Supreme Court Ruling on FIRs: A New Era

“Ae khoon ke pyase, baat suno…”

When Rajya Sabha MP Imran Pratapgarhi posted these poetic lines on Instagram—lines echoing dissent and anguish—the Gujarat police responded by registering an FIR against him, citing provisions under the Indian Penal Code. But what followed wasn’t just a legal tussle over a social media post. It sparked a profound judicial reflection on how our criminal justice system must evolve in the age of voices and verses.

The Supreme Court of India recently delivered a landmark judgment that not only quashed the FIR but also took the opportunity to dissect the core procedural shifts introduced by the newly minted Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)—India’s replacement for the long-standing Code of Criminal Procedure, 1973 (CrPC).

The Old Order: CrPC and FIRs Without Pause

For decades, the rule was clear. Under Section 154 of the CrPC, if you walked into a police station and reported a cognizable offence, the police had no choice—they had to register an FIR. No second-guessing. No inquiry. Even if the complaint sounded outrageous, if it disclosed a cognizable offence, it had to be recorded.

This was reaffirmed in the famous Lalita Kumari case, where the Supreme Court clarified that a preliminary inquiry was not permissible unless the information failed to disclose a clear cognizable offence.

And while that ensured accountability and swift action, it also left space for frivolous or politically motivated complaints to enter the criminal justice pipeline, sometimes chilling free speech and honest dissent in the process.

Enter BNSS: A Law That Hears Before It Strikes

The BNSS seeks to address this imbalance, and in doing so, makes a “significant departure” from its predecessor.

In the recent judgment, the Supreme Court—through a bench comprising Justice Abhay Oka and Justice Ujjal Bhuyan—zeroed in on Section 173 of the BNSS, the counterpart of Section 154 CrPC. At first glance, the two look nearly identical. But the twist lies in sub-section (3) of the new provision.

Under Section 173(3) of BNSS, when an officer receives information about a cognizable offence punishable by 3 to less than 7 years of imprisonment, they can pause, seek permission from a superior officer, and conduct a preliminary inquiry—just to see whether there’s actually a prima facie case.

In other words, before the ink hits the FIR register, the officer has a window to filter out the noise from real offence.

Why This Matters: A Poet’s Case in Point

In Pratapgarhi’s case, the poem’s words were powerful, perhaps unsettling to some. But the Supreme Court emphasized that freedom of speech, especially political and poetic expression, is constitutionally protected.

Registering an FIR over such expression, without the due caution BNSS now allows, could result in misuse of process. And that’s precisely what the new law aims to prevent.

The Court explained: Just because words are spoken or written, doesn’t mean they amount to a criminal offence. A police officer must first read, understand, and apply legal reasoning. That act—of merely interpreting content—isn’t a “preliminary inquiry” barred under Section 173(1), the Court clarified. But under Section 173(3), if the offence falls within that 3-7 year range, an actual preliminary inquiry can and should be conducted before registering an FIR.

A Legal Tightrope: Speed vs. Scrutiny

The judiciary acknowledged the tightrope walk here. Too much discretion, and justice may be delayed or denied. Too little, and we risk weaponizing criminal law against dissenters, journalists, poets, and activists.

With Section 173(3), BNSS introduces a calibrated discretion. Not a license to avoid registering FIRs, but a tool to screen allegations with lower gravity—provided the officer gets a green light from a senior.

It’s a subtle but powerful change. One that says: “Let the law listen before it acts.”

A New Chapter in Criminal Justice

This judgment is not just about a poem or a politician. It’s about how the law treats the first whisper of an allegation. It’s about building a system that is as sensitive to constitutional freedoms as it is to criminal violations.

So as BNSS begins to shape the new face of procedural law in India, the message from the top court is clear: In a democracy, FIRs are not just legal documents—they are instruments of power. And power must be exercised with reason, not reflex.

Adv. Jayendra Dubey
advdubeyjayendra@gmail.com
Available At:
Chamber Number 222/6, District Court Compound, Surajpur, Greater Noida, Gautam Buddha Nagar 201306
Also At: IJLS & Partners, P3-362, Paramount Golfmart, Surajpur, Greater Noida, Gautam Buddha Nagar 201306

All About Maintenance

Concept of Maintenance

Meaning:

The term “maintenance” refers to the support or sustenance necessary for living. It is not explicitly defined in any marriage laws across different religious communities. However, the entitlement to maintenance is premised on the claimant’s inability to support themselves. Maintenance typically includes expenses for the necessities of life but goes beyond mere survival, encompassing the lifestyle the claimant was accustomed to during the marriage. Courts consider various factors such as property possession, the husband’s earning ability, and the conduct of the parties when determining the amount of maintenance.

Objective:

The provisions regarding maintenance aim to serve a social purpose. These provisions are found in the Criminal Procedure Code, 1973 (sections 125-128), the Hindu Marriage Act, 1955, the Hindu Adoption and Maintenance Act, 1956, the Protection of Women from Domestic Violence Act, 2005, and the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The primary objective is to enforce a man’s moral obligation to support his wife, children, and parents, ensuring they are not left destitute and driven to a life of vagrancy, immorality, or crime. The state seeks to prevent social problems arising from the inability of a wife, child, or parent to maintain themselves by providing appropriate measures.

Constitutional Provisions:

Maintenance laws align with Article 15(3) of the Indian Constitution, which allows the state to make special provisions for women and children. Article 39 also directs state policies to ensure that citizens have an adequate means of livelihood and that children develop in a healthy manner, protected from exploitation and abandonment.

Conditions for Maintenance:

The relationship of husband and wife must be proven.
The wife must be unable to maintain herself.
The husband must have sufficient means.
It must be proven that the husband has neglected or refused to maintain the wife.
A divorced wife can claim maintenance provided she has not remarried. This applies whether the divorce was initiated by the husband, mutually consented, or obtained by the wife. However, the Muslim Women Act, 1986, exempts Muslim women from these provisions, and they are governed by a separate set of rules.

Maintenance Under Hindu Law

Maintenance of Wife:

Under Section 24 of the Hindu Marriage Act, 1955 (HM Act), either spouse can apply for interim maintenance if they lack independent income. The court determines the quantum of maintenance, which is payable from the date of petition presentation until the suit is dismissed or a decree is passed. Section 3(b)(i) of the Hindu Adoption and Maintenance Act, 1956 (HAM Act), defines maintenance to include provisions for food, clothing, residence, education, and medical attendance.

Grounds for Award of Maintenance:

The husband has deserted or willfully neglected the wife.
The husband has treated the wife with cruelty.
The husband suffers from a virulent disease.
The husband has another wife living.
The husband keeps a concubine in the marital home.
The husband has ceased to be a Hindu.
Any other justifiable cause for separate living.

Quantum of Maintenance:

The court considers the person’s means and capacity when determining maintenance. For the husband, this includes his actual earnings and potential earning capacity, as it is presumed that every able-bodied person can earn and maintain his wife. Section 23(2) of the HAM Act outlines factors such as the parties’ status, the claimant’s reasonable wants, justification for living separately, and the claimant’s income and property.

Maintenance of Children:

Section 20 of the HAM Act obligates both parents to maintain their children. This includes bearing marriage expenses for an unmarried daughter. If a minor married daughter cannot maintain herself, she can claim maintenance under Section 125 of the Criminal Procedure Code. Children are also entitled to maintenance under Sections 24 and 25 of the HM Act if the claimant has the responsibility of maintaining them.

Maintenance of Parents:

Section 20 of the HAM Act also imposes an obligation on children to maintain their parents if they cannot maintain themselves. This applies equally to sons and daughters. The obligation to maintain parents includes stepmothers if they are unable to maintain themselves.

Key Judicial Pronouncements:

K.Sivarama vs K.Bharathi: A marriage violating Sections 5 and 11 of the Hindu Marriage Act is invalid, and the woman cannot claim maintenance under Section 25 of the Act.
Mangala Bhivaji Lad vs Dhondiba Rambhau Aher: The court ruled that second wives are not entitled to maintenance under the Hindu Marriage Act and the HAM Act.
Shobha Suresh Jumani vs Appellate Tribunal: A wife living separately is entitled to claim maintenance under Section 18 of the Hindu Adoption and Maintenance Act.
P. Srinivasa Rao vs P. Indira: The court emphasized that providing essentials for survival to a deserted wife and her children is a statutory and moral duty of the husband.
Dayali Sukhlal Sahu vs Smt. Anju Bai Santosh Sahu: The obligation of a father-in-law to maintain a daughter-in-law arises if she cannot maintain herself from her parents’ estate.
D. Krishna Prasada Rao vs K. Jayashri: The father’s obligation to maintain children is absolute, and the burden is on the parent to prove no default in an action for maintenance.

Maintenance Under Muslim Personal Law

Principles of Maintenance:

Maintenance under Muslim law includes food, clothing, and lodging. The obligation arises if the claimant has no property, is related to the obligor in prohibited degrees, or is the wife or child. The obligor must be in a position to support the claimant, and the obligation is subject to the economic condition of the obligor.

A husband is obligated to maintain his wife, regardless of her financial status, age, or physical condition, unless she is too young for matrimonial intercourse or refuses to cohabit without a valid reason. Maintenance is not payable if the wife is disobedient, leaves the husband’s house without justification, or elopes with another person. An agreement entitling the wife to maintenance upon certain conditions, such as ill-treatment or the husband’s second marriage, is valid.

The father is responsible for maintaining his sons until puberty and daughters until marriage. This includes upkeep for widowed or divorced daughters and children in the mother’s custody. If the father is unable to provide maintenance, the mother or parental grandfather assumes the responsibility.

Maintenance During Iddat:

A divorced Muslim woman is entitled to maintenance during the iddat period and, under certain conditions, beyond that period. The Muslim Women (Protection of Rights on Divorce) Act, 1986, allows a divorced woman to claim maintenance from her relatives if she cannot maintain herself after the iddat period.

Gulam Rashid Ali vs Kaushar Praveen: A divorced Muslim woman can claim maintenance from her former husband until she remarries.
S. Abdul Salam vs S. Ghousiya Bi: The special enactment of the Muslim Women Act overrides general provisions of the Criminal Procedure Code.
Danial Latifi vs Union of India: The Supreme Court upheld the provisions of the Muslim Women Act, allowing a divorced woman to claim maintenance from her relatives or the State Wakf Board if necessary.
Mumtazben Jushabbhai Sipahi vs Mahebubkhan Usmankhan Pathan: Maintenance during the iddat period is obligatory, and a divorced woman can seek maintenance from her relatives post-iddat.

Maintenance Under Christian Law: Maintenance Under Various Laws: An Overview

Maintenance Under Christian Law:

Christian women can claim maintenance through both criminal and civil proceedings. Section 36 of the Indian Divorce Act, 1869, provides for interim maintenance, while Section 37 allows a divorced wife to claim alimony for her lifetime. The provisions under the Indian Divorce Act are similar to those under the Parsi Marriage and Divorce Act, 1936, and apply to Christians.

Divyananda vs Jayarai: A Christian woman cannot claim maintenance under Hindu customs without conversion, and her children, though illegitimate, are entitled to maintenance under Section 125 of the Criminal Procedure Code.

Maintenance Under Parsi Law:

Parsi law allows for maintenance claims through criminal and civil proceedings. The Parsi Marriage and Divorce Act, 1936, provides for interim and permanent maintenance, with the maximum amount being one-fifth of the husband’s net income. Section 40 of the Act outlines the factors to be considered when determining maintenance, including the parties’ income, property, and conduct.

Maintenance Under the Code of Criminal Procedure, 1973:

Section 125 of the Criminal Procedure Code allows individuals to claim maintenance from spouses, children, and parents. This provision applies irrespective of personal laws, providing a quick remedy for those neglected or refused maintenance by individuals with sufficient means.

Mohd. Ahmed Khan vs Shah Bano Begum: The Supreme Court ruled that Section 125 applies to all, regardless of religion, ensuring that Muslim women could claim maintenance. This led to the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
Gulam Rashid Ali vs Kanshar Praveen: A Muslim divorced woman is entitled to maintenance until she remarries.
Kalyan Dev Chowdary vs Rita Dev Chowdary: The Supreme Court held that 25% of the husband’s net salary is a just amount for maintenance.
Badshah vs Sou. Urmila Badsha Godse: The court ruled that victims of bigamous marriages are entitled to maintenance under Section 125 of the Criminal Procedure Code.
Manoj Kumar vs Champa Devi: The Supreme Court directed a husband to grant maintenance to his deserted wife from the date when the divorce was decreed. This case underscores the court’s commitment to ensuring financial support for deserted spouses even post-divorce.
Shailaja & another vs Koyyanna: The Supreme Court reduced the maintenance from Rs. 15,000 to Rs. 6,000, asserting that the capability to earn should not be confused with actual earnings. The judgment highlighted that mere potential earning capacity does not justify reducing maintenance unless the person is indeed earning.
Abdul Salim vs Nagima Begam: The court clarified that a wife does not need to be destitute or in dire straits to claim maintenance. The fact that she lacks her own means to maintain herself adequately entitles her to claim maintenance from her husband.

Maintenance for Live-in Relationships

S.P.S. Balasubramanyam vs Suruttayan Andalli Padayachi & Ors.: The Supreme Court recognized the presumption of marriage under Section 114 of the Evidence Act for live-in relationships, ensuring that children from such relationships are deemed legitimate and entitled to a share in ancestral property.
Abhijit Bhikaseth Auti vs State Of Maharashtra and Others: The Maharashtra Government, following recommendations from the Malimath Committee and the Law Commission of India, proposed that women in long-term live-in relationships should enjoy the same legal status as wives, highlighting a progressive view on live-in relationships.

Married Daughter’s Liability

Vijaya Manohar Arbat vs Kashiram Rajara Sawai: The Supreme Court held that married daughters are liable to provide maintenance to their aged parents if the parents cannot maintain themselves. This landmark judgment emphasized that daughters remain obligated to their parents regardless of marital status.

Alteration in Allowance (Section 127 of the CrPC)

Bai Tahira vs Ali Hussain Fissali: The Supreme Court ruled that if the amount of deferred ‘Mehar’ paid at the time of divorce is sufficient for the wife’s lifetime, the order of maintenance under Section 125 can be canceled as per Section 127(3). However, this principle was challenged in subsequent rulings.
Shah Bano Begum vs Mohd. Ahmed Khan: The Supreme Court clarified that ‘Mehar’ is a consideration for marriage and not divorce, thus not satisfying the condition for canceling maintenance under Section 127(3)(b). This judgment affirmed that Muslim women could claim maintenance regardless of the ‘Mehar’ amount
Protection of Women from Domestic Violence Act, 2005

Section 20: Monetary Reliefs:

The Act allows magistrates to direct respondents to pay monetary reliefs to meet the expenses incurred due to domestic violence. This includes loss of earnings, medical expenses, property damage, and maintenance for the aggrieved person and her children. The relief granted must be adequate, fair, and consistent with the aggrieved person’s standard of living.

Sikakollu Chandra Mohan vs Sikakollu Saraswathi Devi and another: The court justified interim maintenance under Section 20(1)(d) of the Act, in addition to an order from the Family Court under Section 125 of the CrPC.
Rajesh Kurre vs Safurabai & Ors: The court emphasized that the provisions of the Domestic Violence Act are independent and in addition to other remedies available under any legal proceeding, not dependent on Section 125 of the CrPC or any other Act.
Mohd. Maqeenuddin Ahmed and others vs State of AP: The court refused to quash proceedings against a respondent who neglected to pay medical expenses and maintenance, affirming the validity of claims under the Domestic Violence Act.

The Maintenance and Welfare of Parents and Senior Citizens Act, 2007

Section 4: Maintenance of Parents and Senior Citizens:

This section entitles senior citizens and parents unable to maintain themselves to apply for maintenance from their children or relatives. The obligation extends to meeting the needs of the senior citizen to lead a normal life, with relatives liable in proportion to the property they inherit from the senior citizen.

Conclusion

Judicial pronouncements and legislative measures have significantly restored the rights of women and other dependents, ensuring their financial security and social upliftment. However, proper implementation and societal changes are crucial for these measures to be effective. Women’s emancipation through education, economic independence, and social awareness is essential for understanding their rights and achieving community well-being.

While maintenance should ideally be gender-neutral, the current focus remains on protecting women, reflecting the societal need to address gender disparities. Proper adherence to laws and judicial guidelines will ensure the success of these measures, providing support and dignity to those in need.

Adv. Jayendra Dubey

Understanding Exemption from Personal Appearance Under Sections 205 and 317 of CrPC

In criminal proceedings, the presence of the accused is generally required. However, Sections 205 and 317 of the Code of Criminal Procedure (CrPC), 1973, provide certain exemptions to this rule, ensuring flexibility and fairness in the judicial process.

Section 205 CrPC: Initial Stage Exemption

Section 205 allows a Magistrate to dispense with the personal attendance of the accused at the beginning or at any stage of the proceedings. This means that instead of appearing in person, the accused can be represented by their lawyer. This exemption can be granted if the Magistrate deems it reasonable based on the circumstances of the case.

Key Points:

Discretionary Power: The Magistrate has the discretion to decide based on the specifics of the case.
Conditions: The Magistrate may impose conditions for such exemptions, ensuring that justice is not compromised.

Section 317 CrPC: Exemption During Trial

Section 317 is applicable during an ongoing trial or inquiry. This section permits the court to continue with the proceedings even in the absence of the accused, provided their lawyer is present to represent them. The court must be satisfied that the absence of the accused will not affect the trial’s fairness.

Key Points:

Judicial Discretion: The court must record reasons for granting this exemption, ensuring that it is justified.
Representation: The accused must be represented by their lawyer during their absence.

Practical Considerations

Courts consider several factors before granting exemptions under these sections:

Nature of Offence: Seriousness and impact of the alleged crime.
Accused’s Conduct: Past behavior and compliance with court orders.
Hardship and Inconvenience: Practical difficulties faced by the accused in attending court.
Fairness and Justice: Ensuring that the trial remains fair and just without the personal appearance of the accused.

Conclusion

Sections 205 and 317 CrPC play a crucial role in ensuring that the judicial process is both fair and efficient. They provide a mechanism to avoid unnecessary hardship for the accused while maintaining the integrity of the trial. Courts use these provisions judiciously to balance the need for the accused’s presence with practical considerations of justice.

By understanding and effectively applying these sections, the judicial system can uphold the principles of fairness and justice without compromising on the efficiency and smooth conduct of legal proceedings.

Criminal Procedure – Object & Importance

There was at first no uniform law of criminal procedure for the whole of India. It was the Criminal Procedure Code of 1882 which gave for the first time such a uniform law of procedure. Later supplanted by Code of 1898 and then amended in 1923 and 1955. The Law Commission studied the previous codes and made various suggestion in it’s detailed 41st report. So, the code that you see, read and study now came into force on 1st April, 1974.

While drafting the code, three basic considerations, 1. Fair Trial 2. Avoidance of delay in investigation/trial 3. Fair deal to poorer sections has been kept in mind.

Object & Importance of Criminal Procedure

The law of criminal procedure is intended to provide a mechanism for the enforcement of substantive criminal law (i.e. Penal Code). The law of criminal procedure is meant to be complementary to criminal law; it creates the necessary machinery for;

the detection of crime,
arrest of suspected criminals,
collection of evidence,
determination of guilt or innocence of the suspected person, and
the imposition of proper punishment on the guilty person

lqbal Ismail Sodawala v State of Maharashtra (1975) 3 SCC 140

The Supreme Court has aptly stated in the above-mentioned case that: “It is the procedure that spells much of the difference between the rule of law and the rule of whim and caprice.”

The code further attempts to strike a just balance between the need to give discretionary powers to the functionaries under the Code to make the investigative and adjudicatory processes strong and effective and the need for controlling the probable misuse/abuse of these powers.

It has been rightly said that too much expense, delay and uncertainty (flaws and loopholes) in applying the law of criminal procedure would render even the best of penal laws useless and oppressive.

It may be noted that the procedural code is not wholly procedural or adjective in nature. There are certain provisions of the Code which partake of the nature of substantive law e.g. prevention of offences, maintenance proceedings, etc. The Code confers the ‘right of maintenance’, ‘right of habeas corpus’, ‘right of appeal’, etc.

Enactments regulating the procedure of courts seem usually to be imperative or Mandatory and not merely directory, In other words, the rules of procedure are enacted to be obeyed. The object of these rules is to simplify and shorten proceedings. The Code Is a complete code with respect to matters provided for by it. So far as it deals with any point specifically, the Code must be deemed to be exhaustive and the law must be ascertained by reference to its provisions.

However, absence of any provision on a particular matter in the Code does not mean that there is no power in a criminal court to make such order as the ends of justice required; the court may act on the principle that every procedure should be understood as permissible till it is shown to be prohibited [Hansraj (1942) Nag 333].

Fair Trial

A person accused of any offence should not be punished unless he has been given a fair trial’ and his guilt has been proved in such trial. The requirements of a fair trial relate to the character of the court (unbiased judge), the venue (atmosphere of judicial calm), the mode of conducting the trial (fair prosecutor; no prejudices or threats against the witnesses), rights of the accused in relation to defence and other rights (Law Commission, 37th Report). The fair conduct of a trial upholds the dignity of man in a free society which diligently guards the rights, claims and privileges of its citizens against any encroachment upon them. Denial of a fair trial is as much injustice to the accused as is to the victim and the society.

The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice. In fact, the primary object of criminal procedure is to ensure a fair trial to every person accused of any crime.

Adversary System of Trial

The system of criminal trial envisaged by the Cr. P.C. is the adversary system based on the accusatory method. In this system the prosecutor representing the State accuses the defendant (the accused person) of the commission of some crime; and the law requires him to prove his case beyond reasonable doubt. The law also provides fair opportunity to the accused person to defend himself. Thus, in an adversary system, both the parties are allowed to plead their cases, put forward their arguments, rebuttals, etc., with the help of evidence or counter evidence. The judge, more or less, is to work as an umpire between the two contestants.

Experience has shown that adversary system is by and large dependable for the proper reconciliation of public and private interests i.e. public interest in punishing the criminals and private interest in preventing wrongful convictions. The system of criminal trial assumes that the State using its investigating resources and employing competent counsel will prosecute the accused who, in turn, will employ equally competent legal services to challenge the evidence of the prosecution.

The above assumption has been found to be incorrect in one respect. Though the adversary system envisages equal legal rights and opportunities to the parties to present their respective cases before the court, such legal rights and opportunities in practice operate unequally and harshly, affecting adversely the poor indigent accused persons who are unable to engage competent lawyers for their defence. The system therefore departs from its strict theoretical passive stance and confers on the accused not only a right to be defended by a lawyer of his choice, but also confers on the indigent accused person a right to get legal aid for his defence at State’s cost (Sec. 304).

Further, apart from attempting to give legal aid to the indigent accused persons, the Code has suitably altered the notions of judge-umpire. The judge is not to remain passive as an umpire, but he has to play a more positive and active role for protecting the public interests as well as the individual interests of the accused person. For instance, the charge against the accused is to be framed not by the prosecution but by the court after considering the circumstances of case (Sec. 228), the prosecutor cannot withdraw the case without the consent of court (Sec 321), the court can examine the accused at any time to get explanations from him (Sec. 331).

Though the notion of adversary system of trial has undergone some transformation by legislative prescriptions and judicial gloss, it can still be reasonably considered as an essentially important component of the concept of ‘fair trial.”

Final Take Away:

Although we have come a long way from the times when there was codified procedure to follow and the present code provides ample solutions to the loopholes but it still requires several additions to it so that the balance of power could be maintained. Also, a legal system which is quick yet thoughtful and affordable, keeping Justice, Liberty, Equality and Fraternity in mind.