498A-Last Five Years

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL MISC. APPLICATION (C-482) No. 461 of 2011

1. Smt Laxmi Rai W/o Indra Bahadur Rai R/o Village Jaintwala, New Basti P.O Ghangora, Dehradun 2. Pushp Kala Rai D/o Indra Bahadur Rai R/o Village Jaintwala, New Basti P.O Ghangora, Dehradun

………………..Applicants

Versus State of Uttarakhand & another

………….Opposite parties

Shri Neeraj Garg, Advocate, present for the petitioners Shri P.S.Bohara, Breif Holder, present for the State.

Hon’ble Prafulla C. Pant, J. Heard. (2)

By means of this petition, moved under section 482 of

Code of Criminal Procedure,1973, the

petitioners

have

sought quashing of the proceedings of Criminal Case No. 2912 of 2010, State vs. Yogendra Kumar Rai and others, relating to offences punishable under section 498A, 506 I.P.C, Police Station Cantt, Sadar, pending in the court of Chief Judicial Magistrate, Dehradun.

2

(3)

Learned counsel for the petitioners submitted that

petitioners are mother in law and sister in law of the complainant (respondent no.3).

It is pleaded that

respondent no.3 got married to the son of petitioner no.1, after they developed friendship with each other in Dehradun. It is also submitted that marriage between the respondent no.3 and son of the petitioner no.1 was love marriage which was solemnized in a Temple. It is contended that there was no question of demand of dowry in such case. The marriage was registered with the Registrar Hindu Marriage. Copy of certificate is annexed as Annexure 2 to the petition. Learned counsel for the petitioners argued that it is abuse of process of law on the part of the complainant to implicate the petitioners in the above circumstances, in a criminal case. (4)

Admit the petition.

(5)

Learned counsel for the respondent no.1 and 2

prays for and is allowed six weeks time to file the counter affidavit. (6)

Issue notices to respondent no.3 Mamta Thapa,

who may also file her counter affidavit within a period

3

of six weeks. (7)

Having considered submissions of learned counsel

for the petitioner, and learned counsel for the State, and after going through the papers on record, as an interim measure it is directed that further proceedings in criminal complaint case no. . 2912 of 2010, State vs. Yogendra Kumar Rai and others, relating to offences punishable under section

498A, 506 I.P.C,

Police

Station Cantt, Sadar, pending in the court of Chief Judicial Magistrate, Dehradun, are stayed till the next date of listing. (8)

List after six weeks.

(Prafulla C. Pant, J.) Dt.26.05.2011 N.P

Court No. - 46 Case :- CRIMINAL MISC. WRIT PETITION No. - 3322 of 2010 Petitioner :- Re: In The Matter Of Matrimonial Disputes Respondent :- State Of U.P. & Others Petitioner Counsel :- P.N. Gangwar Respondent Counsel :- Govt. Advocate,Abhay Raj Singh,Pankaj Naqvi Hon'ble Amar Saran,J. Hon'ble Shyam Shankar Tiwari,J.

On 8.8.2011, there was an extensive hearing in this case when Ms. Leena Jauhari, Secretary (Home), Government of U.P. Lucknow, Smt. Poonam Sikand, Additional L.R and Tanuja Srivastava, I.G. ( Public Grievances), Ms. G. Sridevi, Secretary, U.P. State Legal Services Authority, Sri Ashok Mehta, Organising Secretary, Allahabad High Court, Mediation and Conciliation Centre, Sri Pankaj Naqvi, Sister Sheeba Jose Advocates on behalf of the intervenor 'Sahyog,' Sri D.R. Chaudhary, learned Government Advocate and Sri Bimlendu Tripathi, learned A.G.A appeared and were heard at length. An affidavit has also been filed on behalf of the Director General of Police on 10.8.2011. Another affidavit was also filed on behalf of Special Secretary (Home), U.P. on 12.8.2011. An application was also moved by the intervenor 'Sahyog.' This Court appreciates the positive contributions and suggestions of all the aforesaid advocates and other State officials and that this pro bono litigation is being taken up in the right non-adversarial spirit, with the aim to ensure that wherever allegations are not very grave, in order to save families, and children and indeed the institution of marriage, an effort be first made for reconciling matrimonial disputes by mediation before steps can be taken for prosecuting offenders, if they are called for. In Preeti Gupta v. State of Jharkhand, AIR 2010 SC 3363 the learned members of the

bar have been reminded of their noble profession and their noble tradition and of their responsibility to ensure that the social fibre of family life is preserved by desisting from over-implicating all inlaws and their relations as accused persons in 498-A IPC reports, and from filing exaggerated reports. They are also to make an endeavour to bring about amicable settlements to this essentially human problem. It has also been rightly pointed out in Sushil Kumar Sharma v Union of India, AIR 2005 SC 3100 (para 18) whilst upholding the vires of section 498-A IPC, that it should be ensured that complaints are not filed with oblique motives by unscrupulous litigants so that a "new legal terrorism" is not unleashed, and that the well-intentioned provision is not misused. In Kans Raj v State of Punjab, AIR 2000 SC 2324, it has been held that there is a tendency in cases of 498-A IPC and 304 B IPC to rope in a large number of in-laws of the victim wife, and not only the husband. In para 5 of the law report it has been observed: "....In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case." Specifically as a result of the interaction and suggestions which emerged after a dialogue with the Advocates and officials, this Court requires to formulate its opinion on the following points: 1. Whether registration of an FIR is mandatory once an aggrieved woman or the eligible family members as specified under section 198A Cr.P.C approaches the police station giving information that an offence under section 498A IPC or allied provisions such as under section ¾ D.P. Act or under section 406 I.P.C have been committed by the

husband or other in-laws and their relations. 2. Should the concerned police officers immediately proceed to arrest the husband and other family members of the husband whenever such an FIR is lodged. 3. Can a distinction be made between the cases where arrest is immediately necessary and other cases where arrest can be deferred and an attempt be first made for bringing about mediation between the parties. 4. What is the appropriate place where mediation should be conducted. 5. Should a time frame be laid down for concluding the mediation proceedings. 6. Who should be the members of the mediation cell in the district. 7. What is the procedure to be followed by the police when a report of a cognizable offence under section 498A IPC or allied provisions is disclosed. 8. Is training of mediators desirable and who should conduct the training? 9. Should the offence under Section 498A be made compoundable and what steps the State Government may take in this direction. Discussions on the points requiring formulation by the Court. 1. Whether registration of an FIR is mandatory? Section 154 of the Code of Criminal Procedure mandates that when any information regarding information of a cognizable offence is given orally to the officer in charge of the Police Station, he is required to reduce it in writing and to enter it into the general diary. The said provision gives no

option to the concerned Police Officer to refuse to lodge the F.I.R. once information of a cognizable offence is given to the police officer. In paragraph No. 30 and 31 in State of Haryana and others Vs. Bhajan Lal, 1992 Cri. L.J. 527, it has been laid down that section 154 (1) of the Code provides that whenever an information is given that a cognizable offence has been committed, the Police Officer cannot embark upon an inquiry to ascertain as to whether the information was reliable or genuine or refuse to register the case on that ground. The officer in charge of the Police Station is statutorily obliged to register the case and then to proceed with the investigation, if he even has reason to suspect the commission of an offence. (2) Whether arrest of husband and family members mandatory once FIR is lodged It is noteworthy that section 154 Cr.P.C. which deals with the powers of investigation and the necessity of lodging an FIR when a cognizable offence only speaks of "information relating to the commission of a cognizable offence" given to an officer. No pre-condition, as pointed out above, is placed under this provision for first examining whether the information is credible or genuine. In contrast section 41(1) ((b) Cr.P.C dealing with the powers of the police to arrest without a warrant from a Magistrate requires the existence of a "reasonable complaint," or "credible information" or "reasonable suspicion" of the accused being involved in a cognizable offence as pre-conditions for effecting his arrest. The two provisos to section 157 also speak of two exceptions when investigation (and consequent arrest) may not be necessary. These two situations are:

(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot; (b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. However in such situations the police officer is to mention in his report the reasons for not investigating the case. In the second case, where a police officer is of the opinion that there is no sufficient ground for investigating a matter, he is to also inform the informant of his decision. The proviso (b) to section 157 (1) Cr. P. C. has been discussed in paragraphs No. 53 and 54 in Bhajan Lal (supra). The law report clarifies that clause (b) of the proviso permits a police officer to satisfy himself about the sufficiency of the grounds even before entering on an investigation. However, at that stage, the satisfaction that on the allegations, a cognizable offence warranting investigation is disclosed, has only to be based on the F.I.R. and other materials appended to it, which are placed before the Police Officer. Therefore, if it appears to the Police Officer that the matrimonial dispute between the spouses is either not of a grave nature or is the result of a conflict of egos or contains an exaggerated version, or where the complainant wife has not received any injury or has not been medically examined, he may even desist or defer the investigation in such a case. Recently by Act No. 5 of 2009, the newly introduced section 41 (1) (b), has been given effect to from 1.11.2010. This sub-section provides that if some material or credible information exists of an accused being involved in a cognizable offence punishable with 7 years imprisonment or less with or without fine, the Police Officer has only to make an arrest, if he is satisfied that such arrest is necessary (i) to prevent such person from committing any further

offence, (ii) for proper investigation of the offence; (iii) to prevent such person from causing the evidence of the offence to disappear or tampering with the evidence in any manner; (iv) for preventing such person from making any inducement, threat or promise to a witness to dissuade him from disclosing such facts to the Court or the Police Officer (v) or unless such a person is arrested, he may not appear in the Court when required. This new provision has forestalled any routine arrests simply because a person is said to be involved in a cognizable offence punishable with imprisonment up to 7 years. The arrest is only to be effected if any or all of the five conditions abovementioned are fulfilled. For making or for not making such arrest, the Police Officer has to record his reasons. In contrast to this provision, under section 41 (1) (ba) such a limitation has not been provided for those cases, where credible information has been received that a person has committed an offence punishable with imprisonment of over 7 years. A new provision, section 41 A Cr.P.C has also been added by Act No. 5 of 2009 (with effect from 1.11.2010) which gives powers to a Police Officer to issue a notice directing the person against whom a reasonable complainant has been made or credible information or reasonable suspicion exists to appear before him or at any place that he may specify in the notice where the police officer is of the opinion that the arrest is not required under the provisions of section 41(1) Cr.P.C. but the accused is to comply with the notice and he would not be arrested, if he continues to comply with the terms of the notice. However, where the person fails to comply with the notice, the police has all powers to arrest him, unless there is some order of the Court granting him bail or staying his arrest. Now an offence under section 498A IPC is punishable with

imprisonment only up to three years and fine. If there are no injuries on a victim, in our opinion, it constitutes a fit case for the police officer to exercise powers conferred by the newly introduced section 41(1)(b) read with section 41 (A), where instead of straight away arresting the accused, it would be a better option at the initial stage for the police officer to require the said person to appear before him or before the Mediation Centre. As pointed out above section 41 A Cr.P.C. permits calling the person concerned before the police officer himself or to any specified place. Hence a notice can be given to the accused to appear before the mediation centre. This restraint on arrest, and placing of conditions or terms for arrest would also apply a fortiori to the accused family members of the husband of the aggrieved wife. It may be pointed out that if the FIR is immediately registered that will placate the concerns of the aggrieved wife to some extent that action is being taken on her complaint, and it has not been put on the back burner. (3) Whether distinction possible between cases necessitating immediate arrest, and cases where attempt for mediation should first be made Arrest may be necessitated, if the husband or other in-laws have given a grave beating to the wife endangering her life or where the wife has been subjected to repeated violence or there are any other circumstances of exceptional cruelty against the wife, where future recurrence of violence or cruelty seems likely, or for preventing the husband and his accused family members from trying to browbeat witnesses or to tamper with the course of justice, or for ensuring the presence of the husband or his accused family members at

the trial, or for effective investigation. In all other cases, we are of the opinion that an attempt should be first made for bringing about reconciliation between the parties by directing the complainant wife and her natal family members and the husband and other family members to appear before the Mediation Centre when the wife or other eligible relations under section 198-A Cr.P.C. approaches the police station for lodging the report. The advantage of not immediately arresting the accused husband and his family members in a trivial case where there appear to be no injuries on the aggrieved wife, is that in sudden matrimonial disputes, because of clash of egos between the wife and her natal family members and the husband and inlaws, the wife's side at the initial stage usually insists on effecting the arrests of the husband and other inlaws. Once the husband or his family members are arrested, and subsequently bailed out, little motivation remains for the parties to try and resolve their disputes by mediation. This may prove disadvantageous for the wife in the long run who may not have a source of independent livelihood for running her life in the future. 4. Appropriate place where mediation should be conducted.

The officials as well as the learned Government Advocate and other lawyers present unanimously recommended that the Mediation Cell should not be at the police station. The I.G. (Public Grievances) pointed out that the police officer before whom the report is lodged lack proper training for conducting mediations sessions. Also if the police officer

refrains from arresting the accused persons pursuant to the wife's FIR, by attempting to mediate in the dispute between the parties, even if it is a case of no injury, and even where he is only acting in accordance with the general directions of the Court, questions about his integrity are unnecessarily raised. Moreover it is pointed out by the Secretary of the Legal Services Authority that now Mediation or Conciliation Centres have been established in all the District Courts. We, therefore, think that the mediation proceedings should be carried out in the said Mediation Centre. 5. Need

for time frame for concluding the mediation

proceedings. The I.G. (Public Grievances) and others present rightly pointed out that a time frame must be laid down for concluding the mediation proceedings as when an aggrieved wife approaches the police for relief, because she has been subjected to cruelty. If the matter is unduly prolonged in the mediation process, the delay could act as a shield to protect the accused from facing the penalty of law, causing frustration and bitterness for the aggrieved wife. Notice should as far as possible be served personally on the accused and the parties should be directed to appear before the Mediation Centre within a week or 10 days of the lodging of the report by the aggrieved wife or family members. Thereafter we think, that as far as possible, the mediation proceedings should be concluded within two months of the first appearance of both the parties before the Mediation Centre. 6. Who should be the members of the mediation cell in the

district? The Mediation Cell in the district should be headed by the Secretary of the Legal Services Authority in the district, (at present, the Civil Judge, Senior Division has been made the Secretary), other panel or retainer lawyers appointed by the District Legal Services Authority, other lawyers, who volunteer for giving free services before the Mediation centre, especially female lawyers should also be made members of the Mediation Cell. It is also desirable to have three or four social workers (especially female) in the Cell. A female police officer of the rank of Dy. S.P. may also be appointed an ex-officio member of the Mediation Cell. 7. Procedure to be followed by the police when a report of a

cognizable offence under section 498A IPC or allied provisions is reported The report regarding commission of cognizable offence under section 498A IPC or other allied sections may be lodged at the concerned police station where the incident takes place or at the 'Mahila Thana' especially created in the district for investigation of such cases. The police officer concerned will get the aggrieved woman medically examined for injuries if the same are present. If the report has been lodged at some police station other than the Mahila Thana, the injury report and relevant police papers shall be forwarded to the Mahila Thana for investigation of the case, and in appropriate cases the investigating police officer at the Mahila Thana may refer the matter to the mediation centre in the Civil Court, and direct the complainant to be present at the mediation centre on a fixed date 7 to 10 days thereafter. The accused should as far as possible also be

personally given notice to appear before the mediation centre on the date fixed. We would also like the presence of trained social workers (especially female) or legal aid panel lawyers to be present at the Mahila Thana for counselling the aggrieved woman and her family members for first trying to solve their dispute by mediation, when the case is registered at the mahila thana. The notice to the husband and other family members should mention that in cases the husband or the family members of the aggrieved wife fail to appear on the date fixed or on future dates, as directed by the Mediation Centre or fail to comply with any condition that may be imposed by the police officer or Mediation Centre, steps shall be taken for arresting the accused. The accused husband or other in-laws should be directed to report before the police officer on a date two months after the date of first appearance before the Mediation Centre and inform the Police Officer about the progress in the mediation. The in-charge of the mediation proceeding may also direct the husband or other family members to appear before the Police Officer at an earlier date fixed in case mediation has failed or it has been successfully concluded and the parties concerned shall appear before the Police Officer on the said date. It would also be open to the complainant wife to inform the police officer about the progress (or lack of it) of the mediation process. The notice should also clarify that in case mediation is pronounced as unsuccessful at an earlier date, and information is given by either party or the Mediation centre to the Police Officer, he may require the presence of the accused husband or his relations at an earlier date. If mediation has been

successfully concluded, it will be open to the Police Officer to submit a final report in the matter. In cases, where it has not been successfully concluded and the Police Officer is of the view that arrest may not be necessary in a particular case, he may direct the accused persons to obtain bail from the Competent Court. In case, he is of the opinion that the arrest is necessitated at a subsequent stage, it will be open to the Police Officer to take such accused persons in custody. He should of course record his reason for making the said arrest as provided under section 41 (1) (b) (ii). 8. Necessity of training to mediators.

We endorse the opinion of the intervening lawyers, the learned

Government

Advocate,

Sri

Ashok

Mehta,

Organizing Secretary of the Mediation Centre of the Allahabad High Court and the Government officials present, including the Secretary of the Legal Services Authority, that training for mediators is a sine qua non for effective mediation. The Organizing Secretary of the Allahabad High Court Mediation Centre (AHMC) and Secretary of the U.P. Legal Services Authority (UPLSA) stated that the centre and authority are prepared to impart training to the mediators. We welcome this offer and direct that there should be coordianation between the AHMC and UPLSA for giving effect to this offer. By and by as the State Government is able to create a cadre of trainers for mediation, their services may also be utilised for training mediators in the districts. We think training is necessary because the responses to our queries from the subordinate district courts reveal the poor success rate in the cases referred by the High Court or where the concerned subordinate court has itself initiated the

process of mediation. By contrast the success rate at the Mediation Centre in the Allahabad High Court, which has independent trained mediators (usually lawyers) is much higher. The first requirement for successful mediation is the patience on the part of the mediator, and his willingness to give sufficient time to the contesting parties and especially to the wife to express her bottled up grievances. Thereafter, in a disinterested manner, the mediator should encourage the parties to come up with solutions, giving useful suggestions for bringing about reconciliation, as the mediator cannot impose his solution on the parties. The guidelines hereinabove have been spelt out by the Court because of the specific request of the officials and lawyers present to spell out the terms of the same, as guidance for the State government (esp. the home department), the Legal Services Authority and the police for issuing appropriate circulars or government orders. (9) Should offences under section 498-A IPC be made compoundable? We have received considerable feedback from subordinate judicial authorities that unless the offence under section 498A IPC is made compoundable, much benefit cannot be derived by trying to bring about mediation between the parties. A dilemma then arises before the concerned Court, (which cannot close the trial because the spouses have compromised their dispute) or even before the aggrieved wife, if she decides to settle her dispute with her spouse and in-laws either by agreeing to stay with them or to part amicably, usually after receiving some compensation. Even if she is no more interested in repeatedly visiting the court

for prosecuting the accused, in the absence of provisions for compounding the offence, she has willy nilly to perjure by making a false statement that her initial report was untrue or lodged under influence of X or Y. If on the basis of this statement the trial Court acquits the husband and his family members, and the aggrieved wife returns to her matrimonial home, in the cases where she is again maltreated, if she lodges a fresh report, its reliability will be open to question. The Apex Court in Ramgopal v. State of M.P., 2010 SCALE 711 observed that an offence under section 498-A IPC is essentially private in nature, and it should be made compoundable if the parties are willing to amicably settle their dispute. Directions were given to the Law Commission of India to consider the matter and to make appropriate recommendations to the Government to bring about suitable amendments in the statute. In Rajeev Verma v. State of U.P., 2004 Cri.L.J. 2956, which was a decision given by a bench in which one of us (Amar Saran J) was a member, a similar suggestion was made to the Law Commission of U.P. to recommend to the State government to make the offence under section 498-A IPC compoundable with the permission of the Court under section 320 Cr.P.C. The reasons for the suggestion were that such FIRs are often lodged in the heat of the moment, without reflection after a sudden quarrel, and sometimes as a result of wrong advice or influences. But the complaining wife, who usually has no source of independent livelihood (as a key problem in our society is the lack of economic and social empowerment of women) and is unable to provide for herself in the future, may have to suffer later if the

relationship with her husband is irrevocably ruptured due to the hasty filing of the criminal case, particularly in view of the fact that the offence is non-compoundable. To meet this situation B.S. Joshi v State of Haryana, AIR 2003 SC 1386, Manoj Sharma v State, 2008 SC(Suppl) 1171, and Madan Mohan Abbot v State of Punjab, AIR 2008 SC 1969 recommended quashing of the complaint in proceedings under section 482 Cr.P.C or in the writ jurisdiction where the aggrieved wife compounded the offence. In the latter case it was observed that where the dispute is purely personal in nature, (i.e. the element of the offence being a crime against society is secondary), and the wife decides to compound the offence, as there would be little likelihood of conviction, quashing of the offence should not be refused on the hyper-technical view that the offence was noncompoundable "as keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury which the Courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilized in deciding more effective and meaningful litigation" The following passage in paragraph 12 in G.V. Rao v L.H.V. Prasad, AIR 2000 SC 2474 has been cited with approval in B.S. Joshi: "There has been an outburst of matrimonial disputes in recent times. The marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result

that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a Court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their "cases" in different Courts." In Rajeev Verma however relying on B.S. Joshi it was mentioned that whilst the trial could be quashed in an application under section 482 Cr.P.C or under Article 226, being a fruitless prosecution where there was little likelihood of conviction as the parties had settled their dispute, but the proper forum for deciding the matter whether the compromise application was voluntary and bona fide or whether it was coerced was the lower court which could decide whether it was a fit case for granting permission to the wife to compound the offence under section 320(2) Cr.P.C. This was only possible if the offence under s. 498-A IPC was made compoundable with the permission of the Court. A good option for providing recompense to the maltreated woman is "The Protection of Women from Domestic Violence Act, 2005" which provides for a gamut of civil rights for the aggrieved woman who has entered into a domestic relationship with a man, with or without marriage. Such civil rights include "Protection orders" (section 18) prohibiting the respondent from committing any act of

violence, visiting the place of work, operating the common bank locker, making telephonic contact etc. "Residence orders" (section 19), which restrain the respondent from dispossessing a woman from the shared household, or from alienating or renouncing his rights to the property or by directing him to remove himself, or by providing alternate accommodation to the aggrieved woman at the existing level. By providing "monetary reliefs" (sections 20 and 22) by paying for loss of earnings or medical expenses, or loss due to destruction of property by domestic violence, or for maintenance of the woman and her dependent children, or by payment of compensation for causing injuries (including mental torture). "Custody orders" (section 21) for custody of the child to the woman (including visiting rights) for the respondent. Criminal proceedings under this Act have been allowed only as a last resort, under section 31 when the respondent commits a breach of a protection order, or where at the stage of framing charges for breach of the protection order he finds that an offence under section 498-A IPC has also been committed by the respondent. The Act also provides under section 14 for the Magistrate to send a matter for "counselling" before a registered "service provider," who is qualified to provide counselling in such matters to the contesting parties or to provide shelter etc. to the aggrieved woman. In the counter-affidavit dated 12.8.11 filed on behalf of the Home Secretary, U.P., it has specifically been mentioned that the State government has given its consent to the Union of India to make offences under section 498-A IPC compoundable, and the letter of the Home (Police) Section-9

to the Union Home Ministry dated 4.2.10 has been annexed. Whereas we appreciate this positive attitude of the State government in not objecting to section 498-A IPC being made a compoundable offence. However we find that Andhra Pradesh, by Act 11 of 2003 (w.e.f 1.8.03) has added section 498 A (wrongly described as 494 A) after section 494 in the table in section 320(2) Cr.P.C. and has permitted the woman subjected to cruelty to compound the offence with the permission of the Court, but added a proviso that a minimum period of three months be allowed to elapse from the date of application for compromise before a Court can accept the request, provided any of the parties do not withdraw in the intervening period. The U.P. government may consider bringing out a similar amendment, as it has already expressed its opinion that the offence under section 498-A IPC be made compoundable. Before parting we must clarify that the Court is of the firm view that acts of cruelty or violence against women have neither ceased, nor have they been reduced, and the special provision for meeting this problem must be retained in the statute book. We quote with approval the view expressed in paragraph 11 of the recent Law Commission of India, Consultation Paper-cum-Questionaire regarding section 498A of Indian Penal Code: "While the Commission is appreciative of the need to discourage unjustified and frivolous complaints and the scourge of over-implication, it is not inclined to take a view that dilutes the efficacy of s. 498-A to the extent of defeating its purpose especially having regard to the fact that atrocities against women are on the increase. A balanced

and holistic view has to be taken on weighing the pros and cons. There is no doubt a need to address the misuse situations and arrive at a rational solution – legislative or otherwise." List this case on 8.11.2011 before the regular bench to be headed by one of us (Hon'ble Amar Saran J) The State government through the Chief Secretary, U.P., the Principal Secretary, (Home), U.P., Secretary Law/ L.R. U.P., Director General Police U.P., and Member-Secretary, U.P. Legal Services Authority may issue appropriate guidelines or circulars for laying down a system for proceeding in matters where reports are lodged of commission of offences under section 498 A IPC where immediate arrests may not be necessary, for laying down the appropriate criteria in this regard, and for sending the matters for mediation before the mediation cells in the Civil Courts, in accordance with the aforesaid directions of this Court. The Principal Secretary, (Finance), U.P. may apprise the Court as to the provision for finance for appointing social workers/panel lawyers at the Mahila Thanas, for ensuring that appropriate training is given to the social workers, legal aid lawyers, and concerned police officers for facilitating the mediation process, for making available adequate infrastructure/ manpower at the mediation cells in the Civil Courts, and for meeting expenses on other contingencies. Let the aforesaid authorities submit their compliance reports within 4 weeks. We would also like reports from all the Secretaries of the District Legal Services Authorities to submit their compliance reports (through the District Judges) for getting the aforementioned minor

matters relating to offences under section 498 A IPC settled through mediation and the difficulties they encounter or forsee in complying with the directions of this Court by the next listing. The State government is also directed to submit its report on the next listing on the suggestion of the Court to take steps for making the offence under section 498-A IPC compoundable with the permission of Court by amending section 320 Cr.P.C in U.P. as has been done in the case of Andhra Pradesh. Registrar-General is directed to forward copies of this order within a week to the Chief Secretary, Principal Secretary, (Home), Law Secretary/LR, U.P., Principal Secretary (Finance), U.P., D.G.P., U.P., MemberSecretary, U.P., Legal Services Authority, U.P., Secretaries/ Civil Judges (Senior Division) through District Judges in all districts in U.P., Sri Ashok Mehta, Organizing Secretary, Allahabad High Court, Mediation Centre, Sri Pankaj Naqvi, and Sister Sheeba Jose, Advocates for the intervenors, Government Advocate, U.P. and other advocates and officials present in the hearing on 8.8.11 for information and compliance. Order Date :- 30.9.2011 HSM

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Deputy Registrar (Copying). Equivalent Citation: 2011 (75) ACC 763

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 46 Case: Criminal Misc. Writ Petition No. 17410 of 2011 Petitioner: Shaukin Respondent: State of UP and others Petitioner counsel: Mrs. Tabassum Hashimi, Ashwani Kumar Srivastava Respondent counsel: Government Advocate

Hon'ble Amar Saran, J. Hon'ble Kalimullah Khan, J. 1.A personal affidavit of the DGP, U.P. dated 11.10.11 has been filed and this Court is pleased to note that in compliance of our earlier order dated 15.9.11. the DGP, U.P. has issued a circular dated 3.10.11 addressed to all the regional IGs/ DIGs/ SSPs/SPs in-charge of all districts and departmental heads of other police units to strictly enforce the newly introduced amendments, viz. sub-section 41(1)(b) and section 41 A Cr.P.C and the directions contained in the order of this Court dated 15.9.11 in Cr. Misc Writ Petiton No. 17410 of 2011, Shaukeen v State and order dated 23.9.11 in Cr. Misc. Writ Petition No. 18661/ 2011, Ram Abhilash and others v State. 2.It was also pointed out in the circular that the investigating officers who file counter-affidavits before the High Court do not have any knowledge about these provisions and how they are to be applied. 3.The following observations in the order dated 15.9.11 have been quoted in the DGP's circular: "Let a copy of this order be forwarded to the DGP, U.P. within one week by the registry. The DGP may circulate this order to all police stations and investigating officers in U.P. with directions to ensure strict and honest compliance with the provisions of sections 41(1)(b) and 41 A Cr.P.C and to refrain from routinely arresting persons wanted in cases punishable by imprisonment up to 7 years, unless in particular cases the exceptional circumstances enumerated in section 41(1)(b) Cr.P.C. exist, after recording his reasons for arrest. Let the DGP submit his compliance report of this direction within three weeks." 4.Annexure 2 to the DGP's affidavit in compliance of our dated 15.9.11 also contains the following endorsement from all 72 districts in U.P.: "जनपद / न प द नप न ज " 5.The directions were issued by the DGP's circular dated 3.10.11 to the subordinate police officials to clarify that ordinarily the police shall not immediately arrest accused persons wanted in matters punishable with imprisonment upto 7 years. This limitation was subject to the exceptions mentioned in the aforesaid amended sections. 6.By the present order we proceed to explain the import and meaning of the amended provisions 41(1)(b) and 41 A Cr.P.C, and to give some illustrations where accused could be arrested straightaway on the lodging of the FIR, and other illustrations where immediate arrests may not be needed, because we think that in many cases the police is still routinely proceeding to arrest accused persons even if they are involved in offences punishable with up to 7 years imprisonment, in contravention of the express terms of sections 41(1)(b) or 41 A Cr.P.C. 7.It would be useful to extract the material provisions, sections 41(1)(b) and 41 A, which have been introduced by Act No. 5 of 2009, with effect from 1.11.2010 and also section 170(1) of the Code of Criminal Procedure, here : 41. When police may arrest without warrant. -- (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person -(a)------------------

(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:(i) the police office has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence; (ii) the police office is satisfied that such arrest is necessary-(a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or (C) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing. Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest. 41 A. Notice of appearance before police officer- (1) The police officer shall in all cases, where the arrest of a person is not required under the provisions of sub-section(1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received,or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice. (2) Where such a notice is issued to any person, it shall be the duty of the person to comply with the terms of the notice. (3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested. (4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the offence mentioned in the notice. 170. Cases to be sent to Magistrate when evidence is sufficient. -(1) If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed. 8.The import of the said provisions is that normally where an accused has been named in the FIR, and the offence is punishable with upto 7 years imprisonment, the arrest of the accused may not be necessary at the initial stage and his attendance may be secured by issuing a notice to him to appear before the police officer under section 41 A Cr.P.C. In such cases it would be advisable to arrest the accused only after sufficient evidence of his involvement in the crime has been collected and the charge sheet needs to be submitted. Under section 170(1) Cr.P.C. it has been provided that on completion of investigation if sufficient evidence has been collected the accused shall be forwarded in custody to the Magistrate concerned, unless he has been released on bail (if the offence was bailable), in which event security may be taken for his appearance before the Magistrate. This practice of not arresting the accused straightaway and arresting them only after sufficient evidence has been collected is normally followed by the CBI, and CB (CID) in their investigations. 9.Where however the accused has not been named in the FIR, or at the time when the co-accused have been picked up, for example in a case of vehicle theft or recovery of other stolen goods, or where the co-accused has been arrested while committing a crime, and he names another accused as also having participated in the crime, whose custodial interrogation may be necessary and the police officer is of the opinion that the disclosure furnishes credible information or gives rise to reasonable suspicion for inferring that this accused whose arrest is sought could also be involved, or there are chances that such

an accused would abscond or not respond to a notice under section 41A to appear, looking to the nature of the crime and the background of the particular accused, these maybe appropriate cases where immediate arrests may be needed. Likewise where the accused whose arrest is sought appears to be habitually engaged in committing crimes or appears to be participating in some organized crimes, and there is probability of the accused repeating the offence, these would also be circumstances where it may be necessary to arrest such accused without delay. 10.However in a case under section 498 A IPC where the wife subject to violence has gone back to her "maika" following the violence, it may not be necessary in a particular case to immediately arrest the husband and other family members who have been made accused in the FIR until adequate evidence has been collected, as she is unlikely to encounter violence when she is away from her "sasural." In E.C. Act offences again where the licences of a ration card dealer named in the FIR has been suspended, he may not have any opportunity to again indulge in blackmarketing or to commit a new offence under the E.C. Act. Here too arrests can be deferred until sufficient evidence to submit a charge sheet has been collected, when he needs to be produced before the trial court. But where the dealer is trying to obtain affidavits from ration card holders and it appears that he is trying to win over witnesses, then it may be open to the police to arrest him straight away. We have mentioned these examples as illustrations for situations where arrests may or not be immediately needed and they are by no means exhaustive. 11.It is with the objective of striking a balance on the need to provide the Constitutional protection from arbitrary arrest guaranteed under Article 21 and the restraint on arrests for offences punishable with imprisonment up to 7 years, subject to certain exceptions as provided for under section 41(1)(b) Cr.P.C. and the need of the police to carry out its investigation without interference, that we have refrained from passing blanket orders staying the arrests of the accused in all such cases. 12.But we do expect the police officer to record reasons in a bona fide and honest manner, why it has become necessary to arrest the accused in a particular case punishable with imprisonment with upto 7 years. The police officer should not mechanically and routinely write down in the case diary that there is likelihood of the accused running away, or presume that the accused would not respond to the notice to appear under section 41 A Cr.P.C, or that he would tamper with the evidence, unless there are strong reasons with concrete material for taking such a view, and this satisfaction along with the concrete reasons for taking the view need to be spelt out clearly in the case diary before the accused is arrested. 13.Thus strong reasons are needed for arresting an accused with respectable antecedents, who is an income tax payee with roots in the community, and a permanent abode, no history of earlier abscondance or non-cooperation with the police and who is not likely to tamper with the evidence or to again commit a crime unless he is immediately arrested. 14.The propriety, honesty and genuiness of the reasons given for arrests in particular cases punishable with imprisonment up to seven years and whether they conform to the requirements of sections 41(1)(b) and 41 A Cr.P.C. therefore need to be strictly monitored by the superior officers, i.e. C.O.s/ S.P.s/SSPs or DIGs in the districts, as has been emphasized in the DGP's circular dated 3.10.11. We make it clear that in the event that this Court finds that the accused who are wanted in cases punishable with up to 7 years imprisonment are being arrested in a routine and mechanical matter, without the existence of the conditions necessary for arresting them as mentioned in sections 41(1)(b) and 41 A Cr.P.C. this Court will have no hesitation in summoning the concerned police officers or even the superior police officers and they may even have to face contempt charges. For persistent unwarranted arrests in such matters in violation of the provisions of sections 41(1)(b) and 41 A and the DGP's circular dated 3.10.11. we may even recommend disciplinary action against such errant police officers to the DGP, U.P. 15.Section 167(1) of the Code of Criminal Procedure also requires production of the case diary before the Magistrate before whom the accused is produced for remand. 16.Section 167(1) reads thus: 167. Procedure when investigation cannot be completed in twenty-four hours. ----(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter presecribed relating to the case, and shall at the same time forward the accused to such Magistrate. 17.As rightly pointed out in Bir Bhadra Pratap Singh v D.M., Azamgarh, 1959 Cri.L.J 685 the forwarding of case diary entries under section 167(1) Cr.P.C. is not an empty formality, and the Magistrate is not simply to "rubber stamp" the prayer of the police officer seeking remand of the accused, but he is to apply his judicial mind to satisfy himself that the requirements of law are met when the police produces

an accused for remand. At the time of granting the remand we expect the Magistrate to examine the case diary for satisfying himself whether the police officer's reasons for immediate arrest in the cases punishable with imprisonment upto 7 years was held by him in a bona fide manner and whether the reasons for remand are restricted to the pre-conditions for arrest mentioned in the newly introduced sections 41(1)(b) and 41 A Cr.P.C. The Magistrate needs to closely examine as to how the police officer could reach a conclusion that unless the accused was arrested he would repeat the offence, or why without arrest the investigation could not proceed, or whether the particular accused was as a matter of fact likely to cause the evidence to disappear, or would tamper with the evidence, or the accused would try and influence witnesses, or without arrest the particular accused would not appear in Court. These opinions of the police officer are to be based on concrete material and cannot be the mere ipse dixit of the officer. If he finds that no genuine reasons which accord with the requirements of sections 41(1)(b) and 41 A exist the Magistrate may even refuse to grant remand to the accused, and allow the accused to be released on a personal bond with a direction to appear before the competent court or before the police when called upon to do so, with or without security. 18.There would be no impediment in the Magistrate remanding the accused to judicial custody at later stages as authorized under section 41(1)(b)(ii)(e) and section 170(1) Cr.P.C. when the accused is produced before the Magistrate and the case diary shows that sufficient evidence for submitting a charge sheet has been collected. Needless to mention that in case the accused has already secured bail, then the police officer would be disentitled to arrest an accused person for seeking his remand because the charge sheet is to be submitted. The accused could then be summoned to appear by the Magistrate taking cognizance of the offence in exercise of powers under section 204 Cr.P.C. 19.If accused who are required in cases punishable with upto 7 years sentence are not routinely arrested by the police, or are granted bail by the lower court itself, without any undue delay in disposing of their bail applications, and in appropriate cases the facility of releasing the accused on interim bails on personal bonds pending consideration of their regular bails with or without security with a direction to appear when required is also extended to them, as has been laid down in the Apex Court Court in Lal Kamlendra Pratap Singh V State of U.P., (2009) 4 SCC 437, the Full Bench in Amaravati and another v State of U.P., 2005 Cri.L.J. 755, and the Division Bench in Sheoraj Singh @ Chuttan v State of U.P. and others, 2009(65) ACC 781, considerable time of the High Court could be spent more productively in hearing single judge and two judge appeals, or bails in grave matters. At present we find that most of the High Court single and division benches on the criminal side are engaged in considering an inordinately large number of applications for bail, applications under section 482 Cr.P.C., and Division Bench criminal writ petitions in such matters punishable with imprisonment up to 7 years, which could easily be dealt with by the Magistrates and Sessions Courts. DIRECTIONS: 20.We therefore direct the Magistrates that when accused punishable with upto 7 years imprisonment are produced before them remands may be granted to accused only after the Magistrates satisfy themselves that the application for remand by the police officer has been made in a bona fide manner and the reasons for seeking remand mentioned in the case diary are in accordance with the requirements of sections 41(1)(b) and 41 A Cr.P.C. and there is concrete material in existence to substantiate the ground mentioned for seeking remand. Even where the accused himself surrenders or where investigation has been completed and the Magistrate needs to take the accused in judicial custody as provided under section 170(1) and section 41(1)(b)(ii)(e) Cr.P.C, prolonged imprisonment at this initial stage, when the accused has not been adjudged guilty may not be called for, and the Magistrates and Sessions Courts are to consider the bails expeditiously and not to mechanically refuse the same, especially in short sentence cases punishable with upto 7 years imprisonment unless the allegations are grave and there is any legal impediment in allowing the bail, as laid down in Lal Kamlendra Pratap Singh V State of U.P., (2009) 4 SCC 437, and Sheoraj Singh @ Chuttan v State of U.P. and others, 2009(65) ACC 781. The facility of releasing the accused on interim bail pending consideration of their regular bails may also be accorded by the Magistrates and Sessions Judges in appropriate cases. 21.The Magistrate may also furnish information to the Registrar of the High Court through the District Judge, in case he is satisfied that a particular police officer has been persistently arresting accused in cases punishable with upto 7 year terms, in a mechanical or mala fide and dishonest manner, in contravention of the requirements of sections 41(1)(b) and 41 A, and thereafter the matter may be placed by the Registrar in this case, so that appropriate directions may be issued to the DGP to take action against such errant police officer for his persistent default or this Court may initiate contempt proceedings against the defaulting police officer. 22.The District Judges should also be directed to impress upon the remand Magistrates not to routinely grant remands to police officers seeking remand for accused if the pre-conditions for granting the remands mentioned in sections 41(1)(b) and 41 A Cr.P.C. are not disclosed in cases punishable with 7 year terms, or where the police officer appears to be seeking remand for an accused in a mala fide

manner in the absence of concrete material. The issue of compliance with sections 41(1)(b) and 41 A Cr.P.C and the directions of this Court in this regard may also be discussed in the monthly meetings of the District Judges with the administration and the superior police officials. 23.We are also of the view that the Registrar General may issue a circular within a period of one month with directions to the Sessions Courts and Magistrates to monitor and oversee the applications for remand sought by the arresting police officers and to comply with the other directions mentioned herein above. 24.The DGP, U.P. is directed to send a status report with better particulars by the next listing as to the extent to which arrests are only being effected in cases punishable with upto 7 years imprisonment strictly in accordance with the conditions mentioned in sections 41(1)(b) and 41 A Cr.P.C. We are not satisfied by the mechanical incantation of the words by the police of 72 U.P. districts: "जनपद / न प

द

नप न

ज

."

25.As already indicated above we are of the view that by routinely mentioning in the case diary that a particular condition referred to in sections 41(1)(b) or 41 A Cr.P.C. has been met for seeking police remand, would not provide adequate reason for effecting the arrest. The DGP is also directed to circulate the present order to all subordinate police officers. 26.We are also of the view that the UP Legal Services Authority be directed to bring out pamphlets for distribution in the legal literacy camps etc., or even issue news paper announcement with headings such as " ज पन ," informing the public that henceforth accused wanted in cases punishable with upto 7 years imprisonment would get relief and not be routinely arrested because of the recent amendment to the Code of Criminal Procedure, which has been enforced from 1.11.2010. 27.Let a copy of this order be sent to the DGP, U.P., Member Secretary, U.P. SLSA and District Judges in all districts of U.P. for compliance and communication to all the concerned judicial magistrates before whom the accused are produced for remand by the police officers within ten days. 28.Let a copy of this order be also furnished to the learned Government Advocate forthwith. 29.Let a compliance report be submitted by the DGP, U.P., Member Secretary, U.P. SLSA and District Judges by the next listing. The said authorities may also indicate the difficulties if any, faced in complying with the aforesaid directions. List on 14.12.2011. Dated: 11.10.2011 Ishrat

Criminal Misc.No.M-28371 of 2008

1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc.No.M-28371 of 2008 Date of Decision:21.05.2012 Sanjiv Kumar

......Petitioner

Versus State of Haryana and another

.....Respondents

CORAM:

HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR.

Present:

Mr.Pritam Saini, Advocate, for the petitioner. Mr.Kartar Singh, Deputy Advocate General, Haryana, for respondent No.1-State. Mr.Rakesh Nehra, Advocate, for respondent No.2. ****

MEHINDER SINGH SULLAR, J.(oral) Tersely, the facts and material, culminating in the commencement, relevant for disposal of the instant petition and emanating from the record are that, inter-caste love marriage of Manoj Kumar Saini, younger brother of petitioner Sanjiv Kumar, was solemnized with complainant-Anju Saini, respondent No.2 (for brevity “the complainant”) on 06.07.2002 in Arya Samaj Mandir at Hisar, without the consent of family members. When the father of Manoj Kumar Saini came to know that he is going to perform love marriage with the complainant, then he disowned him(Manoj Kumar) and got published the following public notice on 11.06.2002:“I declare that my son, Manoj Saini, who is out of my control has no relation with me. I have disowned him from my movable and immovable property. Anyone having any type of dealing with him shall himself be responsible.” 2.

As soon as, he came to know about the inter-caste marriage, in the


2

meantime, he actually suffered serious ailments and ultimately, died due to the attitude of his son Manoj Kumar Saini.

On 20.04.2008, i.e. six years after

solemnization of marriage, the complainant lodged a complaint against petitionerSanjiv Kumar, brother-in-law(Jeth), his wife Suman, sister-in-law(Jethani) and Rani, mother-in-law, inter alia, with the allegations that they started pressurizing her, to bring more money from her parents. They did not give any share out of property and demanded Rs.2-3 lacs. According to the complainant that, she left her matrimonial home due to fear and started residing with her younger sister. She apprehended danger to her life, as she was unable to fulfill their demand of dowry. In the background of these allegations, a criminal case was registered against the petitioner and his other co-accused, by way of FIR No.258 dated 20.04.2008 (Annexure P-5), on accusation of having committed the offence punishable under Sections 498-A, 406 and 506/34 IPC, by the police of Police Station City, Rohtak. 3.

Although, during the course of investigation, Rani(mother-in-law)

and Suman, sister-in-law(Jethani) of the complainant, were found innocent, however, the police submitted the challan/final police report in the court against the petitioner in terms of Section 173 Cr.P.C., to face the trial for the commission of pointed offences. 4.

The petitioner-accused did not feel satisfied with the initiation of the

criminal prosecution against him and preferred the present petition, to quash the impugned FIR(Annexure P-5), invoking the provisions of Section 482 Cr.P.C. 5.

The case set-up by the petitioner, in brief, insofar as relevant, is that

the complainant performed inter-caste love marriage with Manoj Kumar Saini against the wishes of his father, who had disowned him. They were residing separately. Ultimately, his father died due to shock.

After his death, the

complainant and her husband started misbehaving with his family members. Manoj Kumar Saini tried to forcibly enter into the house with the help of


3

miscreants, then the mother of the petitioner submitted an application to the police as well as to the higher authorities. It was alleged that the petitioner, who was a practicing Lawyer, had shifted from Rohtak and practiced from September 2001 to January 2004 at Chandigarh. After the death of his father, he has again shifted to Rohtak.

His younger brother Manoj Kumar Saini and his wife(complainant)

started harassing his family members. They wanted to forcibly occupy the house and illegally demanded share in the property. When the mother of the petitioner refused to give him the property, then Manoj Kumar Saini with the connivance of his wife(complainant), managed to lodge the FIR(Annexure P-5) against the petitioner, in order to take the revenge. It has been specifically pleaded in para 15 of the petition as under:“That from facts and circumstances narrated above, it is clear that registration of FIR against the petitioner is clear cut misuse of the provisions of Section 498-A/406 IPC. From the facts narrated above, it is clear that the complainant and Manoj Kumar had solemnized the love marriage without consent of the family of the petitioner. The petitioner actually being an elder brother of Manoj Kumar has been involved in the present case. Otherwise, question of harassment and raising a demand of dowry does not arise. The fact of the matter is that not only the petitioner but the entire family of the petitioner is being harassed by Manoj Kumar and the complainant with active connivance.

When both the husband and

wife failed to achieve the target to get share in the property, now they in concert with each other i.e. husband and wife, got registered the FIR and complaint under provisions of the Domestic Violence Act, 2005 so that the petitioner, his mother and sister get involved in the litigation and, ultimately, would agree to share the property with them. Thus, on this score alone, the FIR registered against the petitioner is totally baseless and the allegations levelled in the FIR cannot be taken against the petitioner at all.” 6.

Levelling a variety of allegations and narrating the sequence of

events in detail, in all, the petitioner claimed that he has been falsely implicated, in


4

order to take revenge and wreak vengeance by the complainant with the connivance of his younger brother Manoj Kumar Saini, with the intention to illegally get share in the property. On the strength of aforesaid grounds, the petitioner sought to quash the impugned FIR(Annexure P-5), in the manner depicted hereinabove. 7.

The respondents refuted the prayer of the petitioner and filed their

respective replies, inter alia, pleading certain preliminary objections of, maintainability of the petition, cause of action and locus standi of the petitioner. Instead of reproducing the entire contents of the reply and in order to avoid the repetition, suffice it to say that, that the respondents have reiterated the allegations contained in the impugned FIR(Annexure P-5). However, it will not be out of place to mention here that they have stoutly denied all other allegations contained in the main petition and prayed for its dismissal. That is how, I am seized of the matter. 8.

After hearing the learned counsel for the parties, going through the

record with their valuable help and after considering the entire matter deeply, to my mind, the instant petition deserves to be accepted in this context. 9.

As is evident from the record that, the inter-caste love marriage of

the complainant was solemnized with Manoj Kumar Saini on 06.07.2002, whereas the present FIR was lodged against the petitioner, his wife and mother on 20.04.2008(i.e., after a period of six years). During the course of investigation, the story of the complainant was disbelieved qua wife and mother of the petitioner and they were found innocent. Only petitioner, brother-in-law(Jeth) of the complainant was charged for the commission of the indicated offences. 10.

Not only that, copy of the Ration Card(Annexure P-1) would go to

show that complainant-Anju Saini was residing separately with her husband Manoj Kumar Saini and daugher Manvi. Manoj Kumar Saini was disowned by his father.


5

Manoj Kumar and the complainant broke open the lock of the house and his mother Rani reported the matter to the police, to take action against them, vide complaint dated 15.07.2006(Annexure P-2). She moved another complaint dated 16.08.2007(Annexure P-3) to the SHO, Police Station City, Rohtak. The incident of trespassing by the complainant and her husband was published by virtue of publication(Annexure P-4). 11.

This is not the end of the matter. Again, the complainant has also

filed another separate complaint(Annexure P-6) against the accused under Sections 12, 17 to 20 and 22 of the Protection of Women from Domestic Violence Act, 2005 and Section 498-A IPC, to which, the petitioner filed the reply(Annexure P-7). The proceedings(Annexure P-8) were also initiated under Sections 107/151 Cr.P.C. between the parties. Manoj Kumar Saini, husband of the complainant, lodged another FIR No.680 dated 18.09.2009(Annexure P-9) under Sections 323, 324 and 34 IPC against the petitioner, his wife and two other unknown persons. In other words, it stands proved on record that the complainant and her husband were residing separately from the family of the petitioner, which falsifies the claim of the complainant contained in the FIR(Annexure P-5), wherein she stated that her mother-in-law started pressurizing her for bringing money. They tried to illegally trespass the house of his mother Rani and she reported the matter to the police. There is a long line of complaints between the parties. 12.

The only allegations alleged against the petitioner, his wife and

mother, were that they started pressurizing her for bringing more money. The wife and mother of the petitioner were found innocent by the police during the course of investigation. That means, the story of the complainant relatable to them has already been disbelieved even by the investigating agency. Once it is proved that the complainant and her husband were residing separately, whereas the petitioner was residing separately, in that eventuality, how, when, where, in what manner and


6

in whose presence, the dowry articles were entrusted to him at the time of intercaste love marriage or the petitioner has treated her(complainant) with cruelty and in what manner, he is remotely connected with the commission of the indicated offences, remains an unfolded mystery. The complainant with the connivance of her husband appears to have maliciously and vexatiously involved the petitioner in this case, in order to wreak vengeance and to take the revenge, after the expiry of period of six years from solemnization of their marriage. 13.

Moreover, as indicated here-in-above, very very vague allegations

are assigned to the petitioner in the FIR. The only allegations assigned to the present petitioner are that, he asked that they cannot bear their expenses and will not give anything out of their property, bring Rs.2-3 lacs from your mother, otherwise they will burn her alive. Thereafter due to fear, she left her matrimonial home. The allegations are as vague as anything and no specific role or overt-act is attributed to the petitioner. Above all, it is highly impossible to believe that the petitioner(who is brother-in-law(Jeth) of the complainant) would treat her with cruelty in connection with and on account of demand of dowry. 14.

It is now well settled principle of law that, in order to attract the

penal provisions of the offences punishable under Sections 406 and 498-A IPC, there must be specific allegations/overt acts and prima facie material against the petitioner to indicate that the dowry articles were actually entrusted to him and he misappropriated the same. The in-laws and other relations cannot, in all cases, be held to be involved in the demand of dowry. In cases, where such accusation is made, the overt acts attributed to such persons, other than husband, are required to be prima facie established. By mere conjectures and implications, such relations cannot be held to be involved for the offences relating to the demand of dowry, which are totally lacking in the present case. As the Bench mark, all the essential ingredients to constitute the offences and element of the complicity of petitioner,


7

are totally missing, therefore, to me, no criminal prosecution can legally be permitted to continue against him, in view of the law laid down by the Hon'ble Supreme Court in cases Ramesh and others Versus State of Tamil Nadu, 2005 (2) R.C.R.(Criminal) 68, Sushil Kumar Sharma Versus Union of India and others, 2005(3) R.C.R.(Criminal) 745 and Kans Raj Versus State of Punjab and others, 2000(2) R.C.R.(Criminal) 695. 15.

An identical question came to be decided by the Hon'ble Apex Court

in case Preeti Gupta & Another v. State of Jharkhand & Another 2010(7) SCC 667. Having interpreted the provisions of Section 498-A IPC, it was ruled as under (paras 30 to 36) :“30. It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern. 31. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases. 32.

Unfortunately, at the time of filing of the complaint the implications and consequences are not

properly visualized by the complainant that such

complaint can lead to insurmountable harassment,

agony and pain to the complainant, accused and his close relations. 33. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful. 34. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also


8

reflected in a very large number of cases. 35.

The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the

trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. We direct the Registry to send a copy of this judgment to the Law Commission and to the Union Law Secretary, Government of India who may place it before the Hon'ble Minister for Law & Justice to take appropriate steps in the larger interest of the society. 36. When the facts and circumstances of the case are considered in the background of legal principles set out in preceding paragraphs, then it would be unfair to compel the appellants to undergo the rigmarole of a criminal trial. In the interest of justice, we deem it appropriate to quash the complaint against the appellants. As a result, the impugned judgment of the High Court is set aside. Consequently, this appeal is allowed.”

16.

Again, this Court has also considered this aspect of the matter in

cases Harjinder Kaur and others v. State of Punjab 2004(4) RCR(Criminal) 332; Labh Singh and others v. State of Haryana 2006(2) RCR (Criminal) 296; Rakesh Kumar and others v. State of Punjab and others 2009(2) RCR (Criminal) 565; Mohinder Kaur & Others v. State of Punjab & Another 2010 (2) RCR(Criminal) 597, Paramjit Kaur v. State of Punjab 2011(5) RCR (Criminal) 686 and the judgment dated 17.1.2012 rendered in case Ritu Khurana and another v. Brij Lal Chopra CRM No.M-8227 of 2010; wherein it was held that “the allegations against the relatives of the husband were vague and there is growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband, things have now taken a reverse trend and the women are abusing beneficial provisions of Section 498-A IPC.” 17.

In this manner, the argument of the learned counsel that the

petitioner has been falsely implicated by the complainant and her husband in this case, has considerable force and the contrary contentions on behalf of learned counsel for the complainant-respondent pale into insignificance, “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. The ratio of law laid down in the aforesaid judgments “mutatis mutandis” is fully attracted to the facts of the present case and is the complete answer to the problem


9

in hand. 18.

Therefore, if the crux of the allegations levelled against the

petitioner, as discussed hereinabove, is put together and is perused, then, to my mind, no pointed offences are made out against the petitioner and the complainant has vexatiously and maliciously filed the FIR(Annexure P-5) against him, in order to wreak vengeance.

In case, the complainant is permitted to prosecute her

brother-in-law(Jeth), who is residing separately, then it will inculcate and perpetuate great injustice to him. In this manner, the complainant appears to have falsely involved the petitioner in the present case. Therefore, to me, the impugned FIR(Annexure P-5) and all other subsequent proceedings arising therefrom, deserve to be quashed in the obtaining circumstances of the case. 19.

No other legal point, worth consideration, has either been urged or

pressed by the counsel for the parties. 20.

In the light of aforesaid reasons, the instant petition is accepted.

Consequently, the impugned FIR(Annexure P-5) and all other subsequent proceedings arising therefrom, are hereby quashed. The petitioner is accordingly, discharged from the indicated criminal case registered against him. May 21, 2012 seema

(MEHINDER SINGH SULLAR) JUDGE Whether to be referred to reporter? Yes/No

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1674 OF 2012 (Arising out of SLP (Crl.) No. 10547/2010)

Geeta Mehrotra & Anr.

..Appellants Versus

State of U.P. & Anr.

. Respondents

JUDGMENT GYAN SUDHA MISRA, J.

1.

This appeal by special leave in which we

granted leave has been filed by the appellants against the order dated 6.9.2010 passed by the High Court of Judicature

at

Allahabad

in

Crl.

Miscellaneous

Application No.22714/2007 whereby the High Court had been pleased to dispose of the application moved by the appellants under Section 482 Cr.P.C. for quashing the order of the Magistrate taking cognizance against the appellants under Sections 498A/323/504/506 IPC

Page 1

read with Section 3/4 of the Dowry Prohibition Act with an

observation

that

the

question

of

territorial

jurisdiction cannot be properly decided by the High Court under Section 482 Cr.P.C. for want of adequate facts. It was, therefore, left open to the appellants to move the trial court for dropping the

proceedings on

the ground of lack of territorial jurisdiction. Court

however

granted

interim

appellants by directing the

The High

protection

to

authorities not to

the issue

coercive process against the appellants until disposal of the application filed by the appellants with a further direction to the trial court to dispose of the application if moved by the appellants, within a period of two months from the date of moving the application. application

under

Section

482

Cr.P.C.

was

The thus

disposed of by the High Court. 2.

The appellants in spite of the liberty granted

to them to move the trial court, have filed this appeal for quashing the proceedings which had been initiated on the basis of a case lodged by the respondent No.2 Smt. Shipra Mehrotra (earlier known as Shipra Seth) against

2 Page 2

her husband, father-in-law, mother-in-law, brother-inlaw and sister-in-law. This appeal has been preferred by the sister-in-law, who is appellant No.1 and brotherin-law of the complainant, who is appellant No.2. 3.

The case emerges out of the first information

report lodged by respondent Mehrotra

No.2

Smt.

Shipra

under Sections 498A/323/504/506 IPC

read with Section 3/4 of the Dowry Prohibition Act bearing F.I.R.No. 52/2004. The F.I.R. was registered at Mahila

Thana

Daraganj,

Allahabad

wherein

the

complainant alleged that she was married to Shyamji Mehrotra s/o Balbir Saran

who was living

at Eros

Garden, Charmswood Village, Faridabad, Suraj Kund Road at Faridabad Haryana as per the Hindu marriage rites and customs. Prior to marriage the complainant and her family members were told by Shyamji Mehrotra and his elder brother Ramji Mehrotra

who is appellant

No.2 herein and their mother Smt. Kamla Mehrotra and her sister Geeta Mehrotra who is appellant No.1 herein that Shyamji is employed as a Team Leader in a top I.T. Company

in

Chennai

and

is

getting

salary

of

3 Page 3

Rs.45,000/- per month. After negotiation between the parents of the complainant and the accused parties, the marriage of the complainant

Shipra Seth (later

Shipra Mehrotra) and Shyamji Mehrotra was performed after which the respondent-complainant left for the house of her in-laws. 4.

It was stated that the atmosphere in the

house was peaceful for sometime but soon after the wedding, when all the relatives left, the maid who cooked meals was first of all paid-off by the aforesaid four persons who then told the complainant that from now onwards, the complainant will have to prepare food for the family. In addition, the above mentioned people started taunting and scolding her on trivial issues. The complainant also came to know that Shyamji was not employed anywhere and always stayed in the house. Shyamji gradually took away all the money which the complainant had with her and then told her that her father had not given dowry properly, therefore, she should get Rupees five lakhs from her father in order to enable him to start business, because he was not

4 Page 4

getting any job.

When the complainant clearly declined

and stated that she will not ask her parents for money, Shyamji,

on

instigation

of

other

accused-family

members, started beating her occasionally.

To escape

every day torture and financial status of the family, the complainant took up a job in a Call Centre at Convergys on 17.2.2003 where the complainant had to do night shifts due to which she used to come back home at around 3 a.m. in the morning. Just on her return from work, the household people started playing bhajan cassettes after which she had to getup at 7’o clock in the morning to prepare and serve food to all the members in the family. Often on falling asleep in the morning, Shyamji, Kamla Devi and Geeta Mehrotra tortured the complainant every day mentally and physically.

Ramji Mehrotra often provoked the other

three family members to torture and often used to make the complainant feel sad by making inappropriate statements about the complainant and her parents. Her husband Shyamji also took away the salary from the complainant.

5 Page 5

5.

After persistent efforts, Shyamji finally got a

job in Chennai and he went to Chennai for the job in May, 2003. But, it is alleged that there was no change in his behaviour even after going to Chennai.

The

complainant often called him on phone to talk to him but he always did irrelevant conversation.

He never

spoke properly with the complainant whenever he visited home and often used to hurl filthy abuses. The complainant states that she often wept and tolerated the tortures of the accused persons for a long time but did not complain to her family members, as that would have made them feel sad.

At last, when the complainant

realized that even her life was in danger, she was compelled to tell everything to her father on phone who was very upset on hearing her woes.

On 15.7.2003

complainant heard some conversation of her mother-inlaw and sister-in-law from which it appeared to her that they want to kill the complainant in the night only. Thereupon the complainant apprised her father of the situation on phone to which her father replied that he will call back her father-in-law and she should go with

6 Page 6

him immediately and he will come in the morning. The father-in-law Satish Dhawan and his wife who were living in NOIDA thereafter came in the night and somehow took the complainant to their home who also came to know of everything. The complainant’s father and brother later went to her matrimonial home on 16.7.2003.

On seeing her father and brother, Kamla

Mehrotra and Geeta Mehrotra started speaking loudly and started saying that Shyamji would be coming by the evening and so he should come in the evening for talking to them. Her father and brother then went away from there.

That very day, her husband Shyamji and

brother-in-law Ramji also reached home. On reaching there, Shyamji abused her on phone and told her to send her father. 6.

When father and brother of the complainant

went home in the evening, they were also insulted by all the four and video camera and tape were played and in the end they were told that they should leave from here. Insulted, they came back from there and then came back to Allahabad with the complainant.

For many

7 Page 7

days the complainant and her family members hoped that the situation would improve if the matter was resolved. Many times other people tried to persuade the in – laws but to no avail.

Her brother went to their

house to talk to her in – laws but it came to his knowledge that the in – laws had changed their house. After much effort, they came to know that the father-inlaw and mother-in-law started living at B-39, Brahma cooperative group housing society, block 7, sector-7, Dwarka, Delhi. On 19.09.04 evening, her father talked to Kamla Mehrotra and Geeta Mehrotra regarding the complainant using bad words and it was said that if her daughter came there she will be kicked out. After some time Shyamji rang up at complainant’s home but on hearing the complainant’s voice, he told her abusively that now she should not come his way and she should tell her father not to phone him in future.

At

approximately 10:30 pm in the night Ramji’s phone came to the complainant’s home. He used bad words while talking to her father and in the end said that he had got papers prepared in his defence and he may do

8 Page 8

whatever he could but if he could afford to give Rs.10 lakhs then it should be conveyed after which he will reconsider the matter. If the girl was sent to his place without money, then even her dead body will not be found. 7.

On hearing these talks of the accused, the

complainant believed that her in-laws will not let the complainant enter their home without taking ten lakhs and if the complainant went there on her own, she will not be safe. Hence, she lodged the report wherein she prayed that the SHO Daraganj should be ordered to do the needful after registering the case against the accused Shyam Mehrotra, Ramji Mehrotra, Kamla Mehrotra and Geeta Mehrotra.

Thus, in substance, the

complainant related the bickering at her matrimonial home which made her life miserable in several ways and compelled her to leave her in-law’s place in order to live with her father where she lodged a police case as stated hereinbefore. 8.

On

the

basis

of

the

complaint,

the

investigating authorities at P.S. Daraganj, Allahabad

9 Page 9

started investigation of the case and thereafter the police submitted chargesheet against the appellants and other family members of the complainant’s husband. 9.

Hence, the appellants who are sister and

brother of the complainant’s husband filed petition under Section 482 Cr.P.C. for quashing

of the

chargesheet and the entire proceedings pending in the court of learned Judicial Magistrate, Court No.IV, Allahabad, inter-alia, on the ground that FIR has been lodged

with

mala

fide

intentions

to

harass

the

appellants and that no case was made out against the appellants as well as other family members.

But the

principal ground of challenge to the FIR was that the incident although was alleged to have taken place at Faridabad and the investigation should have been done there only, the complainant with mala fide intention in connivance with the father of the complainant, got the investigating officer to record the statements by visiting Ghaziabad which was beyond his territorial jurisdiction and

cannot

be

construed

as

legal

and

proper

investigation. It was also alleged that the father of the

1 Page 10

complainant got the

arrest warrant issued through

George Town Police Station, Allahabad, in spite of the cause of action having arisen at Allahabad. 10.

This appeal has been preferred by Kumari

Geeta Mehrotra i.e. the sister of the complainant’s husband and Ramji Mehrotra i.e. the elder brother of the complainant’s husband assailing the order

of the

High Court and it was submitted that the Hon’ble High Court

ought to have appreciated that the complainant

who had already obtained an ex-parte decree of divorce, is pursuing

the present case through her father with

the sole purpose to unnecessarily harass the appellants to extract money from them as all efforts of mediation had failed. 11.

However, the grounds of challenge before

this Court to the order of the High Court, inter alia is that the High Court had failed to appreciate that the investigation had been done by the authority without following due process of law which also lacked territorial jurisdiction. The relevant documents/parcha diary for deciding the territorial jurisdiction had been overlooked

1 Page 11

as the FIR has been lodged at Allahabad although the cause of action of the entire incident is alleged to have taken place at Faridabad (Haryana). It was, therefore, submitted that the investigating authorities of the Allahabad have traversed beyond the territorial

limits

which is clearly an abuse of the process of law and the High Court has failed to exercise its inherent powers under

Section

482

Cr.P.C.

in

the

facts

and

circumstances of this case and allowed the proceedings to

go on before the trial court although it

had no

jurisdiction to adjudicate the same. 12.

It was further averred that the High Court

had failed to examine the

facts of the FIR to see

whether the facts stated in the FIR constitute any prima facie case making out an offence against the sister-inlaw and brother-in-law of the complainant and whether there was at all any material to constitute an offence against the appellants and their family members. Attention of this Court was further invited to the contradictions in the statement of the complainant and her

father

which

indicate

material

contradictions

1 Page 12

indicating that the complainant and her father have concocted the story to implicate the appellants as well as all their family members in a criminal case merely with a mala fide intention to settle her scores and extract money from

the family

of her ex-husband

Shyamji Mehrotra and his family members. 13.

On a perusal of the complaint and other

materials on record as also analysis of the arguments advanced by the contesting parties in the light of the settled principles of law reflected in a catena of decisions, it is apparent that the High Court has not applied its mind on the question as to whether the case was fit to be quashed against the appellants and has merely disposed of the petition granting liberty to the appellants

to move

the trial court

contentions on the ground

and raise

as to whether it has

territorial jurisdiction to continue with the trial in the light of the averment that no part of the cause of action had arisen at Allahabad and the entire incident even as per the FIR had taken place at Faridabad.

1 Page 13

14.

The High Court further overlooked the fact

that during the pendency of this case, the complainantrespondent No.2 has obtained

an ex-parte decree of

divorce against her husband Shyamji Mehrotra and the High Court failed to apply its mind whether any case could be held to have been made out against Kumari Geeta Mehrotra and Ramji Mehrotra, who are the unmarried sister and elder brother of the complainant’s ex-husband.

Facts of the FIR even as it stands indicate

that although a prima facie case against the husband Shyamji Mehrotra and some other accused persons may or may not be constituted, it surely appears

to be a

case where no ingredients making out a case against the unmarried sister of the accused Shyamji Mehrotra and his brother Ramji Mehrotra appear to be existing for even when the complainant came to her in-law’s house after her wedding, she has alleged physical and mental torture by stating in general that she had been ordered to do household activities of cooking meals for the whole family. But there appears to be no specific allegation

against

the

sister

and

brother

of

the

1 Page 14

complainant’s husband as to how they could be implicated into the mutual bickering complainant

and

her

husband

between the

Shyamji

Mehrotra

including his parents. 15.

Under the facts and circumstance of similar

nature in the case Nadu

of

Ramesh vs. State of Tamil

reported in (2005) SCC (Crl.) 735 at 738

allegations were made in a complaint

against the

husband, the in-laws, husband’s brother and sister who were all the petitioners before the High Court wherein after registration of

the F.I.R. and investigation, the

charge sheet was filed by the Inspector of Police in the court of Judicial Magistrate III, Trichy. Thereupon, the learned magistrate took cognizance of the offence and issued warrants against the appellants on 13.2.2002. Four of the accused-appellants were arrested and released on bail by the magistrate at Mumbai.

The

appellants had filed petition under Section 482, Cr.P.C. before the Madras High Court

for quashing the

proceedings in complaint case on the file of the Judicial Magistrate III, Trichy. The High Court by the impugned

1 Page 15

order dismissed the petition observing that the grounds raised by the petitioners were all subject matters to be heard

by the trial court for better appreciation after

conducting full trial as the High Court was of the view that it was only desirable to dismiss

the criminal

original petition and the same was also dismissed. However, the High Court had directed the Magistrate to dispense with the personal attendance

of the

appellants. 16. Court

Aggrieved by the order of the Madras High dismissing

the

petition

under

Section

482

Cr.P.C., the special leave petition was filed in this Court giving rise to the appeals therein where threefold contentions were raised viz., (i) that the allegations are frivolous and without any basis; (ii) even according to the FIR, no incriminating jurisdiction of Trichy

acts were done within

the

Trichy Police Station and the court at

and, therefore, the learned magistrate lacked

territorial jurisdiction to take cognizance of the offence and (iii) taking cognizance of the alleged offence at that stage was barred under Section 468(1) Cr.P.C. as it was

1 Page 16

beyond the period of

limitation prescribed under

Section 468(2) Cr.P.C. Apart from the subsequent two contentions, it was urged that the allegations under the FIR do not make out any offence of which cognizance could be taken. 17.

Their Lordships of the Supreme Court

in

this matter had been pleased to hold that the bald allegations made against the

sister in law by the

complainant appeared to suggest the anxiety of the informant to rope in as many of the husband’s relatives as possible. It was held that neither the FIR nor the charge sheet furnished the

legal basis

for the

magistrate to take cognizance of the offences alleged against the appellants. pleased to hold that

The learned

Judges were

looking to the allegations in the

FIR and the contents of the charge sheet, none of the alleged offences under Section 498 A, 406 and Section 4 of the Dowry Prohibition Act were made against the married sister of the complainant’s husband who was undisputedly complainant’s

not

living

husband.

with Their

the

family

of

the

Lordships

of

the

1 Page 17

Supreme Court

were pleased to hold that the High

Court ought not to have relegated the sister in law to the ordeal of trial. Accordingly, the proceedings against the appellants were quashed and the appeal was allowed. 18.

In so far as the plea of territorial jurisdiction

is concerned, it is no doubt true that the High Court was correct to the extent that the question of territorial jurisdiction

could be decided by the trial court itself.

But this ground was just one of the grounds to quash the proceedings initiated against the appellants under Section 482 Cr.P.C. wherein it was also alleged that no prima facie case was made out against the appellants for

initiating

the

proceedings

under

the

Dowry

Prohibition Act and other provisions of the IPC.

The

High Court has failed to exercise its jurisdiction in so far as the consideration of the case of the appellants are concerned, who are only brother and sister of the complainant’s husband and are not alleged even by the complainant to have demanded dowry from her.

The

High Court, therefore, ought to have considered that

1 Page 18

even if the trial court at Allahabad had the jurisdiction to hold the trial, the question

still remained as

to

whether the trial against the brother and sister of the husband

was fit to be continued and whether that

would amount to abuse of the process of the court. 19.

Coming to the facts of this case, when the

contents of the FIR is perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names who have been included in the FIR but mere casual reference of the names of the family members in a matrimonial

dispute

without

allegation

of

active

involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding. 20.

It would be relevant at this stage to take

note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported

1 Page 19

in (2000) 3 SCC 693 wherein

also

in a matrimonial

dispute, this Court had held that the High Court should have quashed the complaint

arising out of

a

matrimonial dispute wherein all family members had been roped into the

matrimonial litigation which was

quashed and set aside.

Their Lordships observed

therein with which we entirely agree that: “there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is

to

enable the young couple to settle down in life

and

live

peacefully.

But

little

matrimonial

skirmishes suddenly

erupt

which often

assume serious proportions

resulting in heinous crimes in which elders of the family are also involved with the result that those who could have

counselled and

brought about rapprochement are rendered helpless on their being

arrayed as accused

in the criminal case. There are many reasons which need not be

mentioned here for not

encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate

the disputes amicably

by

mutual agreement instead of fighting it out

2 Page 20

in a court of law where it takes years and years to

conclude and in that process the

parties lose their

“young” days in chasing

their cases in different courts.” The view taken by the judges in this matter was that the courts would not encourage such disputes. 21.

In yet another case reported in AIR 2003 SC

1386 in the matter of B.S. Joshi & Ors. vs. State of Haryana & Anr. it was observed that there is no doubt that the object of introducing Chapter XXA containing Section 498A in the Indian Penal Code

was to prevent

the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punish the husband and his relatives who harass or torture

the wife

to coerce her relatives to satisfy

unlawful demands of dowry. But if the proceedings are initiated by the wife under Section 498A against the husband and his relatives and subsequently she has settled her disputes with her husband and his relatives and the wife and husband agreed for mutual divorce, refusal

to exercise inherent powers by the High Court

would not be proper as it would prevent woman from 2 Page 21

settling earlier.

Thus for the purpose of securing the

ends of justice quashing of FIR becomes necessary, Section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. It would however

be a different

matter depending upon the facts and circumstances of each case whether to exercise or not to exercise such a power. 22.

In the instant matter, when the complainant

and her husband are divorced as the complainant-wife secured an ex-parte decree of divorce, the same could have weighed with the High Court to consider whether proceeding initiated prior to the divorce decree was fit to be pursued in spite of absence of specific allegations at least against the

brother and sister of the

complainant’s husband and whether continuing

with

this proceeding could not have amounted to abuse of the process of the court. seems not to have

The High Court, however,

examined these aspects carefully

and have thus side-tracked all these considerations merely on the ground that the territorial

jurisdiction

2 Page 22

could be raised only before the magistrate conducting the trial. 23.

In

the

instant

case,

the

question

of

territorial jurisdiction was just one of the grounds for quashing the proceedings along with the other grounds and, therefore, the High Court should have examined whether the prosecution case was fit to be quashed on other grounds or not. At this stage, the question also crops up whether the matter is fit to be remanded to the High Court to consider matters

arising

out

all these aspects. of

a

criminal

case,

But in fresh

consideration by remanding the same would further result into a protracted and vexatious proceeding which is unwarranted as was held by this Court in the case of Ramesh vs. State of Tamil Nadu (supra) that such a course of remand would be unnecessary inexpedient as there was no need controversy.

and

to prolong the

The facts in this matter on this aspect

was although somewhat different since the complainant had lodged the complaint after seven years of delay, yet in the instant matter the factual position remains

2 Page 23

that the complaint as it

stands

lacks ingredients

constituting the offence under Section 498A and Section 3/4 Dowry Prohibition Act against the appellants who are sister and brother of the complainant’s husband and their involvement

in the whole incident

appears

only by way of a casual inclusion of their names. Hence, it cannot be overlooked that it would be total abuse of the process of law if we were to remand the matter to the High Court to were

consider whether there

still any material to hold that the trial should

proceed against them in spite of absence of prima facie material constituting the offence alleged against them. 24.

However, we deem it appropriate to add by

way of caution that we may not be misunderstood so as to infer that even if there are allegation of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified

but

what

we

wish

to

emphasize

by

highlighting is that, if the FIR as it stands does not disclose specific allegation against accused more so against the co-accused specially in a matter arising out

2 Page 24

of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would

persuade the court

to take cognisance of the

offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over-implication by involving instance of

the entire

family of the accused at the

the complainant, who is out to settle her

scores arising out of the teething problem or skirmish of

2 Page 25

domestic bickering while settling down in her new matrimonial surrounding. 25.

In the case at hand, when the brother and

unmarried sister of the principal accused

Shyamji

Mehrotra approached the High Court for quashing the proceedings against them, inter-alia, lack of territorial jurisdiction that

on the ground of

as also on the ground

no case was made out against them under

Sections 498A,/323/504/506 including Sections 3/4 of the Dowry Prohibition Act, it was the legal duty of the High Court to examine whether there were prima facie material against the appellants so that they could be directed to undergo the trial, besides the question of territorial jurisdiction.

The High Court seems to have

overlooked all the pleas that were raised and rejected the

petition

on

the

solitary

ground

of

territorial

jurisdiction giving liberty to the appellants to approach the trial court. 26.

The High Court in our considered opinion

appear to have missed that assuming the trial court had territorial jurisdiction, it was still left to be decided

2 Page 26

whether it was a fit case to send the appellants for trial when the FIR failed to make out a prima facie case against them regarding the allegation of inflicting physical and mental

torture

to the complainant

demanding dowry from the complainant. Since the High Court

has failed to consider

all these aspects, this

Court as already stated hereinbefore, could have remitted the matter to

the High Court to consider

whether a case was made out against the appellants to proceed against them. But as the contents of the FIR does not disclose specific allegation against the brother and sister of the complainant’s husband except casual reference of their names, it would not be just to direct them to go through protracted procedure by remanding for consideration of the matter all over again by the High Court and make the unmarried sister of the main accused and his elder brother to suffer the ordeal of a criminal case pending against them specially when the FIR does not disclose ingredients of offence under Sections 498A/323/504/506, IPC and Sections 3/4 of the Dowry Prohibition Act.

2 Page 27

27.

We, therefore, deem it just and legally

appropriate to quash the proceedings initiated against the appellants Geeta Mehrotra and Ramji Mehrotra

as

the FIR does not disclose any material which could be held to be constituting any offence against these two appellants. Merely by making a general allegation that they were also involved in physical and mental torture of

the

complainant-respondent

No.2

without

mentioning even a single incident against them as also the fact as to how they could be motivated to demand dowry when they are only related as brother and sister of the complainant’s husband, we are pleased to quash and set aside the criminal proceedings

in so far as

these appellants are concerned and consequently the order passed by the High Court shall stand overruled. The appeal accordingly is allowed.

……………………………J (T.S. Thakur) ……………………………J (Gyan Sudha Misra) New Delhi, October 17, 2012 2 Page 28

M.Cr.C. No. 11962/2012 11.2.2013 Shri Narendra Kumar, Advocate for the petitioners. Shri V.K.Lakhera, PL for the State. Shri Neeraj Vegad, Advocate for respondent No. 2. Heard finally with the consent of the learned counsel for the parties. The petitioners have filed this petition invoking the extraordinary jurisdiction of this Court under Section 482 of the Cr.P.C. for quashing

the proceedings of Criminal Case No.

6509/2012 pending in the Court of JMFC, Bhopal for the offence punishable under Section 498-A/34 of the IPC and 3/4 of the Dowry Prohibition Act. Learned counsel for the petitioners has submitted that marriage of respondent No. 2 and petitioner No. 1 was performed on 21.11.2009. After about one year of their marriage, they were living separately from the family of petitioner No. 1. On 3.6.2011, respondent No. 2 was admitted in the hospital for delivery of a child, where she delivered a baby girl and according to discharge ticket, she remained admitted in the hospital from 3.6.2011 to 8.6.2011. Before delivery of child, respondent No. 2 left the house of petitioner No. 1 in his absence and was living in her parental house. After delivery, petitioner No. 1 made efforts to bring his wife back, but could not succeed, therefore, he filed a petition under Section 9 of the Hindu Marriage Act on 9.7.2012 in the Court of Principal Judge, Family Court, Bhopal. Notice of the case was served on respondent No. 2 on 11.7.2012. Copy of acknowledgment has been filed by the petitioners as Annexure A-4. On 16.7.2012, a written complaint was filed by the complainant/respondent No. 2 against the

petitioners, on the basis of which FIR has been registered vide Crime No. 70/2012 at Mahila Thana, Bhopal, thereafter challan has been filed in the trial Court. Counsel has further submitted that respondent No. 2 lodged the report at P.S. after receiving the notice of petition filed by petitioner No. 1 under Section 9 of the Hindu Marriage Act. Before more than one year of lodging the FIR, petitioner No. 1 and respondent No. 2 were living separately from other petitioners and other petitioners have no concern with the alleged offence and they have been falsely implicated being close relatives of petitioner No. 1. Learned counsel for the petitioners has also questioned the genuineness of complaint filed by respondent No. 2 as it bears the signatures in Hindi while on other documents, the signatures are made in English. Learned counsel for respondent No. 2 has opposed the petition and submitted that the allegation of false implication of the petitioners is baseless, therefore, this petition is liable to be dismissed. Counsel has placed reliance on the judgment of this Court in Dashrath P. Bundela and others Vs. State of M.P. and another – I.L.R. [2011] MP 2923, in which it was not disputed that respondent No. 2 Gayatri was living separately since one year as mentioned by herself in the FIR and she was having three children. However, this Court observed that there is no specific allegation that when demand was made, when she was beaten, by whom, no specific year, month, date or time was mentioned. The report was lodged on 11.3.2006, just after the filing of the divorce petition against respondent No. 2 and date of appearance on the aforesaid case i.e. 10.3.2006. It has been held that no prima facie case is made out against the petitioners,

who are near relatives of husband of respondent No. 2 and permitting to continue such criminal proceedings, would be abuse of process of law and prosecution against the petitioners was quashed. In the instant case also no specific allegation has been made against petitioner Nos. 2 to 7. Before delivery, respondent No. 2 left the house of petitioner No. 1 without informing him. There is no specific allegation when she was beaten by any of the petitioners. It is general experience now that relatives of husband are falsely implicated by the wife just to take revenge of ill treatment by the husband. Resultantly, in the light of the decision of this Court in Dashrath P. Bundela (supra), the petition is allowed in part. The proceedings of Criminal Case No. 6509/2012 pending in the Court of JMFC, Bhopal for the offence punishable under Section 498-A/34 of the IPC and 3/4 of the Dowry Prohibition Act so far as it relates to petitioner Nos. 2 to 7, are quashed. However, the trial Court is directed to proceed with the

prosecution with

respect to petitioner No. 1 Pradeep Sahu.

(A.K. Sharma) Judge PB

1 wp2999-13.doc

Abhishek Kumar Jain Versus Mrs.Swastika Abhishek Jain & Anr.

C ou

rt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.2999 OF 2013 .. Petitioner

.. Respondents

Mrs.Manjula Rao i/b. Manish Rai for petitioner Mrs.M.H.Mhatre, APP for State.

: 5th September 2013.

ig h

Date

Heard Mrs.Rao for petitioner. Perused the petition and

ba y

1]

: S. C. DHARMADHIKARI & G.S. PATEL, JJ

H

P.C.:

CORAM

the annexures thereto.

Mrs.Rao places reliance upon the

om

decision of the Supreme Court in the case of Navinchandra Majithia Vs. State of Maharashtra, reported in A.I.R. 2000 S.C.

B

2966 to urge that the Supreme Court has held that this court can exercise its jurisdiction under Article 226 of the Constitution of India even if the complaint is filed in the State of Nagaland on the footing that the cause of action has arisen within its territorial jurisdiction.

::: Downloaded on - 29/07/2015 16:40:47 :::

The cause of action in this case and which is arisen here

C ou

2]

rt

2 wp2999-13.doc

is that the petitioner husband and the respondent No.1 complainant settled down in Mumbai after their marriage. On account of differences and disputes between them, the petition

ig h

No.A-149 of 2013 was presented on 11th January 2013 before the Family Court, Bandra. The address of respondent No.1

H

was shown as residing at D-45 Shubham Enclave, Pachim Vihar, New Delhi and working at Tata Consultancy Services

ba y

4000 Regent Blvd., Irving. Texas, U.S.A.. She, therefore, has never resided as claimed by her and along with her father in the State of Nagaland and particularly at Dimapur. Therefore,

om

the Chief Judicial Magistrate, Dimapur, Nagaland should not have entertained any complaint and issued a summons to the

B

petitioner to appear, who is now based in Mumbai because of job requirement.

3]

Mrs.Rao submits that the intent was to cause undue

::: Downloaded on - 29/07/2015 16:40:47 :::

3 wp2999-13.doc

rt

harassment and immense inconvenience to the petitioner so as

C ou

to force him to come to Nagaland. She submits that when the

respondent No.1 wife was served with the proceedings in the family court, Bandra, the learned Judge who passed an order on the petition dtd. 30th May 2013 has noted that the wife has

ig h

received a packet containing the proceedings but has not responded. She had engaged an Advocate and who did not

H

contest the matter. However, the vakalatnama was filed and in such circumstances, prima facie, she has submitted herself to

ba y

the jurisdiction of the family court, Bandra.

4]

Having noted all these facts and circumstances and the

om

law laid down by the Supreme Court in the case of Majithia (supra), we are of the prima facie opinion that arguable

B

questions have been raised and, therefore, the petitioner deserves ad-interim protection. Hence, following order.

5]

Issue notice to respondents returnable after four weeks.

::: Downloaded on - 29/07/2015 16:40:47 :::

4 wp2999-13.doc

rt

Hamdust allowed. Liberty to serve privately granted. Learned

C ou

APP waives service for respondent No.3. For a period of four weeks from today, there will be an ad-interim order in terms of prayer clause (b) of the petition, which is as under:-

ig h

“(b) Pending the hearing and final disposal of this petition, this Hon'ble Court be pleased to stay the

H

summons dated 8.2.2013 and the warrant dated 1.08.2013 in the Complaint Case No.1 of 2013

ba y

pending in the Court of Chief Judicial Magistrate,

B

om

Dimapur, Nagaland against the petitioner.”

(S. C. DHARMADHIKARI, J)

(G.S. PATEL, J)

::: Downloaded on - 29/07/2015 16:40:47 :::

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1022 OF 2008 Bhola Ram

…..Appellant Versus

State of Punjab

…..Respondent JUDGMENT

Madan B. Lokur, J. 1.

The question for consideration is whether the appellant

Bhola Ram was rightly convicted by both the Trial Court and the High Court for having caused the dowry death of Janki Devi, an offence punishable under Section 304-B and Section 498-A of the Indian Penal Code (IPC). In our opinion, Bhola Ram deserves an acquittal since there is no evidence inculpating him.

The facts: Crl. Appeal No.1022 of 2008

Page 1 of 17 Page 1

2.

Darshan Ram married Janki Devi on 30th June, 1986

after which they resided in Darshan Ram’s house in village Mehma Sarja. The couple has a female child. 3.

At the time of their marriage, Janki Devi’s family gave

dowry within their means to Darshan Ram and his family. But according to the prosecution, his brothers Parshottam Ram and Bhola Ram (the appellant) and his sister Krishna Devi and mother Vidya Devi demanded more dowry from time to time. 4.

Janki Devi’s family was unable to fulfill the additional

demands for dowry and, according to the prosecution, she was humiliated and cruelly treated by Darshan Ram’s family for their incapacity. Being unable to face the harassment, cruelty and humiliation meted out by Darshan Ram’s family, Janki Devi consumed poison and thereby committed suicide on 6th September, 1989. 5.

About one and a half months before her death, a

demand for Rs. 10,000/- was made by Janki Devi’s in-laws for the purchase of a car. Janki Devi’s father PW-2 Nath Ram borrowed this amount from PW-1 Nirbhai Singh for meeting Crl. Appeal No.1022 of 2008

Page 2 of 17 Page 2

the dowry demand. The amount was then handed over by him to Darshan Ram in the presence of other members of his family. 6.

Unfortunately, Darshan Ram’s family was not fully

satisfied with this payment. According to the prosecution, about a fortnight before her death, Janki Devi came to her father and told him that there was a further demand for an amount of Rs. 30,000/- for purchasing some articles for a service station proposed to be run by Darshan Ram and Bhola Ram. Thereupon, Nath Ram accompanied Janki Devi to her matrimonial home and informed Darshan Ram and the other accused that he would not be able to pay this amount. On this, Darshan Ram’s family informed him that he should pay the amount failing which he could take Janki Devi back with him. Nath Ram requested the family not to insist on the demand and left Janki Devi at her matrimonial home in village Mehma Sarja. 7.

On 3rd September, 1989 PW-3 Des Raj, the brother of

Nath Ram’s wife, informed Nath Ram about Janki Devi being ill-treated on account of Nath Ram’s inability to meet the Crl. Appeal No.1022 of 2008

Page 3 of 17 Page 3

additional demand for dowry. Again on 5 th September, 1989 Des Raj informed Nath Ram that Janki Devi wanted to meet Nath Ram and was weeping in his presence. 8.

On receiving this information, Nath Ram went to village

Mehma Sarja along with his brother PW-4 Sukhdev Ram. When they reached the bus stand in the village they were informed that Janki Devi had consumed poison and had taken her life, having suffered more than enough cruelty at the hands of the family of Darshan Ram.

Nath Ram and

Sukhdev Ram then proceeded to Janki Devi’s matrimonial home and found her lying there but no one from Darshan Ram’s family was present in the matrimonial home. 9.

Nath Ram then lodged a First Information Report (FIR)

in Police Station Nehianwala. On the basis of the FIR PW-7 Manminder Singh prepared an inquest report in the presence of Sukhdev Ram. On the next day, that is 7th September, 1989 PW-5 Dr. Tirath Goyal performed an autopsy on the dead body of Janki Devi. He noted that froth was coming out from her nose and mouth.

Her viscera were sent to the

Chemical Examiner who reported that Janki Devi had died Crl. Appeal No.1022 of 2008

Page 4 of 17 Page 4

due to having consumed an organo phosphorus insecticide which was poisonous and sufficient to cause death in the ordinary course of nature. 10. On

the

basis

of

the

above

details

and

further

investigations, a charge sheet was filed against Darshan Ram and four members of his family (including Bhola Ram) under Section 304-B and Section 498-A of the IPC for causing the dowry death of Janki Devi. 11. The accused pleaded not guilty and were tried by the Sessions Judge at Bathinda. Decision of the Trial Judge 12. In his Judgment and Order dated 3 rd December, 1991 the Sessions Judge at Bathinda in Sessions Case No. 35 of 15th May, 1990 held that Section 304-B of the IPC required the prosecution to establish four ingredients, namely: (i) the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, (ii) such death should have occurred within seven years of her marriage, (iii) soon before her death she was subjected to cruelty or harassment by her husband or any relative of her Crl. Appeal No.1022 of 2008

Page 5 of 17 Page 5

husband, and (iv) such cruelty or harassment should be for, or in connection with, any demand for dowry. In the present case,

all

four

ingredients

were

established

by

the

prosecution. 13. It was further held that Darshan Ram, Bhola Ram and their mother Vidya Devi were living together in the same house at village Mehma Sarja and that they had demanded additional

dowry

from

Janki

Devi’s

family.

However,

Parshottam Ram and Krishna Devi were living separately and they could not be said to have caused the dowry death of Janki Devi. Consequently, Parshottam Ram and Krishna Devi were found not guilty of the charges framed against them and they were acquitted.

However, the Sessions Judge

found that Darshan Ram, Bhola Ram and Vidya Devi, by their attitude and behaviour, caused Janki Devi to take the extreme step of taking her own life. These three accused were accordingly convicted for offences punishable under Section 304-B and Section 498-A of the IPC and sentenced to undergo rigorous imprisonment for a period of 7 years with fine for the offence under Section 304-B of the IPC and 2 Crl. Appeal No.1022 of 2008

Page 6 of 17 Page 6

years rigorous imprisonment for the offence under Section 498-A of the IPC. 14. The accused preferred two appeals (one by Vidya Devi and the other by Darshan Ram and Bhola Ram) against their conviction and sentence in the High Court of Punjab and Haryana. Decision of the High Court 15. In so far as Vidya Devi is concerned, her conviction was upheld by the High Court and she preferred a Special Leave Petition in this Court.

She was granted special leave to

appeal but during the pendency of her appeal she passed away and accordingly her appeal was disposed of. 16. Darshan Ram and Bhola Ram preferred a joint appeal in the High Court being Criminal Appeal No. 25 SB of 1992. This appeal was heard by a learned Single Judge who by his Judgment and Order dated 5th July, 2004 upheld their conviction and sentence. 17. The High Court held that Vidya Devi, Darshan Ram and Bhola Ram were all residing together in the same house at village Mehma Sarja. It was held that the amount of Rs. Crl. Appeal No.1022 of 2008

Page 7 of 17 Page 7

10,000/- initially taken from Nath Ram was used to purchase a car for Darshan Ram and that car was being plied as a taxi by him. It was also held that a service station was at the initial stages of being established by Darshan Ram and Bhola Ram and that they needed Rs. 30,000/- for expenses in connection with that venture. Since all three convicts were residing together at village Mehma Sarja, they were equally responsible for demanding additional dowry from Janki Devi and her father and thereby compelling her to take her life. 18. It appears that Darshan Ram has not challenged the Judgment and Order of the learned Single Judge and his conviction and sentence have attained finality. 19. We are, therefore, only concerned with the appeal filed by Bhola Ram who challenged his conviction and sentence in this Court and was granted special leave to appeal on 8 th July, 2008.

He was also granted bail by this Court on the

same day and we are told that even today, he is on bail. Discussion 20. Learned counsel for Bhola Ram submitted that in fact there is no specific allegation against him. The statements of Crl. Appeal No.1022 of 2008

Page 8 of 17 Page 8

all the witnesses are omnibus or generic in nature and Darshan Ram and other members of his family have been generally accused of having demanded additional dowry from Janki Devi’s family. It is submitted that in the absence of any particular allegation, demands for dowry made by Darshan Ram cannot be attributed to Bhola Ram and under these circumstances, there is really no evidence to uphold his conviction. 21. On the other hand, it was submitted by learned counsel for the State that the three convicts were jointly and directly concerned with the demands of additional dowry made on Janki Devi and her family. Consequently, it is not possible to segregate the case of Bhola Ram from that of the other two convicts. 22. We are unable to accept the contention of learned counsel for the State. The Sessions Judge found that there was no evidence that Parshottam Ram and Krishna Devi made demands for additional dowry from Nath Ram. Accordingly, they were acquitted at the trial stage itself. Therefore, the segregation process, based on the evidence Crl. Appeal No.1022 of 2008

Page 9 of 17 Page 9

on record, had begun at the trial stage. This is clearly because in a dowry death, some actors play an active role while others play a passive role. Consequntly, to sustain the conviction of Bhola Ram, there must be some suggestive evidence and not generic evidence implicating him in the demand for additional dowry from Nath Ram. 23. As observed by the Law Commission of India (LCI) in its 91st Report of 10th August, 1983 (in paragraph 1.8) the truth may not come in a dowry death case due to the sequestered nature of the offence. This is what the LCI said: “Those who have studied crime and its incidence know that once a serious crime is committed, detection is a difficult matter and still more difficult is successful prosecution of the offender. Crimes that lead to dowry deaths are almost invariably committed within the safe precincts of a residential house. The criminal is a member of the family; other members of the family (if residing in the same house) are either guilty associates in crime, or silent but conniving witnesses to it. In any case, the shackles of the family are so strong that truth may not come out of the chains. There would be no other eye witnesses, except for members of the family.” 24. This passage also clearly brings out that in a case of a dowry death, every member of the family may not be fully

Crl. Appeal No.1022 of 2008

Page 10 of 17 Page 10

and equally guilty. The degree of involvement may differ – as an associate, as a silent witness, as a conniving witness and so on. 25. So far as this case is concerned, we have gone through the evidence of all the witnesses on record and while there is no doubt that Janki Devi died an unnatural death within a few years of her marriage to Darshan Ram, no definite allegation has been made by any of the witnesses including Nath Ram or anybody from his family that Bhola Ram had demanded any additional dowry from him or anybody in his family or had treated Janki Devi with cruelty or in a humiliating manner so as to make him complicit in the dowry death. 26. In Kans Raj v. State of Punjab, (2000) 5 SCC 2007 the ingredients of an offence under Section 304-B of the IPC were held to be as follows: “In order to seek a conviction against a person for the offence of dowry death, the prosecution is obliged to prove that: (a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances; Crl. Appeal No.1022 of 2008


(b) such death should have occurred within 7 years of her marriage; (c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband; (d) such cruelty or harassment should be for or in connection with the demand of dowry; and (e) to such cruelty or harassment the deceased should have been subjected soon before her death.” 27. It is true that there was a demand of dowry of Rs. 10,000/- which was paid by Nath Ram by borrowing this amount from Nirbhai Singh, but that demand was for the purchase of a car for use by Darshan Ram. Under the circumstances, it can safely be presumed that Darshan Ram made the demand for additional dowry for his benefit. Bhola Ram may have been a silent or a passively conniving participant, but there is nothing on record to suggest that he had either actively made such a demand or that the demanded amount was sought to be utilized for his benefit either directly or indirectly. 28. Similarly, the evidence on record does not show that the demand of another amount of Rs.30,000/- from Nath Ram just a fortnight before Janki Devi took her life was made Crl. Appeal No.1022 of 2008


by Bhola Ram to purchase articles for the service station being set up by him and Darshan Ram at village Nehianwala. At best, it could be said that this amount was intended for use for the joint business venture of Bhola Ram and Darshan Ram. Given that the earlier demand for additional dowry was made for the benefit of Darshan Ram, it is more than likely that this demand was also made by him. In any event, there is again nothing to suggest that Bhola Ram was in any manner actively concerned in making the demand directly or indirectly from Nath Ram. 29. Consequently, we do not find any evidence to suggest any active complicity of Bhola Ram in demanding any additional dowry from Nath Ram either for himself or for Darshan Ram or his proposed business venture. 30. Merely making a demand for dowry is not enough to bring about a conviction under Section 304-B of the IPC. As held in Kans Raj a dowry death victim should also have been treated with cruelty or harassed for dowry either by her husband or a relative. In this case, even assuming the silent or conniving participation of Bhola Ram in the demands for Crl. Appeal No.1022 of 2008


dowry, there is absolutely no evidence on record to suggest that he actively or passively treated Janki Devi with cruelty or harassed her in connection with, or for, dowry. The High Court has, unfortunately, not adverted to this ingredient of an offence punishable under Section 304-B of the IPC or even considered it. 31. The High Court has relied on the presumption available under Section 113-B of the Evidence Act, 1872 to conclude that Janki Devi’s death was a dowry death. However, this presumption cannot be stretched to implicate all and sundry in Darshan Ram’s family in demanding additional dowry from Janki Devi’s family and harassing her and treating her with such cruelty that she had to resort to taking her life. As mentioned above, there is a possibility of members of the family having varying roles, active and passive. Depending on the nature and extent of involvement, a person may be punished for an offence under Section 498-A or Section 304B or Section 306 of the IPC or Section 4 of the Dowry Prohibition Act, 1961. A dowry death will not ipso facto suck



the husband with all his relatives into the net of Section 304B of the IPC. 32. It was contended by learned counsel for the State that Darshan Ram, Bhola Ram and Vidya Devi were living together at village Mehma Sarja and so their active involvement in the dowry death cannot be ruled out. While these persons may be staying together, it does not lead to any positive conclusion that each one of them was actively involved in demanding additional dowry from Janki Devi and also behaving in a cruel or humiliating manner towards her resulting in her consuming poison to end her life. In cases of this nature which attract a reverse onus of proof, the least that is expected of the prosecution to bring home a charge under Section 304-B of the IPC is to adduce some evidence to suggestively implicate a relative, in this case, to suggestively implicate Bhola Ram both in the demands for additional dowry and harassment or cruelty. Such evidence is not available on record and so the mere fact that all the members of Darshan Ram’s family were living together at village Mehma Sarja, would not alter the factual situation. Crl. Appeal No.1022 of 2008


33. Consequently, in the absence of the prosecution proving the ingredients of Section 304-B of the IPC, the initial burden cast on it has not been discharged. Therefore, the presumption under Section 113-B of the Evidence Act cannot be attracted.

Conclusion 34. Based on the evidence available on record (or the lack of it) we have no doubt that the appeal filed by Bhola Ram ought to be allowed.

It is accordingly allowed and he is

acquitted of the charges against him under Section 304-B and Section 498-A of the IPC in relation to the death of Janki Devi. 35. The appeal is allowed and the conviction and sentence of Bhola Ram is set aside. Post script 36. What is a little disturbing about this case is that it is illustrative of the slow movement of the wheels of criminal justice

delivery.

The

dowry

death

took

place

on

6 th

September, 1989. The Trial Court pronounced its decision on 3rd December, 1991 within two years of Janki Devi’s death. Crl. Appeal No.1022 of 2008


The first appeal was decided by the High Court on 5 th July, 2004 which is more than twelve years later. A petition for special leave to appeal was filed in this Court in 2004 and leave was granted only after a gap of four years in 2008. Thereafter this appeal was listed for hearing as if it is an appeal of 2008 rather than a petition of 2004 thereby wiping away four years of its age in this Court. And even then, it has taken another five years for its disposal, making a total of nine years spent in this Court. It is high time those of us who are judges of this Court and decision makers also become policy makers.

….…….……………………..J. (Ranjana Prakash Desai)

….…….……………………..J. (Madan B. Lokur) New Delhi; November 11, 2013



*

IN THE HIGH COURT OF DELHI AT NEW DELHI

%

Date of Decision: 03.03.2014

+

CRL.A. 360 of 2010

VINEET VATS

..... Appellant Mr. Raman Sahney, Adv.

Through:

versus STATE OF NCT OF DELHI ..... Respondent Through: Mr. Feroz Khan Ghazi, APP. CORAM: HON'BLE MR. JUSTICE V.K.JAIN JUDGMENT V.K.JAIN, J. (Oral) In the night intervening 6/7.2.2000, deceased Vimmi was brought by the appellant, who is her husband, to Sodhi Nursing Home, she having consumed insecticide. home.

Vimmi died in the aforesaid nursing

Since, Vimmi died within seven (7) years of marriage, the

concerned SDM was informed, who reached the spot and recorded the statement of Shri Ram Kumar Sharma, father of the deceased. In the aforesaid statement, Shri Ram Kumar Sharma inter alia stated that his daughter Vimmi @ Vimla was married to the appellant Vineeet Vats on 9.11.1995. He further stated that on being informed by his son-in-law at about 5:00 a.m., he reached Sodhi Nursing Home where his daughter

Crl. A. No.360 of 2010

Page 1 of 16

was found dead. He alleged that Vimmi had been murdered by her father-in-law, Gyan Chand; mother-in-law, Kamla; and brother-in-law, Sunit @ Kalu. He also alleged that earlier the aforesaid three persons used to beat his daughter and harass her in connection with dowry. He desired legal action against the aforesaid three persons as well as against the appellant Vineet though there was no allegation of cruelty or maltreatment against him. 2.

On 8.2.2000, the SDM recorded the statement of Smt. Santosh

Sharma, mother of the deceased. In the aforesaid statement she inter alia stated that after April, 1997, her daughter and son-in-law were turned out of the matrimonial home of her daughter, by her in-laws, who asked them to bring Rs.3.00 lakh from the parents of Vimmi. Thereafter, both of them came to her and she got them a house on rent in Ashok Vihar. The pagri (premium) for taking the aforesaid house on rent was paid by her. She alleged that even thereafter the brother, etc. of her son-in-law used to beat her daughter. She claimed that they kept on paying money to her son-in-law who thereafter said that he needed a car for his business, whereupon they spent Rs.2.00 lakh for purchase of a car for him. She further stated that her son-in-law then sold the car and deposited the sale proceeds in FDR. She thereafter got them another

Crl. A. No.360 of 2010

Page 2 of 16

premises on rent in Guru Harkishan Nagar, Pashchim Vihar. She also alleged that they used to meet the expenditure of her daughter and sonin-law. 3.

Smt. Santosh Sharma alleged that her younger daughter Usha got

married on 9.12.1999, seeing which the appellant complained that lesser expenditure had been incurred on his marriage and wanted a similar amount to be given to him. She further alleged that Vimmi came to meet her on 13.12.1999, and she gave Rs.20,000/- to her, promising to pay the rest of the amount at a later date. She further alleged that on 6.2.2000, she received a telephone call from Vimmi, informing her that they were going to change the house. On 07.02.2000 at 5:00 a.m. they received a telephone call from the appellant who started weeping on the telephone and called them. When they reached the nursing home they came to know that Vimmi had already expired. She also alleged that when they reached the hospital, the appellant confessed that he had poisoned Vimmi and expressed willingness to be punished for his act. She also alleged that the appellant had apologized to the dead body of Vimmi. She specifically alleged that Vimmi had been poisoned by her son-in-law and his friends.

Crl. A. No.360 of 2010

Page 3 of 16

4.

On 9.2.2000, the learned SDM recorded the statement of Shri

Radhey Shyam, brother of deceased Vimmi. In his statement to the SDM, he inter alia stated that while agreeing to live separately from his parents, the appellant had put forward a condition that his entire expenditure would be incurred by his in-laws and for the future of his sister they had accepted the said condition, till the time the appellant was able to earn of his own. He also alleged that Kalu @ Sunit, brotherin-law of Vimmi had one day, poured petrol in their house and set it on fire and the matter was reported to the police and thereafter also he continued to threaten them. He claimed that on 13.12.1999, Vimmi came alone to their house and informed her mother that Vineet wanted that much money as was spent on the wedding of Usha. His mother gave Rs.20,000/- to Vimmi. Even thereafter Vimmi came to them a number of times and complained that the appellant was asking for money to be arranged and was not willing to give more time for this purpose. He also claimed that when they reached hospital on 7.2.2000, the appellant Vineet confession to having poisoned Vimmi. 5.

On completion of investigation charge sheet under Section 498A

and 304B of IPC was filed against as many as seven (7) persons including the appellant Vineet.

Crl. A. No.360 of 2010

However, other accused were

Page 4 of 16

discharged by the learned trial court vide order dated 2.12.2000. The learned counsel for the appellant submits that the order discharging the other accused persons was challenged before this Court but the challenge did not succeed. 6.

Smt. Santosh Sharma, mother of the deceased came in the witness

box as PW2 and inter alia stated that mother-in-law and father-in-law of Vimmi had asked the appellant to bring Rs.3.00 lakh from his in-laws and had turned her daughter and son-in-law out of the house. She then arranged a rented accommodation in Ashok Vihar and paid Rs.25,000/as pagri. She further alleged that the brother-in-law of Vimmi and other relatives continued to harass her even at the rented house in Ashok Vihar by beating her and insisting that she should bring more money. She also alleged that they used to receive telephone calls from the father-in-law and mother-in-law of the deceased who alleged that Vimmi and her husband had taken away Rs.25.00 lakh from their house. The witness claimed that the appellant told them that he cannot pull without a car and thereupon they gave Rs.2.00 lakh to him for purchasing a car, which he actually purchased. However, after 2-3 months the car was sold by him and they were informed that the sale proceeds had been invested in an FDR.

Crl. A. No.360 of 2010

Page 5 of 16

She further stated that on 9.12.1999, her younger daughter Usha got married and they spent more money in that marriage compared to the money that was spent in the marriage of Vimmi. Thereafter the appellant Vineet started harassing her daughter and asked her to bring equal amount from her parents. Vimmi came weeping and told them of this demand whereupon she gave Rs.20,000/- to her, promising to give the rest of the money later on. 7.

It would, thus, be seen that according to this witness, the appellant

did not harass the deceased in any manner and did not subject her to cruelty prior to the wedding of her younger daughter. Though, it has come in her deposition that the appellant had demanded a car and the demand was satisfied by giving Rs.2.00 lakh to him, she does not claim that her daughter Vimmi was subjected to any kind of cruelty or harassment by the appellant in connection with the demand of a car. Mere demand of a car, without subjecting the deceased to any cruelty or without harassing her in any manner in connection with the said demand does not constitute cruelty within the meaning of Section 498A of IPC particularly when it was not linked to the marriage and was sought for the purpose of convenience alone though it may possibly constitute an offence under the Dowry Prohibition Act, 1961.

Crl. A. No.360 of 2010

Page 6 of 16

8.

The main allegation against the appellant is that noticing the

expenditure on the wedding of the younger sister of Vimmi, he wanted an equal amount to be given to him. The aforesaid demand, according to the witness, was conveyed through her daughter. However, there is no allegation of the appellant having subjected the deceased Vimmi to any kind of cruelty or harassment in connection with the aforesaid demand of money. As noted earlier mere demand of money unless it is coupled by some kind of cruelty or harassment of the deceased would not constitute the cruelty as defined in Section 498A of the Indian Penal Code. The complainant when she came in the witness box alleged that Vineet started harassing Vimmi and asked her to bring money equivalent to the money spent on the marriage of Usha, but she did not specify in what manner Vimmi was harassed by the appellant. In her statement to the SDM this witness did not claim any kind of harassment by the appellant in connection with the demand of cash equivalent to the expenditure incurred by them in the wedding of Usha, though she did allege the aforesaid demand.

Therefore, the vague allegation of

harassment during her deposition in the court, without indicating in what manner Vimmi was harassed, coupled with her having not made any such allegation in the statement to the SDM, would indicate that the

Crl. A. No.360 of 2010

Page 7 of 16

aforesaid allegation of general nature is only an afterthought. In fact, the entire focus of the allegaionts made before the SDM was that the deceased had been murdered by the appellant by administering poison to her and when they reached the hospital, the appellant confessed to the aforesaid crime. However, neither the appellant was charged under Section 302 of IPC nor is there any evidence which would show that it was he who had administered insecticide to the deceased. 9. PW3.

The father of the deceased Vimmi came in the witness box as During his deposition in the court he only alleged that her

daughter used to tell him that her in-laws used to harass her, raise demand of dowry and beat her. He specifically named the father-in-law, mother-in-law, husband and younger brother of the appellant alleging demand of dowry and harassment of the deceased by them. However, he did not specify when and in what manner, deceased Vimmi was harassed by the appellant. It would be appropriate to note here that in his statement before the SDM Ex.PW3/A this witness had not made any allegation whatsoever of any demand of dowry or harassment of the deceased at the hand of the appellant Vineet. In the aforesaid statement he had blamed only the father-in-law, mother-in-law and brother-in-law of the deceased and had alleged that the aforesaid persons used to harass

Crl. A. No.360 of 2010

Page 8 of 16

her and had killed her pursuant to a pre-planning. Though he wanted legal action against the appellant as well not a single allegation constituting cruelty with or without harassment of Vimmi was made by him against the appellant. 10.

The brother of the deceased, Shri Radhey Shyam came in the

witness box as PW5. He inter alia stated that on 13.12.1999, Vimmi came to their house alone and informed her mother that the appellant Vineet wanted money equal to the expenditure incurred by them on the wedding of Usha and that a sum of Rs.20,000/- was paid by his mother to the appellant with an assurance to pay more. He further alleged that after the aforesaid incident Vimmi visited them several times and wanted money as desired by the appellant Vineet. Thus, according to this witness, there was repeated demand of cash by the appellant, after 5.12.1999. 11.

The sister-in-law of the deceased, namely Meenu Sharma, came

in the witness box as PW4. She inter alia stated that Vineet and coaxed her (deceased) for a Maruti Car from his in-laws, which they purchased and gave to Vineet.

She further stated that after shifting to Guru

Harkishan Nagar house, Vimmi used to come to them and tell them that her in-laws, and her husband used to assemble at the said house and

Crl. A. No.360 of 2010

Page 9 of 16

threat/harass her and pressurize her to bring Rs.3.00 lakh and withdraw the criminal cases which Vimmi had lodged against them. She further stated that in the last week of November, 1999, Vimmi came to their house and told her that the previous night her parents-in-law, brother-inlaw, maternal uncle of Vineet, his aunt, Satyawati and Purender had come to their house in Guru Harkishan Nagar tortured her, and given her beatings so that she would bring Rs.3.00 lakh and withdraw the criminal cases. However, the aforesaid allegations do not find any mention in the depositions of the parents or the brother of the deceased. The aforesaid part of the deposition of this witness, to my mind, cannot be believed for the reason that it finds no corroboration from the parents and brother of the deceased. Had Vimmi made such a complaint to this witness, she would have immediately brought it to the notice of her mother-in-law and her husband. It would be difficult to accept that the aforesaid witness would not bring such a serious incident involving her sister-inlaw to the notice of the parents and brother of the aggrieved person. The aforesaid witness was examined by the Investigating Officer on 13.2.2000, i.e., six (6) days after her death, and there is no explanation from the prosecution for not examining her soon after she had died. In any case, I am not inclined to accept that the witness would not have

Crl. A. No.360 of 2010

Page 10 of 16

brought the incident to the notice of her parents and brother even after the death of Vimmi. Had she done that her parents and brother would have stated so in their statement to the SDM as well as during their deposition in the court. 12.

The following allegations against the appellant primarily emerge

from a careful analysis of the testimony of the witnesses as discussed hereinbefore: a.

The appellant demanded a car from his in-laws and they either

gave Rs.2.00 lakh in cash to him for the purpose or they purchased a car and gave it to him. b.

Seeing the expenditure incurred in the wedding of his sister-in-

law, Usha, the appellant demanded an amount equal to the expenditure incurred in the wedding of Usha and the said demand was conveyed to the in-laws through deceased Vimmi. c.

According to PW5 Radhey Shyam, the aforesaid demand of cash

equivalent to the expenditure incurred in the wedding of Usha was not only made once but repeatedly. 13.

As regards purchase of car, the case of the appellant is that it was

an old car which he had purchased through a car dealer. The said car dealer has been examined as DW7.

Crl. A. No.360 of 2010

In his deposition DW7 Satish

Page 11 of 16

Chander inter alia stated that in the year 1997, the appellant Vineet purchased a Maruti car from him through delivery receipt Ex.DW7/A for a consideration of Rs.1.25 lakh. He also stated that Vineet had paid Rs.45,000/- to Rs.50,000/- by way of a cheque and rest of the amount was financed through V.K. Mohan Leasing & Finance, Karol Bagh, a finance company which has since closed. He also stated that most probably the cheque was paid by the appellant from his own account. On the other hand, the prosecution has not given any documentary proof of either the car having been purchased by the parents of the deceased or a sum of Rs.2.00 lakh having been paid to the appellant for the purpose. The father of the deceased Shri Ram Kumar stated in his deposition that his salary in the year 2000 was Rs.15,500/- per month. He also claimed that he was earning about Rs.1.00 lakh to Rs.1.25 lakh per annum from the agricultural land he had in the village. Thus, the total income of this witness at the relevant time would not be more than about Rs.25,000/per month even if his statement in this regard is taken as wholly correct. It is difficult to accept that a sum of Rs.2.00 lakh would be available in cash with a person of such limited means in the year 2000. This was not the case of the witness that the aforesaid amount of Rs.2.00 lakh was withdrawn by him from some bank account nor has the prosecution

Crl. A. No.360 of 2010

Page 12 of 16

produced any documentary evidence of the father of the deceased having that much money with him in cash. A salaried person having limited means such as PW3 Ram Kumar Sharma would not like to keep a huge amount of Rs.2.00 lakh in the year 2000 in his house. He would rather prefer to invest the said amount either by keeping it in a bank or some other financial instrument so that money does not remain idle and he is able to get some return on it by depositing it in a bank or investing in some other financial instrument. Considering the deposition of DW7, coupled with the above-referred facts & circumstances, it would be difficult to say that the prosecution has been able to prove beyond reasonable doubt that a sum of Rs.2.00 lakh was paid to the appellant for purchasing a vehicle. As noted earlier according to one of the witnesses Smt. Meenu Sharma the car was purchased by them and given to the appellant. However, the name of the seller of the car has not been given by any of the witnesses nor has the seller been examined. In these circumstances, it would be difficult to accept that the in-laws of the appellant purchased the car and handed it over to the appellant. 14.

Coming to the alleged demand of cash, equivalent to the

expenditure incurred by the parents of the deceased on the wedding of her younger sister, Usha, it would be seen from Ex.PW3/A the statement

Crl. A. No.360 of 2010

Page 13 of 16

made by Shri Ram Kumar Sharma, father of the deceased to the SDM on 7.2.2000, that no such demand was alleged in the aforesaid statement. The aforesaid demand surfaced only in the statement of Smt. Santosh Sharma recorded by the SDM on the next day. However, none of the witnesses told the court as to how much was the expenditure incurred in the wedding of Usha or how much precisely was the money demanded by the appellant. This is not the case of the prosecution that the aforesaid demand was not in the knowledge of the father of the deceased.

Therefore, had there been any such demand, Shri Ram

Kumar Sharma would certainly have stated in his statement to the SDM recorded on 7.2.2000. Even in his deposition in the Court, Shri Ram Kumar Sharma, father of the deceased did not refer to the alleged demand of money equivalent to the expenditure incurred by him on the wedding of his younger daughter. Considering that no such allegation was made by Shri Ram Kumar Sharma to the SDM, it would not be safe to rely upon the deposition of other witnesses in this regard because primarily it is the father of the deceased who could have arranged the money alleged to have been demanded by the appellant and, therefore, he could not have been unaware of any such demand.

Crl. A. No.360 of 2010

Page 14 of 16

15.

It is an admitted case of the prosecution that the appellant

attempted to commit suicide on 9.2.2000 and a case under Section 309 of IPC was registered against him. PW8 Constable Sunder Lal has admitted this in his deposition when he stated that the appellant was in hospital because of case under Section 309 of IPC.

The aforesaid

conduct of the appellant is also an indicator of his being innocent, the inference being that finding false accusations against him in the statement of his mother-in-law and brother-in-law, he attempted to take his own life by committing suicide. 16.

A perusal of the seizure memo Ex.PW6/B would show that when

the Investigating Officer went to the spot he found amongst other articles a piece of newspaper which was burnt from corners and a saree which had been partially burnt. The case of the appellant, as spelt out in his statement under Section 313 of Cr.P.C. is that in the night intervening 6/7.2.2000, deceased Vimmi was pressurizing him to change the house by the very next day and when he expressed his inability to do so she, in a fit of anger put fire on the articles lying in the room, whereupon he left the house saying that he would prefer to live on footpath and when he returned, he found Vimmi lying on the bed and having consumed insecticide. It has also come in evidence that Vimmi

Crl. A. No.360 of 2010

Page 15 of 16

had told her parents in the night of 6.2.2000, that they would be shifting to a new house. The explanation given by the appellant, therefore, finds some support from the recovery of the burnt piece of newspaper and burnt saree from the spot and the information which the deceased had given to her parents in the night of 6.2.2000. 17.

Admittedly, the criminal case, which the deceased had got

registered was against her in-laws, and the present appellant, was in fact a witness of prosecution in that case. 18.

For the reasons stated hereinabove, the appellant, who otherwise

has spent about six years in custody is given benefit of doubt and is acquitted. The appeal stands disposed of accordingly. One copy of the order be sent to the concerned Jail Superintendent for information and necessary action. The LCR be sent back forthwith with a copy of this order.

MARCH 03, 2014 b’nesh

V.K. JAIN, J.

Crl. A. No.360 of 2010

Page 16 of 16

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1144 OF 2014 [Arising out of S.L.P. (Criminal) No. 8965/2013] Swapnil and Others

… Appellant (s) Versus

State of Madhya Pradesh

… Respondent (s)

JUDGMENT KURIAN, J.: Leave granted. 2.

The appellant is aggrieved by the order dated 02.09.2013 passed by the High Court of Madhya Pradesh Bench at Indore.

As per the impugned order, the High Court

declined to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.PC’) for quashing the proceedings and charges framed against the appellants under Section 498A, 506 Part II of the Indian Penal Code (45 of 1860) (hereinafter 1 Page 1

referred to as ‘IPC’) and Section 4 of the Dowry Prohibition Act, 1961. The appellants 2 and 3 are his father and mother respectively. The Respondent No. 2 is the wife of the first appellant. She lodged a complaint with Mahila Thana, Indore Police Station on which FIR No. 50 dated 02.05.2012 under Section 498A, 506 and 34 of IPC was registered. It was alleged in the complaint that the marriage

between

the

first

appellant

and

second

respondent was performed on 24.06.2009 and after two months of the marriage, the appellants and the sister of the first appellant started demanding dowry. It is seen from Annexure-P3-application filed by the first appellant on 14.07.2011 under Section 9 of the Hindu Marriage Act, 1955 seeking restitution of conjugal rights that the second respondent had left the matrimonial house on 23.04.2011 and thereafter she had not gone back. On 23.05.2011, a lawyer notice had also been served on the second respondent which was replied on 02.06.2011. During the pendency of the proceedings for restitution of conjugal rights, the second respondent, on 07.09.2011, lodged a complaint before Mahila Thana, Indore Police Station

2 Page 2

raising allegations against the appellants, the maternal uncle, maternal aunt and the sister of the first appellant. Paragraph 4 of the complaint –Annexure-P4 reads as follows: “4. The accused persons yesterday on 06.09.2011 having common intent collectively came to my parental house and while hurling abuses as Madarchod, Bahanchod etc. said that if you want life of your mother, father, brother and sister then you come within one month with Rs.1 lac cash balance 5 tola gold, Wagner Car which is purchased after your marriage and money for Maruti car otherwise your mother-father, sister and brother will be kidnapped and they will be killed. They gave threat to take over possession on my house and said that what wrong you have caused to us by sending copies in police in reply of our notice, you do not know us yet. When your mother, father, brother and sisters would be sent behind jail in false allegations then see govt. job of your father will be loosed and you would start begging on road and gave threat that do not dare to go in police, nobody would give evidence against us in colony because we have approach with big leaders and officers and gundas elements. If you go in police then proceeding will be done against you not against us.” 3.

Annexure-P5

is

the

Record

of

Proceedings

dated

12.12.2011 when parties were called before Mahila Police Station. The same is extracted below: “Sir, In connection with enquiry of reference application both the parties appeared in women police station and statement of both were recorded which are enclosed with enquiry. Applicant told that her

3 Page 3

husband Swapnil does not do any work/business and other members of in-laws house by putting demand of dowry cause physical and mental harassment. Let family counseling be done with husband so that domestic life may remain peaceful. Non applicant told in his statement that my domestic life could not run peacefully due to intervention of members of parental house of Kirti. Family counseling of both parties was done. There are certain family differences between both the parties hence both the parties were suggested to rehabilitate their domestic life by court proceeding. Report is submitted in your goodself.” 4.

The first appellant on 16.04.2012 withdrew the application filed under Section 9 of the Hindu Marriage Act, 1955, since

according

to

the

first

appellant

the

second

respondent was not inclined to resume cohabitation. It was thereafter, the complaint dated 02.05.2012 leading to the impugned prosecution was filed by the second respondent. She also filed a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 on 17.05.2012. It seems another application under Section 125 of Cr.PC was also filed by her. 5.

The gist of the complaint dated 02.05.2012 reads as follows: “… On 30.04.2012 they said if you do not fulfill our demand then we would kill you, thus my husband, 4 Page 4

father in law, mother in law and sister in law gave threat for life on the issue of demand of 10 tola gold, maruti car and 1 lac rupees cash in dowry and have subjected me on physical and mental harassment now I have been harassed from cruelty of members of in laws house and I do not want to enter into any compromise rather I want legal proceeding. …” 6.

The learned Judicial Magistrate First Class Magistrate, Indore framed the following charges: “I, Sarmesh Singh Judicial Magistrate First Class Indore hereby frame following charge against you Anil S/o Ramdas R/o 73 Laxmipuri Colony, Indore: 1.

You being husband of complainant Kirti subjected her to mental and physical torture and harassment from 24.06.2009 to 30.04.2012 in 73 Laxmipuri Colony Indore, making illegal demand of Rs.1,00,000/-, car and 10 tola gold as dowry and by beating her caused cruelty?

2.

You on 30.04.2012 with intention to intimidate complainant Kirti gave threat to cause her death, as such by intimidating her caused criminal intimidation?

3.

You being husband of complainant Kirit put illegal demand of Rs.1,00,000/-, car and 10 tola gold as dowry on various intervals from 24.06.2009 to 30.04.2012 from complainant Kirti and her relatives?

By doing such you have committed offence which is punishable under section 498A, 506 Part-2, IPC and section 4 of Dowry Prohibition Act, which is in my cognizance. I by this report order that you be tried in above mentioned crimes.”

5 Page 5

7.

The appellants filed Criminal Revision No. 85 of 2013 before the Sessions Court which was dismissed by Order dated 14.03.2013 by the Additional Sessions Judge, Indore. It is significant to note that even according to the learned Additional Sessions Judge “it is possible that accused Swapnil was taking care of his wife…”.

8.

If the intervening developments referred to above and the two complaints are analysed carefully, it can be seen that except for the improvement with regard to the alleged intimidation on 30.04.2012, the allegations in the earlier complaint dated 07.09.2011 are exactly the same. As a matter of fact, there was an allegation with regard to criminal intimidation in the complaint dated 07.09.2011 as well, as can be seen from the extracted portion of the complaint. However, in the complaint dated 02.05.2012, there is a grave allegation on intimidation to kill, made on 30.04.2012.

9.

The first appellant and second respondent had in fact solemnized their marriage at Arya Samaj Mandir on 16.06.2007 privately, as they were stated to be in love with each other for sometime. Thereafter only, in the 6 Page 6

presence of the family members, marriage was solemnized on 24.06.2009. 10. It has to be seen that admittedly the second respondent has been living separately since April, 2011. Thereafter, she had lodged a complaint on 07.09.2011 before the very same police station. The same was duly enquired into and it was closed stating that the dispute is actually between the families which are to be otherwise settled in legal proceedings. If there are such differences between families which are to be settled in legal proceedings, how such differences would constitute and give rise to a successful prosecution under Sections 498A or 506 IPC or under Section 4 of the Dowry Prohibition Act, 1961, is the crucial question. 11. The second respondent has been living separately since April, 2011and hence, there is no question of any beating by the appellants as alleged by her. The relationship having

got

strained

ever

since

April,

2011,

even

application for restitution of conjugal rights having been withdrawn on 16.04.2012 as the second respondent was not interested to live together, it is difficult to believe that 7 Page 7

there is still a demand for dowry on 30.04.2012 coupled with criminal intimidation. The allegations are vague and bereft of the details as to the place and the time of the incident.

We had called for the records and have gone

through the same. The materials before the learned Judicial Magistrate First Class, Indore are not sufficient to form an opinion that there is ground for presuming that the accused appellants have committed the offence under the charged Sections. The Additional Sessions Court and the

High

Court

missed

these

crucial

points

while

considering the petition filed by the appellants under Section 397 and Section 482 of the Cr.PC respectively. The veiled object behind the lame prosecution is apparently to harass the appellants. We are, hence, of the view that the impugned prosecution is wholly unfounded. Therefore, to secure the ends of justice and for preventing abuse of the process of the criminal court, the charges framed by the Judicial Magistrate First Class, Indore in Criminal Case No. 10245 of 2012 against the accused appellants are quashed.

The

accused

appellants

are

discharged.

However, we make it clear that nothing contained in this

8 Page 8

judgment shall have a bearing on any proceedings between the parties regarding their matrimonial disputes before the Family Court, since our observations are only for the purpose of this judgment. 12. The appeal is allowed as above.

………..…………………….….. …………J. (SUDHANSU JYOTI MUKHOPADHAYA)

………………….. …………………………J. (KURIAN JOSEPH) New Delhi; May 9, 2014.

9 Page 9

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1277 OF 2014 (@SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013) ARNESH KUMAR

..... APPELLANT VERSUS

STATE OF BIHAR & ANR.

.... RESPONDENTS

J U D G M E N T

Chandramauli Kr. Prasad The petitioner apprehends his arrest in a case under Section 498-A of the Indian Penal Code, 1860 (hereinafter called as IPC) and Section 4 of the Dowry Prohibition Act, 1961.

The maximum sentence

provided under Section 498-A IPC is imprisonment for a term which may extend to three years and fine whereas the maximum sentence provided under

Page 1

2

Section 4 of the Dowry Prohibition Act is two years and with fine. Petitioner

happens

to

respondent no.2 Sweta Kiran. them was solemnized on 1st

be

the

husband

of

The marriage between

July, 2007. His attempt

to secure anticipatory bail has failed and hence he has knocked the door of this Court by way of this Special Leave Petition.

Leave granted.

In sum and substance, allegation levelled by the wife against the appellant is that demand of Rupees eight lacs, a maruti car, an

air-

conditioner, television set etc. was made by her mother-in-law and father-in-law and when this fact was

brought

supported

his

another woman.

to

the

mother

appellant’s and

notice,

threatened

to

he

marry

It has been alleged that she was

Page 2

3

driven out of the matrimonial home due to nonfulfilment of the demand of dowry.

Denying preferred

these

an

allegations,

application

for

the

appellant

anticipatory

bail

which was earlier rejected by the learned Sessions Judge and thereafter by the High Court.

There is phenomenal increase in matrimonial disputes

in

marriage

is

Section

recent

years.

greatly

498-A

of

The

revered

the

IPC

in

was

institution this

of

country.

introduced

with

avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives.

The

fact

that

Section

498-A

is

a

cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are

used

as

weapons

disgruntled wives. to

get

the

rather

than

shield

by

The simplest way to harass is

husband

under this provision.

and

his

relatives

arrested

In a quite number of cases,

Page 3

4

bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested.

“Crime in India 2012

published

National

by

Crime

Statistics”

Records

Bureau,

Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011.

Nearly a quarter of those

arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net.

Its share is 6% out of the total

persons arrested under the crimes committed under Indian Penal Code.

It accounts for 4.5% of total

crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt.

The rate of charge-sheeting in cases

under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads.

As many as 3,72,706 cases are

Page 4

5

pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.

Arrest

brings

humiliation,

and cast scars forever. also the police.

curtails

freedom

Law makers know it so

There is a battle between the

law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. colonial

image

It has not come out of its

despite

six

decades

of

independence, it is largely considered as a tool of

harassment,

considered

a

oppression

friend

of

and

public.

surely The

need

not for

caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it.

Not only

this, the power of arrest is one of the lucrative sources of police corruption.

The attitude to

arrest first and then proceed with the rest is

Page 5

6

despicable.

It has become a handy tool to the

police officers who lack sensitivity or act with oblique motive. Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the power of arrest.

Police officers make arrest as

they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. believe

that

no

arrest

should

be

made

We only

because the offence is non-bailable and cognizable and therefore, do so.

lawful for the police officers to

The existence of the power to arrest is

one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons

thereof.

No

arrest

can

be

made

in

a

routine manner on a mere allegation of commission of an offence made against a person.

It would be

Page 6

7

prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached

after

some

investigation

as

to

the

genuineness of the allegation. Despite this legal position,

the

improvement. decreased.

Legislature Numbers

of

Ultimately,

the

did

not

arrest

find

any

have

not

Parliament

had

to

intervene and on the recommendation of the 177th Report of the Law Commission submitted in the year 2001, Section 41 of the Code of Criminal Procedure (for short ‘Cr.PC), in the present form came to be enacted.

It is interesting to note that such a

recommendation was made by the Law Commission in its 152nd and 154th Report submitted as back in the year

1994.

The

value

of

the

proportionality

permeates the amendment relating to arrest.

As

the offence with which we are concerned in the present appeal, provides for a maximum punishment of imprisonment which may extend to seven years and

fine,

Section

41(1)(b),

Cr.PC

which

is

relevant for the purpose reads as follows:

Page 7

8

“41. When police may arrest without warrant.-(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person – (a)x

x

x

x

x

x

(b)against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely :(i) x x x x x (ii) the police officer is satisfied that such arrest is necessary – (a) to prevent such person from committing any further offence; or (b) for proper offence; or

investigation

of

the

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured,

Page 8

9

and the police officer shall record while making such arrest, his reasons in writing: Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.

X

x

x

x

x

x

From a plain reading of the aforesaid provision, it is evident that a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested

by

the

police

officer

only

on

its

satisfaction that such person had committed the offence punishable as aforesaid.

Police officer

before arrest, in such cases has to be further satisfied

that

such

arrest

is

necessary

to

prevent such person from committing any further offence;

or

for

proper

investigation

of

the

case; or to prevent the accused from causing the

Page 9

10

evidence

of

the

offence

to

disappear;

or

tampering with such evidence in any manner; or to

prevent

such

person

from

making

any

inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Court or the police officer; or unless such accused person is arrested, his presence in the court

whenever

required

cannot

be

ensured.

These are the conclusions, which one may reach based on facts.

Law mandates the police officer

to state the facts and record the reasons in writing which led him to come to a conclusion covered

by

any

of

the

while making such arrest.

provisions

aforesaid,

Law further requires

the police officers to record the reasons in writing for not making the arrest.

In pith and

core, the police office before arrest must put a question to himself, why arrest? required?

Is it really

What purpose it will serve?

object it will achieve?

What

It is only after these

questions are addressed and one or the other

Page 10

11

conditions as enumerated above is satisfied, the power of arrest needs to be exercised.

In fine,

before arrest first the police officers should have

reason

to

believe

on

the

basis

of

information and material that the accused has committed the offence.

Apart from this, the

police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 of Cr.PC.

An

accused

arrested

without

warrant

by

the police has the constitutional right under Article 22(2) of the Constitution of India and Section

57,

Cr.PC

to

be

produced

before

the

Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey.

During the course of

investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when

it

is

authorised

by

the

Magistrate

in

Page 11

12

exercise of power under Section 167 Cr.PC.

The

power to authorise detention is a very solemn function.

It affects the liberty and freedom of

citizens and needs to be exercised with great care and caution. Our experience tells us that it

is

not

exercised

with

the

seriousness

it

deserves. In many of the cases, detention is authorised manner.

in

a

routine,

Before

a

casual

and

Magistrate

cavalier

authorises

detention under Section 167, Cr.PC, he has to be first satisfied that the arrest made is legal and

in

accordance

with

law

and

all

the

constitutional rights of the person arrested is satisfied. officer

If the arrest effected by the police

does

not

satisfy

the

requirements

of

Section 41 of the Code, Magistrate is duty bound not

to

authorise

his

release the accused.

further

detention

and

In other words, when an

accused is produced before the Magistrate,

the

police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons

Page 12

13

and

its

Magistrate

conclusions

for

in

to

turn

is

arrest be

and

the

satisfied

that

condition precedent for arrest under Section 41 Cr.PC

has

been

satisfied

and

it

is

only

thereafter that he will authorise the detention of

an

accused.

authorising

The

detention

Magistrate

will

record

satisfaction, may be in brief but

before its

own

the said

satisfaction must reflect from its order.

It

shall never be based upon the ipse dixit of the police officer, for example, in case the police officer

considers

the

arrest

necessary

to

prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement etc., the police officer

shall

furnish

to

the

Magistrate

the

facts, the reasons and materials on the basis of which

the

conclusion.

police Those

officer shall

had be

reached

perused

by

its the

Magistrate while authorising the detention and

Page 13

14

only after recording its satisfaction in writing that the Magistrate will authorise the detention of the accused.

In fine, when a suspect is

arrested and produced before a Magistrate for authorising

detention,

the

Magistrate

has

to

address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant and secondly a reasonable conclusion could at all be reached by the

police

officer

that

one

or

the

conditions stated above are attracted.

other To this

limited extent the Magistrate will make judicial scrutiny.

Another provision i.e. Section 41A Cr.PC aimed to avoid unnecessary arrest or threat of arrest looming large on accused requires to be vitalised.

Section 41A as inserted by Section

6 of the Code of Criminal Procedure (Amendment) Act, 2008(Act 5 of 2009), which is relevant in the context reads as follows:

Page 14

15

“41A. Notice of appearance before police officer.-(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice. (3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.”

Page 15

16

Aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1), Cr.PC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time.

Law obliges such an accused to

appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police office is of the opinion that the arrest is necessary.

At this stage also, the condition

precedent for arrest as envisaged under Section 41 Cr.PC has to be complied and shall be subject to

the

same

scrutiny

by

the

Magistrate

as

aforesaid. We

are

of

the

opinion

that

if

the

provisions of Section 41, Cr.PC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant

Page 16

17

are scrupulously enforced, the wrong committed by

the

police

officers

intentionally

or

unwittingly would be reversed and the number of cases

which

come

to

the

Court

for

grant

of

anticipatory bail will substantially reduce.

We

would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Cr.PC for effecting arrest be discouraged and discontinued. Our endeavour in this judgment is to ensure that

police

officers

do

not

arrest

accused

unnecessarily and Magistrate do not authorise detention casually and mechanically.

In order

to ensure what we have observed above, we give the following direction: (1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is

registered

but

to

satisfy

themselves

about the necessity for arrest under the

Page 17

18

parameters

laid

down

above

flowing

from

Section 41, Cr.PC; (2) All

police

officers

be

provided

with

a

check list containing specified sub-clauses under Section 41(1)(b)(ii); (3) The police officer shall forward the check list duly filed and furnish the reasons and materials while

which

necessitated

the

forwarding/producing

before

the

Magistrate

the for

arrest, accused further

detention; (4) The Magistrate while authorising detention of

the

accused

shall

peruse

the

report

furnished by the police officer in terms aforesaid

and

only

after

recording

its

satisfaction, the Magistrate will authorise detention; (5) The decision not to arrest an accused, be forwarded

to

the

Magistrate

within

two

weeks from the date of the institution of

Page 18

19

the

case

with

a

copy

to

the

Magistrate

which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing; (6) Notice of appearance in terms of Section 41A

of

within

Cr.PC two

institution

be

served

weeks of

the

on

the

from

the

case,

which

accused date may

of be

extended by the Superintendent of Police of the District for the reasons to be recorded in writing; (7) Failure

to

aforesaid police

comply

shall

officers

departmental

with

apart

the

from

concerned

action,

they

directions

rendering

the

liable

for

shall

also

be

liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction. (8) Authorising reasons

as

detention aforesaid

without by

the

recording judicial

Page 19

20

Magistrate

concerned

shall

be

liable

for

departmental action by the appropriate High Court.

We

hasten

to

add

that

the

directions

aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of

the

Dowry

Prohibition

Act,

the

case

in

hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

We direct that a copy of this judgment be forwarded to the Chief Secretaries as also the Director Generals of Police of all the State Governments and the Union Territories and the Registrar General of all the High Courts for onward

transmission

and

ensuring

its

compliance.

Page 20

21

By order dated 31st of October, 2013, this Court

had

granted

provisional

bail

to

the

appellant on certain conditions. We make this order absolute.

In

the

result,

we

allow

this

appeal,

making our aforesaid order dated 31st October, 2013 absolute; with the directions aforesaid.

………………………………………………………………J (CHANDRAMAULI KR. PRASAD)

………………………………………………………………J (PINAKI CHANDRA GHOSE)

NEW DELHI, July 2, 2014.

Page 21

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.UBAID THURSDAY, THE 3RD DAY OF JULY 2014/12TH ASHADHA, 1936 Crl.Rev.Pet.No. 1515 of 2013 () -------------------------------AGAINST THE ORDER IN Crl.Rev.Pet 2371/2012 of HIGH COURT OF KERALA REVISION PETITIONER(S)/ACCUSED 2-6: ---------------------------------------------1. SUDHEESH, AGED 23 YEARS, S/O.J.RAMACHANDRAN, 'POURNAMI', PAZHAKUTTY P.O. NEDUMANGADU, THIRUVANANTHAPURAM. 2. SUDHA KUMARI AGED 45 YEARS W/O.RAMACHANDRA, 'POURNAMI', PAZHAKUTTY P.O. NEDUMANGADU, THIRUVANANTHAPURAM. 3. RAMACHANDRAN J. AGED 53 YEARS 'POURNAMI', PAZHAKUTTY P.O., NEDUMANGADU THIRUVANANTHAPURAM. 4. SANTHAMMA AGED 79 YEARS 'POURNAMI', PAZHAKUTTY P.O., NEDUMANGADU THIRUVANANTHAPURAM. 5. ANISH AGED 21 YEARS S/O.RAMACHANDRA, 'POURNAMI', PAZHAKUTTY P.O. NEDUMANGADU, THIRUVANANTHAPURAM. BY ADV. SMT.MARY BENJEMIN RESPONDENTS/COMPLAINANTS: ------------------------------------1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. SARITHA SARITHA MANDIRAM, MUTTAPPALAM P.O. CHEMMARUTHY VILLAGE, VARKALA THIRUVANANTHAPURAM-695145. R2 BY ADV. SRI.C.R.SIVAKUMAR R1 BY PUBLIC PROSECUTOR SMT.REMA.R. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

Crl.Rev.Pet.No. 1515 of 2013 APPENDIX PETITIONERS EXHIBITS: ANNEXURE-I: TRUE COPY OF THE PETITION DATED 28.6.2009 SUBMITTED BEFORE THE SUB INSPECTOR OF POLICE, VARKARA POLICE STATION ANNEXURE – II: TRUE COPY OF THE PETITION IN CMP 4381 OF 2009 OF THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, VARKALA ANNEXURE – II: TRUE COPY OF THE COMPLAINT DATED 29.07.2009 IN C.C.656 OF 2009 OF THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, VARKALA. ANNEXURE – IV: TRUE COPY OF THE DISCHARGE PETITION FILED BY THE PETITIONERS 2 TGO 5 IN C.C. 656/2009 OF THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLAS-I, VARKALA ANNEXURE V: TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONERS 2 TO 5 IN C.C 656/2009 OF THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, VARKALA ANNEXURE VI: TRUE COPY OF THE ORDER DATED 2ND DAY OF NOVEMBER 2012 DISMISSING DISCHARGE PETITION FILED UNDER SECTION 245 (1) CR.P.C. IN C.M.P. 6037 (A)/2012 IN C.C 656/2009 OF THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, VARKALA. ANNEXURE VII: TRUE COPY OF CRIMINAL M.C NO.1154 OF 2009 FILED BEFORE THE SESSIONS COURT, THIRUVANANTHAPURAM. ANNEXURE – VIII: 2009

TRUE COPY OF THE ORDER IN CRIMINAL M.C NO.1154 OF

ANNEXURE – IX: TRUE COPY OF THE DISCHARGE PETITION FILED BY THE 1ST PETITIONER IN C.C 656/2009 OF THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, VARKALA. ANNEXURE X: TRUE COPY OF THE ORDER DATED 27.11.2012 DISMISSING DISCHARGE PETITION FILED UNDER SECTION 245 CR.P.C. IN C.M.P. NO.6457 (A)/2012 IN C.C 656/2009 OF THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS, VARKALA ANNEXURE XI: TRUE COPY OF THE MEDICAL RECORD ISSUED BY THE MENTYAL HEALTH CENTRE, THIRUVANANTHAPURAM ANNEXURE XII: TRUE COPY OF THE REQUISITION FOR RADIOISOTOPE INVESTIGATIONS ISSUED BY THE REGIONAL CANCER CENTRE, THIRUVANANTHAPURAM. ANNEXURE XIII: TRUE COPY OF THE DISCHARGE CARD ISSUED IN THE NAME OF THE 4TH PETITIONER

Crl.Rev.Pet.No. 1515 of 2013

ANNEXURE XIV: TRUE COPY OF THE VOTER'S IDENTITY CARD ISSUED IN THE NAME OF THE 4TH PETITIONER ANNEXURE XV: TRUE COPY OF THE COMMON JUDGMENT OF HIGH COURT DATED 18.3.2013 IN CRIMINAL REVISION PETITION NO.2371 OF 2012, AND CRIMINAL REVISION PETITION NO.2435 OF 2012 ANNEXURE XVI: CERTIFIED COPY OF ORDER DATED 31.5.2013 IN C.M.P. NOS.6037(a) & 6457/2013 OF THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, VARKALA /TRUE COPY/ P.S TO JUDGE

P.UBAID, J. ~~~~~~~~~~ Crl.R.P. No.1515 of 2013 ~~~~~~~~~~~ Dated this the 3rd July, 2014 ORDER

The revision petitioners herein are the five accused in C.C No.656 of 2009 of the Judicial First Class Magistrate-I, Varkala, wherein, they are being prosecuted under Section 498(A) of the Indian Penal Code. The complainant in the case was married by the 1st revision petitioner herein on 18.1.2009, but the matrimony did not last long. On 29.7.2009, the wife filed a complaint before the learned Magistrate, alleging that she had been mentally and physically ill-treated by her husband and the in-laws. The 1st petitioner herein is the husband, and the petitioners 2 and 3 are the parents-in-law.

The 4th petitioner is the

grand-mother of the 1st petitioner, and the 5th petitioner is the brother of the 1st petitioner.

All the inmates of the

matrimonial home were arraigned as accused in the complaint. Anyway, cognizance was taken after necessary enquiry, and summons was ordered to the accused. Before commencement of pre-charge evidence under Section 244

Crl.R.P. No.1515 of 2013

2

of Cr.P.C, the petitioners filed application before the trial court for discharge under Section 245 of Cr.P.C. C.M.P.6037 (A) of 2012 was filed by the accused Nos.2 to 5 and C.M.P. No.6457 of 2013 was filed by all the five accused. 2.

On hearing both sides, the learned Magistrate

found that order of discharge cannot be passed. The learned Magistrate found some materials in the

complaint, prima

facie justifying the allegations, and so decided that an order of discharge before recording pre-charge evidence cannot be made.

Accordingly,

the two applications were

dismissed by order dated 31.5.22013.

The said order is

under challenge in this revision petition. 3.

On hearing both sides and on a perusal of the

case records including the complaint filed by the 1st petitioner's wife in the court below, I find that the question of discharge can be decided by the court below under Section 245 (1) of Cr.P.C, after pre-charge evidence is recorded under Section 244 of Cr.P.C,

Of course, the de

facto complainant has some grievance, and she has some genuine complaint against her husband, but whether her act

Crl.R.P. No.1515 of 2013

3

in arraigning all the in-mates of the matrimonial home as accused in the complaint is improper and illegal, or whether she has genuine complaint against the in-laws, is a matter to be looked into by the Court after recording pre-charge evidence, and while proceeding to take decision in the matter of discharge under Section 245 (1) of Cr.P.C. 4.

On a perusal of the complaint, I could see some

allegations against the in-laws also but, the Court will have to

examine the whole materials including the

evidence

adduced under Section 244 of Cr.P.C to find whether the complainant's complaint in fact contains definite allegations of mental and physical harassment by a course of cruel conduct. The learned Magistrate will have to find whether the in-laws were unnecessarily dragged to Court and arraigned as accused for some sort of satisfaction. If definite and satisfactory materials are not there against the in-laws, the question of discharge under Section 245 (1) can be thought of by the trial court. However, allegations are there against the husband,

and it is submitted that other

proceedings are also pending, in connection with the

Crl.R.P. No.1515 of 2013

matrimonial dispute.

4

The trial court will have to bear-in-

mind the unhealthy practice these days to arraign all the inlaws or all the inmates of the matrimonial home when the aggrieved wife proceeds to file complaint against her husband. Of course, let proper and judicious decision be taken by the trial court when moved for discharge under Section 245 (1) of Cr.P.C.

As rightly held by the trial court,

discharge under Section 245 (2) of Cr.P.C, before recording pre-charge evidence under Section 244 of Cr.P.C cannot be considered, when some materials are there. Whether those materials are sufficient to frame charge, can be decided while proceeding under Section 245 (1) of Cr.P.C. Thus, I find that this revision petition can be closed without prejudice to the right of the revision petitioners to make application under Section 245 (1) of Cr.P.C, after pre-charge evidence is recorded by the trial court under Section 244 of Cr.P.C. In the result, this revision petition is closed without prejudice to the right of the revision petitioners to make proper application under Section 245 (1) of Cr.P.C, after pre-

Crl.R.P. No.1515 of 2013

5

charge evidence is recorded by the trial court under Section 244 of Cr.P.C.

ma

Sd/P.UBAID JUDGE /True copy/ P.S to Judge

Yogendra Yadav & Ors vs State Of Jharkhand & Anr on 21 July, 2014

Supreme Court of India Supreme Court of India Yogendra Yadav & Ors vs State Of Jharkhand & Anr on 21 July, 2014 Bench: Ranjana Prakash Desai, N.V. Ramana NON-REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1205 OF 2014 Yogendra Yadav & Ors. Ã¢â ¬Â¦ Appellants Vs. The State of Jharkhand & Anr. Ã¢â ¬Â¦ Respondents JUDGMENT (SMT.) RANJANA PRAKASH DESAI, J. 1. The appellants are original Accused Nos.1 to 3 respectively in P.S. Meharma Case No.155 of 2004 registered under Sections 341, 323, 324, 504 and 307 read with Section 34 of the Indian Penal Code (for short, Ã¢â ¬Ë the IPCÃ¢â ¬â ¢). The FIR was lodged on 23/09/1994 by complainant Anil Mandal alleging that the appellants assaulted him and his men on 22/09/2004. On the same day the appellants also filed FIR in respect of the same incident dated 22/09/2004 alleging that complainant Anil Mandal, Baldev Mandal and others assaulted them. This FIR was registered at P.S. Meharma being Case No.156 of 2004 under Sections 147, 148, 149, 448, 341, 323 and 380 of the IPC. 2. In both the cases, after investigation, charge-sheet was submitted. While the cases were going on before the 2nd Additional Sessions Judge, Godda, both the parties agreed to compromise the cases. A Panchayat was held where with the intervention of the well-wishers a compromise was arrived at. A compromise petition dated 16/11/2011 was signed by both the parties and it was filed in the Court of 2nd Additional Sessions Judge, Godda. An application was filed under Section 231(2) read with Section 311 of the Code of Criminal Procedure, 1973 (for short, Ã¢â ¬Ë the CodeÃ¢â ¬â ¢) being S.C. No. 9/05 for recalling PWs 1 to 6 for further cross-examination on the point of compromise. 3. Learned Additional Sessions Judge by his order dated 16/11/2011 disposed of the said application. Learned Additional Sessions Judge observed that compromise petition was signed by the informant and the injured, their signatures were identified by the lawyers and, therefore, the compromise was genuine. He, however, observed that offences under Sections 324, 341, 323 of the IPC are compoundable with the permission of the court and offences under Sections 326, 307 read with Section 34 of the IPC are non-compoundable. He, therefore, accepted the application in respect of offences under Sections 323, 324 and 341 of the IPC. The said offences were compounded and the accused were acquitted of the same. Prayer for compounding of offences under Sections 326, 307 read with Section 34 of the IPC was rejected. Learned Additional Sessions Judge rejected the application for recalling of witnesses. He directed that the case should proceed against the accused for offences under Sections 326, 307 read with Section 34 of the IPC. This order was challenged by the appellants in the High Court of Jharkhand. By the impugned order the High Court dismissed the challenge, hence, this appeal.

Indian Kanoon - http://indiankanoon.org/doc/16923800/

1


4. Now, the question before this Court is whether this Court can compound the offences under Sections 326 and 307 of the IPC which are non- compoundable. Needless to say that offences which are non-compoundable cannot be compounded by the court. Courts draw the power of compounding offences from Section 320 of the Code. The said provision has to be strictly followed (Gian Singh v. State of Punjab[1]). However, in a given case, the High Court can quash a criminal proceeding in exercise of its power under Section 482 of the Code having regard to the fact that the parties have amicably settled their disputes and the victim has no objection, even though the offences are non-compoundable. In which cases the High Court can exercise its discretion to quash the proceedings will depend on facts and circumstances of each case. Offences which involve moral turpitude, grave offences like rape, murder etc. cannot be effaced by quashing the proceedings because that will have harmful effect on the society. Such offences cannot be said to be restricted to two individuals or two groups. If such offences are quashed, it may send wrong signal to the society. However, when the High Court is convinced that the offences are entirely personal in nature and, therefore, do not affect public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, the prosecution becomes a lame prosecution. Pursuing such a lame prosecution would be waste of time and energy. That will also unsettle the compromise and obstruct restoration of peace. 5. In Gian Singh this Court has observed that where the High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. Needless to say that the above observations are applicable to this Court also. 6. Learned counsel for the parties have requested this Court that the impugned order be set aside as the High Court has not noticed the correct position in law in regard to quashing of criminal proceedings when there is a compromise. Affidavit has been filed in this Court by complainant-Anil Mandal, who is respondent No. 2 herein. In the affidavit he has stated that a compromise petition has been filed in the lower court. It is further stated that he and the appellants are neighbours, that there is harmonious relationship between the two sides and that they are living peacefully. He has further stated that he does not want to contest the present appeal and he has no grievance against the appellants. Learned counsel for the parties have confirmed that the disputes between the parties are settled; that parties are abiding by the compromise deed and living peacefully. They have urged that in the circumstances pending proceedings be quashed. State of Jharkhand has further filed an affidavit opposing the compromise. The affidavit does not persuade us to reject the prayer made by the appellant and the second respondent for quashing of the proceedings. 7. In view of the compromise and in view of the legal position which we have discussed hereinabove, we set aside the impugned order dated 4/7/2012 and quash the proceedings in S.C.No.9/05 pending on the file of 2nd Additional Sessions Judge, Godda. The appeal is disposed of.

Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬ (Ranjana Prakash Desai)

Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬ (N.V. Ramana) New Delhi; July 21, 2014. Indian Kanoon - http://indiankanoon.org/doc/16923800/

2


NON-REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1498 OF 2014 [Arising out of Special Leave Petition (Crl.) No.8795 of 2012] Manohar Singh Ã¢â ¬Â¦ Appellant Vs. State of Madhya Pradesh & Anr. Ã¢â ¬Â¦ Respondents JUDGMENT (SMT.) RANJANA PRAKASH DESAI, J. 1. Leave granted. 2. The appellant is original Accused No. 3. He was tried along with his father Hukum Singh Ã¢â ¬â original Accused No. 1 and his mother Prem Bai Ã¢â ¬â original Accused No. 2 by the Judicial Magistrate, Dewas (Madhya Pradesh) in Crime Case No. 1680/2009 for offences punishable under Section 498A of the Indian Penal Code (for short, Ã¢â ¬Ë the IPCÃ¢â ¬â ¢) and Section 4 of the Dowry Prohibition Act, 1961 (for short, Ã¢â ¬Ë the Dowry ActÃ¢â ¬â ¢). By judgment and order dated 29/9/2010 learned Magistrate acquitted the appellant and the other two accused. Being aggrieved by this order the State of Madhya Pradesh preferred appeal in the Sessions Court, Dewas being Criminal Appeal No.12/2011. The Sessions Court set aside the order of acquittal and convicted the appellant and two others under Section 498-A of the IPC and sentenced them to undergo two years rigorous imprisonment each and to pay a fine of Rs.500/- each. For offence under Section 4 of the Dowry Act each of them was sentenced to rigorous imprisonment for two years and to pay a fine of Rs.500/- each, in default, to undergo simple imprisonment for two months each. 3. Being aggrieved by the said judgment and order, the accused carried criminal revision to the High Court of Madhya Pradesh. The High Court by the impugned order set aside the conviction and sentence of original Accused Nos. 1 and 2 i.e. the father and mother of the appellant. The conviction of the appellant was, however, confirmed. His sentence was reduced to six months and fine of Rs.500/- on each count. Both the substantive sentences were to run concurrently. Being aggrieved by this judgment the appellant filed the present appeal. 4. On 21/1/2013 the appellant sought permission to implead the complainant i.e. his wife Reena as respondent No. 2. A statement was made that the appellant was willing to pay monetary compensation to his wife in lieu of substantive sentence of imprisonment. Permission to implead the complainant-wife Reena was granted. The appellant was directed to deposit Rs.25,000/- as litigation expenses. Respondent No. 2 was permitted to withdraw the said amount unconditionally. Subject to deposit, notice was issued to respondent No. 2 to consider whether the appellant can be asked to pay some suitable monetary compensation to respondent No. 2 in lieu of substantive sentence of imprisonment. On 24/3/2014 counsel for the appellant made a statement that the matter is likely to be settled. We directed respondent No. 2 Ã¢â ¬â wife to remain present in the Court on 28/3/2014. Accordingly on 28/03/2014 she remained present in the Court. She stated that if the appellant pays her Rs.2,50,000/- (Rupees two lacs fifty thousand only) as compensation, she is ready to settle the Indian Kanoon - http://indiankanoon.org/doc/16923800/

3


matter. This Court, therefore, directed the appellant to bring a demand draft of Rs.2,50,000/- in the name of Reena (respondent No. 2). This Court noted that the said demand draft can be given to her in case after hearing the parties and considering the legal position, this Court permits settlement at this stage. 5. We have heard learned counsel for the appellant, learned counsel for the State of Madhya Pradesh and learned counsel for respondent No. 2. Learned counsel for the appellant and learned counsel for respondent No. 2 have requested the Court to show leniency in view of the settlement. Counsel for the State of Madhya Pradesh has opposed this prayer. 6. Section 498-A of the IPC is non-compoundable. Section 4 of the Dowry Act is also non-compoundable. It is not necessary to state that non- compoundable offences cannot be compounded by a Court. While considering the request for compounding of offences the Court has to strictly follow the mandate of Section 320 of the Code. It is, therefore, not possible to permit compounding of offences under Section 498-A of the IPC and Section 4 of the Dowry Act. However, if there is a genuine compromise between husband and wife, criminal complaints arising out of matrimonial discord can be quashed, even if the offences alleged therein are non-compoundable, because such offences are personal in nature and do not have repercussions on the society unlike heinous offences like murder, rape etc. (See Gian Singh v. State of Punjab[2]). If the High Court forms an opinion that it is necessary to quash the proceedings to prevent abuse of the process of any court or to secure ends of justice, the High Court can do so. The inherent power of the High Court under Section 482 of the Code is not inhibited by Section 320 of the Code. Needless to say that this Court can also follow such a course. 7. In Narinder Singh v. State of Punjab[3], this Court was dealing with a situation where the accused was charged for offence punishable under Section 307 of the IPC, which is a non-compoundable offence. The parties arrived at a compromise at the stage of recording of evidence. A petition was filed under Section 482 of the Code for quashing of the proceedings in view of the compromise. The High Court refused to quash the proceedings. This Court set aside the High CourtÃ¢â ¬â ¢s order and quashed the proceedings in view of the compromise. While doing so, this Court laid down certain guidelines. In Guideline No.(VII), this Court considered a situation where a conviction is recorded by the trial court for offence punishable under Section 307 of the IPC and the matter is at appellate stage. This Court observed that in such cases, a mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. This Court observed that in such cases where charge is proved under Section 307 of the IPC and conviction is already recorded of a heinous crime, there was no question of sparing a convict found guilty of such a crime. The observation of this Court must be read obviously in the context of a non-compoundable offence under Section 307 of the IPC. It is trite that a non-compoundable offence cannot be compounded at any stage (See Gyan Singh v. State of Punjab[4]). However, a compoundable offence can be compounded in view of a compromise, if the Court finds it proper to do so even after conviction if the appeal is pending. 8. In this case, the appellant is convicted under Section 498-A of the IPC and sentenced to undergo six months imprisonment. He is convicted under Section 4 of the Dowry Act and sentenced to undergo six months imprisonment. Substantive sentences are to run concurrently. Even though the appellant and respondent No. 2-wife have arrived at a compromise, the order of conviction cannot be quashed on that ground because the offences involved are non-compoundable. However, in such a situation if the court feels that the parties have a real desire to bury the hatchet in the interest of peace, it can reduce the sentence of the accused to the sentence already undergone. Section 498-A of the IPC does not prescribe any minimum punishment. Section 4 of the Dowry Act prescribes minimum punishment of six months but proviso thereto states that the Court may, for adequate or special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which may be less than six months. Therefore, sentence of the appellant can be reduced to sentence already undergone by him.


4


9. Now the question is whether a case for reduction of sentence is made out particularly when the appellant has undergone only seven days sentence out of six months sentence imposed on him. We see no reason why in this case we should not reduce the appellantÃ¢â ¬â ¢s sentence to sentence already undergone by him. There can be no doubt about the genuine nature of compromise between the appellant and respondent No.2-wife. The appellant has offered to pay a sum of Rs.2,50,000/- to respondent No.2-wife as compensation. A demand draft drawn in the name of respondent No.2 is brought to the Court. As directed by us even litigation costs of Rs.25,000/- has been deposited by the appellant in the Court. Respondent No.2-wife has appeared in this Court on more than one occasion and requested this Court to take compromise into consideration and pass appropriate orders. Learned counsel for the parties have requested us to take a kindly view of the matter. The affidavit filed by the State of Madhya Pradesh opposing the prayer of the parties does not impress us. 10. We must also note that the trial court had acquitted the appellant. Though the Sessions Court reversed the order and convicted the appellant for two years, the High Court reduced the sentence to six months. The appellant and respondent No.2 were married in 2007. About seven years have gone by. Considering all these circumstances, in the interest of peace and amity, we are of the opinion that the appellantÃ¢â ¬â ¢s sentence must be reduced to sentence already undergone by him. 11. In the circumstances, the appeal is partly allowed. The conviction of the appellant under Section 498-A of the IPC and under Section 4 of the Dowry Act is maintained but the sentence awarded to the appellant is reduced to sentence already undergone by him, subject to the condition that the appellant pays a sum of Rs.2,50,000/- (Rupees two lacs fifty thousand only) to respondent No.2-wife as compensation. Impugned order stands modified to the above extent. 12. We must note that a Demand Draft in the sum of Rs.2,50,000/- drawn in the name of respondent No.2 Reena has been handed over to her counsel by learned counsel for the appellant on 18/7/2014. 13. In view of this, bail bond of the appellant, if any, stands discharged. Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦..J. (Ranjana Prakash Desai) Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦J. (N.V. Ramana) New Delhi; July 21, 2014. NON-REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1169 OF 2014 SATHIYAMOORTHY AND ORS. Ã¢â ¬Â¦Appellants Versus Indian Kanoon - http://indiankanoon.org/doc/16923800/

5


STATE REPRESENTED BY THE INSPECTOR OF POLICE, MADURAI Ã¢â ¬Â¦Respondent JUDGMENT (SMT.) RANJANA PRAKASH DESAI, J. 1. The appellants who are original Accused Nos. 1 to 6 respectively were tried in the court of Additional District and Sessions Judge, Madurai in Sessions Case No.444 of 2005 for various offences under the Indian Penal Code (for short, Ã¢â ¬Ë the IPCÃ¢â ¬â ¢) on the allegation that on 11/11/2004 at about 8.00 p.m. when complainant Ayyanar and his son Murugesan were standing at a common place all the accused came there and formed an unlawful assembly with deadly weapons. Accused No. 2 unlawfully restrained Murugesan. Accused No. 1 attacked complainant-Ayyanar with an iron rod. He also attacked Murugesan with an aruval. Complainant Ayyanar lodged the FIR. 2. After completion of investigation, the accused were sent up for trial. At the trial the prosecution examined 16 witnesses. The accused denied the prosecution case. Learned Additional District and Sessions Judge found Accused Nos. 1 to 6 guilty under Section 148 of the IPC. He sentenced each of them to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/- each, in default, to undergo two months rigorous imprisonment. Accused No. 1 was found guilty under Section 325 of the IPC and was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for three months. Accused No. 2 was found guilty under Section 341 of the IPC and was sentenced to undergo three months rigorous imprisonment and to pay a fine of Rs.200/-, in default, to undergo four weeks rigorous imprisonment. Accused No. 2 was also found guilty under Section 325 read with Section 149 of the IPC and was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for six months. Accused Nos. 3 to 6 were found guilty under Section 325 read with Section 149 of the IPC. Each of them was sentenced to rigorous imprisonment for three years and to pay a fine of Rs.1,000/- each, in default, to undergo rigorous imprisonment for six months. Substantive sentences were to run concurrently. 3. Being aggrieved by the said conviction and sentence the appellants- accused preferred an appeal to the High Court. By the impugned order the High Court partly allowed the appeal. The order of conviction passed by the trial court was confirmed. However, the sentence imposed under Section 325 of the IPC on Accused No. 1, sentence imposed under Section 325 read with Section 149 of the IPC on Accused No. 2 and sentence imposed under Section 325 read with Section 149 of the IPC on Accused Nos. 3 to 6 was reduced to two years rigorous imprisonment instead of three years rigorous imprisonment. Rest of the order of the trial court was confirmed. Being aggrieved by the judgment and order, the appellants-accused have filed the present appeal. 4. During the pendency of the appeal on 25/04/2014 victim-Murugesan remained present in this Court. He had filed an application for impleadment which was granted. He stated that he would like to compound the offences. That statement was recorded and the matter was adjourned to consider the prayer. An application has been filed by the appellants praying that offences may be permitted to be compounded. It is stated in the application that victim Murugesan and the accused are cousins and they have decided to settle the disputes amicably. It is further stated that pursuant to this decision the accused have paid a reasonable amount to victim Murugesan as per the decision of family elders and they have entered into an amicable settlement in their village much before the accused surrendered as per the orders of this Court. A copy of the statement of victim Murugesan dated 30/9/2012 stating that he has entered into a compromise with the accused is annexed to the application. 5. We have heard learned counsel for the appellants-accused, Mr. Luthra, learned Additional Solicitor General (AC) and learned counsel for the State of Tamil Nadu. They confirmed that parties have entered into a Indian Kanoon - http://indiankanoon.org/doc/16923800/

6


compromise. They submitted that in view of the settlement, this Court may compound the offences as that will accord a quietus to all disputes between the parties. Counsel submitted that the accused and the complainant are cousins. After the compromise they have been staying peacefully in the village. It is in the interest of both sides to bury the hatchet and lead a peaceful life. 6. Offences under Sections 341 and 325 are compoundable. In view of the settlement they can be permitted to be compounded. However, offences under Sections 148 and 149 of the IPC are not compoundable. Hence, permission to compound them cannot be granted. However, since the accused and the victim have entered into a compromise, we feel that it would be in the interest of both sides to reduce the sentence awarded to the accused under Sections 325 and 341 of the IPC to the sentence already undergone. 7. In Ram Lal and anr. v. State of J & K[5] the accused were convicted for offence under Section 326 of the IPC, which is non- compoundable. Looking to the fact that the parties had arrived at a settlement and victim had no grievance, this Court reduced the sentence for the offence under Section 326 to sentence already undergone by the appellants-accused. We are inclined to follow similar course. 8. In the result, the appeal is partly allowed. The offences under Sections 341 and 325 of the IPC, for which the appellants are convicted, are permitted to be compounded because they are compoundable. The appellants are acquitted of the said offences. The appellants are stated to have undergone more than six months imprisonment. So far as offences under Sections 148 and 149 of the IPC are concerned, the conviction of the appellants for the said offences is reduced to the sentence already undergone by them subject to the appellants paying Rs.30,000/- as compensation to victim-Murugesan. Compensation be paid within three months from the date of this judgment. 9. This Court has already released the appellants on bail. In view of this order the bail bonds of the appellants are discharged subject to payment of compensation of Rs.30,000/- as directed by us. If compensation is not paid consequences will follow. Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦J. (Ranjana Prakash Desai) Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦Ã¢â ¬Â¦J. (N.V. Ramana) New Delhi; July 21, 2014. ----------------------[1] (2012) 10 SCC 303 [2] (2012) 10 SCC 303 [3] JT 2014 (4) SC 573 [4] (2012) 10 SCC 303 [5] (1999) 2 SCC 213 Indian Kanoon - http://indiankanoon.org/doc/16923800/

7


----------------------24


8

wp312.14.sxw

rt

1

C ou

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 312 OF 2014 Vinod Rajkrishan Kaushik & ors. Versus

ig h

The State of Maharashtra.

... Petitioners.

... Respondents.

Mr. A.K. Padhy i/b. A.K. Padhy & Co. advocate for petitioners.

ba y

H

Mr. S.R. Shinde, APP for State. CORAM : SMT.SADHANA S. JADHAV,J DATE : JULY 25, 2014

P.C.:

om

1

Heard the learned Counsel for the Petitioners and the learned

B

APP for State.

2

Rule. Rule made returnable forthwith with the consent of the

parties.

3

The Petitioner herein challenges correctness and validity of the

Order dated 16/11/2011 passed by the 19 th Joint Judicial Magistrate First Class, Pune thereby rejecting the application below Exh. 26 filed ::: Downloaded on - 09/08/2014 16:10:45 :::

wp312.14.sxw

rt

2

C ou

by the present petitioners seeking discharge as well as the order dated 30th November, 2013 passed in Criminal Revision Application No. 169 of 2012 passed by the Additional Sessions Judge, Pune.

Such of the facts necessary for the decision of this Writ Petition

ig h

4

are as follows :

The Petitioner No. 3 herein who happens to be the son of

H

Petitioner Nos. 1 and 2 got married to the complainant Madhvika on 26/1/2008. The Petitioner No. 3 as well as his wife were working as

ba y

Software Engineers at Pune.

On 17th June, 2008 an occurrence report was filed at

om

5

Chaturshrungi Police Station, Pune by the wife of the petitioner No. 3

B

alleging therein that there was an altercation between her and Petitioner No. 3. The Petitioner No. 3 has assaulted the first informant due to which she sustained injuries on her face, back and hands. The informant had telephonically informed her father about the assault. At the request of her father, her friend Monika Agnihotri had visited her house. The Petitioner No. 3 had not allowed her friend Monika Agnihotri to enter inside their flat and therefore, she

::: Downloaded on - 09/08/2014 16:10:45 :::

wp312.14.sxw

rt

3

C ou

was constrained to leave from door step itself. On 17/6/2008 uncle and brother of the informant came to Pune and tried to pacify the

couple. They had also contacted with the Petitioner Nos. 1 and 2. It is alleged that at that time, the petitioners had insisted upon the

ig h

relatives to convince the informant to avail loan and give the said amount to them. The efforts to convince the informant had failed and thereafter, she had lodged the report at Chaturshrungi Police

H

Station. Since the offence alleged appeared to be in the nature of

ba y

noncognizable offence, the police had recorded occurrence report.

6

After reaching Ujjain the first informant lodged a detailed first

om

information report as contemplated under Section 154 of the Code of Criminal Procedure, 1973 on 18th June, 2008 wherein she had

B

narrated the same incident. Offence was registered against the accused persons and the informant was sent for medical examination. The injury certificate indicates that there were bruises on her left eye, right arm, left scapular area and contusion over left thigh. Since the offence had taken place within the jurisdiction of Pune, Ujjain Police have transferred the case for further investigation to Chaturshrungi Police Station. On receipt of the first information report, Crime No.

::: Downloaded on - 09/08/2014 16:10:45 :::

wp312.14.sxw

rt

4

C ou

297 of 2008 is registered against the present petitioners for offence punishable under Section 498A, 506, 406 and 323 read with Section 34 of the Indian Penal Code and under Section 3 and 4 Dowry

7

ig h

Prohibition Act on 4/7/2008.

The investigation was set in motion. Chargesheet was filed for

the alleged offence. It had transpired in the course of the

H

investigation that the valuables and other articles belonging to the first informant were in the custody of the accused persons and hence,

ba y

Section 406 of the Indian Penal Code was added.

The Petitioners then filed application before the Judicial

om

8

Magistrate First Class, Pune under Section 239 of the Code of

B

Criminal Procedure, 1973. The learned Magistrate had considered the papers of investigation and the submissions advanced across the bar and had rejected the said application. According to the learned Magistrate, the prosecution ought to be given an opportunity to adduce evidence as prima facie case was made out. The learned Magistrate had also rightly considered that in the eventuality that the accused persons are discharged at prima face stage, it would amount

::: Downloaded on - 09/08/2014 16:10:45 :::

wp312.14.sxw

rt

5

C ou

to deciding the matter without allowing the prosecution to adduce evidence.

9

Being aggrieved by the said order the Petitioners herein had

ig h

filed Criminal Revision Application No. 169 of 2012. The learned Sessions Court had perused the compilation of the chargesheet which included the injury certificate of the first informant. The Sessions

H

Court had also taken into consideration mandate engrafted under Section 239 of the Code which contemplated that only upon arriving

ba y

at a conclusion that the chargesheet against the accused is groundless, only then the accused are entitled to be discharged.

om

Upon perusal of the chargesheet, the Sessions Court had formed an opinion that although the occurrence report dated 17 th June, 2008

B

does not depict the entire facts and allegations, it definitely reflects that the Petitioner No. 3 had assaulted the informant by hands in the intervening night of 15th June, 2008 and 16th June, 2008. It had also arrived at a conclusion that the statements of the witnesses corroborated the contents of the FIR. The statement of Monika Agnihotri revealed that she had visited the house of the informant and was restrained by the Petitioner No. 3 from meeting the

::: Downloaded on - 09/08/2014 16:10:45 :::

wp312.14.sxw

rt

6

C ou

informant. The Sessions Court had therefore upheld the order passed by the Magistrate and had refused to interfere with the order passed by the Magistrate and the Revision Application was dismissed. Hence,

10

ig h

this Writ Petition.

The learned Counsel appearing for the Petitioners has

vehemently argued that in fact, it was mandatory upon the learned

H

Magistrate to discharge the Petitioners on the ground that framing of the charge would be futile. It was apparent that the prosecution was

ba y

initiated only to harass the Petitioners. Learned Counsel has argued that omnibus allegations are levelled against the Petitioners and from

om

bare perusal of the FIR, it would be apparent that the first informant would not be able to substantiate the charges levelled against the

B

petitioner. It is argued that the marriage of the Petitioner No. 3 and the informant was performed without accepting any dowry. It was further argued that in the application for bail it was admitted that the parents of the informant had not given any dowry. It is further argued that while considering the application seeking bail, the Petitioner No. 3 has filed an application seeking restitution of conjugal rights in the court of Delhi. It is further argued that Pune

::: Downloaded on - 09/08/2014 16:10:45 :::

wp312.14.sxw

rt

7

C ou

police had not denied to register offence and yet it was not registered since no cognisable offence was made out at that stage. That the

complainant had denied medical examination at Pune, but preferred to subject herself for medical examination after two days. Hence,

ig h

such evidence in the form of injury certificate is manipulated. At the time of deciding the application seeking discharge, according to the learned Counsel it was incumbent upon the Court to consider the

H

defence of the accused also. It is mentioned in the synopsis to the Petition that on 15th December, 2010, Principal Judge, Family Court,

ba y

Ujjain has granted a decree of divorce in favour of the complainant. Much stress is laid upon the injury certificate which according to the

om

learned Counsel is a concocted document.

B

11

It is pertinent to note that in paragraph19 of the Petition it is

contended that a mere suggestion to the highly paid newly couple to plan to buy a house in Delhi by taking home loan jointly, can never be treated as a demand of dowry or torture for taking a loan of Rs. 30 Lakhs for buying a house, as is evident from the contents of the email Subject : House in Omaxe Housing. It is specifically contended that in

::: Downloaded on - 09/08/2014 16:10:45 :::

wp312.14.sxw

rt

8

C ou

the first occurrence report there is no averment in respect of dowry, harassment or breach of trust and the same was concocted at Indore.

12

It is a matter of record that the Petitioner Nos. 1 and 2 were not

ig h

residing under the same roof alongwith the Petitioner No. 3 and the first informant. They were residing at Noida. It is the allegation that they used to visit Pune and at that time, there was harassment. It is

H

pertinent to note that in the report dated 17/6/2008 there was no allegation against the Petitioner Nos. 1 and 2. Hence, the contention

ba y

that the learned Magistrate has not considered the discharge application in its proper perspective needs to be upheld. The

om

Petitioner Nos. 1 and 2 deserves to be discharged on the ground that they were living separately. There are no allegations against them in

B

the first report. When the complainant returned to Ujjain, the Petitioner Nos. 1 and 2 were not at Pune. The Petitioner No. 3 had restrained Monika Agnihotri from meeting the complainant. It is admitted by the Petitioners that the Petitioner Nos. 1 and 2 had only suggested the couple to purchase a house at Delhi and they had not demanded dowry for their own benefit. However, the case of the Petitioner No. 3 would have to be considered on all together different

::: Downloaded on - 09/08/2014 16:10:45 :::

wp312.14.sxw

rt

9

C ou

ground. It is pertinent to note that the Family Court at Ujjain passed decree of divorce in favour of the complainant in a Divorce Petition filed by her.

The learned Counsel for the Petitioner has rightly placed

ig h

13

reliance on the Judgment of the Apex Court in the case of Priti Gupta & anr. v/s. State of Jharkhand & anr. reported in AIR 2010 SC 3363

H

wherein the Hon'ble the Hon'ble Apex Court has observed that “a serious relook of the entire provision is warranted by the

ba y

legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also

B

om

reflected in a very large number of cases. The criminal trials lead to immense sufferings for all

concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in

::: Downloaded on - 09/08/2014 16:10:45 :::

wp312.14.sxw

rt

10

consideration and make necessary changes in the relevant

C ou

provisions of law.”

Hence, the Hon'ble Apex Court had circulated the copy of the Judgment to the Law Commission and to the Union Law Secretary,

14

ig h

Government of India.

It is an admitted position that the Petitioner No. 3 had got

H

married to the informant only in January, 2008. They had lived together for hardly five months before the complainant had

ba y

withdrawn herself from the matrimonial house.

B

om

15

Section 498A of the Indian Penal Code reads thus : “498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means— (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on

::: Downloaded on - 09/08/2014 16:10:45 :::

wp312.14.sxw

rt

11

C ou

account of failure by her or any person related to her to meet such demand.”

Section 498A of the Indian Penal Code contemplates harassment of such a nature which would coerce the wife or her relatives to meet

ig h

any unlawful demand for any property or valuable security or to drive the woman to commit suicide or to cause gave injury or danger to life, limb or health of the woman. Recitals of the first information report

H

in this case only disclose a stray incident which had occurred due to a verbal altercation between the husband and wife which would be a

ba y

natural affair between most of the couples. Difference of opinion or verbal altercation on a particular issue or a solitary incident which

om

may temporarily hamper the harmony in a marriage cannot be

B

termed as harassment or cruelty.

16

Black's Law Dictionary defines “harassment” as “Words,

conduct, or action (usually repeated or persistent) that being directed at a specific person, annoys, alarms or causes substantial emotional distress in that person and serves no legitimate purpose.” Emphasis is being laid upon “usually, repeated or persistent”. In the present case, it cannot be said that the Petitioner No. 3 was persistent in his

::: Downloaded on - 09/08/2014 16:10:45 :::

wp312.14.sxw

rt

12

C ou

conduct so much so that it can cause harassment to the first informant. The very fact that she had denied to subject herself to

medical examination at Pune would show that she had no apparent injuries. The police officer at Chaturshrungi Police Station would

ig h

have definitely noticed the bruises if it appeared on her eyes and other features. Therefore, there creeps doubt as to whether the said

lived.

Cruelty could be defined as a bodily harm or a reasonable

ba y

17

H

injury certificate could be concocted at a place where her parents

apprehension of bodily harm which endangers life, limb or health. In

om

the present case, the Court is doubtful as to whether the injuries were really caused at the place where the first information report was

B

lodged. In a marriage of long duration it becomes necessary to determine as to whether the cruelty is for such a period which would warrant initiation of proceedings for an offence punishable under Section 498A of the Indian Penal Code. The Court cannot be oblivious of the fact that in a marriage which lasted for hardly five months, the wife was subjected to a cruelty of such an extent that she would file a petition for divorce. There has been no effort from her

::: Downloaded on - 09/08/2014 16:10:45 :::

wp312.14.sxw

rt

13

C ou

relatives to pacify the relations between the young couple. As against this, the Petitioner No. 3 has filed a petition seeking restitution of conjugal rights which reflects his attitude and inclination to forgive the complainant. It is surprising that the Family Court at Ujjain has

ig h

passed a decree of divorce in the present case in the year 2010 itself. It is doubtful as to whether a ground was made out for judicial

divorce.

The Hon'ble Apex Court in the recent Judgment in the case of

ba y

18

H

separation for a period of 2 years so that the informant could get a

Arnesh Kumar v/s. State of Bihar & anr. has observed that

B

om

“There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498A is a cognizable and nonbailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision.”

::: Downloaded on - 09/08/2014 16:10:45 :::

In the present case, it is a matter of record that the Petitioner

C ou

19

wp312.14.sxw

rt

14

No. 3 had to undergo incarceration for a week because of the fact that he was arrested unaware. The Petitioner No. 3 was arrested on 26 th September, 2008 and was released on bail on 1/10/2008. The

ig h

Petitioner No. 3 was exposed to social obloquy at the place of service since he was arrested in the office i.e. in the TCS office and was handcuffed. All this would clearly show that the complainant was

H

seeking personal vendetta without there being any sufficient grounds.

The contention of the learned Counsel for the petitioners that

ba y

20

the Petitioners had filed an application under the Right to Information

om

Act which showed that the uncle of the complainant was present in their office at Ujjain on the day when it was shown that he had taken

B

the complainant from Pune to Ujjain needs to be considered. He had not obtained any leave to visit Pune.

21 As the Hon'ble Apex Court has observed, it is seen that in the present case the disgruntled wife filed the proceedings under Section 498A, 406, 323 of the Indian Penal Code. Soon thereafter, a petition is filed under the provisions of the Protection of Women from

::: Downloaded on - 09/08/2014 16:10:45 :::

wp312.14.sxw

rt

15

C ou

Domestic Violence Act, 2005. Thereafter the proceedings are initiated in the Family Court. Hence, the husband and his relatives have to go through the ordeal of legal proceedings in the same case in 3 different

courts. Hence, the time has come to keep in mind the observations of

abuse of process of law.

In fact, the Government of Maharashtra had issued a circular to

H

22

ig h

the Hon'ble Apex Court and pass an appropriate orders to prevent an

all Police Station that whenever there is a complaint under Section

ba y

498A, the concerned police officer should call upon both the parties and make an effort to bring about reconciliation and give them

om

sufficient time to come to terms. In the present case, it appears that no serious allegations were made at Chaturshrungi Police Station

B

which would even warrant prosecution under Section 498A and therefore, in all probabilities the police officers had not called upon the Petitioner No. 3. At the same time, it cannot be ignored that the Petitioner No. 3 was in fact, arrested by the police in his office and was paraded as if he was a hardened criminal. The police machinery had not only stopped at that, but had sought police custody on the ground of recovery of the passport of the complainant and other

::: Downloaded on - 09/08/2014 16:10:45 :::

wp312.14.sxw

rt

16

C ou

articles. The highhandedness and influence of the complainant party was writ large on the face of the record and the police had detained the Petitioner No. 3 in custody without verification of the

23

ig h

facts.

On perusal of the facts of the case and observations of the

Hon'ble Apex Court cited supra, and for the reasons mentioned

H

hereinabove, the Petition seeking discharge deserves to be allowed.

The Writ Petition is allowed in terms of prayer clause (b). Rule

ba y

24

(SMT. SADHANA S. JADHAV,J)

B

om

is made absolute. Writ Petition is disposed of accordingly.

::: Downloaded on - 09/08/2014 16:10:45 :::

Rt vs Golmahamad Noormahamad Shaikh on 28 July, 2014

Bombay High Court Bombay High Court Rt vs Golmahamad Noormahamad Shaikh on 28 July, 2014 Bench: V.K. Tahilramani PNP 1/9 ALS75 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.75 OF 2014 rt The State of Maharashtra ..Applicant. ou versus Golmahamad Noormahamad Shaikh and others ..Respondents. C ..... Smt. V.R. Bhonsale, Addl. P.P. for the Applicant - State. None for the Respondents. ..... h CORAM : SMT. V.K.TAHILRAMANI & ig A.S. GADKARI, JJ. Judgment reserved on : 18 th July 2014. H Judgment pronounced on : 28 th July 2014 ORAL ORDER (PER A.S. GADKARI, J.) : y This is an Application for leave to file an Appeal as contemplated ba under Section 378(3) of the Criminal Procedure Code, against the impugned judgment and order dated 26 th September 2013 passed by the Learned District Judge -6 and Additional Sessions Judge, Thane in om Sessions Case No.158 of 2009 thereby acquitting the Respondents for the offence charged against them. The Respondent Nos.1 to 6 were charged for the offence under Section 498(A) read with Section 34 of B the Indian Penal Code and the Respondent No.7 was charged for committing an offence under Sections 376 and 506 of the Indian Penal Code. ::: Downloaded on - 28/07/2014 23:50:06 ::: PNP 2/9 ALS75 2. The record discloses that the complainant Smt. Tarrannum was rt married to the Respondent No.2 - Noormahamad Gulmahamad ou Shaikh in the year 2004. The Respondent Nos.1 and 3 are the in-laws of the complainant. The Respondent Nos.4, 5 and 6 are the sisters-inlaw of the complainant and the Respondent No.7 is the husband of C Indian Kanoon - http://indiankanoon.org/doc/161342542/

1


the Respondent No.4. After marriage the complainant Tarrannum started residing with her husband and in-laws. The husband of the h complainant Tarrannum owned an Indica car. That after one month ig of the marriage, the in-laws of the complainant started taunting her on one or the other counts. After some days as the vehicle of her H husband required repairs, her in-laws asked her to bring Rs.5,000/- from her parents. Therefore her brother gave an amount of Rs.5,000/-. The record further discloses that as per the complaint, the y in-laws again demanded a sum of Rs.10,000/- and the said demand ba was also fulfilled with. The Respondent Nos.1 to 6 used to ill treat and abuse the complainant. The complainant has further stated that on om 6th November 2007 the Respondent No.7 i.e. the husband of her sister-in-law (Respondent No.4) left his wife and her mother-in-law on the railway station as they were to go to Gujarat and came to the B house and while the complainant was alone in the house, he had forcible sexual intercourse with her. The complainant thereafter lodged a complaint dated 8th December 2007 at Thane Nagar Police ::: Downloaded on - 28/07/2014 23:50:06 ::: PNP 3/9 ALS75 Station for the offence under Sections 498(A) read with 34 of the Indian Penal Code against the Respondent Nos.1 to 6 and for the rt offence under Sections 376 and 506 against the Respondent No.7. ou The said complaint was registered as Crime No.I-385/2007. 3. The record further discloses that the investigating agency C investigated the matter and after completion of the investigation submitted a charge-sheet against the Respondents in the Court of h Judicial Magistrate, First Class, Thane. The Learned Magistrate ig committed the said case to the Court of Sessions. After committal of the said case the Trial Court framed charge below Exhibit 8. The said H charge was read over to the Respondents in vernacular language to which they denied and claimed to be tried. The prosecution examined in all eight witnesses in support of its case. The Learned Trial Court y after recording the evidence and after hearing the parties to the ba Sessions Case No.158 of 2009 has acquitted all the Respondents from the charges framed against them. om 4. Heard Smt. V.R. Bhonsale, the learned APP appearing for and on behalf of the State and scrutinized the record produced by her B along with the notes of evidence. Indian Kanoon - http://indiankanoon.org/doc/161342542/

2


5. As far as charge under Section 498(A) is concerned, the same ::: Downloaded on - 28/07/2014 23:50:06 ::: PNP 4/9 ALS75 has been founded on the basis of the allegations made by the complainant Tarrannum against the Respondent Nos.1 to 6. In her rt substantive evidence she had stated that after two to three months of ou her marriage, her husband and his parents started beating and assaulting her. She has further stated that her husband owned an Indica car and whenever there was any defect in the said car, her C husband and his parents forced her to bring money from her brother for repairs of the car. That her brother Sajid on two occasions in the h year 2005-06 gave an amount of Rs.5,000/- and Rs.10,000/- to them. ig As the complainant could not give birth to a child, her sister-in-laws used to taunt her has barren. In the evidence of P.W.3 - Mohd. Rafiq H Abdul Karim who is the father of the complainant he has stated that he paid Rs.5,000/- once and Rs.10,000/twice to the Respondent No.2 - Noormahamad Gulmahamad Shaikh and despite the fact the y demand of the Respondents continued. He has further stated that ba the Respondents used to torture the complainant. The evidence of P.W.4 and P.W.5 who are the brothers of the complainant also om discloses that the Respondents used to demand from the complainant to which they have fulfilled and despite the fact the demand from the Respondents used to continue. After scrutinizing the evidence of B P.W. 1 - complainant Tarrannum, P.W.3 - Mohd. Rafiq Abdul Karim the father of the complainant and P.W.4 and P.W.5 - the brothers of the complainant, it is clear that they are unable to state when the ::: Downloaded on - 28/07/2014 23:50:06 ::: PNP 5/9 ALS75 demand was exactly made and when they fulfilled the same. It appears that their evidence is absolutely vague as far as demand of rt amount and its fulfillment is concerned. It appears to us that there is ou material inconsistency in the versions of these witnesses about the demand made by the Respondents and its alleged fulfillment by them. Thus, according to us the prosecution has utterly failed to prove the C charge under Section 498(A) of the Indian Penal Code beyond reasonable doubt. h 6. ig The complainant has further alleged that the Respondent Nos.4, 5 and 6 i.e. her sister-in-laws used to taunt her as the complainant H could not give birth to a child. They used to address her as "Khali Khoka Hai" and "Banz Hai" and thereby caused mental cruelty to the complainant. In the testimony the complainant has stated that her y Indian Kanoon - http://indiankanoon.org/doc/161342542/

3


sister-in-laws always used to call her as Barren. The evidence of P.W.1 ba complainant discloses that as far as these utterances are concerned, the same are silent about its specification that means the complainant om has not specifically mentioned which of the Respondents taunted her and at which point of time. It is difficult to accept the version of the complainant that all Respondent Nos.4, 5 and 6 i.e. her sister-in-laws B at one and the same point of time had uttered the said utterance thereby causing mental cruelty to the complainant. We are of the opinion that the evidence of P.W.1 complainant on this aspect is ::: Downloaded on - 28/07/2014 23:50:06 ::: PNP 6/9 ALS75 absolutely vague and on the basis of the same the Respondent Nos.4, 5 and 6 cannot be convicted under Section 498(A). Thus, after rt evaluating the evidence on record, we are of the firm opinion that the ou prosecution has failed to prove the charge under Section 498(A) of the Indian Penal Code. C 7. As far as the charge as against Respondent No.7 under Sections 376 and 506 of the Indian Penal Code is concerned, the complainant h has made allegation in the complaint that on 6 th November 2007 her ig husband left the house in the morning at 5.00 a.m. Other family members also left for their respective duties. That her mother-in-law H i.e. the Respondent No.3 and sister-in-law i.e. the Respondent No.4 were to go to Gujarat and therefore the Respondent No.7 i.e. the husband of the Respondent No.4 accompanied the Respondent Nos.3 y and 4 for leaving them at the railway station. The complainant was ba alone at home. At around 1.30 p.m. the Respondent No.7 came back at home. The complainant and the Respondent No.7 had talks. The om Respondent No.7 asked the complainant to fetch water for him and therefore she went in the kitchen. When she returned back to the hall, the complainant found that the Respondent No.7 had closed the B door and windows of the house. When she questioned him about the said act, he caught her hand. When the complainant was about to raise shouts, the Respondent No.7 gaged her with Odhani and ::: Downloaded on 28/07/2014 23:50:06 ::: PNP 7/9 ALS75 overpowered the complainant and had forcible sexual intercourse with her and thereafter administered threat to her for not disclosing rt the said act to anybody and left the house. It appears from the ou evidence of the complainant that when she informed the said fact to her husband i.e. the Respondent No.2, he assaulted her and said that the Respondent No.7 cannot do any such thing and he also told the C complainant not to disclose about the said incident with anyone. That on 18th November 2007 when the Respondent Nos.3 and 4 returned h to the house, the Respondent No.2 informed the said fact to them. ig Indian Kanoon - http://indiankanoon.org/doc/161342542/

4


The Respondent Nos.3 and 4 said that the Respondent No.7 cannot do such an act and thereafter the Respondent No.2 i.e. the husband of H the complainant beat her. Thereafter the in-laws of the complainant called the father of the complainant i.e. P.W.3 and asked him to take his daughter back. It appears from the record that on 8 th December y 2007 a complaint came to be registered with the police, while the ba complainant left the house of the Respondents on 18 th November 2007. After registration of the complaint P.W.8 - Dr. Bhavna Telang om examined the complainant on 11th December 2007 and after conducting the various examinations P.W.8 - Dr. Bhavna opined that the patient is habituated to sexual intercourse. B 8. It is to be noted here that the evidence of P.W.3 i.e. the father of the complainant is absolutely vague with respect to the offence as ::: Downloaded on - 28/07/2014 23:50:06 ::: PNP 8/9 ALS75 contemplated under Section 376 of the Indian Penal Code. It is surprising to note that the complainant did not inform her father rt immediately after the alleged incident of rape. P.W.3 in his testimony ou did not specify when the incident occurred or when his daughter told him about the said incident. It further appears that the evidence of P.W.4 and P.W.5 i.e. the brothers of the complainant is not consistent C with each other and both of them have given different versions. The record discloses that the alleged incident of rape is dated 6 th h November 2007. As per the version of the complainant herself she ig remained silent upto 18th November 2007. It further appears that the complainant did not make any attempt to inform the said fact even to H her parents or brothers. It is further important to note that after disclosure of the incident to the parents and brothers on 18 th November 2007 by the complainant, the complaint came to be lodged y on 8th December 2007 i.e. after a period of twenty days from 18 th ba November 2007 and after approximately one month and two days from the alleged occurrence of incident. The evidence of prosecution om is absolutely silent about the delay which has caused in lodging of the First Information Report. The prosecution has not explained the delay caused in lodging the F.I.R. The prosecution has totally failed to B prove the offence under Section 376 of the Indian Penal Code against the Respondent No.7. ::: Downloaded on - 28/07/2014 23:50:06 ::: PNP 9/9 ALS75 9. After scrutinizing the entire evidence on record, we are of the opinion that the Trial Court has not committed any error while rt acquitting the Respondents by its judgment and order dated 26 th ou


5


September 2013 passed in Sessions Case No.158 of 2009. Hence, the present Criminal Application for leave to file an Appeal is dismissed. Leave rejected. C (Smt. V.K.Tahilramani, J.) h ig (A.S. Gadkari, J.) H y ba om B ::: Downloaded on - 28/07/2014 23:50:07 :::


6

Dinesh Kumar & Ors. vs State Nct Of Delhi on 14 August, 2014

Delhi High Court Delhi High Court Dinesh Kumar & Ors. vs State Nct Of Delhi on 14 August, 2014 Author: Pradeep Nandrajog * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on : August 07, 2014 Judgment Pronounced on : August 14, 2014 + CRL.A. 210/2013 DINESH KUMAR & ORS. ..... Appellants Represented by: Mr.Sanjay Jain, Advocate with Mr.Subhash C.Ahlawat, Advocate versus STATE NCT OF DELHI ..... Respondent Represented by: Ms.Aashaa Tiwari, APP Insp.Jitender Kumar and SI Ajay Kumar, PS Dabri CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE MUKTA GUPTA PRADEEP NANDRAJOG, J. 1. Ms.Gayatri was married to Mukesh on December 10, 2005. Mukesh is the son of Dinesh Kumar and Krishna Devi. On March 16, 2011 Gayatri was brought by Mukesh to Mata Chanan Devi Hospital at 3.25 P.M. Dr.Iftekharul Haque PW-7 working as the Chief Medical Officer of Mata Chanan Devi Hospital examined Gayatri and prepared her MLC Ex.PW- 7/A in which he recorded that Mukesh had brought Gayatri to the casualty and told him that Gayatri became unconscious because she fell at the home following giddiness. He noted that Gayatri was not responding to stimuli and the pulse was not palpable. He further recorded that there were ligature marks on both sides of the neck. Crl.Appeal No. 210/2013 Page 1 of 16 2. Criminal law was set into motion when the hospital authorities informed P.S. Dabri that a lady named Gayatri wife of Mukesh had been brought to the hospital where she was declared dead. SI Birender PW-10 was handed over copy of the DD for investigation and accompanied by Ct.Navin Kumar PW-6, he went to the hospital and collected Gayatriâ s MLC. He seized the dead body and sent it to the mortuary of DDU Hospital for post mortem. Thereafter he went to the house which was the matrimonial home and found a rope tied to the ceiling fan of the room which he seized vide seizure memo Ex.PW-10/A. 3. Since the lady had died within seven years of the marriage and the death was not natural the Sub-Divisional Magistrate Sh.Ashish Mohan PW- 8 was conveyed the information at 10.00 P.M. He was told that no relative of the deceased was present in the hospital. Therefore he went to the hospital on March 17, 2011 where he met Hari Singh PW-5 and Bhanmati PW-1 the parents of Gayatri and recorded Hari Singhâ s statement Ex.PW5/A. Indian Kanoon - http://indiankanoon.org/doc/21870300/

1


4. Surprisingly, in spite of Hari Singh complaining about dowry harassment and notwithstanding the MLC of Gayatri evidencing either a suicidal or a homicidal death, neither Ashish Mohan PW-8 nor SI Birender PW-10 thought it prudent to get registered an FIR, if not for the offence punishable under Section 302 IPC at least for the offence punishable under Section 498A/304B IPC. 5. Gayatriâ s post-mortem was conducted on March 17, 2011 by Dr.Santosh Kumar PW-9 who prepared the post mortem report Ex.PW-9/A on March 17, 2011 recording therein as under:EXTERNAL EXAMINATION Crl.Appeal No. 210/2013 Page 2 of 16 "No any fresh external injuries were present over the body except the ligature mark. Ligature mark present on the upper border of thyroid cartilage in the form of groove, base is dry, hard, leathery, parchment like reddish brown in colour, placed obliquely going towards the posterior aspect of neck. Total circumference of neck is 32.0 cms. Ligature mark size is 26.0 cms x 1.0 cms. The upper border of ligature mark is 6.0 cms below form the base of chin and lower border of ligature mark is 10.0 cms above from the M.sternii. Ligature mark is 3.0 cms below from the right mastoid and 7.0 cms below from the left mastoid. Ligature mark is incomplete and does not encircle the whole neck and absent at the posterior aspect of neck on posterior hair line" XXXXXX INTERNAL EXAMINATION "Neck Hyoid Bone/Thyroid cartilage/Cricoid cartilage/Tracheal Rings & Mucosa/Any Foreign Body in Trachea: On incision and dissection of neck, no extravasations of blood and clots seen underneath the ligature mark, underlying tissue of neck, muscles and upto the back of trachea. Skin lying under the ligature mark is dry, pale ad glistering. Hyoid bone and all cartilages of neck are intact. Mucosa of tracheal lumen is congested and tracheal lumen contains froth." 6. In his opinion as regards the cause of death he positively opined that death was due to asphyxia from ante mortem ligature hanging. 7. Regretfully, SI Birender PW-10 did not bother to go and collect the post mortem report of Gayatri on March 17, 2011 or a day thereafter. He collected the post mortem report only on May 20, 2011 and then prepared the rukka Ex.PW-10/B at 6.15 P.M. on May 20, 2011 and got registered the FIR Ex.PW-13/A on May 20, 2011 for offences punishable under Section 498A/304B IPC. Crl.Appeal No. 210/2013 Page 3 of 16 8. Two lack of concern, the first by the learned Sub-Divisional Magistrate and the second by SI Birender are not the only blemish. Another blemish was by SI Birender PW-10 not investigating the case properly to try and ascertain whether apart from Mukesh, his parents Dinesh and Krishna Devi were present in the house when Gayatri was removed to the hospital. It was not known whether it was a case of homicide or suicide. If it was a case of homicide, who all were present in the house would assume relevance. 9. Insp.Praveen Kumar PW-12 took over the investigation on June 07, 2011 and unfortunately even he did not try to ascertain whether Gayatriâ s in-laws were present in the house. 10. Mukesh, his parents Dinesh and Krishna Devi were charged for an offence punishable under Section 498A/34 IPC as also for an offence punishable under Section 304B/34 IPC and alternatively for the offence Indian Kanoon - http://indiankanoon.org/doc/21870300/

2


punishable under Section 302/34 IPC. 11. Smt.Bhanmati PW-1, Gyan Singh PW-4 and Hari Singh PW-5, the mother, brother and father respectively of Gayatri deposed of Gayatri being subjected to dowry harassment after her marriage on December 10, 2005 and that on the day of the incident Gayatri rang up informing that her in- laws were demanding a necklace from her and were beating her. At 4.00 P.M. Mukesh informed that Gayatri had died. 12. The police officers to whom we have referred to above deposed facts as recorded by us while narrating the investigation. The Sub-Divisional Magistrate deposed likewise as above. 13. In spite of the fact that no witness deposed to Dinesh and Krishna Devi being present in the house when Gayatri was either strangulated to Crl.Appeal No. 210/2013 Page 4 of 16 death or committed suicide, the learned Trial Judge has vide impugned decision dated December 10, 2012 convicted Mukesh and his parents for the offence of murder. Two incriminating circumstances have been found established. The first that the parents and brother of Gayatri deposed that in the afternoon Gayatri had informed them over the telephone that her in- laws were beating her demanding a gold necklace. The second is the conduct of Mukesh who told Dr.Iftekharul Haque when he brought Gayatri to the hospital that his wife fell down as she was feeling giddy and then became unconscious, a blatant lie to use the language of the learned Trial Judge. There were ligature marks around the neck of Gayatri. 14. The learned Trial Judge has ignored the fact that neither Dr. Iftekharul Haque noted any other injury mark on Gayatri body when she was brought to the casualty of the hospital except ligature mark around the neck. The post mortem report Ex.PW-9/A also does not record any other injury except the ligature mark on the neck of Gayatri. Thus, the claim of the parents and brother of Gayatri that she rang up her parents and informed that she was being beaten by her in-laws is incorrect. Besides, in his statement Ex.PW-5/A made to the Sub-Divisional Magistrate, what has been said by Hari Singh is that he had received a call at 12.00 Noon demanding a necklace and the threat was that his daughter would be harmed. He never said that his daughter spoke to him. Since the statement is in vernacular, we extract the relevant part in vernacular : â Kal Din 16.03.2011 ko lag bhag 12.00 baje phone aya ki aap apni ladki ko keh do ki haar de do nahi bura ho jayegaâ . 15. There is just no evidence of the presence of Dinesh and Krishna Devi in the house and thus from the conduct of their son who tried to conceal the Crl.Appeal No. 210/2013 Page 5 of 16 truth from Dr. Itekharul Haque no adverse inference can be drawn against them. Since their presence in the house has been inferred by the learned Judge from the testimony of the parents and brother of Gayatri that at 12.00 Noon Gayatri had rung up complaining that these people would cause harm to her if a gold necklace was not given, a piece of evidence which is highly tainted keeping in view what Hari Singh said at the first instance, the verdict of guilt against Dinesh and Krishna Devi for having committed the murder of Gayatri has to be set aside, and more so for a more weightier reason which we note hereinafter concerning Mukesh, whose conviction for the offence of murder is highly tainted. 16. The reason obviously is the categoric finding in the post mortem report of the deceased that the death was the result of asphyxia caused by ligature hanging. The learned Trial Judge has totally overlooked the post mortem report. Death was not homicidal. 17. Independent of the opinion in the report, we have noted, in paragraph 5 above, the external and the internal injuries on the neck in the form of ligature mark externally seen and internally detected.


3


18. A ligature mark is the result of abrasion or compression of the skin by a strangulation device, which usually has a rough surface. The mark is usually visible as a pale furrow soon after death and after a lapse of time it turns into a brownish hue as the furrow dries. In cases where the surface of the ligature is very smooth, the abrasive effect is minimal and the mark is visible as a pale strip of skin or furrow for sometime after death. If a large amount of material is used, the ligature mark may be the impression of the folds of the cloth, or in some circumstances there may be no mark at all. Crl.Appeal No. 210/2013 Page 6 of 16 19. In cases where the cause of death is compression of the neck, ligature mark may be found in two circumstances: (a) death by hanging, and (b) death by ligature strangulation. 20. It is a well-accepted fact that the ligature mark of hanging and strangulation are not found at same level. 21. Thus, it would be apposite to understand and differentiate between the ligature patterns along with other external and internal injuries which result from each of the above two situations. A reading of Modiâ s Medical Jurisprudence and Toxicology, 23rd ed. 2005 and Burkhard Made, (ed.), Wiley Blackwell, Handbook of Forensic Medicine, 1st ed.rep.2014 would bring out that hanging entails the suspension of the body by a ligature around the neck, wherein the constricting force on the neck which causes death happens to be the weight of the body. The loop of a running knot tightens during suspension and produces a ligature mark which is horizontal but moving upward towards the chin and in almost every case, above the thyroid cartilage. 22. In cases of complete hanging i.e. suspension of the body with no contact with the ground petechiae (red/purple spots on the skin) is not present. However in cases of cases of incomplete hanging i.e. where the body is suspended but has some form of contact to the ground petechiae may found on the eye, face, behind the ears and in the oral mucosa. 23. In suicidal hanging, the ligature mark usually runs above the thyroid cartilage. In most cases, it lies between the chin and the larynx. If the noose slips upwards during the hanging, there may be several parallel marks and broad abrasions, which run upwards. The blood draining from the head and Crl.Appeal No. 210/2013 Page 7 of 16 pooling around the ligature might lead to a band of red skin above the ligature furrow. 24. Where a ligature is bound twice or more around the neck, overlapping folds of skin may be caught between the individual loops, known as skin ridges. Skin blisters filled with fluid in the interior and the periphery of the ligature, and dried saliva tracks in the mouth may also be found. When the ligature passes above the larynx, the hyoid bone is pushed obliquely backwards together with the base of the tongue resting against the posterior wall of the pharynx, which leads to obstruction of air. The tongue is thereby protruded forward. 25. In addition to the aforementioned external injuries, hanging also entails certain internal injuries. Haemorrhages are mostly to be found on the clavicles, more rarely on the manubrium sterni. However, haemorrhages around the laryngeal and hyoid fractures are scarce and almost non- existent.Only in extreme incidences of trauma, as in falls from a height with the noose around the neck, ruptures of the fasciae and the neck muscles may be observed. 26. In deaths because of ligature strangulation, petechiae are usually present. It is generally more intense than in other forms of strangulations because of the strength applied by the arms in tightening the ligature. Just like the ligature mark produced in death by hanging, the ligature mark is caused by the abrasion of the ligature on the skin. In the majority of cases, the ligature furrow runs horizontally round the neck on its front and sides. If the ligature is a wide band of cloth with a smooth surface, the lesion of the stratum corneum may be so Indian Kanoon - http://indiankanoon.org/doc/21870300/

4


minimal that no mark is discernible. Non- intense ligature strangulations may simply leave a reddish hyperaemia on Crl.Appeal No. 210/2013 Page 8 of 16 the skin of the neck. However, in cases of intense strangulation the larynx and hyoid bone might suffer a fracture. Occasionally, a fine white foam may adhere to the laryngeal, tracheal and bronchial walls, which may be streaked with blood The foam accumulates from bronchial secretion and tidal air during dyspnoea. 27. We reproduce an extract from a research paper by Dr.Dean Hawley, Director of Autopsy Services, Indiana University of Medicine wherein he discusses the injuries, which result from ligature strangulation:- "The injuries that may occur include patterned contusions and abrasions caused by fingernails, finger touch pads, ligatures, or clothing. These injuries are then prone to change over time, with the healing process. Injuries not at all apparent on the day of death may actually become visible by the next day, as the skin begins to dry and become more transparent. In addition to the blunt force injuries of the neck, strangulation produces evidence of asphyxiation, recognized as pinpoint hemorrhages in the skin, conjunctiva of the eyes, and deep internal organs." 28. The comparison between the ligature marks resulting from hanging and strangulation has been lucidly discussed in Sadikhusen G.Momin, et. al, Pattern of Ligature Mark in Cases of Compressed Neck in Rajkot Region: A Prospective Study, J. Indian Acad Forensic Med. Jan-Mar 2012, Vol.34, No.1 as under: "A running noose can tighten at the time of suspension and may then produce a mark which takes a horizontal turn but it is likely to be above the thyroid cartilage. Ligature mark depends on the nature and position of the ligature used, and the time of suspension of body after death. If the ligature is soft, and the ligature removed immediately after death, there may be no mark. Again, the intervention of a thick and long beard or clothes on the neck leads to the formation of a slight mark. Crl.Appeal No. 210/2013 Page 9 of 16 Sometimes, the pattern of the ligature material is impressed on the skin and a characteristic diagonal mark of the strands found when the rope is used. The wide band of cloth when used as a ligature on the bare skin may cause a narrow ligature mark, due to tension lines in the stretched cloth. The mark is a groove or furrow the base is pale, hard leathery and parchment like and margins are red and congested. Ecchymoses and slight abrasions in the groove are rare, but may be found in some cases for instance in judicial hanging. Usually only one mark is found. Multiple marks may be present due to multiple turns around the neck or upward displacement after application due to fall. The mark is usually situated above thyroid cartilage between larynx and the chin and is directed obliquely, upwards following the line of mandible and interrupted at the back or may show an irregular impression of a knot, reaching the mastoid processes behind the ears towards the point of suspension. The mark may be found on or below the thyroid cartilage, especially in case of partial hanging. It may be circular if a ligature is first placed at the nape of neck and then its two ends are brought horizontally forwards and crossed, and carried upwards to the point of suspension from behind the angle of the lower jaw on each side. The mark will be circular and oblique if a ligature is passed round the neck more than once. Near the position of the knot, it is like an inverted "V".In strangulation, ligature may be applied as one turn around the neck or even less, as homicide have been perpetrated by assailant pulling U shaped ligature against the front and sides of neck, while standing at the back." 29. The aforementioned research paper referred to a study conducted by the Department of Forensic Medicine, P.D.U. Medical College and Hospital, Rajkot where a number of cases of death by hanging and ligature strangulation were examined. It was observed as under: "In all cases of hanging underlying soft Indian Kanoon - http://indiankanoon.org/doc/21870300/

5


tissues of neck were pale, white and glistening, ligature mark was incompletely Crl.Appeal No. 210/2013 Page 10 of 16 encircling the neck in 72 cases (80%) and obliquely present around the neck all 90 cases (100%) of hanging. In all cases of ligature strangulation underlying soft tissues showed extravasation of blood." 30. At this stage, a word also needs to be spoken about death by smothering. Smothering is a form of asphyxia by blockage of external respiratory orifices, or blockage of cavities of nose or mouth. Homicidal smothering is extremely difficult to detect. Autopsy may reveal asphyxia, but there may not be any corroborative medical evidence to establish foul play. 31. Having noted as above, keeping in view the external and the internal injuries noted in the post mortem report, it is apparent that the ligature mark is the only external injury present on the body. There is no other injury anywhere on the body to evidence any sort of struggle or possible resistance by the deceased. The ligature mark is present on the upper border of thyroid cartilage as it is in almost all cases of hanging. The mark is 3 and 7 centimetres below the right and left mastoid i.e. the projections behind each ear respectively. The position of the above indicates that the ligature mark is horizontal but makes a â Vâ . The said pattern of ligature mark bears considerable similarity to the ligature marks present in bodies where the cause of death was hanging. In almost all cases of hanging, the ligature mark was present right above the thyroid cartilage. Thus, the ligature pattern resembles the ligature marks found in cases of death by hanging. Relevant would it be to note that no extravasation of blood was found under the ligature mark. As earlier noted, all cases of ligature strangulation showed extravasation of blood in the underlying tissues. 32. Thus, even otherwise there enough material to conclude that the Crl.Appeal No. 210/2013 Page 11 of 16 deceased was not strangulated to death. The death is by hanging. There is no possibility of the deceased being forcefully hanged because if it was so she would have resisted and there would be other injuries on the body. 33. The death being suicidal, the trial court committed a serious error in convicting the appellants for offence under Section 302 IPC. This brings us to the question whether the appellants can be convicted for offences punishable under Sections 304B and 498A IPC. A perusal of the record shows that the appellants were charged for offences punishable under Sections 302/304B/498A/34 IPC. They have been acquitted for offences punishable under Section 304B and 498A IPC and no leave to appeal petition has been filed by the State against the impugned judgment nor has any appeal been filed by the complainant against acquittal of the appellants for the aforesaid offences. 34. In the decision reported as (2001) 2 SCC 577 Shamnsaheb M. Multtani Vs. State of Karnataka a three judge bench noted that where main ingredients of two cognate offences are common the one punishable with lesser sentence can be said to be minor offence. Noting that the ingredients of Section 304B IPC were different from those of Section 302 IPC, the former could not be regarded as minor offence of the latter, it was held "25. We have now to examine whether, on the evidence now on record the appellant can be convicted under Section 304-B IPC without the same being included as a count in the charge framed. Section 304-B has been brought on the statute book on 9-11-1986 as a package along with Section 113-B of the Evidence Act. Section 304-B(1) IPC reads thus: â

304-B. Dowry death.- (1) Where the death of a

woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown Indian Kanoon - http://indiankanoon.org/doc/21870300/

6


Crl.Appeal No. 210/2013 Page 12 of 16 that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called dowry death, and such husband or relative shall be deemed to have caused her death.â 26. In the Explanation to the Section it is said that the word dowry shall be understood as defined in the Dowry Prohibition Act, 1961. 27. The postulates needed to establish the said offence are: (1) Death of a wife should have occurred otherwise than under normal circumstances within seven years of her marriage; (2) soon before her death she should have been subjected to cruelty or harassment by the accused in connection with any demand for dowry. Now reading section 113B of the Evidence Act, as a part of the said offence, the position is this: If the prosecution succeeds in showing that soon before her death she was subjected by him to cruelty or harassment for or in connection with any demand for dowry and that her death had occurred (within seven years of her marriage) otherwise than under normal circumstances "the court shall presume that such person had caused dowry death". 28. Under Section 4 of the Evidence Act "whenever it is directed by this Act that the Court shall presume the fact it shall regard such fact as proved, unless and until it is disproved". So the court has no option but to presume that the accused had caused dowry death unless the accused disproves it. It is a statutory compulsion on the court. However it is open to the accused to adduce such evidence for disproving the said compulsory presumption, as the burden is unmistakably on him to do so. He can discharge such burden either by eliciting answers through cross- examination of the witnesses of the prosecution or by adducing evidence on the defence side or by both. 29. At this stage, we may note the difference in the legal position between the said offence and section 306 IPC which was merely an offence of abetment of suicide earlier. The Crl.Appeal No. 210/2013 Page 13 of 16 section remained in the statute book without any practical use till 1983. But by the introduction of Section 113A in the Evidence Act the said offence under Section 306 IPC has acquired wider dimensions and has become a serious marriage- related offence. Section 113A of the Evidence Act says that under certain conditions, almost similar to the conditions for dowry death the court may presume having regard to the circumstances of the case, that such suicide has been abetted by her husband etc. When the law says that the court may presume the fact, it is discretionary on the part of the court either to regard such fact as proved or not to do so, which depends upon all the other circumstances of the case. As there is no compulsion on the court to act on the presumption the accused can persuade the court against drawing a presumption adverse to him. 30. But the peculiar situation in respect of an offence under Section 304B IPC, as discernible from the distinction pointed out above in respect of the offence under Section 306 IPC is this: Under the former the court has a statutory compulsion, merely on the establishment of two factual positions enumerated above, to presume that the accused has committed dowry death. If any accused wants to escape from the said catch the burden is on him to disprove it. If he fails to rebut the presumption the court is bound to act on it. 31. Now take the case of an accused who was called upon to defend only a charge under Section 302 IPC. The burden of proof never shifts on to him. It ever remains on the prosecution which has to prove the charge beyond all reasonable doubt. The said traditional legal concept remains unchanged even now. In such a case the accused can wait till the prosecution evidence is over and then to show that the prosecution has failed to make out the said offence against him. No compulsory presumption would go to the assistance of the prosecution in such a situation. If that be so, when an accused has no notice of the offence under Section 304-B IPC, as he was defending a charge under Section 302 IPC alone, would it not lead to a grave Indian Kanoon - http://indiankanoon.org/doc/21870300/

7


miscarriage of justice when he is alternatively convicted under Section 304-B IPC and sentenced to the serious Crl.Appeal No. 210/2013 Page 14 of 16 punishment prescribed thereunder, which mandates a minimum sentence of imprisonment for seven years. 32. The serious consequence which may ensue to the accused in such a situation can be limned through an illustration: If a bride was murdered within seven years of her marriage and there was evidence to show that either on the previous day or a couple of days earlier she was subjected to harassment by her husband with demand for dowry, such husband would be guilty of the offence on the language of Section 304-B IPC read with Section 113-B of the Evidence Act. But if the murder of his wife was actually committed either by a dacoit or by a militant in a terrorist act the husband can lead evidence to show that he had no hand in her death at all. If he succeeds in discharging the burden of proof he is not liable to be convicted under Section 304-B IPC. But if the husband is charged only under Section 302 IPC he has no burden to prove that his wife was murdered like that as he can have his traditional defence that the prosecution has failed to prove the charge of murder against him and claim an order of acquittal. 33. The above illustration would amplify the gravity of the consequence befalling an accused if he was only asked to defend a charge under Section 302 IPC and was alternatively convicted under Section 304-B IPC without any notice to him, because he is deprived of the opportunity to disprove the burden cast on him by law. 34. In such a situation, if the trial court finds that the prosecution has failed to make out the case under Section 302 IPC, but the offence under Section 304-B IPC has been made out, the court has to call upon the accused to enter on his defence in respect of the said offence. Without affording such an opportunity to the accused, a conviction under Section 304- B IPC would lead to real and serious miscarriage of justice. Even if no such count was included in the charge, when the court affords him an opportunity to discharge his burden by putting him to notice regarding the prima facie view of the court that he is liable to be convicted under Section 304-B IPC, unless he succeeds in disproving the presumption, it is possible Crl.Appeal No. 210/2013 Page 15 of 16 for the court to enter upon a conviction of the said offence in the event of his failure to disprove the presumption." 35. Thus Sections 304B or 498A IPC not being minor offences of Section 302 IPC, in the absence of an appeal by the complainant or the State, it is beyond the jurisdiction of this Court to convert the conviction for offence punishable under Section 302 IPC to one under Section 304B or 498A IPC. 36. As the conviction the appellants for offence punishable under Sections 302/34 IPC is illegal, they are acquitted of the said charge. 37. The appeal is disposed of. 38. The appellants, who are in custody, be released forthwith, if not required in any other case. Copy of the judgment be sent to Superintendent, Tihar Jail for necessary action. 39. TCR be returned. (PRADEEP NANDRAJOG) JUDGE (MUKTA GUPTA) Indian Kanoon - http://indiankanoon.org/doc/21870300/

8


JUDGE AUGUST 14, 2014 skb Crl.Appeal No. 210/2013 Page 16 of 16


9

1

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.12.2014 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Crl.R.C.No.684 of 2014 E.Kalivarathan ... Petitioner -VersusThe State Rep. by The Sub-Inspector of Police, Pudupet Police Station, Cuddalore District. ... Respondent Prayer:- Criminal Revision Petition filed under Section 401 of the Code of Criminal Procedure to convert the acquittal in C.C.No.12 of 2010 on the file off the learned Judicial Magistrate No.II, Panruti dated 31.12.2012 as an honourable acquittal as far as the petitioner is concerned. For Petitioner

: Mr.V.Raghavachari for Mr.Ma.P.Thangavel

For Respondent

: Mr.M.Maharaja, Additional Public Prosecutor

2

ORDER The petitioner was the fifth accused in C.C.No.12 of 2010 on the file of the learned Judicial Magistrate No.II, Panruti. He stood prosecuted along with eight others for alleged offences under Sections 147, 148 and 323 of IPC. During trial as many as 12 witnesses were examined and 16 documents were exhibited on the side of the prosecution.

But, no witness had

implicated the petitioner in any manner with the alleged crime. The learned Magistrate by order dated 31.12.2012, acquitted all the accused including the petitioner. The said order of the learned Magistrate has become final.

2. Subsequently, the petitioner made an application for the post of Grade II Police Constable governed by the "Tamil Nadu Subordinate Police Service Rules". After the written examination and the physical test, he was selected for the said post. Then

police verification of his antecedence was ordered

and on such verification, it was found that the petitioner was an accused in the above case and he was acquitted by the learned Magistrate.

However, the Recruitment Board rejected his

candidature on the ground that the acquittal of the petitioner in

3

the above case is not an "honourable acquittal".

3. Now the petitioner is before this Court with this criminal revision with the following prayer: “It is therefore most humbly prayed that this Hon'ble Court may be pleased to convert the acquittal in C.C.No.12 of 2010 on the file of the Judicial Magistrate Court No.II, Panruti dated 31.12.2012 as an honourable acquittal as far as the petitioner is concerned by allowing the present criminal revision petition and thereby render justice.”

4. I have heard the learned counsel for the petitioner and the learned Additional Public Prosecutor for the respondent. I have also perused the records.

5.

At

the

outset,

the

learned

Additional

Public

Prosecutor raised objections regarding the maintainability of this revision petition. According to him, a revision petition under Section 397 and 401 of Cr.P.C would not lie at the instance of an acquitted accused.

The learned Additional Public Prosecutor

4

would point out that the lower Court had acquitted him by giving benefit of doubt. As against the same, neither a revision would lie nor in such a situation the inherent powers of this Court under Section 482 of Cr.P.C. could be invoked to convert the said acquittal into one of a honourable acquittal, he contended.

6. His further contention is that the concept of honourable acquittal is unknown to criminal jurisprudence and therefore the request of the petitioner to convert the acquittal into one of honourable acquittal is not at all maintainable. support of his contention,

In

the learned Additional Public

Prosecutor relies on a Division Bench Judgment of this Court in M.Krishnan Vs. The State of Tamil Nadu reported in 2014 (3) MWN (Cr.) 203 (DB).

7. Mr.V.Raghavachari, the learned counsel appearing for the petitioner would submit that when a finding recorded in an order is adverse to his interest and contrary to law, the aggrieved should not be left in lurch without a remedy. He would further submit that the judgment of the Division Bench in M.Krishnan's case [cited supra] is contrary to the specific

5

statutory provisions contained in the Cr.P.C. as well as various judgments of the Hon'ble Supreme Court. According to him, not only an order of acquittal or conviction or any other order could be challenged, but the correctness, legality or propriety of any finding could also be challenged by way of revision.

8. It is his further contention that, in the instant case, though there was no evidence on record, the learned Magistrate has acquitted him by giving him the benefit of doubt which amounts to a finding contrary to the facts. Thus, according to him, this finding can be challenged in a revision.

9. Since much reliance has been placed on the Division Bench judgment of this Court in M.Krishnan's case (cited supra) by the learned Additional Public Prosecutor, let us begin our discussions from that judgment.

10. Prior to the said judgment, in many cases, a number of learned Single Judges of this Court had taken the consistent view that a revision is maintainable to convert a finding of the Trial Court acquitting an accused by giving benefit

6

of doubt into one of honourable acquittal. When a similar request came up before yet another learned Single Judge, sitting in Madurai Bench [Hon'ble Justice P.N.Prakash], the learned Judge had doubt about the correctness of such course adopted by various other Hon'ble Judges. Therefore, the learned Judge referred the matter to a Division Bench for an authoritative pronouncement. In paragraph 4 of his order the learned Judge had observed as follows: “4. I gave my anxious consideration to the arguments advanced by the learned counsel

appearing

for

the

revision

petitioners. No judgment of the Hon'ble Apex Court has been placed before me in support of the contention of the revision petitioners that a criminal court can employ the expression "Honourable Acquittal" while acquitting the accused. Therefore, I am of the

opinion

that

for

an

authoritative

pronouncement on this aspect, it would be in the fitness of things to place the matter before a Division Bench.” [Emphasis supplied]

11. On such reference, the Hon'ble Chief Justice placed the matter before the Division Bench. The Division Bench framed

7

the following two questions:“(i) When Sections 232, 235, 248 and 255 of the Code of Criminal Procedure use only a simple expression namely "acquittal", without any adjectives, is it open to the Criminal Courts to use the expression such as "benefit of doubt" and " beyond reasonable doubt" etc. ? and (ii) Whether this Court has power in terms of Section 401(1) read with Section 386(d) and (e) of the Code, to alter or amend the order of "acquittal" of the Trial Court into one of "honourable acquittal”. 12. The Division Bench, after having had elaborate discussion on the said questions and after having referred to various judgments of the Supreme Court of U.S.A., the Supreme Court of Canada as well as the Hon'ble Supreme Court of India, answered the first question as follows: “40. Therefore, our answer to the first question is that there is no prohibition in law for the criminal Courts to use the expressions such as 'benefit of doubt' and 'beyond reasonable doubt', despite the fact that Sections 232, 235, 248 and 255 of the Code of Criminal Procedure use only

8

a simple expression namely 'acquittal' without

any

adjectives.

But,

these

adjectives or expressions such as 'benefit of doubt' and 'beyond reasonable doubt' will

have

insofar

no

as

concerned.

criminal In

jurisprudence, difference

meaning

In

significance

jurisprudence

civil

law

there

is

between

'disproved'.

or

and a

'not

service

world

proved'

criminal

is of and

jurisprudence,

there is no distinction between these expressions

namely

'not

proved'

and

'disproved', as both would result only in one

consequence,

namely

acquittal.

Consequently, an acquittal is an acquittal and there are not different forms nor different degrees of acquittal in so far as criminal jurisprudence is concerned. The different

adjectives

used

by

various

courts, to the acquittals granted by them, actually indicate the process of reasoning through which they arrive at the decision to

acquit

a

person.

'Proof

beyond

reasonable doubt' and 'Benefit of doubt' are actually tools that guide the subjective mind of the Judge to arrive at a finding whether the accused is guilty or not.”

9

13. Referring to the above answer given by the Division Bench, the learned Additional Public Prosecutor would submit that since the adjectives or expressions “benefit of doubt” or “beyond reasonable doubt” will have no meaning or significance in so far as criminal jurisprudence is concerned, the accused who has got the benefit of acquittal will have no grievance and therefore he cannot challenge the same.

14. Mr.V.Raghavachari, the learned counsel appearing for

the

petitioner

contention

of

the

would

vehemently

learned

Additional

challenge Public

the

said

Prosecutor.

According to him, it is true that in the Code of Criminal Procedure the language used is only "acquittal" and the said term has not

been qualified by any adjectives or expressions

such as “benefit of doubt” or “beyond reasonable doubt”.

But

when the accused is entitled for a simple acquittal, adding the adjective that he is acquitted by giving him “benefit of doubt”, carries a stigma to his dignity and the same has got other consequences also.

Thus in an appropriate case, when the

accused is entitled for simple acquittal, if the Trial Court acquits him by "giving benefit of doubt",

the party aggrieved has a

10

legal right to get it rectified by approaching the Higher Criminal Court by way of Revision or by way of a petition under Section 482 of the Code, he contended.

15. I have considered the above submissions.

16.

Before embarking upon the legal issues, at the

outset, I wish to state that, sitting single, I cannot either disagree or raise any doubt about the correctness of the views expressed

by

the

Division

Bench

on

various

issues

in

M.Krishnan's case, provided such contrary views have not been expressed either by a larger Bench or by the Hon'ble Supreme Court. I respect this judicial discipline as an essential feature of administration of justice. Therefore, I make it clear that the views expressed by me in this order by making reference to the Division Bench judgment would undoubtedly fall within the frame of judicial discipline.

17. With great respect to the Division Bench, which has decided M.Krishnan's case [cited supra], I wish to, at the first, articulate on the legal position in respect of the powers of a

11

larger Bench to which reference has been made by a smaller Bench.

At the first blush, this articulation may appear to be

unnecessary for the facts of the present case,

but, in due

course of articulation, I am sure that the said cloud would disappear and it would certainly emerge that this articulation is not unwarranted. As I have already extracted, the learned single Judge [P.N.PRAKASH.J.,] who made the reference had a singular doubt

in

his

Lordship's

mind,

requiring

pronouncement by a larger Bench.

an

authoritative

The doubt, as it could be

found from the referral order of the learned single Judge, is as to

whether

a

criminal

court

can

employ

the

expression

"honourable acquittal" while acquitting the accused.

The

Hon'ble The Chief Justice, while constituting the Division Bench, apparently did not refer any more question to the Division Bench.

But, the Division Bench, on its own,

had framed two

questions to answer, that, with great respect to the Division Bench, I apprehend, that the Division Bench lacked jurisdiction to do so. The first question framed by the Division Bench was as to whether a criminal court can employ the expressions such as “benefit of doubt” or “beyond reasonable doubt” etc., while acquitting the accused. In my understanding, with respect, I

12

have to state that the referral judge, as it is reflected from the referral order itself, had no such doubt as to whether the criminal courts while acquitting the accused could employ the adjectives “benefit of doubt” or “beyond reasonable doubt” etc. The doubt raised by the learned Judge was whether the expression “honourable

acquittal” could be employed by the

criminal courts.

18. Similarly, the second question framed by the Division Bench was whether the High Court has power under Section 401(1) and Section 386 (d) and (e) of the Code to alter or amend the order of "acquittal" of the trial court into one of "honourable acquittal" ?. With respect, I have to state that this question was also not referred to the Division Bench for answer by the referral Judge.

19. In this regard, let us now survey as to how the Hon'ble Supreme Court has dealt with such situations.

In

Kesho Nath Khurana vs Union Of India [AIR 1982 SC 1177] the question which was referred to a Division Bench of the

High Court

by a learned single Judge was whether the

13

order dated January 21, 1963 made by the Chief Settlement Commissioner was final and binding in the present appeal, and if so, what is its effect upon the point in controversy in the present appeal? But, the Division Bench of High Court, on such reference, having answered the above question, proceeded further and disposed

of the second appeal itself.

When the

matter came up before the Hon'ble Supreme Court, the Hon'ble Supreme Court reversed the order of the High Court on the ground that the Division Bench ought to have sent the appeal back to the single Judge with the answer rendered by them to the question referred by the single Judge and left it to the single Judge to dispose of the second appeal according to law.

20. The above said judgment came to be again considered

by the Hon'ble Supreme Court in Kerala State

Science & Technology Museum Vs. Rambal Co. and Others, reported in (2006) 6 SCC 258

wherein in para 9

the Hon'ble Supreme Court has held as follows:“It is fairly well settled that when reference is made on a specific issue either by a learned Single Judge or Division Bench to a larger Bench i.e. Division Bench or Full

14

Bench or Constitution Bench, as the case may be, the Larger Bench cannot adjudicate upon an issue which is not the question referred. [See: Kesho Nath Khurana v. Union of India and Others [1981 (Supp.) SCC 38], Samaresh Chandra Bose v. The District Magistrate, Burdwan and Others [1972 (2) SCC 476] and K.C.P. Ltd. v. State Trading Corporation of India and Another [1995 Supp. (3) SCC 466].” [Emphasis supplied] 21. In yet another judgment in T.A. Hameed vs. M. Viswanathan reported in (2008) 3 SCC 243

the Hon'ble

Supreme Court, after having referred Kesho Nath Khurana and Kerala State Science & Technology Museum cases [cited supra] reiterated the law in the following words:“11. In the case at hand also, almost an identical situation had taken place that a reference was made by the learned Division Bench of the Kerala High Court to the Full Bench and the Full Bench after answering

the

reference

went

decide the revision petition

on

to

itself

on

merits, which the Full Bench had no jurisdiction to do as the revision petition

15

was not referred to the Full Bench for decision. Since, only reference was made to the Full Bench, the Full Bench should have answered the question referred to it and remitted the matter to the Division Bench for deciding the revision petition on merits. Consequently, we set aside that part of the impugned order dated 31.1.2003 whereby the Full Bench has dismissed the revision petition filed by the appellant herein...........” 22. Very recently, in State Of Punjab vs Salil Sabhlok and others, Manu/SC0166/2013

the Hon'ble

Supreme Court had to deal with the similar situation.

In the

said case, the Hon'ble Supreme Court was to deal with the contention that the Full Bench had exceeded its jurisdiction by enlarging the scope of reference and deciding matters which were not referred to it by the order dated 13.07.2011 of the Division Bench. While deciding the said question, the Supreme Court has taken note of the Rule 4 of the Punjab High Court Rules which states that Save as provided by law or by these rules or by special order of the Chief Justice, all cases shall be heard and disposed of by a Bench of two Judges. The Hon'ble

16

Supreme Court further observed that there was no order of the Chief Justice making a reference but there was only the order of the Division Bench of the High Court making a reference to the Full Bench of three Judges of the High Court. Therefore, the Hon'ble Supreme Court had to look at the order dated 13.07.2011 of the Division Bench to find whether the Division Bench of the High Court had referred only specific questions to the Full Bench or the entire case to the Full Bench. Ultimately, in para 28, the Hon'ble Supreme Court has held in the following terms:“28. ... ...

... I, therefore, do not

agree with Mr. Lalit that the Division Bench referred the entire case to the Full Bench by the order dated 13.07.2011. I further find that although the aforesaid specific questions relating to the procedure for identifying persons of competence and integrity for appointment as the Chairman of the Public Service Commission only were referred by the Division Bench of the High Court, the Full Bench, instead of deciding these specific questions referred to it, has given directions to the State of Punjab and the State of Haryana to follow a particular procedure for appointment of

17

Members

and

Chairman

of

the

Public

Service Commission till such time a fair, rational, objective and transparent policy to meet the mandate of Article 14 of the Constitution is made. I, therefore, agree with Mr. Rao that the Full Bench of the High Court has decided issues which were not referred to it by the Division Bench of the High Court and the judgment dated 17.08.2011 of the Full Bench of the High Court was without jurisdiction.” [Emphasis supplied] 23. In view of the above settled position of law declared by the Hon'ble Supreme Court that a larger Bench to which certain specified questions are referred for answer draws jurisdiction only from out of reference or on the order of the Hon'ble Chief Justice and therefore, the larger Bench cannot travel too long so as to answer any question or issue which was not referred to it at all. If this law, which is a binding precedent, is applied to the judgment of the Division Bench, with respect, I apprehend that the answers given by the Division Bench to the two questions which were not at all referred to by the learned single Judge will have no binding force on this court. However,

18

I do not wish to travel more on this matter since I do not have a much of different view

than the view taken by the Division

Bench in many respects.

24. Now, let us go to the issues. So far as the adjective phrases “beyond reasonable doubt” or “benefit of doubt” to be added to the expression "acquittal" are concerned, the Division Bench has rightly referred to the principle laid down in Woolmington vs. Director of Public Prosecutions (1935 ALL E.R.Page 1).

At this juncture, it is worth referring to

certain Articles of "The Universal Declaration of Human Rights. Article 11 (1) provides that everyone charged with penal offences has a right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. Article 14(2) states that everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. Article 6(1) of "Convention on Civil and Political Rights" states that every human being has the inherent right to life. This right shall be protected by law; No one shall be arbitrarily deprived of his life. Article 9(1) says that everyone has the right to liberty

19

and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as is established by law. Article 14(2) envisages that everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law and shall be entitled to minimum guarantees detailed therein.

25. The Hon'ble Supreme Court in Bachan Singh vs State Of Punjab, 1980 (2) SCC 684 has held that “the above requirements of these clauses are substantially the same as the guarantees or prohibitions contained in Articles 19 and 21 of our Constitution. India's commitment, therefore, does not go beyond what is provided in the Constitution and the Indian Penal Code and the Criminal Procedure Code.”

26. In P.N.Krishna Lal v. Government of Kerala, 1994 Suppl. (5) SCR 526

after having referred to the above

position, the Hon'ble Supreme Court has held as follows:“It is true and indisputable, as contended by Sri A.Raghuvir, the learned senior counsel that the golden rule that runs through the web

20

of all the civilised criminal jurisprudence is that the accused is presumed to be innocent unless he is found guilty of the charged offence. The burden to prove all the facts constituting the ingredients of the offence against the accused beyond reasonable doubt rests on the prosecution. If there is any reasonable doubt the accused gets the benefit of acquittal. But the rule gets modulated with the march of time. .....” 27. Thus, the Hon'ble Supreme Court has recognized the

Woolmington

Jurisprudence

as

principle

well.

The

to

Indian

Hon'ble

Criminal

Supreme

Court

Law in

P.N.Krishna Lal's case has made a thorough survey of the legal position into the contours of comparable jurisdiction in U.K., Hong Kong, Malaysia, U.S.A., Australia and Canada to find the permissive limits of the burden of proof on the accused. In that

judgment,

the

Hon'ble

Supreme

Court,

Woolmington's case, wherein Lord Sankey

referring

to

held: "throughout

the web of the English criminal law the golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence

of

insanity

and

subject

also

to

any

statutory

21

exception.....No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

This ratio was further

explained in the speech of Viscount Simon L.C. in Mancini v. Director

of

Public

Prosecutions,

(1942)

A.C.

1

at

11,

Woolmington's case was explained and reinforced that the prosecution must prove the charge beyond reasonable doubt, and, consequently, that if, on the material before the jury, there is a reasonable doubt, the prisoner Should have the benefit of it."

28. Then, the Hon'ble Supreme Court referred to Jayesena v. The Queen, (1970) A.C. 618, wherein Lord Devlin speaking for the Privy Council, commenting upon Woolmington's case at p. 623 stated that the House laid it down that, save in the case of insanity or of a statutory defence, there was no burden laid on die prisoner to prove his innocence and that it was sufficient for him to raise a doubt as to his guilt.

29. The Hon'ble Supreme Court also took note of the

22

position in Singapore Court and referred to Ong Ah Chuan v. Public Prosecutor, (1981) A.C. 648 and then Regina v. Hunt (Richard), (1987) A.C. 352 wherein while explaining the declared burden of proof

to prove his innocence, the

Singapore Court has held as follows:“whenever burden of proof is placed upon a defendant by statute the burden should, be an evidential burden and not a persuasive burden. ”

30. The Hon'ble Supreme Court in P.N.Krishna Lal's case took note of the judgments from Canadian Supreme Court, Supreme Court of Unites States and various other courts and discussed the legal position in terms of Ss.5, 6 and 101 of The Indian Evidence Act. After having referred to various previous judgments,

the Hon'ble Supreme Court has held as

follows:“The definition of the word 'proved' says that a fact is said to be proved when, after considering matters before it the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to

23

act upon the supposition that it exists. A fact is said to be not proved when it is neither proved nor disproved. A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. It is

the

cardinal

rule

of

our

criminal

jurisprudence that the burden in the web of proof of an offence would always lie upon the prosecution to prove all the facts constituting the ingredients beyond reasonable doubt. If there is any reasonable doubt, the accused is entitled to the benefit of the reasonable doubt. At no stage of the prosecution case, the burden to disprove the fact would rest on the defence. However, exceptions have been provided in sections 105 and 106 of the Evidence Act, as stated herein before.” [Emphasis supplied]

31. In Harbhajan Singh v. State of Punjab, [1965] 3 SCR 235,

the Hon'ble Supreme Court has further clarified

that the test of proof beyond reasonable doubt does not apply to the accused and if he proves his defence by preponderance of

24

probabilities, the burden shifts to the prosecution which has still to discharge its original burden. Considering the Woolmington's ratio this Court held that the principle of common law criminal law jurisprudence would be a part of the criminal law in our country.

32. From the above judgments, it is crystal clear that Woolmington principle has become a part of the criminal jurisprudence of India. Though in Indian Evidence Act the adjectives “proof beyond reasonable doubt”

and “benefit of

doubt” have not been statutorily provided for, the Hon'ble Supreme Court

has imported the Woolmington principle into

the Indian Criminal Law Jurisprudence, and thus has recognized the said principle for its application while dealing with any criminal case. Therefore, there can be no doubt that the criminal courts while acquitting the accused, can add the adjectives like “beyond reasonable doubt” and “benefit of doubt” Thus, I am in full agreement with the answer given by the Division Bench to the first question.

33. But, in the instant case, the question involved is

25

slightly different. It is not the contention of the petitioners that these adjectives cannot be added to the expression “acquittal” when the criminal court acquits the person who was facing the prosecution. All that is contended before this court is that the trial court has inappropriately used the term “benefit of doubt” while acquitting the accused giving the impression that there was some evidence against the accused. In other words, according to the petitioner,the trial court should have acquitted the accused without adding the adjectives “by giving benefit of doubt”. Undoubtedly,

there is a vast difference between "an

acquittal" in simple terms and an acquittal by extending the "benefit of doubt". The judgment of the Division Bench has not dealt with this difference. Therefore, it is

open for this court

now to deal with the said difference. This difference could be perceived by simply referring to Sections 232 and 235 of the Code which read as follows:-

"232. Acquittal – If after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed

the offence, the judge shall

26

record an order of acquittal. 235.

Judgment

of

acquittal

or

conviction - (1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case. (2) If the accused is convicted, the Judge

shall,

unless

he

proceeds

in

accordance with the provisions of section 360 hear the accused on the question of sentence, and then pass sentence on him according to law." 34.

A

simple

comparative

reading

of

these

two

provisions would make it very clear that in a trial before the court of session, after the evidence on the side of the prosecution is completed, the court has to find whether there is any evidence at all against the accused that he has committed the offence for which he stands charged. If the court finds that there is no evidence at all against the accused in support of the charge, it is mandatory for the court to record an "order of acquittal".

35.

On

considering

the

evidence

let

in

by

the

27

prosecution, if the court finds that it is not a case of no evidence against the accused and if the court does not acquit the accused under section 232 of the Code then, the court shall call upon the accused to enter upon his defence and adduce evidence, if any, he may have in support there of.

Under Section 234 of the

Code, thereafter, the prosecution as well as the accused or his pleader shall make their arguments. Then comes Section 235 of the Code.

Under this provision, after hearing the arguments

and points of law, if any, the Judge shall give a "judgment" in the case. The said judgment may be a "judgment of acquittal" or "judgment of conviction". An accused against whom there is some evidence in support of the charges, but, the evidence is not either sufficient to hold him guilty or there is any reasonable doubt in the evidence let in by the prosecution in support of the charges, then, the court may acquit the accused either by saying

that

the

charges

have

not

been

proved

beyond

reasonable doubt or by saying that by giving benefit of doubt he is acquitted.

If the accused is acquitted under Section 235 of

the Code, the inference is that there was evidence against him, but he was acquitted either because the charges were not proved beyond reasonable doubt or that he was extended the

28

benefit of certain doubts in the case of the prosecution.

36. In a case where there is no evidence at all against the accused, if the court, instead of acquitting him under Section 232 of the Code acquits him under Section 235 of the Code, then, though there is acquittal favourable to him, the accused is still aggrieved, because the acquittal under Section 235 of the Code will have a different civil consequences upon him.

Similarly,

while acquitting the accused rightly under

Section 232 of the Code because there is no evidence, if the court inappropriately uses the expression that the acquittal is because charges have not been proved beyond reasonable doubt or that the acquittal is by extending the benefit of doubt even then, the accused is aggrieved. Similarly, in the trial of warrant-cases by the Magistrates or trial of summons-cases by the Magistrates or in a summary trials, though the criminal court can use the expressions "beyond reasonable doubt"

or

"giving benefit of doubt" they are not free to use these terms inappropriately when the accused is acquitted on the ground that there is no evidence at all against him.

29

37. "Proof beyond reasonable doubt" or "giving benefit of doubt"

relate to evidential burden and not a persuasive

burden. Thus, the finding is on the evidence let in by the prosecution and not on the character or innocence of the accused. If there is no evidence against the accused, there is no occasion for the court to raise any doubt at all because, as we have already pointed out, the doubts relate to the evidence and not to the innocence or guilt of the accused. Thus, it is crystal clear, that though the criminal court has got freedom to use the expressions “benefit of doubt” or “not proved beyond reasonable

doubt”

these

expressions

cannot

be

used

inappropriately by the criminal court when the accused is entitled for an acquittal simpliciter.

38. The next question which arises for consideration is, a criminal court, instead of acquitting an accused simpliciter when there is no evidence at all against him, if inappropriately employs the term “acquittal by giving benefit of doubt” or “acquittal as there is no proof beyond reasonable doubt”, "What is the remedy available for the accused?"

30

39. In this regard, I have to agree with the Division Bench in M.Krishnan's case cited supra that there is no right of appeal available to an accused, who has been acquitted, inasmuch as the right of appeal for the accused is only against conviction

and

sentence.

As

against

acquittal

or

for

enhancement of punishment, the right of appeal is vested only with the State and the victim. Therefore, to rectify the above inappropriate expressions

such as “benefit of doubt”or “not

proved beyond reasonable doubt” employed by the court the aggrieved cannot make any appeal at all.

40. Now, in such a situation, let us examine, as to whether the revisional remedy is available to the accused. Section 401 (4) of the Code prohibits a revision at the instance of the party who has got right of appeal. The converse is that when there is no right of appeal, the remedy for the aggrieved is to file a revision provided it falls within the parameters enshrined in Section 397 of the Code. Now, let us have a look into S.397 of the Code which reads as follows:"397.

Calling

for

records

to

exercise powers of revision.— (1) The High Court or any Sessions Judge may call

31

for

and

examine

the

record

of

any

proceeding before any inferior Criminal Court

situate

within

its

or

his

local

jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality

or

propriety

of

any

finding.

Sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended,

and

if

the

accused

is

in

confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation.—

All

Magistrates,

whether Executive or Judicial, and whether exercising

original

or

appellate

jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398. (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the

32

High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

41. A plain reading of S.397 of the Code would make it very clear that revision would like only in the following circumstances:"(i) To test the correctness, legality or propriety of any finding; (ii) to test the correctness, legality or propriety of sentence or order, recorded or passed; and (iii) as to the regularity of any proceedings of such inferior Court"

42. Thus, the correctness or legality or propriety of any finding is also revisable. The Division Bench, while answering the question No.2, has held in para 49 as follows:"49. .... .... .... If a revision filed by an accused, who is acquitted by the Trial Court, is not maintainable either as an appeal under any of the provisions of Sections 373 to 380 or as revision under

33

Section 397, the power under Section 401(1) read with Section 386(d) cannot be invoked."

43. In para 52, again the Division Bench, after having referred to Pranab Kumar Mithra v. State of West Bengal [AIR 1959 SC 144], has held as follows:“Moreover, in any case, an order of acquittal will not come within the definition of the expression 'any other order' appearing in Clause (d) of Section 386. Judgments are given under Chapter XXVII of the Code and a judgment of acquittal will not come within the definition of the expression 'any other order' in Section 386(d). Therefore, the revisions filed by acquitted persons, are not maintainable."

44. The Division Bench, with great respect, I should say, was not apprised of the difference between an order of acquittal and judgment of acquittal. Under Section 232 of the Code when there is no evidence against the accused, the court shall record an order of acquittal . If an accused is acquitted under s.235 of the Code, the court shall give a judgement of acquittal. So far as the trial of a warrant-case by the Magistrate

34

is concerned, under s.248 of the Code, the Magistrate shall record an order of acquittal. Here the language used is not judgment of acquittal. In respect of trial of summons-cases by the Magistrate under S.255 of the Code, the Magistrate shall record an order of acquittal.

In summary trial under s.264 of

the Code, the Magistrate shall record a judgment of acquittal.

45. As has been held by the Division Bench in M.Krishnan's case cited supra, there can be no doubt that an order of acquittal or judgment of acquittal will not fall within the definition of expression "any other order" for the purpose Section 386 (d) of the Code. Therefore, an acquitted person cannot file revision challenging the acquittal.

46. But, if there are findings in the order or judgment of acquittal, which are adverse to the interest of the accused, as an aggrieved person, he should have the remedy to get the adverse findings set aside. For illustration, though in a criminal trial, the bad character of an accused is not

relevant [vide

S.132 of the Evidence Act], in a given case under Section 304-A of IPC relating to motor vehicle accident, suppose, despite the

35

objection raised by the accused, evidence relating to bad character of the accused that he is a fraud is let in by the prosecution and the same is also recorded by the trial court, then at the time of argument, quite naturally, the accused would request the court to eschew the said evidence relating to his bad character from consideration. But, the court either inadvertently or illegally goes into the said evidence and gives finding about the bad character of the accused holding him as a fraud, though the accused is acquitted as there is no evidence against him, it cannot be said that the accused has no remedy and that he should carry the stigma for ever. If the accused does not get this finding expunged, he may have to carry the stigma about his character throughout his life. This would certainly result in civil consequence as it relates to his moral character. Similarly, let us assume that in a case of rape, the accused pleads that he never had sexual intercourse with the victim, who is pregnant. The trial court, however, gives a finding that he had sexual intercourse with the victim and he is the cause for her pregnancy.

The trial court, eventually, acquits

him on the ground that the said sexual intercourse was with the free consent of the victim and thus, it is not an offence of rape.

36

True, that he can not challenge the acquittal either by way of appeal or revision. But, if he does not challenge the finding that he is the father of the child in the womb, it will be a stigma in his life resulting in civil, moral and social consequences. Therefore, it is incumbent for him to get such adverse findings expunged.

47. In my considered view, in such a situation, the remedy available for the accused

is in the form of revision

under Ss.397 and 401 of the Code, for S.397 of the Code, states that any finding could also be challenged by the aggrieved. The Division Bench has not adverted to this aspect of Ss.397 and 401 of the Code. The Division Bench simply has held that like "any other order", an acquittal cannot be challenged by an acquitted person. But, the grounds upon which he was acquitted; the adverse remarks made against him; and the adverse findings made against him; are all matters, which fall under the term "findings" as employed in Section 397 of the Code and therefore they are all revisable.

48. Nextly, assuming for a moment without conceding,

37

that the finding of the trial court that the acquittal on giving benefit of doubt is not a finding in terms of S.397 of the Code, even then, the accused cannot be shown the door to go without remedy.

Such power, in my considered opinion, lies

at least

under section 482 of the Code inasmuch as the opening words of S.482 of the Code "nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court" would go to show that the non availability of Appeal or Revision is not a bar for the High Court to exercise the inherent power.

49. Now comes the question as to whether the criminal court

can

use

the

expression

“honourable

acquittal”while

acquitting an accused. This question is no more res integra in view of the judgment of the Hon'ble Supreme Court in Management of Reserve Bank of India, New Delhi v. Bhopal Singh Panchal, (1994) 1 SCC 541

wherein, the

Supreme Court has held as follows:“The acquittal"

expressions "acquitted

of

"honourable blame"

"fully

exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, which

are

coined

by

judicial

38

pronouncements. It is difficult to define precisely what is meant by the expression "honourably accused

is

acquitted". acquitted

When

the

after

full

consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted."

50. Thus, the expression “honourable acquittal” relevant to service law

is

jurisprudence or other jurisprudence

and not for criminal law jurisprudence. Therefore, the criminal court while acquitting the accused, undoubtedly, cannot employ the term "that the accused is/are honourably acquitted". But at the same time, in all cases where there is no evidence at all against the accused as I have already concluded, the criminal court should simply say "acquitted". The criminal court may say that there is no evidence against the accused. But, the criminal court in such kind of cases, where there is no evidence at all against the accused, shall not employ the expressions "not proved beyond reasonable doubt" or "accused is acquitted by giving benefit of doubt".

39

51. The Division Bench has held under Question No.2 that a revision would not lie to convert an order of acquittal as an order of honourable acquittal as the term “honourable acquittal”is unknown to criminal law. Regarding this proposition also there can be no second opinion, for the criminal court, while

acquitting

an

accused,

cannot

use

the

expression

“honourable acquittal”.

52. Now, turning to the facts of the present case, a perusal of the judgment of the trial court would go to show that no one has spoken to anything incriminating him. Therefore, the trial court should have acquitted him by recording an order of acquittal without adding any adjectives such as "not proved beyond reasonable doubt" or "by giving the benefit of doubt". However, a perusal of the judgment of the trial court would go to show that the trial court has acquitted the accused on the ground that the charges have not been proved beyond reasonable doubt. This finding, in my considered opinion, needs to be set aside by this court. The trial court should have acquitted

the

accused

simpliciter

without

adding

any

qualification to the word "acquittal". Of course, the term

40

"honourable

acquittal"

is

foreign

to

the

criminal

law

jurisprudence and so this court cannot covert the order of acquittal into one of honourable acquittal. Therefore, this court only converts the order of acquittal on benefit of doubt into one of

acquittal

simpliciter.

In

the

context

of

service

law

jurisprudence, if the petitioner seeks employment, it is for the appointing authority to consider the judgment of the trial court in its entirety and to find whether the acquittal is honourable or not for the purpose of employment in the light of the judgment of the Hon'ble

Supreme Court in Management of Reserve

Bank of India v. Bhopal Singh Panchal [1994 (1) SCC 541].

41

53. At this juncture, I wish to mention that in W.P.No.9954 of 2010 dated 02.09.2014 [Lakshmanaperumal v. State rep. by The

Chairman,

Tamil Nadu Uniformed

Service

Recruitment Board, Chennai - 600 002 and

another],

I found that an youth, who was punished for an

offence under Section 75 of the Madras City Police Act was denied employment as a police constable. Having taken note of the plight of him and following the recommendation made by the Larger Bench of this court in J.Alex Ponseelan v. State 2014 (2) CTC 337,

I suggested to the Government to

consider to amend Rule 14 of the Tamil Nadu Police Subordinate Service Rules. But, the Division Bench in M.Krishnan's case [cited supra] has observed that the State as well as the Director General

of

Police

should

discard

all

suggestions

for

an

amendment to the Rules in the larger interest of the society. I wish to further mention here that the Division Bench, I apprehend, was not apprised of the recommendation made by the Larger Bench in J.Alex Ponseelan's case cited supra, wherein, in paragraph 19, the Larger Bench has made the following recommendation:-

42

"19. In so far as the present case is concerned,

the

explanation

14(b)(iv)

indicates

exhaustive

but

it

that

to it

specifies

Rule

is

not

certain

instances, which would explain the term "involvement in a criminal case". In any event, assuming without admitting that there

is

some

confusion

in

the

understanding of the language by which the Explanation has been stated, that issue

can

however

be

appropriately

addressed by the Government by suitably amending the Tamil Nadu Special Police Subordinate Service Rule, on the lines of the Delhi Police Rules and its Standing Order No.398/2010, which is reproduced in Paragraph 20 of the judgment in Mehar Singh's

case

(Supra).

Such

a

recommendation is made taking cue from the decision of the Hon'ble Apex Court in Pawan Kumar

vs. State of Haryana and

another - AIR 1996 SC 3300." [Emphasis supplied] Therefore, the recommendations made by the larger Bench in J.Alex Ponseelan's case cited supra holds good.

43

54. Before parting with this order, I wish to mention that the incidence of false criminal cases is on the increase. The National Crime Records Bureau, in its Report on Crime in India for the year 2000, has stated that

7.55% of the total cases

registered in the Country are false cases. The latest report on Crime in India for the year 2012 has been released by National Crime Record Bureau, which shows roughly 48% of complaints were frivolous as the accused were either acquitted by the court or the complaints were found to be false at the investigation stage itself. For example, so far as the crimes against the women are concerned, the statistics shows that in rapes, dowry deaths, harassment to married women, and outraging of modesty of women, the percentage of false cases are 7.4%, 6.6%, 9.6% and 5.8% respectively.

55. The above statistics, if compared to the statistics of the year 2000, would go to show that the registration of false cases

is

phenomenally

on the

increase.

Those

who

are

implicated in these false cases suffer in terms of humiliation, loss of money, loss of working hours, loss of mental peace and at last, loss of employment as well.

Most of the accused

44

implicated in these false cases hail from poor strata of the society for whom some hearts bleed.

56. In the result, the criminal revision petition is allowed, the finding recorded by the learned Judicial Magistrate No.II, Panruti in his order

dated 31.12.2012 made in

C.C.No.12 of 2010 to the effect that the acquittal is because charges have not been proved beyond reasonable doubt is set aside and instead, it is ordered that the acquittal shall be a simple order of acquittal.

Index Internet kk / kmk

: yes. : yes.

23..12..2014

To 1.The Principal Secretary to Government, Home Department, Fort St. George, Cennai 600 009. 2.The Sub-Inspector of Police, Pudupet Police Station, Cuddalore District. 3. The Public Prosecutor, Madras High Court.

45

S.NAGAMUTHU,J. kmk

Crl.R.C.No.684 of 2014

23..12..2014

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.456 OF 2015 (ARISING OUT OF SLP (CRL.) NO.6437 OF 2013 TARAMANI PARAKH

…APPELLANT

VERSUS STATE OF M.P. & ORS.

…RESPONDENTS JUDGMENT

ADARSH KUMAR GOEL, J. 1.

Leave granted.

2.

This appeal has been preferred against judgment and order

dated 20th February, 2013 passed by the High Court of Judicature of Madhya Pradesh at Gwalior in Misc. Criminal Case No.9759 of 2012. 3.

The appellant was married to Respondent No.2 on 18 th

November, 2009.

She lodged complaint dated 19 th May, 2011

alleging that Respondent No.2 and his parents harassed her with demand of dowry amounting to cruelty. This led to registration of FIR being Crime No.15811 under Sections 498-A/34 of IPC at Police Station Hujrat Kotwali, Gwalior. After investigation, charge sheet was filed against Respondent No.2 and his parents which has been registered as Criminal Case No.163/12 before the Judicial Magistrate First Class, Gwalior. Page 1

Criminal Appeal No…. of 2015 @ SLP (Crl.) No.6437 of 2013

4.

The respondents accused moved the High Court under

Section 482 of the Code of Criminal Procedure for quashing the proceedings by submitting that the behaviour of the appellant was not cordial and in spite of efforts of the accused, she failed to improve her behaviour and her father took her with him on 22 nd May, 2010. The husband filed a petition under Section 9 of the Hindu Marriage Act.

In mediation proceedings, the appellant

stated that she did not want to live with her husband. Thereupon, the respondent filed a divorce petition on 26 th April, 2011 which was pending.

It was thereafter that the appellant

filed the impugned complaint dated 19th May, 2011 which contained false allegations. 5.

The petition was contested by the appellant.

6.

The High Court relying upon judgments of this Court in

Neelu Chopra and another vs. Bharti1, Manoj Mahavir Prasad Khaitan vs. Ram Gopal Moddar and another2 and Geeta Mehrotra and another vs. State of Uttar Pradesh and another3 held that since there were no specific allegations, the criminal proceedings against the accused amounted to abuse of the court’s process. Accordingly, the High Court quashed the criminal proceedings. 1 (2009) 10 SCC 184 2 (2010) 10 SCC 673 3 (2012) 10 SCC 741 Page 2 2 of 11

Page 2


7.

Aggrieved by the above, the appellant has approached this

Court.

8.

We have heard learned counsel for the parties and

perused the record. 9.

Learned counsel for the appellant submitted that it was

the conduct of the accused on account of their not being satisfied with the dowry given and the inability of the appellant’s family to meet such demands that the appellant was forced to leave the matrimonial home.

The appellant

was keen to continue in the matrimonial home and to return home even after being forced to leave but the accused refused to take her back. The husband has filed a divorce petition which is without any legal basis.

The appellant

lodged the complaint after filing of the divorce petition for the reason that the appellant had earlier remained hopeful that the matter may be amicably settled. It was only after she lost all hopes that she had to initiate criminal proceedings in respect of cruelty meted out to her. The High Court in proceedings under Section 482 could not quash the proceedings merely with the observation that the allegations were omnibus.

The power of quashing could be exercised

sparingly and only if no case was made out from the Page 3 3 of 11

Page 3


allegations taken as correct or where the complaint was absurd or legally not maintainable. In the FIR, the appellant has specifically mentioned that the accused harassed her for dowry by taunting her and beating her.

It was already

mentioned that she was deprived of her belongings by the accused. 10. Learned counsel for the accused respondents supported the impugned order passed by the High Court. 11. Law relating to quashing is well settled.

If the

allegations are absurd or do not made out any case or if it can be held that there is abuse of process of law, the proceedings can be quashed but if there is a triable case the Court does not go into reliability or otherwise of the version or the counter version.

In matrimonial cases, the Courts

have to be cautious when omnibus allegations are made particularly

against

relatives

who

are

not

generally

concerned with the affairs of the couple. We may refer to the decisions of this Court dealing with the issue. Referring to earlier decisions, in Amit Kapoor vs. Ramesh Chander and Anr.4, it was observed:

4 (2012) 8 SCC 460 Page 4 4 of 11

Page 4


“27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. 27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. 27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. 27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a “civil wrong” with no “element of criminality” and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even Page 5 5 of 11

Page 5


in such cases, the court would not embark upon the critical analysis of the evidence. 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. 27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. 27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution. 27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. 27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and

Page 6 6 of 11

Page 6


substantial justice for administration of which alone, the courts exist. (Ref. State of W.B. v. Swapan Kumar Guha [(1982) 1 SCC 561 : 1982 SCC (Cri) 283 : AIR 1982 SC 949]; Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234]; Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 : AIR 1993 SC 892]; Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059]; G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513]; Ajay Mitra v. State of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703]; Pepsi Foods Ltd. v. Special Judicial Magistrate [(1998) 5 SCC 749 : 1998 SCC (Cri) 1400 : AIR 1998 SC 128]; State of U.P. v. O.P. Sharma [(1996) 7 SCC 705 : 1996 SCC (Cri) 497]; Ganesh Narayan Hegde v. S. Bangarappa [(1995) 4 SCC 41 : 1995 SCC (Cri) 634]; Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122 : 2005 SCC (Cri) 283]; Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 : 2000 SCC (Cri) 615 : AIR 2000 SC 1869]; Shakson Belthissor v. State of Kerala [(2009) 14 SCC 466 : (2010) 1 SCC (Cri) 1412]; V.V.S. Rama Sharma v. State of U.P. [(2009) 7 SCC 234 : (2009) 3 SCC (Cri) 356]; Chunduru Siva Ram Krishna v. Peddi Ravindra Babu [(2009) 11 SCC 203 : (2009) 3 SCC (Cri) 1297]; Sheonandan Paswan v. State of Bihar [(1987) 1 SCC 288 : 1987 SCC (Cri) 82]; State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192 : AIR 1991 SC 1260]; Lalmuni Devi v. State of Bihar [(2001) 2 SCC 17 : 2001 SCC (Cri) 275]; M. Krishnan v. Vijay Singh [(2001) 8 SCC 645 : 2002 SCC (Cri) 19]; Savita v. State of Rajasthan [(2005) 12 SCC 338 : (2006) 1 SCC (Cri) 571] and S.M. Datta v. State of Gujarat [(2001) 7 SCC 659 : 2001 SCC (Cri) 1361 : 2001 SCC (L&S) 1201]). 27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the Page 7 7 of 11

Page 7


proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.”

12. In Kailash Chandra Agrawal & Anr. vs. State of U.P. & Ors.

(Criminal Appeal No.2055 of 2014 decided on

6.9.2014), it was observed: “9. We have gone through the FIR and the criminal complaint. In the FIR, the appellants have not been named and in the criminal complaint they have been named without attributing any specific role to them. The relationship of the appellants with the husband of the complainant is distant. In Kans Raj vs. State of Punjab & Ors. [(2000) 5 SCC 207], it was observed:“5………A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case.” The Court has, thus, to be careful in summoning distant relatives without there being specific material. Only the husband, his parents or at best close family members may be expected to demand dowry or to harass the wife but not distant relations, unless there is tangible material to support allegations made against such distant relations. Mere naming of distant relations is not enough to summon them in absence of any specific role and material to support such role. 10. The parameters for quashing proceedings in a criminal complaint are well known. If there are triable issues, the Court is not expected to go into the veracity of the rival versions but where on the face of it, the criminal proceedings are abuse of Court’s process, Page 8 8 of 11

Page 8


quashing jurisdiction can be exercised. Reference may be made to K. Ramakrsihna and Ors. vs. State of Bihar and Anr. [(2000) 8 SCC 547], Pepsi Foods Ltd. and Anr. vs. Special Judicial Magistrate and Ors. [(1998) 5 SCC 749], State of Haryana and Ors. vs. Ch. Bhajan Lal and Ors. [(1992) Suppl 1 SCC 335] and Asmathunnisa vs. State of A.P. represented by the Public Prosecutor, High Court of A.P., Hyderabad and Anr. [(2011) 11 SCC 259].”

13. In the present case, the complaint is as follows: “Sir, it is submitted that I was married on 18.11.09 with Sidharath Parakh s/o Manak Chand Parak, r/o Sarafa Bazar in front of Radha Krishna Market, Gwalior according to the Hindu rites and customs. In the marriage my father had given gold and silver ornaments, cash amount and household goods according to his capacity. After the marriage when I went to my matrimonial home, I was treated nicely by the members of the family. When on the second occasion I went to my matrimonial, my husband, fatherin-law and mother-in-law started harassing me for brining the dowry and started saying that I should bring from my father 25-30 tolas of gold and Rs.2,00,000/- in cash and only then they would keep me in the house otherwise not. On account of this my husband also used to beat me and my father-in-law and my motherin-law used to torture me by giving the taunts. In this connection I used to tell my father Kundanmal Oswal, my mother Smt. Prem Lata Oswal, uncle Ashok Rai Sharma and uncle Ved Prakash Mishra from time to time. On 2.4.2010 the members of the family of my matrimonial home forcibly sent me to the house of my parents in Ganj Basoda along with my brother Deepak. They snatched my clothes and ornaments and kept with them. Since then till today my husband has been harassing me on the telephone and has not come to take me back. Being compelled, I have been moving this application before you. Sir, it is prayed that action be taken against husband Sidharath Parakh, my fatherin-law Manak Chand Parakh and my mother-in-law Smt. Indira Parakh for torturing me on account of demanding the dowry.”

Page 9 9 of 11

Page 9


14. From reading of the complaint, it cannot be held that even if the allegations are taken as proved no case is made out. 15. There are allegations against Respondent No.2 and his parents for harassing the complainant which forced her to leave the matrimonial home. Even now she continues to be separated from the matrimonial home as she apprehends lack of security and safety and proper environment in the matrimonial home. The question whether the appellant has infact been harassed and treated with cruelty is a matter of trial but at this stage, it cannot be said that no case is made out.

Thus, quashing of proceedings before the trial is not

permissible. 16. The decisions referred to in the judgment of the High Court are distinguishable. In Neelu Chopra, parents of the husband were too old.

The husband Rajesh had died and

main allegations were only against him. This Court found no cogent material against other accused. In Manoj Mahavir, the appellant before this Court was the brother of the daughter-in-law of the accused who lodged the case against the accused for theft of jewellery during pendency of earlier

Page 1 10 of 11

Page 10


498A case. This Court found the said case to be absurd. In Geeta Mehrotra, case was against brother and sister of the husband. Divorce had taken place between the parties. The said cases neither purport to nor can be read as laying down any inflexible rule beyond the principles of quashing which have been mentioned above and applied to the facts of the cases therein which are distinguishable. In the present case the factual matrix is different from the said cases. Applying the settled principles, it cannot be held that there is no triable case against the accused. 17. Accordingly, we allow this appeal and set aside the impugned order passed by the High Court.

……..…………………………….J. [T.S. THAKUR]

.….………………………………..J. [ ADARSH KUMAR GOEL ] NEW DELHI MARCH 16, 2015

Page 11 11 of 11

Page 11

Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.781 OF 2012

Mrs. Priyanka Srivastava and Another

Appellants

Versus State of U.P. and Others

Respondents

JUDGMENT Dipak Misra, J. The present appeal projects and frescoes a scenario which is not only disturbing but also has the potentiality to create a stir compelling one to ponder in a perturbed state how some unscrupulous, unprincipled and deviant litigants can ingeniously and innovatively design in a nonchalant manner to knock at the doors of the Court, as if, it is a laboratory where multifarious experiments can take place and such skillful persons can adroitly abuse the process of the Court at their own will and desire by

CRL.A.781/12

2

painting a canvas of agony by assiduous assertions made in the application though the real intention is to harass the statutory authorities, without any remote remorse, with the inventive design primarily to create a mental pressure on the said officials as individuals, for they would not like to be dragged to a court of law to face in criminal cases, and further pressurize in such a fashion so that financial institution which they represent would ultimately be constrained to accept the request for “one-time settlement” with the fond hope that the obstinate defaulters who had borrowed money from it would withdraw the cases instituted against them.

The

facts, as we proceed to adumbrate, would graphically reveal how such persons, pretentiously aggrieved but potentially dangerous, adopt the self-convincing mastery methods to achieve so. That is the sad and unfortunate factual score forming the fulcrum of the case at hand, and, we painfully recount. 2.

The facts which need to be stated are that the

respondent No.3, namely, Prakash Kumar Bajaj, son of Pradeep Kumar Bajaj, had availed a housing loan from

CRL.A.781/12

3

the financial institution, namely, Punjab National Bank Housing Finance Limited (PNBHFL) on 21 st January, 2001, vide housing loan account No.IHL-583.

The loan

was taken in the name of the respondent No.3 and his wife, namely, Jyotsana Bajaj.

As there was default in

consecutive payment of the installments, the loan account was

treated

as

a

Non-Performing

Asset

(NPA)

in

accordance with the guidelines framed by the Reserve Bank of India. The authorities of the financial institution issued notice to the borrowers under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (for short, 'the SARFAESI Act') and in pursuance of the proceedings undertaken in the said Act, the PNBHFL, on 5 th June, 2007,

submitted

an

application

before

the

District

Magistrate, Varanasi, U.P. for taking appropriate action under Section 13(4) of the SARFAESI Act. 3.

At this juncture, the respondent No.3 preferred W.P.

No.44482 of 2007, which was dismissed by the High Court on 14th September, 2007, with the observation that it was open to the petitioner therein to file requisite

CRL.A.781/12

4

objection and, thereafter, to take appropriate action as envisaged under Section 17 of the SARFAESI Act.

After

the dismissal of the writ petition with the aforesaid observation, the respondent No.3, possibly nurturing the idea of self-centric Solomon’s wisdom, filed a Criminal Complaint Case No.1058 of 2008, under Section 200 Cr.P.C. against V.N. Sahay, Sandesh Tiwari and V.K. Khanna, the then Vice-President, Assistant President and the Managing Director respectively for offences punishable under Sections 163, 193 and 506 of the Indian Penal Code (IPC). It was alleged in the application that the said accused persons had intentionally taken steps to cause injury to him. The learned Magistrate vide order dated 4 th October, 2008,

dismissed the criminal complaint and

declined to take cognizance after recording the statement of the complainant under Section 200 Cr.P.C. and examining the witnesses under Section 202 Cr.P.C. 4.

Being grieved by the aforesaid order, the respondent

No.3 preferred a Revision Petition No.460 of 2008, which was eventually heard by the learned Additional Sessions Judge, Varanasi, U.P.

The learned Additional Sessions

CRL.A.781/12

5

Judge after adumbrating the facts and taking note of the submissions of the revisionist, set aside the order dated 4th October, 2008 and remanded the matter to the trial Court with the direction that he shall hear the complaint again and pass a cognizance order according to law on the basis of merits according to the directions given in the said order. Be it noted, the learned Additional Sessions Judge heard the counsel for the respondent No.3 and the learned counsel for the State but no notice was issued to the accused persons therein.

Ordinarily, we would not

have adverted to the same because that lis is the subject matter in the appeal, but it has become imperative to do only to highlight how these kind of litigations are being dealt with and also to show the respondents had the unwarranted enthusiasm to move the courts. The order passed against the said accused persons at that time was an adverse order inasmuch as the matter was remitted. It was incumbent to hear the respondents though they had not become accused persons. Manharibhai

Muljibhai

A three-Judge Bench in

Kakadia

and

Anr.

v.

CRL.A.781/12

6

Shaileshbhai Mohanbhai Patel and others1 has opined that in a case arising out of a complaint petition, when travels to the superior Court and an adverse order is passed, an opportunity of hearing has to be given. The relevant passages are reproduced hereunder: 46. .......If the Magistrate finds that there is no sufficient ground for proceeding with the complaint and dismisses the complaint under Section 203 of the Code, the question is whether a person accused of crime in the complaint can claim right of hearing in a revision application preferred by the complainant against the order of the dismissal of the complaint. Parliament being alive to the legal position that the accused/suspects are not entitled to be heard at any stage of the proceedings until issuance of process under Section 204, yet in Section 401(2) of the Code provided that no order in exercise of the power of the revision shall be made by the Sessions Judge or the High Court, as the case may be, to the prejudice of the accused or the other person unless he had an opportunity of being heard either personally or by pleader in his own defence. xxxxx

xxxxx

xxxxx

48. In a case where the complaint has been dismissed by the Magistrate under Section 203 of the Code either at the stage of Section 200 itself or on completion of inquiry by the Magistrate under Section 202 or on receipt of the report from the police or from any person 1

(2012) 10 SCC 517

CRL.A.781/12

to whom the direction was issued by the Magistrate to investigate into the allegations in the complaint, the effect of such dismissal is termination of complaint proceedings. On a plain reading of sub-section (2) of Section 401, it cannot be said that the person against whom the allegations of having committed the offence have been made in the complaint and the complaint has been dismissed by the Magistrate under Section 203, has no right to be heard because no process has been issued. The dismissal of complaint by the Magistrate under Section 203—although it is at preliminary stage—nevertheless results in termination of proceedings in a complaint against the persons who are alleged to have committed the crime. Once a challenge is laid to such order at the instance of the complainant in a revision petition before the High Court or the Sessions Judge, by virtue of Section 401(2) of the Code, the suspects get the right of hearing before the Revisional Court although such order was passed without their participation. The right given to “accused” or “the other person” under Section 401(2) of being heard before the Revisional Court to defend an order which operates in his favour should not be confused with the proceedings before a Magistrate under Sections 200, 202, 203 and 204. In the revision petition before the High Court or the Sessions Judge at the instance of the complainant challenging the order of dismissal of complaint, one of the things that could happen is reversal of the order of the Magistrate and revival of the complaint. It is in this view of the matter that the accused or other person cannot be deprived of hearing on the face of the express provision contained in Section 401(2) of the Code. The stage is not important whether it is pre-process stage or post process stage.

7

CRL.A.781/12

8

xxxxx

xxxxx

xxxxx

53. We are in complete agreement with the view expressed by this Court in P. Sundarrajan2, Raghu Raj Singh Rousha3 and A.N. Santhanam4. We hold, as it must be, that in a revision petition preferred by the complainant before the High Court or the Sessions Judge challenging an order of the Magistrate dismissing the complaint under Section 203 of the Code at the stage under Section 200 or after following the process contemplated under Section 202 of the Code, the accused or a person who is suspected to have committed the crime is entitled to hearing by the Revisional Court. In other words, where the complaint has been dismissed by the Magistrate under Section 203 of the Code, upon challenge to the legality of the said order being laid by the complainant in a revision petition before the High Court or the Sessions Judge, the persons who are arraigned as accused in the complaint have a right to be heard in such revision petition. This is a plain requirement of Section 401(2) of the Code. If the Revisional Court overturns the order of the Magistrate dismissing the complaint and the complaint is restored to the file of the Magistrate and it is sent back for fresh consideration, the persons who are alleged in the complaint to have committed the crime have, however, no right to participate in the proceedings nor are they entitled to any hearing of any sort whatsoever by the Magistrate until the consideration of the matter by the Magistrate for issuance of process.” Though the present controversy is different, we have

CRL.A.781/12

9

dealt with the said facet as we intend to emphasize how the Courts have dealt with and addressed to such a matter so that a borrower with vengeance could ultimately exhibit his high-handedness. 5.

As the narration further proceeds, after the remand,

the learned Magistrate vide order dated 13th July, 2009, took cognizance and issued summons to V.N. Sahay, Sandesh Tripathi and V.K. Khanna.

The said accused

persons knocked at the doors of the High Court under Section 482 Cr.P.C. and the High Court in Crl. Misc. No.13628 of 2010, by order dated 27th May, 2013, ruled thus: “A perusal of the complaint filed by the respondent no.2 also indicates that the issues were with regard to the action of the bank officers against respondent no.2 on the ground of alleged malafide and as such an offence under sections 166/500 I.P.C. was made out. Both the sections are non cognizable and bailable and triable by Magistrate of First Class. For the foregoing reasons the 482 Petition deserves to be allowed and the criminal complaint filed by the respondent no.2 being Complaint Case No.1058 of 2009 is liable to be quashed. Accordingly the application under section 482 Cr.P.C. is allowed and the Criminal Complaint Case No.1058 of 2009, Prakash Kumar Bajaj

CRL.A.781/12

10

versus P.N.B. Housing Finance Ltd. And others, pending in the Court of Additional Chief Judicial Magistrate, Court No.2 Varanasi is quashed.” 6.

Presently, we are required to sit in the time machine

for a while. In the interregnum period the borrowers filed an objection under Section 13(3A) of the SARFAESI Act. Be it noted, as the objection was not dealt with, the respondent No.3 preferred W.P. No.22254 of 2009, which was disposed of on 5th May, 2009 by the High Court, directing disposal of the same. Eventually, the objection was rejected by the competent authority vide order dated June 1, 2009.

Being grieved by the aforesaid order of

rejection, the respondent No.3 filed Securitisation Appeal No.5 of 2010, before the Debt Recovery Tribunal (DRT), Allahabad, U.P., which was rejected vide order dated 23rd November, 2012.

The non-success before the DRT

impelled the borrowers to prefer an appeal before the Debts Recovery Appellate Tribunal (DRAT), Allahabad, U.P. 7.

At this stage, it is apposite to state that the third

respondent, if we allow ourselves to say so, have possibly

CRL.A.781/12

11

mastered how to create a sense of fear in the mind of the officials who are compelled to face criminal cases. After the High Court had quashed the earlier proceeding, the third

respondent,

in

October,

2011,

filed

another

application under Section 156(3) CrPC against V.N. Sahay, Sandesh Tripathi and V.K. Khanna alleging criminal conspiracy and forging of documents referring to three post-dated cheques and eventually it was numbered as Complaint Case No. 344/2011, which gave rise to FIR No. 262 of 2011 under Sections 465, 467, 468, 471, 386, 506, 34 and 120B IPC. Being not satisfied with the same, on 30.10.2011, he filed another application under Section 156(3) against the present appellants alleging that there has been under-valuation of the property.

It was

numbered as Complaint Case No. 396/2011 wherein the Trial Magistrate directed the SHO to register FIR against the present appellants. Pursuant to the said order, FIR No. 298/2011 was registered. 8.

At this juncture, it is imperative to state that the

third respondent made the officials agree to enter into one time settlement. The said agreement was arrived at with

CRL.A.781/12

12

the stipulation that he shall withdraw various cases filed by him on acceptance of the one time settlement. As the factual matrix would reveal, the third respondent did not disclose about the initiation of the complaint cases no. 344/2011 and 396/2011. On 28.11.2011, the one time settlement was acted upon and the third respondent deposited Rs.15 lakhs. 9.

At this stage, it is apt to mention that V.N. Sahay

and two others approached the High Court of Allahabad in Writ (C) No. 17611/2013 wherein the learned Single Judge heard the matter along with application under Section 482 CrPC in Crl. Misc. No. 13628/2010. We have already reproduced the relevant part of the order passed therein.

Be it noted, the writ petition has also been

disposed of by the High Court by stating thus: “Heard Mr. Manish Trivedi, learned counsel for the petitioner, Mr. Vivek Kumar Srivastava, learned counsel appearing on behalf of respondent no.3 and learned AGA. It is submitted by learned AGA that in the present case investigation has been completed and final report has been submitted, considering the same, this petition has become infructuous.

CRL.A.781/12

The interim order dated 2.12.2011 is hereby vacated. Accordingly, this petition is disposed of.” 10. At this juncture, we are impelled to look at the past again. The respondent had preferred, as has been stated before, an appeal before the DRAT. The said appeal was numbered as Appeal No. 5 of 2013. In the said appeal, the following order came to be passed: “During the pendency of the said application, a proposal was submitted by the borrower to settle the claim for an amount of Rs.15.00 lacs. The said proposal was accepted by the Bank by its letter dated 15.11.2011 and the appellant also deposited the full amount, for which the settlement was arrived at i.e. Rs.15.00 lacs. Thereafter, the grievance of the appellant was that since the full amount of the settlement has been paid by the appellant, therefore, the bank should be directed to return the title deed, as the title deed was not returned. The Tribunal was of the view that since the matter has been settled, therefore, the securitization application was dismissed as infructuous and the Tribunal did not pass any order for return of the title deed. Therefore, the appellant being aggrieved of the judgment dated 23.11.2011 passed by the Tribunal has filed the present appeal. Learned counsel for the appellant submitted that after when the full amount under the settlement has been paid, the

13

CRL.A.781/12

14

respondent-Bank was duty bound to return the title deed, which has not been returned to the appellant. It is contended on behalf of the respondent-Bank that the settlement was accepted by letter dated 14.11.2011, wherein the condition was mentioned that the appellant shall withdraw the complaint case which he has filed before the Criminal Court. Learned counsel for the appellant submitted that he has no objection to withdraw the complaint case but the title deed must be returned to the appellant. The title deed shall be returned by the respondent-Bank to the appellant within seven days from today and thereafter, the appellant shall move an application to withdraw the Criminal Case No.1058/09 which is pending before the Chief Judicial Magistrate, Varanasi.” 11. The labyrinth maladroitly created by the respondent No.3 does not end here. It appears that he had the indefatigable spirit to indulge himself in the abuse of the process of the Court. The respondent No.3 had filed an application under Section 156(3) Cr.P.C. before the learned Additional Chief Judicial Magistrate on 30 th October, 2011, against the present appellants, who are the Vice-President and the valuer respectively.

In the

body of the petition, as we find in the paragraphs 19 and

CRL.A.781/12

15

20, it has been stated thus: “That the aforesaid case was referred to the Deputy Inspector General of Police, Varanasi through speed post but no proceeding had been initiated till today in that regard. That the aforesaid act done by the aforesaid accused prima-facie comes in the ambit of section 465, 467, 471, 386, 504, 34 & 120B IPC and in this way cognizable offence is made out and proved well.” 12. On the basis of the aforesaid application the learned Additional Chief Judicial Magistrate, Varanasi, U.P., called for a report from the concerned police station and received the information that no FIR had been lodged and hence, no case was registered at the local police station. Thereafter,

the

learned

Additional

Chief

Judicial

Magistrate observed as follows: “It has been stated clearly in the application by the applicant that it is the statement of applicant that he had already given 3 postdated cheques to the financial bank for payment and despite the availability of the postdated cheques in the financial society, even a single share in the loan account has not been got paid. The opposite parties deliberately due to conspiracy and prejudice against applicant have not deposited previously mentioned postdated cheques for payment and these people are doing a conspiracy to grab the valuable property of the applicant. Under a criminal conspiracy,

CRL.A.781/12

16

illegally and on false and fabricated grounds a petition has been filed before District Collector (Finance & Revenue) Varanasi, which comes under the ambit of cognizable offence. Keeping in view the facts of the case, commission of cognizable offence appears to be made out and it shall be justifiable to get done the investigation of the same by the police.” After so stating it directed as follows: “In the light of the application, SHO Bhelpur, Varanasi is hereby directed to register the case and investigate the same.” 13. On the basis of the aforesaid order, F.I.R. No.298 of 2011 was registered, which gave rise to case Crime No.415 of 2011 for the offences punishable under Sections 465, 467, and 471 I.P.C. Being dissatisfied with the aforesaid order, the appellants moved the High Court in Crl. Misc. No.24561 of 2011.

The High Court in a

cryptic order opined that on a perusal of the F.I.R. it cannot be said that no cognizable offence is made out. Being of this view, it has declined to interfere with the order. Hence, this appeal by special leave. 14. In course of hearing, learned counsel for the State of U.P. has submitted that the investigating agency has already submitted the final report on 21st November,

CRL.A.781/12

2012. The said report reads as follows: “Complainant in the present case has not appeared before any of the investigators, even after repeated summoning. And that the action of Smt. Priyanka Srivastava has been done as per her legal rights in 'good faith', which is protected under Section 32 of the SARFAESI Act, 2002. With the abovestated investigations, the present report is concluded.” 15. On a query being made, learned counsel for the State would contend that the learned Magistrate has not passed any order on the final report. Mr. Ajay Kumar, learned counsel appearing for the appellants would submit that the learned Magistrate has the option to accept the report by rejecting the final form/final report under Section 190 Cr.P.C. and may proceed against the appellants or may issue notice to the complainant, who is entitled to file a protest petition and, thereafter, may proceed with the matter and, therefore, this Court should address the controversy on merits and quash the proceedings. 16. We have narrated the facts in detail as the present case, as we find, exemplifies in enormous magnitude to take recourse to Section 156(3) Cr.P.C., as if, it is a routine procedure. That apart, the proceedings initiated

17

CRL.A.781/12

18

and the action taken by the authorities under the SARFAESI Act are assailable under the said Act before the higher forum and if, a borrower is allowed to take recourse to criminal law in the manner it has been taken it, needs no special emphasis to state, has the inherent potentiality to affect the marrows of economic health of the nation.

It is clearly noticeable that the statutory

remedies have cleverly been bypassed and prosecution route has been undertaken for instilling fear amongst the individual authorities compelling them to concede to the request for one time settlement which the financial institution possibly might not have acceded. That apart, despite agreeing for withdrawal of the complaint, no steps were taken in that regard at least to show the bonafide. On the contrary, there is a contest with a perverse sadistic attitude. Whether the complainant could have withdrawn the prosecution or not, is another matter. Fact remains, no efforts were made. 17. The learned Magistrate, as we find, while exercising the power under Section 156(3) Cr.P.C. has narrated the allegations and, thereafter, without any application of

CRL.A.781/12

19

mind, has passed an order to register an FIR for the offences mentioned in the application. The duty cast on the learned Magistrate, while exercising power under Section 156(3) Cr.P.C., cannot be marginalized.

To

understand the real purport of the same, we think it apt to reproduce the said provision: “156. Police officer’s power to investigate congnizable case. –(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was no empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned.” 18.

Dealing with the nature of power exercised by the

Magistrate

under

Section

156(3)

of

the

CrPC,

a

three-Judge Bench in Devarapalli Lakshminarayana Reddy and others v. V. Narayana Reddy and others2, had to express thus: 2

(1976) 3 SCC 252

CRL.A.781/12

“It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or chargesheet under Section 173.” 19. In Anil Kumar v. M.K. Aiyappa3, the two-Judge Bench had to say this: “The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed [(2008) 5 SCC 668] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned 3

(2013) 10 SCC 705

20

CRL.A.781/12

Special Judge which, in our view, has stated no reasons for ordering investigation.” 20. In Dilawar Singh v. State of Delhi4, this Court ruled thus: “18. ...11. The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.” 21. In CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd.5, the Court while dealing with the power of Magistrate taking cognizance of the offences, has 4 5

(2007) 12 SCC 496 (2005) 7 SCC 467

21

CRL.A.781/12

22

opined that having considered the complaint, the Magistrate may consider it appropriate to send the complaint to the police for investigation under Section 156(3) of the Code of Criminal Procedure. And again: “When a Magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The Magistrate has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence itself. As said earlier, in the case of a complaint regarding the commission of cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). However, if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the pre-cognizance stage and avail of Section 156(3).” 22. Recently,

in

Ramdev

Food

Products

Private

Limited v. State of Gujarat6, while dealing with the 6

Criminal Appeal No. 600 of 2007 decided on 16.03.2015

CRL.A.781/12

exercise of power under Section 156(3) CrPC by the learned Magistrate, a three-Judge Bench has held that: “.... the direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued. Cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine “existence of sufficient ground to proceed.” 23. At this stage, we may usefully refer to what the Constitution Bench has to say in Lalita Kumari v. Govt. of U.P.7 in this regard. The larger Bench had posed the following two questions:“(i) Whether the immediate non-registration of FIR leads to scope for manipulation by the police which affects the right of the victim/complainant to have a complaint immediately investigated upon allegations being made; and (ii) Whether in cases where the complaint/information does not clearly disclose the commission of a cognizable offence but the FIR is compulsorily registered then does it infringe the rights of an accused.” 7

(2014) 2 SCC 1

23

CRL.A.781/12

24

Answering the questions posed, the larger Bench opined thus: “49. Consequently, the condition that is sine qua non for recording an FIR under Section 154 of the Code is that there must be information and that information must disclose a cognizable offence. If any information disclosing a cognizable offence is led before an officer in charge of the police station satisfying the requirement of Section 154(1), the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. The provision of Section 154 of the Code is mandatory and the officer concerned is duty-bound to register the case on the basis of information disclosing a cognizable offence. Thus, the plain words of Section 154(1) of the Code have to be given their literal meaning. “Shall” xxx xxx xxx xxx 72. It is thus unequivocally clear that registration of FIR is mandatory and also that it is to be recorded in the FIR book by giving a unique annual number to each FIR to enable strict tracking of each and every registered FIR by the superior police officers as well as by the competent court to which copies of each FIR are required to be sent. “Information” xxx

xxx

xxx

xxx

111. The Code gives power to the police to close a matter both before and after

CRL.A.781/12

25

investigation. A police officer can foreclose an FIR before an investigation under Section 157 of the Code, if it appears to him that there is no sufficient ground to investigate the same. The section itself states that a police officer can start investigation when he has “reason to suspect the commission of an offence”. Therefore, the requirements of launching an investigation under Section 157 of the Code are higher than the requirement under Section 154 of the Code. The police officer can also, in a given case, investigate the matter and then file a final report under Section 173 of the Code seeking closure of the matter. Therefore, the police is not liable to launch an investigation in every FIR which is mandatorily registered on receiving information relating to commission of a cognizable offence. xxx

xxx

xxx

xxx

115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint.” After so stating the constitution Bench proceeded to state that where a preliminary enquiry is necessary, it is not for

CRL.A.781/12

the purpose for verification or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. After laying down so, the larger Bench proceeded to state:“120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months’ delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. 120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.” We have referred to the aforesaid pronouncement for the purpose that on certain circumstances the police is also required to hold a preliminary enquiry whether any cognizable offence is made out or not.

26

CRL.A.781/12

27

24. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order.

The

present is a case where the accused persons are serving in high positions in the bank.

We are absolutely

conscious that the position does not matter, for nobody is above law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the SARFAESI Act, invokes the jurisdiction under Section 156(3) Cr.P.C. and also there is a separate procedure under the Recovery of Debts due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to. 25. Issuing a direction stating “as per the application” to

CRL.A.781/12

28

lodge an FIR creates a very unhealthy situation in the society and also reflects the erroneous approach of the learned Magistrate. It also encourages the unscrupulous and unprincipled litigants, like the respondent no.3, namely, Prakash Kumar Bajaj, to take adventurous steps with courts to bring the financial institutions on their knees.

As the factual exposition would reveal, he had

prosecuted the earlier authorities and after the matter is dealt with by the High Court in a writ petition recording a settlement, he does not withdraw the criminal case and waits for some kind of situation where he can take vengeance as if he is the emperor of all he surveys. It is interesting to note that during the tenure of the appellant No.1,

who

is

presently

occupying

the

position

of

Vice-President, neither the loan was taken, nor the default was made, nor any action under the SARFAESI Act was taken. However, the action under the SARFAESI Act was taken on the second time at the instance of the present appellant No.1.

We are only stating about the devilish

design of the respondent No.3 to harass the appellants with the sole intent to avoid the payment of loan. When a

CRL.A.781/12

29

citizen avails a loan from a financial institution, it is his obligation to pay back and not play truant or for that matter play possum.

As we have noticed, he has been

able to do such adventurous acts as he has the embedded conviction that he will not be taken to task because an application under Section 156(3) Cr.P.C. is a simple application to the court for issue of a direction to the investigating agency.

We have been apprised that a

carbon copy of a document is filed to show the compliance of Section 154(3), indicating it has been sent to the Superintendent of police concerned. 26. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. court of law is involved.

A

It is not the police taking steps

at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power.

It

protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same.

CRL.A.781/12

30

27. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate.

That apart, in an appropriate case, the

learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.

We have already

indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt

CRL.A.781/12

31

out in the application and necessary documents to that effect shall be filed.

The warrant for giving a direction

that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law.

This will deter him to casually

invoke the authority of the Magistrate under Section 156(3).

That apart, we have already stated that the

veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases

pertaining

to

fiscal

sphere,

matrimonial

dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed.

That apart, the learned Magistrate would also be

aware of the delay in lodging of the FIR. 28. The present lis can be perceived from another angle.

CRL.A.781/12

32

We are slightly surprised that the financial institution has been compelled to settle the dispute and we are also disposed to think that it has so happened because the complaint cases were filed. Such a situation should not happen. 29. At this juncture, we may fruitfully refer to Section 32 of the SARFAESI Act, which reads as follows : “32. Protection of action taken in good faith.No suit, prosecution or other legal proceedings shall lie against any secured creditor or any of his officers or manager exercising any of the rights of the secured creditor or borrower for anything done or omitted to be done in good faith under this Act.” 30. In the present case, we are obligated to say that learned Magistrate should have kept himself alive to the aforesaid

provision

before

venturing

into

directing

registration of the FIR under Section 156(3) Cr.P.C. It is because the Parliament in its wisdom has made such a provision to protect the secured creditors or any of its officers,

and

needles

to

emphasize,

mandate, has to be kept in mind.

the

legislative

CRL.A.781/12

33

31. In view of the aforesaid analysis, we allow the appeal, set aside the order passed by the High Court and quash the registration of the FIR in case Crime No.298 of 2011, registered

with

Police

Station,

Bhelupur,

District

Varanasi, U.P. 32. A copy of the order passed by us be sent to the learned Chief Justices of all the High Courts by the Registry of this Court so that the High Courts would circulate the same amongst the learned Sessions Judges who, in turn, shall circulate it among the learned Magistrates so that they can remain more vigilant and diligent while exercising the power under Section 156(3) Cr.P.C.

.......................J. [Dipak Misra]

.......................J. [Prafulla C. Pant] New Delhi March 19, 2015.

498A-Last Five Years

Recommend Documents