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Article 20(3) Not Violated; Consent Of The Accused Not Necessary To Obtain Voice Sample: Kerala HC

  • The Hon’ble Kerala HC has held in the case of Mahesh Lal N.Y. vs. State Of Kerala that the consent of the accused is not required for the purpose of obtaining their voice sample for comparison, as the same has already been established and is not considered to be a violation of the doctrine of self incrimination as envisaged in Article 20(3) of the Constitution.
  • In the instant case, the complainant’s brother-in-law constructed a new building and was waiting for the grant of completion certificate from the Panchayat. The first accused in the present case demanded money from the complainant to pay the petitioner herein (who is the second accused) and others in the Panchayat for the issuance of the certificate.
  • In February 2021, the first accused accepted Rs. 25,000 from the complainant. By doing this, he committed an offence under section 7A of the Prevention of Corruption Act, read with 120B of the IPC (criminal conspiracy). The second accused also committed an offence under section 7a of the prevention of Corruption Act read with section 120B of the IPC.
  • During the course of the investigation, a mobile phone was seized which contained a conversation between the petitioner and the complainant regarding the demand of a bribe. Thus, it was stated that a voice analysis of both the petitioner and the complainant was needed to prove the demand of bribe that was made.
  • While the investigation was ongoing, a notice was issued to the petitioner by the Court of the Enquiry Commissioner and Special Judge (Vigilance) directing him to appear at a studio for recording voice samples. This order was challenged by the petitioner in the HC under section 482 CrPC, seeking to get the order and any proceeding in pursuance of the same to be quashed.
  • The counsel for the petitioner argued that to impel an accused to give a voice sample is violative of Article 20(3). Referring to the decision of the Hon’ble SC in Ritesh Sinha vs. State of UP in which the SC has clearly stated that a direction given to the accused to give a voice sample is not violative of Article 20(3), the HC noted that the present question does not stand.
  • It was also contended by the petitioners that the petitioner was not granted an opportunity of being heard while the impugned order was passed, thus violating the principle of audi alteram partem. To this, the Court responded that the question of hearing the petitioner in the instant case would only arise if his consent was required before taking the voice sample. As this was clearly not the case because the consent was immaterial, the question of hearing the petitioner does not arise.
  • The Court also observed that the investigating agencies have to adopt scientific methodology to solve crimes. The Courts should not be used as a means to prevent that from happening.
  • The present petition was, thus, dismissed.

Non-Payment of Pendente Lite Maintenance: Defence Can Be Struck Off Only When The Fault Is Deliberate

  • The Kerala HC has held, in the case of Shyju P.K. vs. Nadeera and Anr. that defence can be struck off for the non- payment of maintenance pendente lite only when the default is deliberate and is wilful.
  • In the instant case, a woman along with her minor daughter (respondents in the current case) filed a petition before the Family Court seeking the return of gold ornaments and maintenance. The husband then filed an application to the same.
  • The respondents filed an application under section 24 of the Hindu Marriage Act and section 151 of CPC claiming maintenance pendente lite from the husband at the rate of 7000/- and 8000/- respectively.
  • This application was allowed and the husband was directed to pay Rs. 5000 till the conclusion of the proceedings. When he failed to comply with this order, the respondents filed an application under section 151 CPC to strike off the defence of the husband. This application was again allowed and the husband’s defence was struck off.
  • Relying upon the exparte evidence of the respondents, the original petition was allowed and the husband was directed to pay a sum of 1,80,000/- and 5000/- as maintenance every month.
  • The appellant moved the HC, challenging this judgement.
  • After taking into account several judicial decisions including Mangalam vs. Velayudhan Asari (1992) the Court held that the power of the Court to strike off the defence under section 151 CPC can only be exercised in the case the default in paying the maintenance pendente lite is found to be deliberate and wilful.
  • The Court also observed that the maintenance pendente lite was claimed under section 25 of the HMA whereas the petition claiming the gold ornaments and maintenance were preferred under the Family Courts Act. On this, the Court concluded that the order for the payment of maintenance pendente lite by the Family Court was without jurisdiction.
  • The Court also observed that the order striking off the defence was an order consequential to the grant of maintenance. In this regard, the Court observed that since the original order was found to be without jurisdiction, any consequential order cannot be sustained.
  • Taking note of the fact that the appellant (husband) was not even given three months before his defence was struck off, the Court observed that the defence of a party can be struck off only when he has been given a reasonable opportunity of being heard.
  • Thus, the appeal was allowed and the order of the Family Court was set aside.

Insurance Company Would Be Liable Even If The Vehicle Was Stolen And Driven By Someone Else: Delhi HC

  • In the case of United India Insurance Company Ltd. vs. Smt. Anita Devi and Ors. the Delhi HC has observed that the insurance company cannot avoid it’s liability when the offending vehicle was stolen and was unauthorisedly driven by someone else. In order to avoid the same, the company has to show that there was a wilful breach on the part of the insured.
  • In the instant case, an Eco car was being driven very rashly at a high speed when it slammed into a scooty, which was being driven by the victim, who succumbed to his injuries immediately.
  • It was the case of the appellant that since the vehicle was stolen and was being driven by a professional thief, the insurance company was not liable to pay the amount. The Tribunal had directed the insurance company to pay the compensation amount and recover the same from the driver of the vehicle. It was against this order that an appeal was preferred to the HC.
  • The Court relied upon the decision of the Apex Court in United India Insurance Company vs. Lehru and Ors. (2003) SCC wherein it was held that to avoid the liability, the insurance company has to establish that there was a wilful breach on the part of the insured. In the instant case, the insurance company was unable to do so.
  • The Court, very rightfully, also observed that if the propositions forwarded by the appellant insurance company were to be accepted, it would defeat the very purpose of the beneficial legislation for victims of accidents. Not only would the insurance company escape from the very liability that it has promised to undertake, but it would also leave the insured remedy-less in a situation where he is nowhere at fault.
  • Thus, the appeal was denied. The insurance company was directed to recover the amount from Niraj, who had stolen the vehicle in the first place, thus upholding the direction of the Tribunal.
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