Civil Procedure Code (CPC)

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pun (eng)     16 September 2012

2 dv cases

Hello members,

Wife has filed 2 DV cases. one at her parents place and other at matrimonial place. the one at parents place is proceeding and for other one the notices are not issued. What can be done in this case..is it allowed?



 10 Replies

Tajobsindia (Senior Partner )     16 September 2012

1. One should be dismissed on wants of jurisdiction read with intent of malicious prosecution .
 

pun (eng)     17 September 2012

Thanks  @ Tajobsindia.

1. how and where to apply for dismissing the case? in the same court or one level higher?

2. the case filed at parental place attracts the jurisdiction issue as the she is not currently residing over there and going there only to attend the case..and she already confirmed at many places that she is currently residing at matrimonial city.

3. as the case at parental place is already proceeded and due to her false affadavit and ex parte order passed on that affadavit it attracts sec. 340/purjuiry against her..so i am ok to continue with this case but want the case at matrimonial city to be get dismissed. is it possible?

4. even the case filed at matrmonial city which is filed after the first case,  in this case she has even given the refrence of first case and filed at parental place and ex parte order passed against me. still how this case can be accepted to file.

stanley (Freedom)     17 September 2012

 

Dear Pun , 

 

Go through Uncle Tajobs earlier post's as below  although its for criminal offences and yours would be for a protection order it may shed some light  

 

Hon'ble SC Version 1: There is no double jeopardy when conviction under two different laws which no. of times Hon’ble SC has affirmed as recently as inRe.: The Institute of Chartered Accountants of India vs. Vimal Kumar Suranadecision. In my opinion there is no bar to the trial or conviction of the offender under both enactments but there is only a bar to the punishment of the offender twice for the same offence. In other words, the section provides that where an act or omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both the enactments but shall not be liable to be punished twice for the same offence. We accordingly reject the argument of the appellant on this aspect of the case
Reasoning on above placed version 1:



The fundamental right which is guaranteed in Art. 20 (2) COI enunciates the principle of “autrefois convict” or “double jeopardy”. The roots of that principle are to be found in the well established rule of the common law of England “that where a person has been convicted of an offence by a court of competent jurisdiction the conviction is a bar to all further criminal proceedings for the same offence”. (Per Charles, J. in Reg v. Miles). To the same effect is the ancient maxim “Nemo bis debet puniri pro uno delicto”, that is to say that no one ought to be twice punished for one offence or as it is sometimes written “pro eadem causa”, that is, for the same cause.



This is the principle on which the party pursued has available to him the plea of“autrefois convict” or “autrefois acquit”. “The plea of ‘autrefois convict’ or‘autrefois acquit’ avers that the defendant has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned.... The question for the jury on the issue is whether the defendant has previously been in jeopardy in respect of the charge on which he is arraigned, for the rule of law is that a person must not be put in peril twice for the same offence. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on by the Crown are the same in the two trials. A plea of ‘autrefois acquit’ is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter.” (Vide Halsbury’s Laws of England, Hailsham Edition, Vol. 9, pp. 152 and 153, para 212).



This principle found recognition in S. 26 of the General Clauses Act, 1897,—

 

`Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence,’  and also in S. 403 (1) of the CrPC, 1898,

 

 

`A person who has been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under S. 236, or for which he might have been convicted under S. 237’.”

 

 

Hon'ble SC Version 2: Giving the law and protection against double jeopardy a different dimension altogether, invoking the provisions of the Code of Criminal Procedure, the Supreme Court recently has declared that a person cannot be convicted even for a different offence under a different statute if the facts leading to the conviction under both the statutes are the same. While the decision does not discuss this aspect and is in considerable contrast from the earlier enunciation of law, but what has been mentioned above in Version 1 as no double jeopardy when conviction under two different laws about the Supreme Court decisions itself that the law of double jeopardy protection is not available if the conviction is under different statutes. So bhai merey when SC can give two versions on same doctrine then why can’t you take Hanuman’s leap to apply the same in your case!

Reasoning on version 2:


 

Holding that the protection against double jeopardy available under the Code of Criminal Procedure to an accused is much wider than the protection available under the Constitution of India, the Supreme Court in a recent decision [Re.: Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao, AIR 2011 SC 641] explaining this proposition of law inter alia observed as under;



It may be noticed that there is a difference between the language used in Art. 20 (2) of the Constitution of India and S. 300 (1) of Cr.P.C.. Art. 20 (2) COI states:

“no person shall be prosecuted and punished for the same offence more than once.”

On the other hand, S. 300 (1) of Cr.P.C. States:

 

 

“300. Person once convicted or acquitted not to be tried for same office-

(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under subsection (1) of section 221 or for which he might have been convicted under sub-section (2) thereof.”



Thus, it can be seen that S. 300(1) of Cr.P.C. is wider than Art. 20 (2) of the Constitution. While, Art. 20 (2) of the Constitution only states that 'no one can be prosecuted and punished for the same offence more than once', S. 300(1) of Cr.P.C. states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts. 

 


Hence the problem here is first taking Hanuman’s leap via first convincing a Advocate to come up with sound pleading on principles of double jeopardy cherry picking either one of the above reasoned version placed here for debates and it is nobody’s case here that you are party-in-person so there are chances of going away gyan under the carpet unless heavily debated by gyanis here! Visual bar here in your enquiry and reading down your several posts till date is that there emerges a caveat given to understand cross sections of Acts / Codes / Penal provisions understanding cometh under Hanumanic pleadings by a party –in-person.


However I wish you all the very best if these two versions from Apex Court motivates your cause. 


pun (eng)     04 October 2012

yesterday was date in court for DV case which is running at my wife's parental place..judge reserved this day to pass the order on sec 21 child visitation rights application..but to my surprise, my wife submitted the case withdrawl application in the court the stop the court passing any order on visitation rights..I have submitted earlier the Bombay high court vistation guidelines, united nation conventions on child rights, one supreme court judgement to support my application and her lawyer was not able to challenge those documents..so they tricked with submission of DV case withdrawl application...my lawyer asked the judge (totally biased) first to pass the order on visitation rights application as it is already on final stage... and even the applicant is not physically present in court to confirm the withdrawl..but judge himself was acting as his lawyer and said that if the applicant is withdrawing the case, how can he entertain any other interim application...applicant is not present in the court so he gave next date to confirm her withdrawl.

Please help me and guide what can be done in this case..I was planning to file section 340 / pujuiry also in this case..which is with very strong base to accept..is there any chance still to continue the case or get order on visitation rights or to file section 340.

Tajobsindia (Senior Partner )     04 October 2012

What was your lawyer doing there!

Option 1. You OR your lawyer should have plead for pass over seeing Complainant absence from day’s proceedings minus any exemption order for non-appearance of Complainant at the time of withdrawal of a Complainat case Or medical thereto.

Option 2
. You or your lawyer should have plead deferment of called case by just few hours and instruction to her lawyer to call complainant to Court in person (physical presence) OR

Option 3.
You or your lawyer should have pleaded before Bench to instruct her Lawyer to go and get “clear instructions” from your client on “withdrawal application” she has asked you to file. Even otherwise so, a Lawyer representing a client is competent to give a Statement (obvious without Oath) of "withdrawal of matter under his signature on behalf of his client".

In my opinion chunk off your incompetent lawyer if he does not know how to plead such basics in favour of you.

No further remedy on S. 340 proposed since first is pending and second is difered and you are seeking further remedies instead of waiting and waiting for what happens on next date!!!. C'mon.............

stanley (Freedom)     04 October 2012

Mr Tajobs its a tricky situtation with the above author DV case from one place has been withdrawn and another DV has been filed at another place along with a special package of 498 A  :(

Tajobsindia (Senior Partner )     04 October 2012

 

Originally posted by : stanley

 


Mr Tajobs its a tricky situtation with the above author DV case from one place has been withdrawn and another DV has been filed at another place along with a special package of 498 A  

 

So will a Lawyer forget basics of pleading and does character of pleadings changes with locations when two cases filed; one being hybernating to be withdrawn vis-à-vis another termed as dormant case kya bole toh?

Quasi civil r/w criminal matrimonial litigation there is no scope of showing mercy alleged to now call it ha ji han tricky case tha becharey ka kar key!

pun (eng)     04 October 2012

but is it as per the law that judge can decide to stop the order on application for which argument is done and only order is pending and on the same day he is accepting the withdrawl application...even she gave the reference of some MoU to support her withdrawl application which doesn't exists and she is claiming in application that the she has submitted that MoU in the court which is not true.when i argued with judge about the non existence of any such MoU, the judge who was on her side said that it doesn't matter for him if there is any MoU or not..even if she gives the application without MoU refrence he would accept this application...but how he can ignore her statement that she has submitted the above said MoU in the court which is not true because it was not there when we asked for it's copy.

Tajobsindia (Senior Partner )     04 October 2012

 

Originally posted by : pun

 

but is it as per the law that judge can decide to stop the order on application for which argument is done and only order is pending and on the same day he is accepting the withdrawl application...even she gave the reference of some MoU to support her withdrawl application which doesn't exists and she is claiming in application that the she has submitted that MoU in the court which is not true.when i argued with judge about the non existence of any such MoU, the judge who was on her side said that it doesn't matter for him if there is any MoU or not..even if she gives the application without MoU refrence he would accept this application...but how he can ignore her statement that she has submitted the above said MoU in the court which is not true because it was not there when we asked for it's copy.

 

It is easy to tell story when she is not physically present of some imaginary MoU blah blah. The point here is stick to your relief pleadings and put your foot down firmly to take on record what ever her side is saying at Bar before Bench on eventful day or file on the spot purshis. Judges are not above Law we make them our only God (like Akshay’s OMG!) with utmost respect said it as constructive figure of speech. Now wait and watch how her trailer unfolds in natal home jurisdiction case on next date of hearing.

 

Also let us be honest to each other, I was re-reading your very first thread query above, ask yourself if the Notice is not issued then how did you come to know that some DV complaint case is filed in your Jurisdiction? OK, be it so, if the complaint case has been file numbered and want of Notice do you know that it can be dismissed by Sessions Court showing certified copy of the proceedings in matter of live case in her natal jurisdiction!. So may you know yourself why no action in your own home turf taken for first DV case and let us change topic accordingly…..


[Last reply, realised exceeded my self allocated bandwiddth]

pun (eng)     04 October 2012

actually she herself mentioned in her parental case later that she has filed the DV case at my place also..and when i got the copy of this case for which notice is not yet issued then only i saw that she has mentioned in DV case at my place that she already has filed the DV case at her parental place and she has got ex parte order also in that....I know that judge is anyhow going to entertain her application for withdrawl..but do we have any law point to challenge him to pass the child visitation order first before deciding the withdrawl...and if there is no logical conculsion of this case what does the judge think about wasting the last 1 year in proceeding of this case and also my money to travel from one city to another


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