Title

Vimalben Ajitbhai Patel Vs. Vatslabeen Ashokbhai Patel and others

Coram

Coram: S.B. SINHA , V.S. SIRPURKAR

Citation

2008 AIR 2675 2008(4 )SCR1077 2008(4 )SCC649 2008(4 )SCALE601 2008(3 )JT530

Subject

Code of Criminal Procedure, 1973: ss.437 and 438 - Bail - Cancellation of - Criminal case against husband and In-laws - Warrants issued - Appellants-in laws declared absconder - Properties of mother-in-law attached - Order of public auction - High Court directed tenant to deposit rent in court and permitted complainant to withdraw the same as an order of maintenance was passed by another bench of High Court - Also order of cancellation of bail and issue of non-bailable warrants against appellants - Held: Orders of High Court passed only on consideration that complainant was a harassed lady, but fact that appellant was also a much harassed lady was lost sight of - In-laws are old and suffer from various diseases - Though sympathy should not be allowed to effect decision making process - However, direction to send the old couple to jail or deprive them of their lawful right of a valuable property and/or ask them to meet obligations which statutorily are not theirs, should also not be passed, keeping in view conduct of complainant - She is an Advocate - She filed large number of criminal cases and applications for cancellation of bail on wholly wrong premise - Having regard to the facts and circumstances of this case, the interest of justice would be subserved if orders of High Court are set aside - Property directed to be released from attachment - Complainant directed to bear costs of appellant quantified at Rs.50,000 - Certain other directions passed. ss.82 and 83 - Object of - Held: Is to secure presence of accused - Once the said purpose is achieved, attachment should be withdrawn - Once accused surrenders before Court, he is no longer an absconder - The purpose of attaching the property comes to an end - Securing attendance of absconding accused, is matter between State and accused - Complainant should not ordinarily derive any benefit therefrom - If property is to be sold, it vests with the State subject to any order passed under s.85 - It cannot be a subject matter of execution of a decree, far less for executing the decree of a third party, who had no right, title or interest thereon. s.83 - Attachment of property - Tenant - Right of - Held: His right as a tenant could not have been affected by reason of any order of attachment - Terms and conditions of tenancy, being governed by statute, the tenant cannot be evicted except in accordance with law. s.84 - Invocation of - Held: Cannot be invoked for the purpose of execution of a decree. Hindu Adoptions and Maintenance Act, 1956 - s.18 - Maintenance claimed by wife, during subsistence of marriage - Liability to pay - Held: Is on the husband - It is a personal obligation - Mother-in-law cannot be fastened with any legal liability to maintain her daughter-in-law from her own property or otherwise. Title - Burden of proof - Held: It is not for an owner of the property to establish that it is his self-acquired property and the onus would be on the one, who pleads contra. Protection of women from domestic violence Act - Right of residence - Claim by wife - Held: The Act provides for a higher right in favour of a wife - She not only acquires a right to be maintained but also acquires a right of residence - The said right as per the legislation extends to joint properties in which the husband has a share. Right to property - Is a constitutional right - Apart from constitutional right it is also a human right - The procedures laid down for deprivation thereof must be scrupulously complied with - Constitution of India, 1950 - Art.21. Advocate - Permission to withdraw - Submission made before Supreme Court by the counsel for complainant that she may be permitted to withdraw from the case and the complainant be allowed to argue in person - Held: Such a submission was not expected from a counsel practicing in Supreme Court or from a party, who herself is an Advocate - Such practice is deprecated. The complainant-third Respondent was married to son of appellants. She filed complaint petition against her husband and inlaws-appellants under ss.406 and 114 IPC. Appellants were granted bail subject to the condition that they would not leave India without prior permission of the Court. Allegedly on the premise that Appellant No.2 required medical treatment, an application for permission was filed in October 1997 but they left India without obtaining the same. An application was filed for cancellation of the bail which was rejected by the Magistrate as also by the Sessions Judge. However, High Court allowed the application seeking cancellation of bail and directed the Magistrate to issue standing warrants of arrest against the appellants as and when they return to India. On an application filed by the third respondent , father-in-law was declared an absconder and a public proclamation was issued in terms of s.82(2) Cr.P.C. attaching properties of mother-in-law if she did not present before the Magistrate within 30 days from the issuance of the said publication. Accordingly on their failure to remain present within stipulated time, order of attachment of their properties was passed under s.85 Cr.P.C. The Metropolitan Magistrate ordered further action in terms of s.85 by holding a public auction of the said properties. In the said order it was wrongly stated that the properties also belonged to husband of the complainant, whereas in fact Appellant No.1 i.e. mother-in-law alone was the owner thereof. The tenant and the subsequent auction purchaser filed an application before the High Court, wherein an interim order was passed directing the Mamlatdar to proceed with auction with certain conditions. However, the appellants were not made parties therein. Against the said order, an LPA, was filed by the tenant and High Court directed that the amount of rent deposited by him with the Mamlatdar be deposited in the High Court and permitted third respondent to withdraw the same without prejudice to the rights and contentions of the parties. The said order was passed, on the premise, that the complainant had placed reliance on an order passed by another Bench of the High Court whereby her husband was directed to deposit a sum of Rs.10,000/- per month towards arrears of maintenance and to continue to deposit the same. The tenant-First respondent expressed his intention to purchase the said property and he was asked to deposit additional amount of Rs. 4 lakhs. Appellant No.1 made an application to get herself impleaded as a party but her application was dismissed by the High Court. The High Court directed the tenant to pay a sum of Rs.17 lakhs to third respondent in regard to the auction sale of the property in question. Respondent No.2, Mamlatdar, was also directed to execute the deed of conveyance and register the same in the name of the tenant upon full payment. Appellant and her husband returned to India. They successfully filed an application for cancellation of the said Standing Warrants. Pursuant to the said order, they deposited their passports. The complainant filed an application for setting aside the said order contending that the Passports had not been deposited by the accused pursuant to the said order. The Additional Sessions Judge set aside the said order and issued non- bailable warrants against the appellants, which was upheld by High Court. Hence these appeals.

Click to View Judgement