the   same   date.    The   Magistrate   vide   order   dated 3.10.2009  summoned  the  minor   child  for  counseling.   The  appellant, being aggrieved of the order of Ld. Magistrate dated 12.6.2009, filed application dated 13.10.2009 under Section 482 Cr.P.C. for quashing the complaint dated 12.6.2009.
  •  In   the   meanwhile,   respondent   no.   2   filed   Civil   Suit   on 17.7.2009   in   the   court   of   Civil   Judge   (Senior   Division),   Ludhiana, seeking declaration that the judgment and decree dated 20.3.2008, i.e. decree of divorce, was null and void as it had been obtained by fraud. The said suit is still pending.
  • Respondent no. 2 also filed application dated 17.12.2009 under Guardians and Wards Act, 1890 for grant of custody and guardianship of   the   minor   child   Gurarjit   Singh   and   the   same   is   pending   for consideration   before   the   Additional   Civil   Judge   (Senior   Division), Ludhiana. 
  • Respondent   no.   2   on   11.2.2010   also   lodged   an   FIR   under Sections   406,   498-A,   376,   120-B   of     the   Indian   Penal   Code,   1860 (hereinafter   called   `IPC')   against   the   appellant   and   his   mother   and sister.
  • In the instant case, the parties got married and the decree of Civil Court for divorce still subsists.   More so, a suit to declare the said judgment and decree as a nullity is still pending consideration before the competent court.
  • In   view   of   the   provisions   of  Section   468   Cr.P.C.,   that   the complaint could be filed only within a period of one year from the date  of the incident  seem to be preponderous in view of the provisions of Sections   28   and   32   of   the   Act   2005   read   with   Rule   15(6)   of     The Protection   of   Women   from   Domestic   Violence   Rules,   2006   which  make   the   provisions   of   Cr.P.C.   applicable   and   stand   fortified   by   the judgments   of   this   court   in    Japani   Sahoo   v.   Chandra   Sekhar Mohanty,  AIR   2007   SC   2762;   and Noida   Entrepreneurs Association v. Noida & Ors., (2011) 6 SCC 508.
  • In   view   of   the   above,   we   are   of   the   considered   opinion   that permitting the Magistrate to proceed further with the complaint under the   provisions   of   the   Act   2005   is   not   compatible   and   in   consonance with   the   decree   of   divorce   which   still   subsists   and   thus,   the   process amounts   to   abuse   of   the   process   of   the   court.     Undoubtedly,   for quashing a complaint, the court has to take its contents on its face value and in case the same discloses an offence, the court generally does not interfere with the same.  However, in the backdrop of the factual matrix of this case, permitting the court to proceed with the complaint would be travesty of justice. Thus, interest of justice warrants quashing of the same.
  • The appeal succeeds and is allowed. The impugned judgment and order dated 9.8.2010 is hereby set aside. Petition filed by the appellant under   Section   482   Cr.P.C.   is   allowed.     Complaint   No.   87/02/09 pending before the Magistrate, Jalandhar and all orders passed therein are quashed.


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10 December, 2011

Insurer can recover compensation amount from the insured owner of the vehicle in spite of excess of permitted number of passenger

Persons travelling in the vehicle in excess of the permitted number of six passengers, though entitled to be compensated by the owner of the vehicle, would still be entitled to receive the compensation amount from the insurer, who could recover it from the insured owner of the vehicle—Supreme Court of India

  • Motor Vehicles Act, 1988 – sections 147 and 149 – Motor accident – Compensation – Liability of insurer –
  • Insurance policy taken by the owner of the vehicle covering six passengers including the driver
  • Vehicle while driven by father of the owner, met with an accident
  • Passengers in excess of the number covered by the insurance policy, travelling in the vehicle at the time of accident
  • Death/injury to the passengers
  • Claim petitions – Liability of the insurer
  • Held: Is confined to the number of persons covered by the insurance policy only and liability to pay the other passengers is that of the owner of the vehicle
  • Persons travelling in the vehicle in excess of the permitted number of six passengers, though entitled to be compensated by the owner of the vehicle, would still be entitled to receive the compensation amount from the insurer, who could recover it from the insured owner of the vehicle
  • There can be no pick and choose method to identify the five passengers, excluding the driver, in respect of whom compensation would be payable by the Insurance Company
  • In the interest of justice, Insurance Company directed to deposit the total amount of compensation awarded to the claimants which would be disbursed to the claimants
  • Insurance Company would be entitled to recover the amounts paid by it, in excess of its liability, from the owner of the vehicle, by putting the decree into execution.

Source:- UNITED INDIA INSURANCE CO. LTD. vs. K.M. POONAM & ORS. FEBRUARY 18, 2011 ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.

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03 December, 2011

Legal Alert:::District Forum and State Commission Have not been Given Any Power to Set Aside Ex parte Orders and Power of Review--Supreme Court

The main question which arises for consideration is whether the District Consumer Forums and the State Commissions have the power to set aside their own ex parte orders or in other words have the power to recall or review their own orders? The questions of law involved in both the appeals are identical, therefore, the Hon’ble Supreme Court deem it appropriate to dispose of both these appeals by a common judgment.

Brief facts necessary to dispose of these appeals are recapitulated as under:

First Appeal:-

Smita Achyut Karekar was admitted to Ashirwad Nursing Home as she was suffering from the ailment of slip disc. The operation was performed on 8.10.1997. It was noticed, at about 3.45 pm on that day, that her blood vessels had ruptured accidentally during the surgery. She was declared dead at 5.35 pm.

The complainants issued a legal notice on 24.7.1999. Reply to the legal notice was sent on 7.8.1999. The complainants filed complaint alleging deficiency in service and claimed compensation of Rs.15,00,000/-. The complainants did not take necessary steps to remove objection and to complete procedure under the Consumer Protection Act, 1986. The State Commission, Maharashtra issued notice to the opposite parties/appellants herein on 10.02.2004. On 9.9.2004, the State Commission dismissed the complaint for want of prosecution. On 04.11.2004, the complainants filed an application for recalling 9.9.2004 order and consequently the State Commission recalled the order dated 9.9.2004 and restored the complaint. The appellants aggrieved by the said order preferred a Revision Petition No.551 of 2005 before the National Consumer Disputes Redressal Commission, New Delhi. The appellants in the revision petition made two main arguments before the Commission : firstly, that the State Commission did not have the power to restore the complaint and, secondly, that the State Commission restored the complaint without issuing notice to the appellants. The National Commission dismissed the revision petition which has been challenged by the appellants before this Court.

Second Appeal

The National Commission passed an ex parte order and in the appeal against the order, this Court gave liberty to the appellants to approach the Commission for setting aside the ex parte order. Thereafter, an application was filed by the complainants for review of the order. The Commission vide order dated 12.7.2001 (relied on the judgment of Jyotsana’s case) 17dismissed the application. Aggrieved by the said order, the appellant has filed this appeal.

On careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.

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