http://judgmenthck.kar.nic.in/judgments/bitstream/123456789/663261/2/MFA5073-08-29-03-2012.pdf
Criminal Misc.No.M-18643 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CRM No.M-18643 of 2008
Date of Decision:- 21.2.2012
Smt.Sunita Goyal & Ors. …Petitioners Vs.
State of Punjab & Anr. …Respondents CORAM: HON’BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- Mr.Akshay Bhan, Advocate for the petitioners.
Mr.Palwinder Singh, Senior DAG Punjab for respondent No.1.
Mr.Ashok Singla, Advocate for
Mr.Ravish Bansal, Advocate for respondent No.2.
Mehinder Singh Sullar, J. (Oral)
Petitioners Smt.Sunita Goyal, Vijay Goyal, unfortunate parents-in- law and Abhishek Goyal, brother-in-law (Devar) of complainant Soni Goyal, wife of Mahavir Goyal respondent No.2 (for brevity “the complainant”), have directed the instant petition for quashing the impugned FIR, bearing No.246 dated 15.9.2007 (Annexure P5), registered against them, on accusation of having committed the offences punishable under Sections 406, 498-A, 323, 506 and 120- B IPC by the police of Police Station Division No.5, Ludhiana.
2. Concisely, the facts and material, which need a necessary mention, relevant for the limited purpose of deciding the core controversy, involved in the present petition and emanating from the record, are that the marriage of the complainant was solemnized with Mahavir Goyal (husband non-accused) in the month of September, 2002, according to Hindu rites and ceremonies at Sangrur. The father of the complainant was stated to have given a Maruti Zen Car, jewellery, weighing 80 Tolas, cash and dowry beyond his capacity at the time of Criminal Misc.No.M-18643 of 2008 -2- her marriage, but her in-laws were not satisfied with the (given) dowry articles. They started harassing, maltreating her and demanded more dowry articles. It was claimed that although the cash amount of Rs.2,50,000/- was given, but her in-laws kept on harassing her. She and her husband also apprehend danger to their lives at the hands of the petitioners. On 30.8.2007 at 8 A.M., they were stated to have given severe and merciless beatings to the complainant and her husband Mahavir Goyal. The matter was reported to the police, where DDR No.12 dated 31.8.2007 was entered, but no action was taken by the police against them.
3. Levelling a variety of allegations and narrating the sequence of events, in all, the complainant claimed that the petitioners have harassed, treated her with cruelty in connection with and on account of demand of dowry and gave severe beatings to her as well as to her husband on 30.8.2007. In the background of these allegations and in the wake of complaint of the complainant, the present case was registered against the petitioners-accused, by virtue of FIR (Annexure P5) in the manner indicated hereinabove.
4. The petitioners did not feel satisfied with the initiation of criminal prosecution against them and preferred the instant petition, for quashing the FIR (Annexure P5) and all other subsequent proceedings arising therefrom, invoking the provisions of Section 482 Cr.PC inter-alia on the grounds (i) that the impugned FIR (Annexure P5) has been registered ostensibly on the complaint of Soni Goyal in furtherance to the oblique motive of aforesaid Mahavir Goyal, Soni Goyal and Chuhar Lal Garg by misusing the provisions of Sections 406 and 498-A of I.P.C. The impugned FIR was got registered as a counter-blast and in retaliation to the aforesaid complaint dated 30.08.2007 (Annexure P1) lodged by petitioner no.2 with P.S. Division No.5, Ludhiana under Section 384 read with section 120-B of I.P.C. against Mahavir Goyal, Soni Goyal and Chuhar Lal Goyal and also as a counter-blast to the disassociation and de-linking of Mahavir Goyal by petitioner no.2 from their property and the filing of the civil suit (Annexure P4) by petitioner Criminal Misc.No.M-18643 of 2008 -3- no.1 against Mahavir Goyal and Soni Goyal; (ii) the criminal case was lodged by the complainant with the sole intention to pressurize and blackmail them to transfer their property in the name of her husband Mahavir Goyal; (iii) the allegations in the FIR are absolutely concocted, false, frivolous and evince the element of malafide, after thought and maliciously & vexatiously registered against the petitioners in order to wreak vengeance and the incident of 30.8.2007 and story of payment of Rs.2,50,000/- were concocted by the complainant party; (iv) the complainant has concealed the fact that the Zen car has already been transferred in the name of Soni Goyal (complainant) on 22.4.2008, as per the transfer report/documents (Annexure P9 colly); (v) the dowry articles given at the time of marriage have already been given to the complainant, vide letter (Annexure P10). She did not make any grievance against the petitioners during five years after her marriage. As soon as, petitioner No.2 refused to part and disowned the husband of the complainant from his property, then she filed the false criminal case against them in order to take the revenge and no offence whatsoever is made out against the petitioners. On the strength of aforesaid grounds, the petitioners sought to quash the criminal prosecution against them, as depicted hereinbefore.
5. The complainant-respondent No.2 did not file any reply to deny the specific personal allegations contained in the petition. However, the DSP Crime filed the reply on behalf of State of Punjab (respondent No.1), taking certain preliminary objections of, maintainability of the petition, cause of action and locus standi of the petitioners. According to the prosecution that as per the inquiry report (Annexure R1/T) and during the course of investigation, both the parties were called and the complainant’s father-in-law agreed to give the share of Rs.25 lacs from his property to Mahavir Goyal, husband of the complainant, out of which, Rs.10 lacs were already taken by him (husband) and the remaining amount was to be paid subsequently. Consequently, the complainant and her husband agreed to shift to residential HIG Flat No.11-FF, opposite Khalsa College, Ludhiana, as per Criminal Misc.No.M-18643 of 2008 -4- report (Annexure P13). Instead of reproducing the entire contents of the reply and in order to avoid the repetition, suffice it to say that the State of Punjab has reiterated the allegations contained in the impugned FIR (Annexure P5). However, it will not be out of place to mention here that it has stoutly denied all other allegations contained in the main petition and prayed for its dismissal. That is how I am seized of the matter.
6. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the instant petition deserves to be accepted in this context.
7. Ex facie, the celebrated argument of learned counsel that since there are direct allegations of cruelty, maltreatment and harassment to the complainant by the petitioners, so, no ground for quashing the criminal prosecution against them is made out, is neither tenable nor the observations of Hon’ble Supreme Court in case Central Bureau of Investigation v. K.M.Sharan 2008(4) S.C.C. 471, are at all applicable to the facts of the present case, wherein a criminal case was registered against the then Vice Chairman of the Delhi Development Authority and other senior officials for entering into conspiracy with Dharmbir Khattar and others to give undue favour to M/s DLF Universal Limited, New Delhi in the matter of allowing 300 Floor Area Ratio (FRA) in respect of one of the projects of DLF Universal by charging rates much below the prevailing rates and obtained or agreed to obtain illegal gratification from M/s DLF as quid pro quo. The total bribe amount was 1.10 crores. During the course of investigation and subsequent search conducted at the residence of son of one of the accused A.M.Sharan, who was at that time, Commissioner (Land Disposal, DDA), certain papers/documents relating to assets acquired/expenses incurred by him and his family members besides the cash amount of Rs.36 lacs were recovered and seized by the CBI. The CBI collected sufficient oral as well as documentary evidence constituting the grave Criminal Misc.No.M-18643 of 2008 -5- offences. On the peculiar facts and in the special circumstances of that case, it was observed that “where there are direct allegations and evidence to support the criminal offence, the High Court was not justified in quashing the FIR/charge sheet while exercising its extraordinary jurisdiction under Section 482 Cr.PC.”
8. Possibly, no one can dispute with regard to the aforesaid observations, but to me, the same would not come to the rescue of the complainant in the present controversy, particularly when the Hon’ble Apex Court in cases Dhariwal Tobaco Products Limited and others v. State of Maharashtra and another, 2009(2) SCC 370; M/s Pepsi Foods Limited v. Special Judicial Magistrate 1998(5) SCC 749; Ashok Chaturvedi v. Shitul H.Chanchani 1998(7) SCC 698 and Central Bureau of Investigation v. Ravi Shankar Srivastava (2006)7 SCC 188 has ruled that “whenever the High Court comes to the conclusion that allowing the criminal prosecution to continue would be an abuse of the process of court and that, the ends of justice require that the proceedings should be quashed, it would not hesitate to do so, in exercise of inherent powers irrespective of other factors.”
9. Such thus being the legal position and material on record, now the short and significant question, though important that, arises for determination in this petition is, as to whether the criminal prosecution initiated against the petitioners deserves to be quashed or not under the present set of circumstances?
10. Having regard to the rival contentions of learned counsel for the parties, to my mind, the answer must obviously be in the affirmative and the criminal prosecution cannot be permitted to continue in this respect.
11. As is evident from the record, that the marriage of complainant was solemnized with Mahavir Goyal (husband non-accused) in the month of September, 2002, according to Hindu rites and ceremonies at Sangrur. The father of the complainant was stated to have given a Maruti Zen Car, jewellery,weighing 80 Tolas, cash and dowry beyond his capacity at the time of her marriage, but her in-laws were not satisfied with the (given) dowry articles. They started harassing, Criminal Misc.No.M-18643 of 2008 -6- maltreating her and demanded more dowry articles. Although the cash amount of Rs.2,50,000/- was given, but her in-laws kept on harassing her. She is working as a teacher in National College, Dakhan. Petitioner Nos.1 and 2 are her parents-in-law, whereas petitioner No.3 is her brother-in-law (Devar). She has not intentionally arrayed her husband Mahavir Goyal in a dowry related case in the array of the accused. According to the petitioners that on 30.8.2007, Mahavir Goyal and his wife (complainant) created nuisance in the house, broke the crockery & centre table and threatened the petitioners that in case the half share of the property and the money were not given to them, they would falsely implicate them in some false criminal case. Petitioner No.2 objected to it, then his son Mahavir Goyal, husband of the complainant, slapped him (his father petitioner No.2). The matter was reported to the police by petitioner No.2, through the medium of complaint of same date (Annexure P1). So much so, he disowned his son Mahavir Goyal from his whole movable and immovable properties and published the notice dated 1.9.2007 (Annexure P2) in Hindustan Times, Chandigarh in this connection. At the same time, in order to avoid the possibility of false implication, Sunita Goyal (petitioner No.1) wrote a UPC letter dated 3.9.2007 (Annexure P3 colly), asking her daughter-in-law (complainant) to take all the dowry articles and her other belongings.
12. Not only that, petitioner No.1 filed a civil suit for a decree of permanent injunction restraining the complainant and her husband Mahavir Goyal from interfering in the peaceful possession of their residential house, by way of plaint (Annexure P4 colly). Admittedly, in civil suit, bearing No.206 dated 13.9.2007 filed by petitioner No.1, counsel for the complainant and her husband (defendants therein) suffered a separate statement that they shall not interfere in the possession of the plaintiff in the suit property and they have no objection in case her (petitioner No.1) suit is decreed to that extent. In this manner, on the basis of statements of the parties, the suit of petitioner No.1 was decreed and the Criminal Misc.No.M-18643 of 2008 -7- complainant and her husband were restrained from interfering in her possession over the suit property, vide order dated 28.7.2010 (copy taken on record as Annexure P14).
13. It is not a matter of dispute that neither the complainant nor her husband made any complaint, raising any accusing finger towards the petitioners at any point of time before lodging the FIR (Annexure P5) nor made any such averment/statement during the course of pendency of the civil suit between them. Therefore, the arguments of learned counsel that the petitioners have been falsely implicated to pressurize and blackmail them to transfer the property and the complainant has lodged the false criminal case against them (intentionally excluding her husband in dowry related matter) vexatiously and maliciously in order to wreak vengeance, have considerable force.
14. The matter did not rest there. Even as per the FIR (Annexure P5), the father of the complainant gave a Maruti Zen Car and gold jewellery, weighing 80 Tolas besides cash. It was also alleged that the petitioners demanded more dowry articles and her father gave Rs.2,50,000/- in cash to them. That means, very very vague allegations of demand of dowry and payment of indicated amount are assigned to the petitioners. Above-all, the mere fact that the complainant did not name her husband as accused that the dowry articles were entrusted to him at the time of marriage or he has also demanded the more dowry articles, is indicative of the fact that she colluded with her husband and lodged a false complaint, on the basis of which, the FIR (Annexure P5) was registered against the petitioners without any material/evidence muchless cogent in this behalf.
15. Moreover, the indicated Zen car has already been transferred in the name of complainant, by means of transfer of ownership report/documents (Annexure P9 colly). The petitioners have specifically mentioned in their petition that whatever dowry articles were given at the time of marriage of complainant, have already been given to her, vide Annexure P10 (colly). That is the only reason Criminal Misc.No.M-18643 of 2008 -8- that the complainant intentionally did not file any reply to controvert all these vital personal aspects of the matter contained in the main petition, for the reasons best known to her. In this manner, no overt act or specific role, except one minor incident of 30.8.2007, which appear to have been concocted after the complaint (Annexure P1) of petitioner No.2 and notice (Annexure P2), are attributed to the petitioners. It is very highly impossible to believe that the petitioners would treat the complainant with cruelty or demand the dowry articles from her in the absence of her husband. She appears to have intentionally colluded with her husband in order to grab the property in this regard as discussed hereinabove.
16. It is now well settled proposition 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 petitioners to indicate that the dowry articles were actually entrusted to them and they have misappropriated the same or they further demanded any dowry articles and evidence in support thereof. All other relatives of the husband cannot, in all cases, be held to be involved in the demand of dowry, especially when in this case, the husband of the complainant is not an accused. In cases, where such accusation is made, the overt acts attributed to 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 related to demand of dowry. As all the essential ingredients to constitute the offences and complicity of petitioners are totally lacking, therefore, to me, no criminal prosecution can legally be permitted to continue against them.
17. As strange as it may appear, but strictly speaking, the tendency and frequency of the wives of involving and roping in all the relations of her in-laws in the matter of demand of dowry have been tremendously increasing day by day, which is adversely affecting social fabric of the society and leaving the Courts in lurch to decide such criminal prosecution. This tendency needs to be curbed and if Criminal Misc.No.M-18643 of 2008 -9- not discouraged, it is likely to affect and weaken the case of the prosecution even against the real culprits in future in this relevant direction.
18. An identical question came to be decided by this Court 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.”
19. Sequelly, if the crux of the allegations levelled against the petitioners as discussed hereinabove, is clubbed together and is perused, then, to my mind, the conclusion is irresistible that the complainant has falsely implicated the petitioners vexatiously and maliciously, to put pressure and to blackmail them, to grab the property, in order to wreak vengeance and the criminal proceeding is manifestly attended with mala fide against them. Such reckless/malafide FIR deserves to be quashed, in view of law laid down by Hon’ble Supreme Court in case State of Haryana and others v. Ch.Bhajan Lal and others, AIR 1992 Supreme Court 604, which was again reiterated in case Som Mittal v. Government of Karnataka 2008 (2) R.C.R.(Criminal) 92. Such malafide prosecution if allowed to continue, it will inculcate and perpetuate injustice to the petitioners and is nothing else, but sheer and deep misuse/abuse of process of criminal law in this relevant connection, which is not legally permissible. Therefore, the contrary submissions of learned counsel for complainant “stricto sensu” deserve to be and are hereby repelled Criminal Misc.No.M-18643 of 2008 -10- under the present set of circumstances, as the indicated Bench mark and the ratio of law laid down in the aforesaid judgments “mutatis mutandis” are applicable to the facts of this case and are the complete answer to the problem in hand. Thus, seen from any angle, to my mind, no offences whatsoever are made out against the petitioners, in the obtaining circumstances of the case.
20. No other legal point, worth consideration, has either been urged or pressed by the counsel for the parties.
21. In the light of aforesaid reasons, the instant petition is accepted. Consequently, the impugned FIR (Annexure P5) and all other subsequent proceedings arising therefrom are hereby quashed and the petitioners are discharged from the indicated criminal case registered against them. (Mehinder Singh Sullar)
Judge
21.2.2012
AS
Whether to be referred to reporter ? Yes/No
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 21.03.2012
FAO No.185/2001
Smt. Shashi Bala ……appellant. Through: Mr. Atul Bandhu, Adv.
Vs.
Shri Rajiv Arora ……Respondents Through: Mr. R.G. Srivastava, Adv.
CORAM:
HON’BLE MR. JUSTICE KAILASH GAMBHIR
KAILASH GAMBHIR, J.
1. By this appeal filed under section 28 of the Hindu Marriage Act, 1955, the appellant seeks to challenge the impugned order and decree dated 12.2.2001 passed by the learned Trial Court whereby a decree of divorce in favour of the respondent husband under Section 13(i)(a) of the Hindu Marriage Act was granted and the counter claim FAO 185/01 Page 1 of 19 filed by the appellant seeking a decree for restitution of conjugal rights under Section 9 of the Hindu Marriage Act was dismissed.
2. Brief facts of the case relevant for deciding the present appeal is that the marriage between the parties was solemnized on 17.2.1991 according to Hindu rites and ceremonies. It was stated by the husband in his divorce petition that after the solemnization of the marriage, right from the inception, the attitude of the appellant was indifferent and she complained that the marriage had not been solemnized with a man of her taste. As per the respondent husband, the appellant had refused to participate in the traditional ceremony of dud-mundri by saying that she did not like all this but without disclosing any reasons. As per the respondent, the appellant also did not take any interest in the dinner which was served on the wedding night i.e. 18.2.1991. It is also the case of the respondent that when both of them went to their bedroom around 11.30 p.m. the appellant was not responsive and she did not allow the respondent to have sexual intercourse with her. The respondent has alleged that it is only on 25.2.1991, that he was allowed to have sexual intercourse with the appellant for the first time, but again the appellant remained unresponsive and such conduct of the appellant caused mental cruelty FAO 185/01 Page 2 of 19 to the respondent. It is also the case of the respondent husband that on 13.4.1991, the appellant refused to perform “chuda ceremony” which not only hurt the sentiments of the respondent but his parents as well. It was also stated that the appellant in fact removed the chuda and threw it under the bed by saying that she did not believe in all these things. It is also the case of the respondent that the appellant used to visit her parents on her own without even informing the respondent and finally left the matrimonial home on 16.4.1992 and since then she did not come back. It is also the case of the respondent that he had sexual intercourse with the appellant only for about 10-15 times during her stay with him for a period of about 5 months. It is also the case of the respondent that the appellant used to quarrel with his old parents and she also used to insist to shift to her parents’ house at Palam colony. The respondent also alleged that on 11th March, 1991 the appellant tried to illegally remove the jewellery from the almirah which belonged to his mother and which was kept for his unmarried sister and while doing so she was caught red handed. It is also the case of the respondent that the appellant made a false complaint with the Crime Against Women Cell and Family Counsel Office, which complaints were ultimately withdrawn by her. Based on FAO 185/01 Page 3 of 19 these allegations the respondent husband claimed the decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act.
3. In the written statement filed by the appellant wife, she denied all the abovesaid allegations leveled by the respondent husband. She denied that she had refused to participate in the “Dud Mundari Ceremony”. The appellant had also stated that after taking lunch on the wedding day, one lady relative of her in-laws and parents of the respondent remarked that she did not bring bed and sofa sets in her dowry and in response she informed them that her father had given a bank draft of Rs. 30,000/- besides presenting costly clothes, ornaments, TV, clothes for relatives, utensils and other articles in the marriage. It is also the defence of the appellant that on the wedding night the respondent entered the bedroom showering filthy abuses on the appellant and told her that she had not brought the dowry according to their expectations. It is also her case that she was also told by the respondent that the bank drafts should have been prepared either in the name of the respondent or in the name of his father. It was denied by the appellant that her attitude was indifferent at the time of dinner. She also denied the allegation of non- consummation of the marriage on the wedding night. The appellant FAO 185/01 Page 4 of 19 took a stand that right from the wedding night i.e. 18.2.1991 the parties had normal physical relationship with each other. She also denied that she did not perform “chuda ceremony” or threw the chuda under the bed. She also denied that she left the matrimonial home on 16.4.1992. The appellant also took a stand that on 23.4.1992 the respondent, his parents and two sisters asked her to bring Rs. 50,000/- or otherwise leave the matrimonial home and on her refusal to meet the said demand, she was thrown out of the matrimonial home. The appellant denied that she had sexual relationship with the respondent only 10-15 times or she had refused to have sex with the respondent. She also denied that she never insisted the respondent to live in the house of her parents. She also denied that on 11th March, 1991 she made any attempt to steal the jewellery or she was caught red handed. She also stated that in the last week of April, 1991 she was told by the respondent to withdraw Rs. 30,000/- from her bank account as the old sofa lying in the house required replacement but no new sofa set was purchased when she brought the said money and gave the same to the mother of the respondent. The appellant also took a stand that she was prepared to FAO 185/01 Page 5 of 19 live with the respondent as she had withdrawn from her society without any reasonable cause and without any fault on her part.
4. Based on the pleadings of the parties, the learned Trial Court framed the following issues:-
(i) Whether the respondent has treated the petitioner with cruelty? (ii) Relief.
(iii) Whether the petitioner has withdrawn from the company of the respondent without any reasonable cause or excuse? If so, its effect. The respondent in evidence examined himself as PW2 besides examining Shri Dalveer Singh, Head Constable as PW1 and Shri Vishwamitra, father of the respondent as PW 3, his colleague Shri Vijay Kumar Taygi PW4. The appellant on the other hand examined herself as RW1 with no other evidence in support.
5. After taking into consideration the pleadings of the parties, the learned Trial Court found that the refusal of the appellant wife to participate in the “Dud Mundari ceremony” and thereafter “Chudha ceremony”, which were customary rituals in the family of the respondent husband caused embarrassment and humiliation to the respondent and such acts on the part of the appellant amounted to cruelty. The learned Trial Court also found that in the span of one FAO 185/01 Page 6 of 19 year and two months of the married life, the parties had sex only for about 10-15 times and also denial of the appellant for sexual relationship on the very first night of the marriage is a grave act of cruelty as healthy sexual relationship is one of the basic ingredients of a happy marriage. The learned Trial Court also found that filing of the complaints by the appellant with the Crime Against Women Cell and Family Counsel Office also collectively caused mental cruelty to the respondent husband. Accordingly, the learned trial court granted a decree of divorce in favour of the respondent and against the appellant and consequently also dismissed her counter claim for restitution of conjugal rights.
6. Mr. Atul Bandhu, learned counsel appearing for the appellant before this court vehemently argued that the learned Trial Court did not refer to the evidence of the appellant wife wherein she has denied all the allegations leveled by the respondent husband in his petition for divorce. Counsel also contended that the marriage was consummated on the very first night and the appellant wife never denied sexual relationship to the respondent husband. Counsel also submitted that nowhere the respondent husband has stated that as to when he was refused any such sexual relationship by the appellant. FAO 185/01 Page 7 of 19 Counsel thus argued that the learned Trial Court has granted the decree of divorce merely on the ground that the appellant wife did not participate in the dud-mundari ceremony and chudha ceremony and also she did not allow the husband to have sexual intercourse more than 10-15 times in a period of 5 months and as per the counsel, these grounds cannot be treated sufficient enough to constitute cruelty as envisaged under Section 13(ia) of the Hindu Marriage Act. In support of his arguments, counsel for the appellant placed reliance on the judgment of the Hon’ble Supreme Court in Savitri Pandey vs Prem Chandra Pandey AIR2002SC591 and V. Bhagat vs D. Bhagat (Mrs) (1994) 1 SCC 337.
7. Mr. R.G. Srivastava, learned counsel appearing for the respondent on the other hand fully supported the reasons given by the learned Trial Court which entitled him to claim a decree of divorce under Section 13(ia) of the Hindu Marriage Act. Counsel for the respondent also submitted that the appellant did not respect the sentiments of the respondent and his family members by refusing to perform customary rituals like dud-mundari ceremony and chudha ceremony. Counsel also argued that the appellant did not discharge her matrimonial obligations either towards her husband or even FAO 185/01 Page 8 of 19 towards his old parents. Counsel also submitted that the appellant made false complaints to the Crime Against Women Cell and to the Family Counsel Office, which she later withdrew and such act of the appellant also caused mental cruelty to the respondent. Counsel also submitted that by denying normal sexual relationship to the respondent, the appellant had shaken and destroyed the very foundation of a sound marriage. Counsel also submitted that the respondent had duly discharged his burden to prove the case set up by him where as the appellant failed to discharge her burden and even could not prove her defence. In support of his arguments, counsel for the respondent placed reliance on the following judgments:-
1. Vinita Saxena vs Pankaj Pandit 2006(3) SCALE (SC) 367.
2. Naveen Kohli vs Neelu Kohli 2006(4) SCC 558.
3. Samar Ghosh vs Jaya Ghosh 2007 (4) SCC 511.
4. Praveen Mehta vs Inderjit Mehta AIR 2002 SC 2582
5. Rajinder Bhardwaj vs Anita Sharma AIR 1993 Delhi 135.
8. I have heard learned counsel for the parties and given my thoughtful consideration to the arguments advanced by them. FAO 185/01 Page 9 of 19
9. Cruelty as a ground for divorce is nowhere defined in the Hindu Marriage Act as it is not capable of precise definition. There cannot be any straitjacket formula for determining whether there is cruelty or not and each case depends on its own facts and circumstances. What may be cruelty in one case may not be cruelty in other and the parameter to judge cruelty as developed through judicial pronouncements is that when the conduct complained of is such that it is impossible for the parties to stay with each other without mental agony, torture and stress. It has to be something much more than the ordinary wear and tear of married life. The conduct complained of should be grave and weighty and touch a pitch of severity to satisfy the conscience of the court that the parties cannot live together with each other anymore without mental agony, distress and torture. The main grievance of the respondent herein is the denial of the appellant to have normal sexual relationship with the respondent. As per the case of the respondent, during the short period of 5 months he had sexual intercourse with the appellant only 10-15 time while the plea taken by the appellant is that she had never denied sex to the respondent. The courts have through various judicial pronouncements taken a view that sex is the foundation of marriage and marriage FAO 185/01 Page 10 of 19 without sex is an anathema. The Division Bench of this Court in the celebrated pronouncement of Mrs. Rita Nijhawan vs. Mr.Bal Kishan Nijhawan AIR1973Delhi200 held as under:
“In these days it would be unthinkable proposition to suggest that the wife is not an active participant in the sexual life and therefore, the sexual weakness of the husband which denied normal sexual pleasure to the wife is of no consequence and therefore cannot amount to cruelty. Marriage without sex is an anathema. Sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. It cannot be denied that the sexual activity in marriage has an extremely favorable influence on a woman’s mind and body, the result being that if she does not get proper sexual satisfaction it will lead to depression and frustration. It has been said that the sexual relations when happy and harmonious vivifies woman’s brain, develops her character and trebles her vitality. It must be recognised that nothing is more fatal to marriage than disappointments in sexual intercourse.” The learned Trial Court referred to the judgment of this court in the case of Shankuntla Kumari vs. Om Prakash Ghai AIR1983Delhi53 wherein it was held that:
“(25) A normal and healthy sexual relationship is one of the basic ingredients of a happy and harmonious marriage. If this is not possible due to ill health on the part of one of the spouses, it may or may not amount to cruelty depending on the circumstances of the case. But willful denial of sexual relationship by a spouse when the other spouse is anxious for it, would amount to mental cruelty, especially when the parties are young and newly married.”
Hence, it is evident from the aforesaid that willful denial of sexual intercourse without reasonable cause would amount to cruelty. In the FAO 185/01 Page 11 of 19 authoritative pronouncement of the Hon’ble Supreme Court in Samar Ghosh vs Jaya Ghosh (2007)4SCC511, the Hon’ble Supreme Court took into account the parameters of cruelty as a ground for divorce in various countries and then laid down illustrations, though not exhaustive, which would amount to cruelty. It would be relevant to refer to the following para 101 (xii) wherein it was held as under:- “(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.”
Although it is difficult to exactly lay down as to how many times any healthy couple should have sexual intercourse in a particular period of time as it is not a mechanical but a mutual act, however, there cannot be any two ways about the fact that marriage without sex will be an insipid relation. Frequency of sex cannot be the only parameter to assess the success or failure of a marriage as it differs from couple to couple as to how much importance they attach to sexual relation vis a vis emotional relation. There may be cases where one partner to the marriage may be over sexual and the other partner may not have desire to the same level, but otherwise is fully potent. Marriage is an institution through which a man and a woman enter into a sacred FAO 185/01 Page 12 of 19 bond and to state that sexual relationship is the mainstay or the motive to be achieved through marriage would be making a mockery of this pious institution. By getting married, a couple agrees to share their lives together with all its moments of joy, happiness and sorrow and the sexual relationship between them brings them close and intimate by which their marital bond is reinforced and fortified. There may not be sexual compatibility of a couple right from inception of the relationship and depending upon physical, emotional, psychological and social factors, the compatibility between some couples may be there from the beginning and amongst some may come later. Undoubtedly, a normal and healthy couple should indulge into regular sexual relationship but there may be exceptions to this and what may be normal for some may not be normal for others as it would depend upon various factors such nature of job, stress levels, social and educational background, mood patterns, physical well being etc. Indisputably, there has to be a healthy sexual relationship between a normal couple, but what is normal cannot be put down in black and white.
10. Adverting back to the facts of the present case, the marriage between the parties was solemnized on 17.2.1991 and FAO 185/01 Page 13 of 19 according to the appellant she was forced to leave the matrimonial house on 16.4.1992, whereas as per the respondent husband, the appellant wife practically stayed at the matrimonial home only for a period of five months as for rest of the period she stayed at her parental house. The case of the respondent is that he had sex with the appellant only for about 10-15 times in a span of five months of married life and that he was denied sexual relationship on the very first night of their marriage and denial of sex at the wedding night caused great mental cruelty to him. The respondent husband also stated that he was allowed to have sexual intercourse by the appellant for the first time only on 25.2.1991.The appellant wife has denied the said allegations of the respondent husband and in defence stated that she was having normal sexual relationship with her husband and even had sexual intercourse on the wedding night. The learned Trial Court after analyzing the evidence adduced by both the parties found the version of the appellant untrustworthy and unreliable while that of the respondent, much more credible and trustworthy. The appellant on one hand took a stand that on 18.2.1991 the atmosphere on that night was very tense so much so that, both the parties could not sleep and speak to each other and she did not even take proper food and the FAO 185/01 Page 14 of 19 whole night there was tension between the parties and the atmosphere was fully charged, but at the same time in the cross- examination of PW2 the suggestion was made by counsel that the appellant touched the feet of the respondent when he entered the room on the said wedding night and she also admitted that her husband had never taken liquor in her presence and he had never come to her in drunken state. It would be appropriate to reproduce para 55 of the Trial Court judgment to bring to surface the said contradiction on the part of the appellant.
“55.From the evidence on record, it is gathered that on the wedding night i.e. on 18.2.91 a “Dud Mundari” ceremony was to be performed but the respondent wife refused to participate in the same. This version of PW 2 has been fully corroborated by his father PW 3. The husband i.e. Rajiv Arora, had entered by both PW 2 and RW1. RW 1 in her cross-examination has stated that their marriage had been consummated on that very night and her husband had come to her and she did not have to persuade the petitioner. On the other hand the petitioner has stated that their marriage could not be consummated on their wedding night and he had sex with his wife for the first time only on 25.2.91. RW1 in her cross-examination has stated that the atmosphere that night was very tense and both the parties could not sleep and they did not speak to each other and her husband had grievance about the insufficient dowry which had been given in the marriage . RW 1 has also admitted that on 18.2.91, she did not take proper food as she was not feeling well. This version of RW1 that she did not take food that night is corroborated by the version of PW1 who has stated that on the wedding night at the time when the dinner was served the attitude of the respondent was indifferent and she did not take any dinner but she took only a little sweet.” FAO 185/01 Page 15 of 19
11. In matrimonial cases, more often than not it is a challenging task to ascertain as to which party is telling truth as usually it is the oral evidence of one party against the oral evidence of the other. What happens in the four walls of the matrimonial home and what goes on inside the bed room of the couple is either known to the couple themselves or at the most to the members of the family, who are either residing there or in whose presence any incident takes place. Whether the couple has had sex and how many times or have had not had sex and what are the reasons; whether it is due to the denial or refusal on the part of the wife or of the husband can only be established through the creditworthiness of the testimonies of the parties themselves. Consequently, the absence of proper rebuttal or failure of not putting one’s case forward would certainly lead to acceptance of testimony of that witness whose deposition remains unchallenged. In the present case, the testimony of the respondent that the appellant was never responsive and was like a dead wood when he had sexual intercourse with her remained unrebutted. It is not thus that the respondent had sex with her wife only about 10-15 times from the date of his marriage within a period of five months, but the cruel act of the appellant of denying sex to the respondent FAO 185/01 Page 16 of 19 especially on the very first night and then not to actively participate in the sex even for the said limited period for which no contrary suggestion was given by the appellant to the respondent in his cross- examination. The respondent has also successfully proved on record that the appellant did not participate in the customary rituals of dud mundri and that of chudha ceremony, which caused grave mental cruelty to the respondent. It is a matter of common knowledge that after the marriage, certain customary rituals are performed and the purpose of these rituals is to cement the bond of marriage. The question whether there was a refusal on the part of the respondent not to perform the ritual of dud-mundari and chudha ceremony is difficult to be answered as on one hand, the appellant has alleged that she had duly participated in the ceremonies while on the other hand the respondent has taken a stand that there was refusal on the part of the appellant to participate in the ceremonies. No doubt the testimony of the respondent has been supported by the evidence of his father and there is no corroborative evidence from the side of the appellant, although her brother had accompanied her in doli and in such backdrop, adverse inference thus has to be drawn against the appellant for not producing her brother in evidence who could be the FAO 185/01 Page 17 of 19 best witness to prove the defence of the appellant alleging her participation in the dud-mundari ceremony. Undeniably, these customary ceremonies are part of the marriage ceremony and refusal of the same that too in the presence of the family members of the husband would be an act of cruelty on the part of the wife. The appellant has also failed to prove any demand of dowry made by the respondent or his family members as no evidence to this effect was led by the appellant. The appellant herein also filed criminal complaints against the respondent and his family members and later withdrew the same. Undoubtedly, it is the right of the victim to approach the police and CAW cell to complain the conduct of the offending spouse, however, frivolous and vexatious complaints like in the present case led to cause mental torture and harassment to the respondent and his family members. Thus, taking into account the conduct of the appellant in totality, this court is of the view that the same amounts to causing mental cruelty to the respondent.
12. Before parting with the judgment, this court would like to observe that the sex starved marriages are becoming an undeniable epidemic as the urban living conditions today mount an unprecedented pressure on couples. The sanctity of sexual FAO 185/01 Page 18 of 19 relationship and its role in reinvigorating the bond of marriage is getting diluted and as a consequence more and more couples are seeking divorce due to sexual incompatibility and absence of sexual satisfaction. As already stated above, to quantify as to how many times a healthy couple should have sexual intercourse is not for this court to say as some couples can feel wholly inadequate and others just fine without enough sex. “That the twain shall become one flesh, so that they are no more twain but one” is the real purpose of marriage and sexual intercourse is a means, and an integral one of achieving this oneness in marriage.
13. This Court therefore, does not find any kind of illegality or perversity in the findings given by the learned Trial Court in the impugned judgment dated 12.2.2001 and the same is accordingly upheld. The present appeal filed by the appellant is devoid of any merits and the same is hereby dismissed.
KAILASH GAMBHIR, J
21.03. 2012
FAO 185/01 Page 19 of 19
Woman arrested for lodging false complaint
Bangalore, March 7 2012, DHNS:
The KG Nagar police arrested a woman for lodging a false complaint that she was robbed of her gold chain by unidentified persons.
On Wednesday morning, Bhagyalakshmi had gone to her relative Shanthakumar’s house in KG Nagar, and left her gold chain in the bathroom. She went out thereafter.
Once she reached Allama Prabhu Road, she reportedly called Shanthakumar and told him that two men accosted her and robbed her of the gold chain.
Shanthakumar rushed to the spot, and took her to the police station to lodge a complaint.
When the police took her to the spot where she was supposedly robbed, her replies raised suspicions.
Meanwhile, a domestic help at Shanthakumar’s house found the gold chain in the bathroom and alerted him. The police then confronted Bhagyalakshmi, who admitted that her complaint was false. She was subsequently arrested. Further investigations are on.
http://www.deccanherald.com/content/232849/woman-arrested-lodging-false-complaint.html
Rajasthan High Court
Vishram Singh vs Smt Bholi Bai on 1 March, 2012
name=”textfield” rows=”27″ cols=”100″>
In the High Court of Judicature for Rajasthan at Jaipur Bench Jaipur
S.B.Civil Misc. Stay Application No.785 of 2010
in
S.B.Civil Misc.Appeal No.1049 of 2010
Vishram Singh
vs.
Smt. Bholi Bai @ Bholeshwari @ Kamlesh
Date of Order : 01.3.2012
HON’BLE MS. JUSTICE BELA M. TRIVEDI
Mr.J.R.Tantia for the appellant/applicant.
Mr. Pankaj Gupta for the respondent.
By the Court:
1.Heard learned counsel for the parties.
2.Vide order dated 16.4.2010, this court while issuing notice to the respondents had directed the appellant to continue to pay the maintenance at the rate of Rs.5,000/- per month and stayed the recovery of arrears of maintenance. Today, the matter has come up for confirmation of the said stay order.
3.It has been sought to be submitted by learned counsel Mr.J.R.Tantia for the appellant that the court below could not have passed the permanent alimony under section 25 of Hindu Marriage Act, when the divorce petition of the appellant was dismissed. According to him, in view of section 25(1) of the said Act, the amount of arrears be stayed during the pendency of the appeal. There is no force in the submissions of learned counsel for the appellant, inasmuch as under section 25 of the said Act, any court exercising its jurisdiction under the said Act may at any time of passing of any decree or at any time subsequent thereto, on application to it for the purpose of maintenance direct the concerned respondent to pay maintenance. In the instant case, the court below had specifically framed the issue with regard to the permanent alimony to be paid to the respondent-wife and while dismissing the divorce petition filed by the appellant, the court had directed the appellant to pay maintenance at the rate of Rs.5,000/- per month from the date of application i.e. 30.8.2005 till the date of payment. There is no reason to stay the said order. Hence, in the opinion of the court, the appellant is liable to pay entire amount arrears with interest as directed by the court below and also to continue to pay Rs.5,000/- per month to the respondent-wife.
4.In that view of the matter, it is directed that the appellant shall deposit the entire amount of arrears within eight weeks from today.
5.The application stands disposed of accordingly.
(BELA M. TRIVEDI) J.
om
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. Om Prakash
PA
http://indiankanoon.org/doc/151597974/
Rajasthan High Court
Vishram Singh vs Smt Bholi Bai on 1 March, 2012
name=”textfield” rows=”27″ cols=”100″>
In the High Court of Judicature for Rajasthan at Jaipur Bench Jaipur
S.B.Civil Misc. Stay Application No.785 of 2010
in
S.B.Civil Misc.Appeal No.1049 of 2010
Vishram Singh
vs.
Smt. Bholi Bai @ Bholeshwari @ Kamlesh
Date of Order : 01.3.2012
HON’BLE MS. JUSTICE BELA M. TRIVEDI
Mr.J.R.Tantia for the appellant/applicant.
Mr. Pankaj Gupta for the respondent.
By the Court:
1.Heard learned counsel for the parties.
2.Vide order dated 16.4.2010, this court while issuing notice to the respondents had directed the appellant to continue to pay the maintenance at the rate of Rs.5,000/- per month and stayed the recovery of arrears of maintenance. Today, the matter has come up for confirmation of the said stay order.
3.It has been sought to be submitted by learned counsel Mr.J.R.Tantia for the appellant that the court below could not have passed the permanent alimony under section 25 of Hindu Marriage Act, when the divorce petition of the appellant was dismissed. According to him, in view of section 25(1) of the said Act, the amount of arrears be stayed during the pendency of the appeal. There is no force in the submissions of learned counsel for the appellant, inasmuch as under section 25 of the said Act, any court exercising its jurisdiction under the said Act may at any time of passing of any decree or at any time subsequent thereto, on application to it for the purpose of maintenance direct the concerned respondent to pay maintenance. In the instant case, the court below had specifically framed the issue with regard to the permanent alimony to be paid to the respondent-wife and while dismissing the divorce petition filed by the appellant, the court had directed the appellant to pay maintenance at the rate of Rs.5,000/- per month from the date of application i.e. 30.8.2005 till the date of payment. There is no reason to stay the said order. Hence, in the opinion of the court, the appellant is liable to pay entire amount arrears with interest as directed by the court below and also to continue to pay Rs.5,000/- per month to the respondent-wife.
4.In that view of the matter, it is directed that the appellant shall deposit the entire amount of arrears within eight weeks from today.
5.The application stands disposed of accordingly.
(BELA M. TRIVEDI) J.
om
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. Om Prakash
PA
http://indiankanoon.org/doc/151597974/
Bombay High Court
Criminal Appeal No. 275 Of 1996 vs Unknown on 17 February, 2012
Bench: A.P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Criminal Appeal No. 275 of 1996
Applicant : State of Maharashtra
versus
Respondent : Vasant Kumar s/o Dindayal Chudiwale, aged about 35 years, resident of Hospital
Road, Wardha
Mr S. S. Doifode. Additional Public Prosecutor for appellant-State Mr Ashish Chawre, Advocate for respondent
———
Criminal Revision Application No. 114 of 1996
Applicant : Madanchand s/o Saheblal Kashyap, aged about 70 years, resident of Central
Avenue, Bhawsar Chowk, Nagpur
versus
Respondents : 1) The State of Maharashtra 2) Vasant Kumar s/o Dindayal Chudiwale,
aged about 35 years, resident of Hospital
Road, Wardha
2
Mr Sharma, Adv h/f Mr R. M. Daga, Advocate for applicant Mr S. Doifode, Additional Public Prosecutor for State Mr Ashish Chawre, Advocate for respondent no. 2
Coram : A. P. Bhangale, J
Dated : 17th February 2012
Oral Judgment
1. By Criminal Appeal No. 275 of 1996 and Criminal Revision Application No. 114 of 1996, acquittal of original accused Vasant Kumar Chudiwale is under challenge.
2. Accused Vasant Kumar had married with Maya on 27.6.1985 at Wardha. After marriage the couple resided at Wardha and Amravati where accused was working. Out of wedlock, accused and Maya were begotten with girl child. After two years of marriage, it is alleged that accused started ill-treating Maya on the ground that she had illicit relations with Rakeshkumar (PW 8), husband of her sister Meena. He insisted upon Meena to admit to the position and he will forgive her. Maya declined to admit such position which was non- existent. They came to Nagpur some time on 19.7.1987 and stayed at the house of Madanchand, uncle of deceased Maya. Looking at the tense situation, Madanchand called father and brother of Maya and a meeting took place in which it was decided to obtain clarification from Rakeshkumar. Therefore, brother of Maya by name Ramkumar went to Raipur, however, in the mean-while on 22.7.1987 Maya committed suicide by pouring kerosene on her person and 3
setting herself on fire in her uncle Madanchand’s house. Special Executive Magistrate recorded the dying declaration of Maya at the Government Hospital. It is alleged that Maya blamed accused for her suicide. Maya died on 25.7.1987. Brother of Maya lodged report at Police Station, Tahsil, Nagpur. After investigation, accused was charge-sheeted for the offences punishable under Sections 498A and 306 of the Indian Penal Code.
3. Learned Assistant Sessions Judge, Nagpur convicted the accused on both the counts and sentenced him to suffer rigorous imprisonment for one year each for the offences punishable under Sections 498A and 306 of the Indian Penal Code and directed him to pay fine of Rs. 500/- on each count.
4. Accused preferred appeal against the order of conviction and sentence and learned Extra Joint District Judge and Additional Sessions Judge, Nagpur while allowing the appeal, set aside the same. Aggrieved by the order of acquittal, the State has preferred appeal while uncle of deceased Maya by name Madanchand has preferred revision.
5. Learned Additional Public Prosecutor appearing for State and learned counsel appearing for revision-applicant tried to assail the judgment of acquittal by pointing dying declaration and they contend that Maya clearly and in specific words stated that her husband (accused) always used to say that she had illicit relations with her Jijaji (P. W. 8 Rakeshkumar) which she could not tolerate and that was the reason why she poured kerosene on her person and set herself on fire. Learned counsel further contend that Maya also blamed Rakeshkumar because of whose version, her husband suspected her chastity.
6. It is not in dispute that main plank of the prosecution case is the 4
said Dying Declaration (exhibit 35). Said Dying Declaration was recorded by the Special executive Magistrate and it bears thumb impression of Maya. It was recorded in Hindi language. She disclosed her name as Maya Chudiwale d/o Kewalchand Kashyap and Vasant Chudiwale as husband’s name and stated that she was residing at Wardha with joint family consisting of mother-in-law, brother- in-law, wife of brother-in-law. When questioned about how she was burnt, she disclosed thus :
Then she was asked about the cause, she stated thus : Reading the above dying declaration as it is, would at the most indicate intolerant nature of deceased as a result of which she decided to end her life by pouring kerosene upon her own body and igniting it. The reason stated was that accused was suspecting because of some statements made by Rakeshkumar (who is not acused) that he had illicit relation with Maya. In order to constitute 5
the offence under Section 306 of the Indian Penal Code, it is necessary that there must be some evidence that the accused has abetted the deceased to commit suicide. It is necessary that accused must have instigated the person who has committed suicide or intentionally aided by any act or illegal omission causing the doing of that thing. The Apex Court in Ramesh Kumar vs. State of Chhatisgarh reported in (2001) 9 SCC 618 has held as under : “Instigation is to goad, urge forward, provoke, incite or encourage to do “an act”. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the 6
offence of suicide should be found guilty.”
7. Thus, there should be positive act on the part of the accused necessary to spell mens rea. It is settled legal position that “instigate” denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea is the necessary concomitant for instigation. Words uttered in a quarrel or on the spur of moment, such as “to go and die”, cannot be taken to be uttered with requisite mens rea. Section 306 of the Indian Penal Code requires abetment as an essential ingredient which is defined under Section 107 of the Penal Code which lays down that “a person abets the doing of a thing who, firstly instigates any person to do that thing, or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing, is said to have committed the abetment.
8. Bearing the above principles in mind, in the present case, the dying declaration in question does not spell out offence punishable under Section 306 as also under Section 498A of the Indian Penal Code. Considering the evidence led before the trial Court, in my opinion, the lower Appellate Court was right in reaching to a conclusion of acquittal and to set aside the judgment and order passed by the trial Court for want of essential ingredients to make out offences punishable under Section 306 and 498A of the Indian Penal Code. I do not find any valid ground or reason to interfere with the impugned judgment and order. 7
9. In the result, both the criminal appeal as well as criminal revision application fail and are dismissed.
A. P. BHANGALE, J
joshi
http://indiankanoon.org/doc/103794258/
A court in the US has ordered a man to post an apology to his estranged wife on his Facebook page for 30 days to avoid a jail sentence for blasting her on the social networking site, a case that stirred controversy over freedom of speech rights.
Mark Byron, a Cincinnati-based photographer, was so bothered by his pending divorce and child visitation issues that he wrote a nasty note to “vent” out his frustration.
“I just went on Facebook to vent,” Byron said. “I kind of likened it to having a drink with a friend at a bar and telling them about things.”
The note implied that his wife was out to ruin his life. “If you are an evil, vindictive woman who wants to ruin your husband’s life and take your son’s father away from him completely – all you need to do is say you’re scared of your husband or domestic partner and they’ll take him away!” the note on his Facebook wall said.
Despite Byron blocking his wife from seeing his Facebook wall, she learnt of the post which touched off a battle that resulted in a Hamilton County judge ordering Byron jailed for his Facebook rant.
To avoid 60-days in jail, Byron was asked to post on his page an apology to his wife and all of his Facebook friends, something free-speech experts found troubling.
“The idea that a court can say, ‘I order you not to post something or to post something’ seems to me to be a 1st Amendment issue,” free-speech expert Jack Greiner said.
Magistrate Paul Meyers said Byron could either go to prison and pay a USD 500 fine or post an apology and pay child support.
The apology was written by the judge and Byron has been posting all the news stories about his case on his Facebook page.
http://www.indianexpress.com/news/court-orders-man-to-apologize-to-estranged-wife-on-facebook/916627/0
MOGA: Close on the heels of a Canadian NRI conspiring to eliminate his wife by hiring contract killers, a case of an Australian NRI woman duping her Punjabi husband has come to light.
Bagipura village resident Gurwinder Singh had married Amandeep Kaur, who has been living in Australia, in 2009 and sent her Rs 16.70 lakh for further studies, said family members of Gurwinder.
While leaving for Australia after solemnizing the marriage, Amandeep had promised to help Gurwinder reach Australia after getting visa for him, which she never did. Instead, she sent divorce papers to Gurwinder some days ago.
Police have booked Amandeep Kaur, her father Ajmer Singh, mother Jasbir Kaur and brother Amarinder Singh for fraud and cheating. Amarinder was arrested on Wednesday.
It was on Tuesday when Moga’s Nihal Singh Wala police booked Gurjit Singh of Canada for allegedly hiring contract killers to eliminate his Punjabi wife Harpreet Kaur. The victim had told the police that she came to know of her husband marrying again in Canada, and had been pressurizing her for divorce.
http://timesofindia.indiatimes.com/india/NRI-woman-dupes-Punjabi-husband-seeks-divorce/articleshow/12092650.cms
नोएडा।। याद है आपको नोएडा की निशा शर्मा? 2003 में एक दिन अचानक मीडिया ने सेक्टर-56 में रहने वाली निशा को सुर्खियों में ला दिया, क्योंकि उसने दहेज मांगे जाने पर भरे मंडप में शादी से इनकार कर दिया था और बरात लौट गई। लेकिन कोर्ट ने बुधवार को नौ साल पहले निशा की ओर से दर्ज कराए गए दहेज के आरोप को बनावटी कहानी ठहरा दिया।
निशा से शादी करने पहुंचे मुनीष दलाल ने इस केस में नौ साल तक कोर्ट के चक्कर काटे। बुधवार को दिल्ली के विकासपुरी स्थित अपने घर में मुनीष ने कहा कि हमें इंसाफ तो मिला, लेकिन जिंदगी बर्बाद होने के बाद। हम इस मामले को ऐसे ही नहीं छोड़ेंगे। झूठे केस में फंसाने पर निशा और उसके पिता डी.डी. शर्मा के खिलाफ हर्जाने का केस करेंगे।
कोर्ट ने बुधवार को निशा शर्मा के दहेज केस को न सिर्फ बनावटी कहानी माना, बल्कि मामले में एकतरफा रिपोर्टिंग करके चारों आरोपियों की मानहानि करने के आरोप में एक बड़े अखबार के रिपोर्टर के खिलाफ मुकदमा शुरू करने का आदेश भी दिया। इन चारों आरोपियों मुनीष, उनकी मां विद्या दलाल, बुआ सावित्री देवी और निशा के कथित प्रेमी नवनीत को बाइज्जत बरी कर दिया गया। कोर्ट ने कहा कि जब निशा शर्मा की मुनीष दलाल के साथ शादी ही नहीं हुई, तो दहेज ऐक्ट कैसे लागू हो सकता है।
सीजेएम ने निशा की कहानी पर कई सवाल खड़े किए। फैसला सुनने के लिए निशा की ओर से वकील समेत कोई भी व्यक्ति कोर्ट में नहीं था। इससे पहेल भी इस केस की सुनवाइयों में गवाही देने निशा शर्मा कभी नहीं पहुंची और न ही उनके पिता डीडी शर्मा शादी की तैयारियों की सीडी और जरूरी सबूत पेश कर सके।
http://navbharattimes.indiatimes.com/articleshow/12093143.cms
AJMER: In a freak incident, a 35-year-old woman chewed off the fingers of a four-year-old-boy in Central Jail in Ajmer on Wednesday.
The woman Barfi, who has been serving sentence for throwing her son from a running train, attacked the child who has been staying with his mother, also a prisoner. While trying to rescue her son, the woman too was attacked.
The jail administration has lodged a complaint against Barfi at the Civil Lines police station, and sent the injured to JLN Hospital.
According to sources, the incident occurred during lunch hour, when Salma went to collect her food, and her son Arman was playing in the jail premises.
“Barfi saw my son and started beating him. She later, chewed off his fingers,” said an inconsolable Salma. Seeing her son crying in pain, she rushed to save him. “But, Barfi attacked me and bit my hand,” she said.
The child has been in state of shock, and not uttered a word since the incident occurred.
Barfi was arrested by the Railway police last month when she had thrown her child from a train running between Jaipur and Ajmer. She was remanded in judicial custody.
Sources said Barfi would spend long hours sitting quietly in a corner but often got angry on seeing Arman.
Jail administration, however, denied to comment on the incident.
http://timesofindia.indiatimes.com/city/jaipur/Woman-chews-off-boys-fingers-in-jail/articleshow/12090412.cms
PrintExpeditious trial of cases has to be ensured by making necessary changes in procedure. States must create a separate investigation cadre. Separate prosecution cadre is also required. This was stated by the Union Home Minister Sh. P. Chidambaram at the Consultative Committee meeting of the Ministry of Home Affairs which discussed the topic: Investigation, Prosecution & Trial – the need for revamping.
He informed members that Law Commission of India has been requested to give a report on the amendments required immediately. He said the Department- related Parliamentary Standing Committee on Home Affairs while examining the Code of Criminal Procedure (Amendment) Bill, 2010 in its 146th Report has recommended that there should be comprehensive review of the Criminal Justice System and introduction of composite draft legislation for revamping of the Criminal Justice System in the country. Accordingly, Ministry of Law & Justice have been requested to request the Law Commission of India to examine and give a comprehensive report covering all aspects of criminal law, so that comprehensive amendments could be made in the various laws viz. IPC, Cr.P.C., Evidence Act, etc. It was also suggested that the Law Commission of India may also, inter-alia, take into account the recommendations made by Malimath Committee & other Committee/Commission in this regard. The recommendations of the Law Commission of India in this regard are awaited.
While initiating the discussion, the Union Home Minister said, the investigation has moved to technology based evidence, new forensic tools are used by other countries. We also need to move towards it.
He said the Committee on Reforms of the Criminal Justice System, constituted on 24.11.2000 under the Chairmanship of Justice V. Malimath, former Chief Justice of Karnataka and Kerala High Courts, considered measures for revamping the criminal justice system and gave recommendations on various aspects of the criminal justice system including investigation, prosecution and the trial procedure in its Report submitted in March, 2003. Since the Criminal Law and Criminal Procedure are on the Concurrent List of Seventh Schedule to the Constitution of India and the same are administered by the State Governments, any amendment to them requires consultation with the State Governments. In view of this, the report was forwarded to the State Governments and Union Territories Administrations to obtain their views/comments.
The Law Commission of India also reviewed the Code of Criminal Procedure, 1973 in its 154th Report. The 197th Report of the Law Commission of India examined the issues relating to appointment of Public Prosecutor. The view of the State Governments/Union Territory administration on recommendation of Law Commission have been sought. Some of the issues relating to investigation, prosecution and trial procedure highlighted in these reports are:
The Investigation Wing should be separated from the Law and Order Wing. A separate wing of the investigation with clear mandate and it is accountable only to Rule of Law is the needed. The Law Commission of India specifically discussed this issue threadbare in its 154th Report and categorically recommended for separating the investigating agency from the law and order police. Placement policy of investigating staff, inadequate training, Comprehensive use of Forensic Science from the inception and problems related to Medico Legal Services were highlighted.
Several measures have been suggested to improve the quality of investigation. Interrogation centres should be set up at district headquarters in each district where they do not exist and strengthened where they exist. A mechanism for coordination amongst investigators, forensic experts and prosecutors at the State at district level for effective investigations and prosecutions should be devised. A suitable provision be made to exclude the period during which the accused is not available for investigation on grounds of health etc. for computing the permissible period of police custody. Refusal to entertain complaints regarding commission of any offence should be made punishable. Stringent punishment for false registration of cases & false complaints.
Members highlighted that the common man suffers as the manner in which police investigation is conducted is of critical importance to the functioning of the criminal justice system. A prompt and quality investigation is the foundation of an effective criminal justice system. They also raised the issue of non-registration of cases by police in some cases. On this, Sh. P. Chidambaram informed Members that in Delhi all but sensitive FIRs are on website. The members also called for separate cadres for investigation work and prosecution.
The following members of Consultative Committee were present at the meeting:
Shri H.K. Dua, Nominated, Dr. K. Keshava Rao, INC, Andhra Pradesh, Shri Thomas Sangma, NCP, Meghalaya, Dr. Vijay Mallya, IND, Karnataka from Rajya Sabha. Shri Bhisma Shankar alias Kushal Tiwari, BSP, U.P., Shri D.B. Chandre Gowda, BJP, Karnataka, Shri Ismail Hussain, INC, Assam, Shri J.P. Aggarwal, INC, Delhi, Shri Kalyan Banerjee, AITC, W.B., Shri Lalu Prasad, RJD, Bihar, Dr. Rattan Singh Ajnala, SAD, Punjab, Shri Sheeshs Ram Ola, INC, Rajasthan, Dr. Thokchom Meinya, INC, Manipur, Shri Yogi Aditya Nath, BJP, U.P. from Lok Sabha.
***
IJ/PT
Delhi High Court
Douglas Breckenridge vs Jhilmil Breckenridge on 21 February, 2012
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 20.12.2011
% Judgment delivered on: 21.02.2012 + CONT.CAS(C) 815/2011 and C.M. No. 20360/2011 DOUGLAS BRECKENRIDGE ….. Petitioner Through: Mr. Neeraj Kishan Kaul, Senior
Advocate, with Mr. P. Banerjee &
Mr. Atreyi Chatterjee, Advocates.
versus
JHILMIL BRECKENRIDGE ….. Respondent Through: Ms. Geeta Luthra, Senior Advocate,
with Mr. Harish Malik, Advocate.
CORAM:
HON’BLE MR. JUSTICE VIPIN SANGHI
JUDGMENT
VIPIN SANGHI, J.
1. The present petition has been preferred under Sections 10 and 12 of the Contempt of Courts Act, 1973 read with Article 215 of the Constitution of India, with the allegations to the effect that the respondent has deliberately and willfully disobeyed the orders dated 30.09.2010 and 05.04.2011 passed by the Guardianship Court, Saket Courts, New Delhi, CONT.CAS(C) 815/2011 Page 1 of 57 passed in Guardian Case No.66/2010 and also the orders of the Metropolitan Magistrate dated 13.10.2011 in CC No.332/1, and of the Additional Sessions Judge dated 19.10.2011 passed in Protection of Women from Domestic Violence Act, 2005 (DV Act) proceedings.
2. The petitioner and the respondent are husband and wife. Out of their wedlock, they have four sons. The petitioner has preferred a divorce petition against the respondent.
3. The petitioner filed a custody petition before the Guardianship Judge, Saket, New Delhi. In the petition the petitioner stated that he resides with his three elder children at C-87, Anand Niketan, New Delhi, of whom he has custody, whereas the respondent resides with her parents at 68, Friends Colony (West), New Delhi. According to the petitioner, the respondent abandoned the matrimonial home on Raksha Bandhan day, i.e. 24.08.2010. She left the three elder children with the petitioner, and took away the youngest child Liam with her. The custody petition had been preferred to seek custody of the youngest son Liam from the respondent wife. The petitioner also moved an application in those proceedings to seek interim custody under Section 12 of the Guardians and Wards Act, 1890. CONT.CAS(C) 815/2011 Page 2 of 57
4. The petitioner apprehended that the respondent would take the child Liam with her to U.K., where she was allegedly having an adulterous relationship with one Dr. Nooruddin Ahmed of Aylesbury, U.K. On 09.09.2010, the Guardianship Judge recorded the undertaking of the respondent that she shall not take the child Liam from the territorial jurisdiction of the Court, without the permission of the Court.
5. The proceedings before the Guardian Court were fixed on 30.09.2010. The respondent had, in the meantime, left for U.K. to allegedly meet her alleged paramour. She could not take the child Liam with her on account of her undertaking given to the Guardianship Judge on 09.09.2010. According to the petitioner, the child Liam, who was left by the respondent with her parents in Friends Colony, was handed over by his parents-in-law to him.
6. Accordingly, on 30.09.2010, the child Liam was produced by the petitioner before the Court. The learned Guardianship Judge saw for himself that the petitioner had the custody of the child Liam, who was produced in Court by the petitioner. Consequently, the learned Guardianship Judge, upon consideration of the matter and looking to the facts and circumstances of the case, that the custody of the child Liam had come into the hands of the CONT.CAS(C) 815/2011 Page 3 of 57 petitioner, disposed of the application under Section 12 of the Guardian and Wards Act., 1890.
7. The order dated 30.09.2010 is relevant and, therefore, reproduced herein below:
“G No 66/10
30.09.2010
Present: Sh.P. Banerjee and Liza Baruah advocate for petitioner with petitioner.
None for respondent.
In the morning one advocate appeared on behalf of respondent and filed reply to the petition of the petitioner along with extra copy for the petitioner. The copy of the petition has been supplied to petitioner.
It is informed by counsel for petitioner that
respondent left Delhi and went to U.K. On 16.09.2010 by leaving the child Liam at her father’s home. It is further submitted that the parents of respondent dropped the child at the residence of petitioner and since, then the child in the custody of petitioner. It is further submitted that since the child has already come in the custody of petitioner, therefore, the application for interim relief may kindly be disposed of. Considered. The petitioner is present with the child in the court. Keeping in view the fact that the child whose custody was sought by the petitioner has already come in his custody therefore the prayer made in an application under Section 12 of the Guardian and Wards Act stands satisfied, thus, the application under Section 12 is disposed of.
CONT.CAS(C) 815/2011 Page 4 of 57 Petitioner seeks time for filing rejoinder to the reply of the respondent. Heard. Allowed. Let the same be file within three weeks from today with advance copy to opposite party. Be put up for rejoinder the petitioner, if any, otherwise admission denial of documents and framing of issues on 27.11.2010.” (Emphasis supplied)
8. In December 2010, the respondent moved an application before the Guardianship Judge. In this application, the respondent contended that the petitioner had, inter alia, “barred access of the applicant to all four children of the parties….. ….. …..” She complained that she is denied the use of any room in the matrimonial house, and she is forced to stay only in the living room. She also complained that the keys of the house are not provided to her. She also complained that she is not allowed to join her children and the petitioner on family outings. The prayer made by the respondent in this application was to seek a direction “that the children of the parties are allowed to access to the Applicant and be permitted to interact with her and that no inconvenience, interference or annoyance be caused in her relationship with their children and that the Non-Applicant not assume to himself the unilateral authority to decide how the children should behave or when and which manner the Applicant, subject to his absolute discretion, associates and interacts with them”.
CONT.CAS(C) 815/2011 Page 5 of 57
9. While this application was pending, the matter again came up before the learned Guardianship Judge on 05.04.2011. The parties, with a view to amicably settle their disputes, agreed to refer the matter to the Mediation Centre, Delhi High Court, New Delhi. The Court, inter alia, gave the following directions on the said date:
“Heard. Till the parties explore the possibility for amicable resolution of dispute before the Mediation Centre, the following arrangement is made with respect to the visitation rights of the respondent with the minor children without prejudice to the rights and contentions of both the parties.
1. The petitioner has agreed that he will hand over the key of the house to the respondent for having free access to the house.
2. It has been agreed between the parties that the respondent will have free access to all the minor children so that she may have healthy relationship with the children and she may offer motherly affection to them.
3. The respondent is not permitted to take the minor children out of NCR.
The aforesaid arrangement shall continue till further orders.
Matter be put up for compromise between the parties, if any, otherwise for arguments on application under Order 7 Rule 11 CPC moved by the respondent and other pending applications of parties, if any, on 20.05.2011. Copy of order be given dasti to both the parties.” (Emphasis supplied) CONT.CAS(C) 815/2011 Page 6 of 57
10. While the aforesaid orders were holding sway, the respondent, it is alleged, picked up Liam from the school on 13.10.2011 at about 1:30 p.m. and disappeared without intimating as to where she was taking Liam. Upon enquiry, it transpired that Liam had been taken by the respondent to her place of residence, i.e. 68, Friends Colony (West), New Delhi.
11. The respondent, it appears, instituted proceedings under Section 12 of the DV Act on 12.10.2011, and moved an interim application in those proceedings to seek a restraint against the petitioner from interfering in the respondent’s custody of the minor son Liam. The definite case of the respondent was that she had the actual custody of child Liam.
12. This petition under Section 12 of the DV Act was registered as CC No.332/1 and came up before the learned Metropolitan Magistrate on 13.10.2011. The respondent/complainant was represented through her senior counsel Ms. Geeta Luthra with Mr. Sanjeev Sahay, Advocate. The petition had been filed by Sh. Shashank Kumar Lal, Advocate on behalf of the respondent. The learned Metropolitan Magistrate, after hearing the arguments of the respondents counsels, passed, inter alia, the following order:
CONT.CAS(C) 815/2011 Page 7 of 57 “Present; Complainant and child with Sr. Adv. Geeta Luthra and Sanjeev Sahay, Adv.
Arguments heard. It is stated by Sr. counsel that there is imminent apprehension that the respondent may remove the youngest child namely Liam from the custody of aggrieved person unlawfully.
I have gone through the petition filed by the complainant as well as considered the submissions carefully. In para no. 68 of the petition filed by the aggrieved person there is reference to the proceedings filed by the respondent herein with regard to the youngest child Liam in Guardianship court. However, the language used in the said para is ambiguous and does not reflect clearly the orders passed by the Ld. Judge in the Guardianship court. Counsel for complainant seeks time to file amended petition and also seeks liberty to file orders passed in the Guardianship court in the petition filed by the respondent.
Put up for consideration on 14.10.2011 at 3:00 pm.” (emphasis supplied)
13. From the aforesaid, it is clear that the learned Metropolitan Magistrate noticed the averment made in para 68 of the petition preferred by the respondent under Section 12 of the DV Act and, as the same appeared to be ambiguous, granted time to the respondent/complainant to file an amended petition, and also to file orders passed in the guardianship petition by the Guardianship Court.
CONT.CAS(C) 815/2011 Page 8 of 57
14. It appears the respondent filed an application to seek amendment, inter alia, in para 68 of the petition under Section 12 of the DV Act. After incorporating the aforesaid corrections, the corrected para 68 of the said petition reads as follows. For the sake of better understanding, the words which have been replaced have also been incorporated, but have been struck of.
“68. In order to succeed in his purpose to discredit the complainant by fabricating and creating evidence, the respondent had filed two petitions against the complainant (1) guardianship of the youngest child under Section 7 and 10 of the Guardians and Wards Act. The said child was of around 4 years of age and the petition was filed in August, 2010. Although the respondent had sought directions for handing over the custody of the child Liam to from the complainant, no such Order was made however, the
respondent complainant did not have any objection to the Order regarding Non removal of child Liam from the territorial jurisdiction of the Hon’ble Court as the complainant is residing and has been working for gain within the territorial jurisdiction of the Hon’ble Court. (2) Petition under Section 27(1) (d) (e) of the Special Marriage Act for Decree of Divorce of Marriage on the alleged ground of cruelty, unsoundness of mind and adultery. The said petition was filed on 07.01.2011″. (amended words have been shown in bold)
15. It appears, the respondent produced only an uncertified copy of the statement made by her on 09.09.2010 in the guardianship proceedings, before the learned Magistrate dealing with the D.V. Act proceedings. The CONT.CAS(C) 815/2011 Page 9 of 57 respondent/complainant did not file the order dated 09.09.2010, and also did not file the subsequent orders passed in those proceedings, including the orders dated 30.09.2010 and 05.04.2011, as aforesaid.
16. On 14.10.2011, the learned Metropolitan Magistrate passed the order, the relevant extract whereof reads as follows: “C.C. No.332/1
14.10.2011
Present; Complainant with Sr. Adv. Ms. Geeta Luthra along with Adv. Jatin Sehgal, Shashank
Kumar Lal.
An application has been filed now on behalf of
complainant seeking permission to correct the typographical errors in the petition filed by the complainant under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as DV Act). It is stated by counsel for complainant that due to inadvertence, certain typographical errors have occurred in the petition which are stated in the instant applications. The counsel for complainant further requests that correct complaint may be taken on record. Heard. The errors stated by the
complainant in the instant application appear to be only typographical errors and do not change the cause of action in any manner. Therefore, application is allowed. Amended/corrected petition under Section 12 of DV Act is taken on record. Counsel for complainant has also filed uncertified copy of statement dated 09.09.2010 made by the complainant in the court of Ms. Ravinder Bedi, JSCC CUM ASJ Guardian Judge. However, the complainant has not filed any order dated 09.09.2010 passed by Ld. Guardian Judge.
CONT.CAS(C) 815/2011 Page 10 of 57 File perused. Arguments heard. This is a petition under Section 12 of DV Act. There are sufficient grounds to summon the respondent.
xxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx
At this stage, it is stated by counsel for complainant that complainant and respondent are residing together
presently at C-87, Anand Niketan, New Delhi. It is also stated by counsel for complainant that there is imminent apprehension that the respondent, who is a US citizen, may remove the youngest child of the parties namely Liam Dorje Breckenridge outside the territorial jurisdiction of the court. Therefore, counsel for complainant has sought ex-parte interim protection to the respondent not to interfere in the custody of minor son Liam Dorje
Breckenridge aged about 5 years with the complainant. xxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx
I have bestowed my careful consideration to the
submissions of Ld. Sr. Adv. for complainant and also perused the petition filed under Section 12 of DV Act along with documents. The respondent has already filed petition before the Guardianship court under Section 7 and 10 of Guardians and Wards Act with regard to the custody of minor son Liam Dorje Breckenridge, which is pending consideration before Ld. Guardian Judge. In the
circumstances of the case, I am of the opinion that the aggrieved person is entitled for some ex-parte interim protection order under Section 21 of DV Act. Accordingly, respondent is restrained from removing the child Liam Dorje Breckenridge from the territorial jurisdiction of this court till further orders. No ground is made out for passing any other order at this stage. The applicant is directed to serve the instant ex-parte order passed today on the respondent forthwith by way of RC and filed an affidavit to CONT.CAS(C) 815/2011 Page 11 of 57 this effect within 3 days. Copy of this order be given dasti to the aggrieved person.” (Emphasis supplied)
17. According to the petitioner, the aforesaid order did not satisfy the respondent, as this order merely injuncted the petitioner from removing the child Liam from the territorial jurisdiction of the Court till further orders. However, the said order did not vest custody of the child Liam in the respondent, which had passed into the hands of the petitioner, as observed by the learned Guardianship Judge in his order dated 30.09.2010. The respondent, therefore, preferred an appeal before the District and Sessions Judge, Saket under Section 29 of the DV Act.
18. The grievance made by the respondent in her appeal under the DV Act was to the following effect:
“The Ld. Trial Court without taking into consideration the facts and circumstances and the apprehension of the appellant passed an erroneous impugned order whereby the Ld. Trial Court after considering that the appellant has the custody of minor child, restrained the respondent from removing the minor child outside the territorial jurisdiction of this Hon’ble Court and by inadvertently not mentioning that the respondent should also be restrained from removing the child from the custody of the
Appellant. Copy of the Domestic Violence Complaint along with all the annexures is annexed as ANNEXURE P-2. Furthermore, the Ld. Trial Court committed an error while passing the impugned order by not granting a stay CONT.CAS(C) 815/2011 Page 12 of 57 to the appellant from dispossession, even after taking into consideration that the appellant is living in the shared household with the respondent and all four children, where she has a legal right. Therefore, the appellant being aggrieved from the impugned order is filling the present appeal as there is no other efficacious remedy available.”
19. From the aforesaid, it is clear that the definite and positive case of the respondent before the appellate court was that she had the actual physical custody of the child Liam, when the petition under the DV Act was preferred and also when she preferred the appeal under the aforesaid Act.
20. The learned ASJ dealing with the respondents said appeal passed an order on 19.10.2011. The relevant extract from the said order reads as follows:
“19.10.2011
Present: Ms. Geeta Luthra Senior Advocate with Sh. Jatin Sehgal, Ld. Counsels for the
applicant/appellant.
xxxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxx I have heard the submissions of the Ld. Counsel. The only urgent relief on which the ld.Counsel for the applicant/appellant had laid emphasis is regarding the custody of the child namely Master Laim Dorge
Breckenridge aged about five years. This child is already with the applicant/appellant namely Jhilmil Breckenridge. It is mentioned in the complaint under Section 12 of the Act in Para 68 that respondent Doughlas Breckenridge has filed a CONT.CAS(C) 815/2011 Page 13 of 57 petition under Section 7 and 10 of the Guardian and Wards Act for the custody of the minor child namely Master Liam Dorge Breckenridge. In the proceedings before the Guardian Judge the applicant/appellant Jhilmil
Breckenridge has already given statement that she will not remove the child Master Liam Dorge Breckenridge from the territorial jurisdiction of this court without the permission of this court. These facts prima facie show that the custody of the minor child namely Liam Dorge
Breckenridge is with the applicant/appellant.
Ld. Counsel for the applicant/appellant has submitted that the applicant/appellant has genuine apprehension that the respondent in the Appeal namely Doughlas Breckenridge may not deprive her from the custody of the child Master Liam Dorge Breckenridge forcefully and illegally. Therefore, she has sought for some interim protection till Appeal heard on merit.
I have considered the facts and circumstances of the case and gone through the Trial Court Record and the urgency of the relief which has been sought.
Since the minor child Master Liam Dorge Breckenridge is already in the custody of the applicant/appellant Jhilmil Breckenridge, so it is directed that till the next date of hearing fixed in the Appeal the custody of the minor child Master Liam Dorge Breckenridge with the applicant/appellant Jhilmil Breckenridge (mother) shall not be disturbed except by due process of law and of course subject to the order, if any passed by the Guardian Judge on this issue in the petition under section 7 and 10 of Guardian and Ward Act, because the applicant/appellant has not conveyed any order passed by the Guardian Judge in this regard to this court.
Since the matter is now listed for 11.11.2011 before the concerned court, the matter will be taken up on the said date. keeping in view the nature of the matter, I deem it appropriate to issue notice to the respondent on filing of CONT.CAS(C) 815/2011 Page 14 of 57 PF/RC regarding the Appeal for the date already fixed. File be sent back to the concerned court.” (emphasis supplied)
21. In the aforesaid background, the submission of Mr. Neeraj Kishan Kaul, learned senior counsel for the petitioner is that the respondent has blatantly, deliberately and willfully breached the orders dated 30.09.2010 and 05.04.2011 passed by the learned Guardianship Judge, which clearly acknowledge and recognize the fact that the custody of the child Liam had passed into the hands of the petitioner, and was with the petitioner. The Respondent mis-stated and misrepresented before the Ld. MM as well as before the Ld.ASJ dealing with the DV Act proceedings, that she had the custody of the child Liam, by only producing her own undertaking recorded before the Ld. Guardianship Judge on 09.09.2010, and by suppressing the subsequent proceedings and orders of the Guardianship Court, and in particular the orders/ proceedings dated 30.9.2010 and 05.04.2011. Under the cover of the orders obtained from the learned Metropolitan Magistrate in proceedings under the DV Act, which have been obtained by suppression of the proceedings and orders of the learned Guardianship Judge, the respondent has sought to take away the child Liam from the custody of the petitioner, and into her own custody. Mr. Kaul, therefore, submits that the CONT.CAS(C) 815/2011 Page 15 of 57 orders dated 30.09.2010 and 05.04.2011 stand blatantly and willfully breached by the respondent.
22. He further submits that the conduct of the respondent in not disclosing the proceedings and orders passed in the guardianship case on 30.09.2010 and 05.04.2011, despite the directions of the learned Metropolitan Magistrate dealing with the DV Act complaint, as well as her conduct in not filing the said proceedings of the guardianship case in her appeal under the DV Act before the learned ASJ, clearly tantamount to gross abuse of the process of the Court on account of suppression of the said proceedings; to playing a fraud upon the court, and; also amounts to contempt of court. In this regard, he places reliance on the decision of a Division Bench of this Court in Satish Khosla v. Eli Lilly Ranbaxy Limited & Anr., 71(1998) DLT 1 (DB).
23. Ms. Geeta Luthra, learned senior counsel appearing for the respondent has argued that the orders/proceedings dated 30.09.2010 and 05.04.2011 do not qualify to be termed as “order” as defined in Section 2(14) of the Civil Procedure Code (CPC). She submits that an “order” within the meaning of the CPC mean the formal expression of any decision of a civil court which is not a decree. She submits that the so-called order CONT.CAS(C) 815/2011 Page 16 of 57 dated 30.09.2010 does not contain any decision of the learned Guardianship Judge. In fact, the said so-called order was obtained by the petitioner behind the respondents back by making a self serving statement before the Court. She submits that there was no question of the respondent agreeing to the petitioners claim that he had got the custody of the minor child Liam, as the respondent on the same day, i.e. 30.09.2010 filed her reply in the guardianship proceeding clearly stating that the custody of the child Liam was with her.
24. Ms. Luthra submits that even the so-called order dated 05.04.2011 is not an order within the meaning of Section 2(14) CPC. These proceedings merely record that the parties have agreed that the matter be referred to the Mediation Centre, and the order also records the arrangement arrived at by the Court with regard to visitation rights of the respondent qua the minor children.
25. She submits that even the petitioner admits that the custody of the minor child Liam was with the respondent, and it is precisely for this reason that the petitioner preferred the guardianship petition. She submits that the respondent never ever gave up the custody of her minor child. The respondent continued to have the custody of the minor child Liam CONT.CAS(C) 815/2011 Page 17 of 57 inasmuch, as, she was staying in and out of the matrimonial home, i.e. C-87, Anand Niketan, New Delhi with her children and, in particular, the minor child Liam.
26. In para 13.3 of the guardianship petition, the petitioner himself acknowledges that the respondent left the matrimonial home on 24.08.2010 and had taken with her child Liam. It is an acknowledgment of the fact that the custody of the child Liam was with the respondent, and it is for this reason that the respondent was asked to give an undertaking to the Court that she would not remove the child Liam from the territorial jurisdiction of the Guardianship Court without the permission of the said Court, on 09.09.2010. She further submits that there is no order of any Court divesting the custody of the child Liam from the respondent, and vesting the same with the petitioner.
27. Ms. Luthra submits that the respondent, being the mother of the said minor child, is his natural guardian. She submits that even if the respondent had gone out of town leaving the child Liam with her parents, the same does not mean that the respondent has lost the custody of the minor child Liam. She submits that even a perusal of the order dated 05.04.2011 shows that the respondent had unrestricted access to the matrimonial home, CONT.CAS(C) 815/2011 Page 18 of 57 where the petitioner was residing with the children. In fact, the respondent had preferred an application under Order 7 Rule 11 CPC on 27.11.2010 on the premise that the respondent was living in her matrimonial home with the petitioner and her four children. In response to the aforesaid application, the petitioner admitted that the respondent has been residing at the matrimonial home.
28. She submits that the respondent had preferred an application for directions in December 2010 before the Guardianship Judge, as the petitioner was trying to forcefully divest the custody of the children from the respondent. Reference is also made to the reply filed by the petitioner to said application, wherein the petitioner himself admits that the respondent has access to all the four children. In para 11 of the said reply, the petitioner does not dispute the respondents case that Liam is allowed to meet the respondent, and is allowed to sleep with the respondent. She submits that the respondent had filed a second application under Order 7 Rule 11 CPC in the guardianship proceedings. In his reply to the said application filed in July 2011, the petitioner admitted that the respondent has been residing in the matrimonial home with the children. According to the respondent, the parties are leading a normal life. Reference is made to the averments made CONT.CAS(C) 815/2011 Page 19 of 57 by the respondent in her rejoinder to the second application under Order 7 Rule 11 CPC before the learned Guardianship Judge.
29. Ms. Luthra points out that the conduct of the petitioner himself is not aboveboard, inasmuch, as, the petitioner filed an amended petition under the Guardianship Act in July 2011, wherein the petitioner, without the permission of the Court, introduced an averment in Column 4 as follows: “Custody of minor is with Mr. Douglas Breckenridge. At the time of filing of the petition Liam was in the illegal possession of the Respondent. However, on 30.09.2010 the custody of minor Liam has been reverted to the Petitioner”.
30. Ms. Luthra submits that the respondent, being the mother, is entitled to protect her custody of the children under Section 21 of the DV Act. She defends the averments made by the respondent in her petition in para 68 under Section 12 of the DV Act. In support of her submissions aforesaid, she places reliance on the following decisions: i) Jaswant Sugar Mills Ltd., Meerut v. Lakshmichand & Ors., (1963) Supp. SCR 242;
ii) Dr. Manju Varma v. State of U.P. & Ors., 2004 (9) Scale 463;
iii) Devarkonda Edl. Society V. All India Council for Technical Education & Ors., AIR 1997 A.P. 389; and
CONT.CAS(C) 815/2011 Page 20 of 57 iv) Vidyacharan Shukla v. Khubchand Baghel & Ors., AIR 1964 SC 1099.
31. Ms. Luthra submits that the respondent, in any event, did not understand the proceedings of 30.09.2010 and 05.04.2011 before the learned Guardianship Judge as “orders” within the meaning of Section 2(14) CPC. In these circumstances, there is no contempt made out, on account of the alleged suppression of the so-called orders from the Courts dealing with the DV Act proceedings. In support of this submission, she places reliance on the following decisions:
i) Dinesh Kumar Gupta v. United India Insurance Co. Ltd. & Ors., 2010 (10) Scale 647;
ii) Anshuman Sharma v. Manika Jain, 114 (2004) DLT 47; iii) Dr. Ashish Ranjan v. Dr. Anupama Tandon,
2010 (12) Scale 577.
32. Ms.Luthra has also sought to make submissions that the petitioner abused the respondent physically, sexually and mentally, and was responsible for wrong treatment of her bi-polar disorder. These allegations, in my view, are of no relevance to these proceedings and are, therefore, not being gone into.
CONT.CAS(C) 815/2011 Page 21 of 57
33. In his rejoinder, Mr. Kaul has submitted that the entire submission of the respondent fails to take note of the manner in which “civil contempt” has been defined under the Contempt of Courts Act. Civil contempt is defined as:
” (b) “Civil contempt” means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court”. He, therefore, submits that civil contempt is defined very widely to not only take within its ambit willful disobedience to decrees, directions and orders, but also other processes of a Court.
34. Mr. Kaul submits that the order dated 30.09.2010 is, even otherwise, an “order” within the definition of that expression contained in Section 2(14) of the CPC. He submits that merely because the respondents counsel chose not to appear before the learned Guardianship Judge on 30.09.2010, when the matter was taken up, would not mean that the proceedings held before the learned Guardianship Judge, and recorded by him, do not amount to an order. He submits that the petitioner had moved an application under Section 12 of the Guardians and Wards Act to seek interim custody of the minor child Liam. On 30.09.2010, the petitioner had CONT.CAS(C) 815/2011 Page 22 of 57 appeared before the learned Guardianship Judge with the child Liam, and the Court saw for itself that the custody of the said minor child was with the petitioner. Mr. Kaul submits that the Court recorded the petitioners submissions and duly considered the same and also appreciated the factual position placed before it. Thereafter, the learned Guardianship Judge gave his decision that, keeping in view the fact that the child whose custody was sought by the petitioner has already come in his custody, the prayer made in the application under Section 12 of the Guardians and Wards Act stands satisfied. In the light of the aforesaid position, the learned Judge disposed of the petitioners application under Section 12, as aforesaid.
35. Mr. Kaul, therefore, submits that the order dated 30.09.2010 has all the ingredients of an order under Section 2(14) of the CPC. Mr. Kaul submits that it is not necessary that the formal expression of the decision of the civil court has necessarily to pertain to a final decision. He submits that the respondent did not either seek review of the said order, or challenge it before a higher court. The said order, in so far as it deals with the aspect of interim custody of the minor child Liam, has attained finality, until and unless it is disturbed/ changed due to material change of circumstances. CONT.CAS(C) 815/2011 Page 23 of 57
36. With a view to counter the allegations of the respondent regarding her alleged ill treatment by the petitioner, Mr. Kaul has also drawn the attention of the Court to the email communication sent by the father of the respondent to the petitioner on 07.08.2010, wherein he expressed the apprehension that the respondent may take Liam with her to U.K. The respondent’s father himself advised the petitioner to keep Liam’s passport and that of the other boys too, under lock and key. Reference is also made to email communications allegedly exchanged between the respondent and her alleged paramour, to submit that the respondent, in any event, is not fit to retain even temporary custody of the minor children on account of her alleged adulterous relationships.
37. I first proceed to consider the submission of the respondent that the proceedings of 30.09.2010 and 05.04.2011 recorded before the learned Guardianship Judge do not tantamount to an “order” within the meaning of Section 2(14) C.P.C. Section 2(14) C.P.C defines “an order” to mean “the formal expression of any decision of a Civil Court which is not a decree”. “Decree” has been defined inter alia, to mean “the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either primary or final”. The CONT.CAS(C) 815/2011 Page 24 of 57 distinction between an “order” and a “decree”, therefore, is that, whereas a decree is the result of an “adjudication”, an order is the “expression of any decision” of a Civil Court. Moreover, while a decree conclusively determines the rights of the parties with regard to or any of the matters in controversy in the suit, as regards the Court expressing it, an order may not be a conclusive determination of the rights of the parties, as regards the Court formally expressing its decision.
38. Reliance placed by the learned senior counsel for the respondent on Jaswant Sugar Mills Limited (supra), Dr.Manju Varma (supra), Devara Konda Educational Society (supra) and Vidya Charan Shukla (supra) does not advance the submission of learned senior counsel for the respondent that the orders/proceedings dated 30.09.2010 and 05.04.2011 do not amount to orders. Jaswant Sugar Mills Limited (supra) was a case wherein the Supreme Court was examining the issue whether an appeal may be entertained in exercise of powers under Article 136 of the Constitution of India against the direction of a Conciliation Officer issued in disposing of an application under Clause 29 of the order promulgated by the Government of Uttar Pradesh under the U.P. Industrial Disputes Act, 1947, when an appeal lay to the Labour Appellate Tribunal under the Industrial Disputes (Appellate Tribunal) Act, 1950. In that context the Supreme Court examined CONT.CAS(C) 815/2011 Page 25 of 57 the issue as to what constitutes a decision judicial. The criteria that must be satisfied to make a decision judicial is stated as follows:- “(1) it is in substance a determination upon investigation of a question by the application of objective standards to facts found in the light of pre-existing legal rule;
(2) it declares rights or imposes upon parties obligations affecting their civil rights and
(3) that the investigation is subject to certain procedural attributes contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of evidence if a dispute be on question of fact, and if the dispute be on question of law on the presentation of legal argument, and a decision resulting in the disposal of the matter on findings based upon those questions of law and fact.”
39. There can be no manner of doubt that the proceedings before the learned Guardianship Judge are judicial proceedings. Therefore, the decision in Jaswant Sugar Mills is not relevant for the present purpose. Dr.Manju Varma (supra) merely restates the aforesaid criteria laid down in Jaswant Sugar Mills Limited. In Deverakonda (supra) the Andhra Pradesh High Court held that while rendering its decision under Section 23 of the All India Council for Technical Education (AICTE) Act , 1987, the AICTE acts as a quasi judicial authority. It is required to act objectively, judicially and judiciously. In that context the High Court observed in Para 27 as under:- CONT.CAS(C) 815/2011 Page 26 of 57 “Normally speaking, ‘decision’ means “making up one’s mind, may be even personal decisions leading to real and true conclusions. Actually it is a judgment based on conclusions” (Page 309 of Oxford Advanced Learner’s-Dictionary supra). As a verb, ‘decide’ means to “to give a judgment in a case”, and as a noun ‘decision’ means “Judgment in a Civil Court, making up one’s mind to do something, act of coming to a decision, it is a decision making process” (Page 67 of Dictionary of Law by P.H; ColI in supra). In the legal sense of the meaning; a ‘decision’ is a “determination arrived at after consideration of facts and in the legal context of law, a popular rather than technical or legal word, a comprehensive: term having, no fixed, legal meaning. It may be employed as referring to- ministerial acts as well as to those that are judicial or of a judicial character.”
40. Once again, I do not see how the aforesaid observations of the Andhra Pradesh High Court advance the respondent’s submission with regard to the nature/character of the two orders dated 30.09.2010 and 05.04.2011 passed by the learned Guardianship Judge. In Vidya Charan Shukla the Supreme Court was, inter alia, examining the manner in which an order may be framed by a Tribunal under Section 98 or Section 99 of the Representation of the People Act, 1951. It was held that the Election Tribunal may issue two documents – one embodying the reasons for the decision and the other, the formal expression of its decision; the former will be its judgment and the later its order. It may issue both in the same document in which case the CONT.CAS(C) 815/2011 Page 27 of 57 judgment as well as the order is embodied in the same document. I fail to appreciate how this decision has any relevance to the case at hand.
41. Keeping in mind the aforesaid position, a perusal of the order/proceedings dated 30.09.2010 leaves no manner of doubt that the same qualifies as an “order” within the meaning of Section 2(14) of the C.P.C. The learned Guardianship Judge gave its decision on the petitioner’s application under Section 12 of the Guardian and Wards Act while passing the said order, after appreciating the factual position presented before him that the child Liam was in fact in his custody on the said date. The application under Section 12 of the Guardian and Wards Act had been preferred to seek interim custody of the said child from the respondent. As the said interim custody had, by turn of events, vested in the petitioner, the prayer made in the interim application under Section 12 of the Guardian and Wards Act stood satisfied and, consequently, that application was disposed of by the learned Guardianship Judge after considering all the aforesaid aspects. Merely because the order was passed in the absence of the respondent or her representative, the said order does not cease to be a “decision” of the Court. By this decision, the Court recognized the factual position that the interim custody of the child Liam had passed into the hands of the petitioner. The learned Guardianship Judge has recorded his reason CONT.CAS(C) 815/2011 Page 28 of 57 for disposing of the application under Section 12 of the Guardian and Wards Act.
42. So far as the proceedings/order dated 05.04.2011 is concerned, the same in my view also tantamounts to an “order” within the meaning of Section 2(14) of the C.P.C. Firstly, the same has been passed after hearing the parties. Secondly, the same contains a decision in so far as the aspect of the visitation rights of the respondent are concerned in relation to the minor children. This decision was made without prejudice to the rights and contentions of both the parties, since the parties had expressed their readiness and willingness to settle their disputes amicably and for that purpose to appear before the Judge In-Charge, Mediation Centre, Delhi High Court.
43. The Gujarat High Court in Vijaya Park Co-operative Group Housing Society V. Trivedi Bhartiben w/o. S.S.Trivedi & Ors., (2003) 1 GLR 190, rejected a similar contention that because the trial Court had not given any reason in its order rejecting an application under Order 1 Rule 10 read with Order 6 Rule 17 C.P.C., the same did not amount to an order. The High Court held that while detailed reasons have not been assigned by the learned Judge while dismissing the application, the learned trial Judge had CONT.CAS(C) 815/2011 Page 29 of 57 indicated his reasons by observing that by seeking amendment in the cause title of a plaint, a new person is sought to be introduced as plaintiff in place of the original plaintiff and therefore, the amendment was not competent. The Gujarat High Court held that whether, or not, the High Court may agree with the aforesaid reasons of the trial Court, it cannot be said that the order has been passed without any reasons.
44. In the present case as well, the order dated 05.04.2011 does not explicitly state the reasons for the arrangement worked out by the Court with respect to the visitation rights of the respondent in relation to the minor children. However, that, by itself, would not reduce the force of the said proceeding/order as the said order contains a binding decision, which the learned Guardianship Judge directed, shall continue till further orders.
45. In any event, whether or not the proceedings/orders dated 30.09.2010 and 05.04.2011 constitute an “order” within the meaning of Section 2(14) C.P.C, or not, is of no avail to the respondent. As pointed out by Mr. Kaul, civil contempt has been broadly defined to mean “willful disobedience of decree, judgment, direction, order writ or other process of a Court……………” (emphasis supplied). The proceedings of 30.09.2010 and 05.04.2011, even if assumed for the sake of argument as not constituting CONT.CAS(C) 815/2011 Page 30 of 57 “orders”, within the meaning of Section 2(14) of the C.P.C, certainly are processes of a Court inasmuch, as, they record the proceedings of the learned Guardianship Court in the petitioner’s guardianship petition before it.
46. When the matter was finally heard on 20.12.2011, I had directed the counsel for the respondent, who represented the respondent in proceedings under the D.V. Act to file an affidavit disclosing whether, or not, the said counsel for the respondent was aware of the passing of the orders dated 30.09.2010 and 05.04.2011 in the Guardianship proceedings when the proceedings under the D.V. Act were filed initially, as well as at the appellate stage. An affidavit was also called from the respondent, disclosing whether she had made her counsel aware of the said orders of the Guardianship Court before filing the petition under the D.V Act, or at any time thereafter.
47. Two affidavits dated 28.12.2011 have been filed, one, of the respondent and the other of Mr. Sashank Kumar Lal, Advocate.
48. Mr. Sashank Kumar Lal, in his affidavit has stated that the orders dated 30.09.2010 and 05.04.2011 were not in his knowledge, and the respondent had not instructed him about these orders. He has stated that due CONT.CAS(C) 815/2011 Page 31 of 57 to absence of instructions and due to bona fide belief, he did not place the orders dated 30.09.2010 and 05.04.2011 before the learned M.M and the Ld. ASJ at the time of filing and hearing of the complaint under the D.V. Act and the appeal arising therefrom.
49. So far as the respondent is concerned, she has filed a detailed affidavit which goes far beyond the direction issued by the Court. In this affidavit, the respondent has, for the first time, asserted that she was not at all aware of the order dated 30.09.2010 when she preferred the complaint under the D.V. Act and the appeal arising therefrom. She states in para 15 of this affidavit that “I did not give any instructions to my present counsel with regard to orders dated 30.09.2010 and 05.04.2011. Even otherwise, I had no knowledge of order dated 30.09.2010″. She states that she did not produce the orders dated 30.09.2010 and 05.04.2011 before the learned M.M, and before the learned Additional Sessions Judge, as she did not have copies of the said orders. She has also sought to tender an unconditional apology “for any act which may have caused hindrance to the administration of justice”. This stand taken by the respondent, taken in her affidavit dated 28.12.2011, is strikingly at variance from her stand taken in her reply filed to the contempt petition.
CONT.CAS(C) 815/2011 Page 32 of 57
50. I have perused the entire reply filed by the respondent and there is not an iota of averment made by her in the said detailed reply to state that she was not aware of the order dated 30.09.2010 passed by the learned Guardianship Judge at the time of filing of her complaint under the D.V. Act, and the appeal arising therefrom. All that she says is that, firstly, the order dated 30.09.2010 was obtained behind her back and, secondly, that the said order was passed on a self serving statement made by the petitioner. Thirdly, she further states that it is not an “order” within the meaning of Section 2(14) of the C.P.C. In this regard, I consider it appropriate to set out paragraphs 12, 14 and the relevant extracts of para 30 of the contempt petition, and the corresponding reply given by the respondent herein below:- Petitioner’s averment
“12. On 30.09.2010 the said child was reverted to the custody of the petitioner as the respondent had left for UK to meet her paramour and could not take the child with her as apprehended due to her undertaking to the Guardian Judge on 09.09.2010. The said fact was duly recorded by the Learned Guardian Judge a copy of which is annexed herewith as Annexure-D. In sum and substance, the said order clearly held that as the custody of the said child had already come in the hands of the petitioner therefore, the relief sought in the interim application under Section 12 of the said Act stood satisfied and the application was accordingly disposed of. A copy of the said interim application under Section 12 of the said order is annexed hereto as Annexure-E.”
CONT.CAS(C) 815/2011 Page 33 of 57 Reply to the above para
“12. That the contents of para 12 of the petition are wrong and hence denied. It is denied that on 30.09.2010 or before that Liam was reverted to the custody of the petitioner. At the outset it is denied that the child was reverted to the custody of the petitioner vide order dated 30.09.2010. The said order is not an order in terms of Section 2 (14) of the Civil Procedure Code as the same has been passed in the absence of the respondent and not on merits. The said order is based on self serving statement of the petitioner which cannot be interpreted in any manner through which it can be said that the Court has granted custody to the petitioner. The circumstance under which the said order has been passed has been explained, and hence the same are not repeated for the sake of brevity.” Petitioner’s averment
14. That accordingly, the said orders were governing the custody and visitation with respect to the said child qua the parties. The said orders are still subsisting and have not been either vacated or modified by either the learned Guardian Judge or any appellate Court.
Reply to the above para
“14-15. That the contents of para 14 and 15 of the petition are wrong and hence denied. It is submitted that the orders governing the custody and visitation of the child in question are still in subsistence. At the outset it is submitted that the petitioner is trying to mislead this Hon’ble Court by intentionally making contemptuous statement as the Ld. Guardian Judge has not passed any speaking order in respect of the custody and visitation of the minor child. The petitioner is intentionally interpreting the orders dated 30.9.10 and 5.4.11 passed by the Ld. Guardian Court in order to mislead this Hon’ble Court in order to get an order which he failed to get from the Ld. Guardian Judge.”
CONT.CAS(C) 815/2011 Page 34 of 57 Extract of Petitioner’s averment
“30. A bare perusal of the said petition and the application would reveal that an off the cuff reference has been made with respect to the pendency of the petition filed by the petitioner before the Guardian Judge under Section 7, 10 and 25 of the said Act in para 68 of the aforesaid application. There is not even whisper about the passing of the said order nor has a copy of the said order been annexed to the petition. ….. ….. ….. …..” Reply to the above para
“30. The contents of para 30 of the petition are a matter of record and need no reply. However at the outset, it is submitted that the respondent had disclosed and placed on record the undertaking given by her on 9.9.2010.”
51. Pertinently, the respondent in her reply does not specifically deal with the “grounds” urged by the petitioner in the contempt petition, wherein too, the petitioner has made categorical assertions that the respondent has suppressed, concealed and mis-stated the material facts and documents, namely, the orders dated 30.09.2010and 05.04.2011 passed by the learned Guardianship Judge while pursuing the proceedings under the D.V. Act before the learned M.M. and the learned ASJ.
52. The stand now taken by the respondent in her affidavit, filed in response to the order dated 20.12.2011 that she was not aware of the order dated 30.09.2010 therefore, cannot be accepted. This is clearly an afterthought on the part of the respondent and an attempt on her part to get CONT.CAS(C) 815/2011 Page 35 of 57 out of the tight spot that she finds herself in, because of her acts of suppression and concealment of the orders dated 30.09.2010 and 05.04.2011 from the concerned Courts dealing with the D.V Act proceedings. This stand is now being taken for the first time after the close of the hearing, which means that the petitioner has no occasion or opportunity to say anything in the matter. Moreover, this stand is belied by the fact that in the amended guardianship petition, the petitioner had stated that “….. On 30.09.2010, the custody of the minor Liam has been reverted to the petitioner”. This amended petition was filed by the petitioner some time around 13.08.2011, whereas the D.V. Act proceedings were launched by the respondent only in October, 2011. From the said averment, it is clear that the respondent was put to notice that the petitioner claimed himself to be in actual custody on and from 30.09.2010. Pertinently, in relation to the order dated 05.04.2011, the respondent has no such explanation to offer, as she has taken benefit of the said order. However, even this order was suppressed and concealed from the learned M.M and the learned ASJ dealing with the D.V Act proceedings, evidently for the reason that this order too would have betrayed the fact that it was the respondent who was being granted visitation rights, and not the petitioner. This obviously would have meant that the actual custody of the children, including the child Liam was with the CONT.CAS(C) 815/2011 Page 36 of 57 petitioner and not the respondent. If this order had been produced before the Ld. MM and the Ld. ASJ in the D.V. Act proceedings, the claim of the respondent- that she has custody of the child Liam, would have been belied. In the light of the aforesaid discussion, I have no hesitation in rejecting the affidavit now filed by the respondent on 28.12.2011 as per the direction of the Court. In my view, the same further compounds the dubious conduct of the respondent in trying to play hide and seek with the courts.
53. Turning to the examination of the affidavit filed by Shri Sashank Kumar Lal Advocate, I find that his conduct too does not appear to be completely beyond suspicion. He discloses that he was engaged by the respondent as her counsel in proceedings before the Guardianship Judge in May, 2011. This means that he had access to the case file of the proceedings pending before the learned Guardianship Judge. Access not only to the counsels file but even to the Court record. He would have been aware of the fact that the respondent had moved an application in December, 2010 to seek access to the children, meaning thereby that the respondent was actually not having custody of any of the four children, including the child Liam.
CONT.CAS(C) 815/2011 Page 37 of 57
54. I have called for the Guardianship case record from the family court where the same is pending. It is seen that the Vakalatnama has been filed by Mr. Jatin Sehgal and the Mr. Jai Kush Hoon on 20.05.2011. In fact, Mr. Shashank Kumar Lal has not filed any Vakalatnama. I have also called the inspection application register. The inspection application register does not shows that an application for inspection was made by the aforesaid newly engaged counsel upto 01.07.2011, when the case was transferred to the Court of the Principal Judge, Family Court. The case was assigned to the Court of Smt. Renu Bhatnagar, Judge 2, Family Court, Saket, where it is now pending. It appears that no inspection application register is being maintained in her court. An intimation to this effect has been received from her.
55. Pertinently the proceedings under the D.V.Act were initiated in October, 2011 i.e., five months after the aforesaid counsels were engaged by the respondent as her counsel in the guardianship proceedings. I may note that Mr. Shashank Kumar Lal, Mr. Jatin Sehgal and Mr. Jai Kush Hoon share the same chamber, i.e. 109 Lawyers Chambers, Delhi High Court, New Delhi, and while Mr. Shashank Lal has appeared in the Guardianship proceedings, Mr. Jatin Sehgal has appeared in the DV Act proceedings. Mr. Shashank Lal has inspected the Guardianship proceedings on 11.01.2012. It CONT.CAS(C) 815/2011 Page 38 of 57 is, therefore, clear that they work jointly on matters and belong to the same chamber.
56. It is also pertinent to note that when the D.V. Act proceedings were drafted, in Para 68 the same counsel made ambiguous and unclear averments. It is even more pertinent to note that when the D.V. Act proceedings were taken up by the learned M.M. on 13.10.2011, she specifically raised the issue with regard to the ambiguous averments made in Para 68 of the petition, whereupon the counsel for the complainant sought time to file an amended petition and also to file orders passed by the Guardianship Court. Despite the aforesaid, the counsel did not clearly amend the petition to make a complete disclosure of the orders passed by the learned Guardianship Judge, including the orders dated 30.09.2010 and 05.04.2011. He also did not file these orders before the learned Magistrate dealing with the D.V. Act proceedings. Inconsequential amendments were carried out in Para 68 of the petition which concealed the aforesaid orders of the Guardianship Judge.
57. It is not for a litigant to spoon feed his counsel with regard to earlier proceedings undertaken before a court, once he is engaged as the counsel in a pending case, even if it were to be assumed that the litigant may be either CONT.CAS(C) 815/2011 Page 39 of 57 ignorant, or may not deliberately disclose the earlier proceedings undertaken in the case to his counsel. It becomes the obligation of the counsel who accepts the responsibility from a litigant, in an already pending proceeding, or when he is engaged to file a fresh proceeding, to acquaint himself with all that has transpired on the record. It is clear that Mr. Sashank Kumar Lal was acting as the respondent’s counsel in the guardianship proceedings since May 2011. It was his obligation to inspect the orders passed in the guardianship proceedings to acquaint himself fully with all such proceedings, particularly when he was preparing another proceeding under the DV Act, to claim an overlapping relief. No counsel worth his salt can proceed to deal with a case in which he is engaged, without fully acquainting himself of the orders and proceedings in the case which may have already been undertaken. Mr. Sashank Kumar Lal could not have assumed that the custody of the minor child Liam was with the respondent in the face of: (i) the fact that in the amended guardianship petition the petitioner had himself categorically stated that since 30.09.2010 he had the custody of the minor child Liam; (ii) the fact that the respondent did not actually have the custody of the minor child Liam, ever since the engagement of the counsel Mr. Sashank Kumar Lal/Mr. Jatin Sehgal/Mr. Jai Kush Hoon in May, 2011; (iii) the fact that after the passing of the order CONT.CAS(C) 815/2011 Page 40 of 57 dated 13.10.2011 by the learned M.M in the D.V. Act proceedings, wherein the Court had raised the issue about the ambiguous averments made in Para 68 of the complaint, the counsel had sought time to file the amended petition as also to file orders passed by the guardianship court in the guardianship proceedings.
58. It is not explained, why Mr. Sashank Kumar Lal did not inspect the record of the case to obtain the knowledge and copies of the order dated 30.09.2010 and 05.04.2011, in spite of taking time from the learned Magistrate to file the same before him. This omission on his part is suggesting of the fact that he had copies of these orders in his record.
59. If the claim of the respondent’s counsel Mr. Sashank Kumar Lal, that he was not aware of the orders dated 30.09.2010 and 04.10.2011, were to be accepted, for the sake of argument, the only other conclusion one can draw is that he has acted with gross negligence, which is unbecoming as an officer of this Court. Shri Sashank Kumar Lal in his affidavit relies upon the prayer made by the petitioner in his amended guardianship petition which was to the effect that he seeks a direction to the respondent to hand over the custody of the minor child to the petitioner. However, he conveniently omits to take note of the averment made in the amended petition to the effect that CONT.CAS(C) 815/2011 Page 41 of 57 the custody of the child Liam, since 30.09.2010, was with the petitioner. As a counsel Shri Sashank Kumar Lal should have known that interim custody, or defacto custody, of the minor child is one thing, whereas permanent custody or dejure custody- upon adjudication of the relevant issues by the guardianship court, is quite another thing. The prayer made in the amended guardianship petition was to seek the permanent custody of the child Liam.
60. I have great difficulty in accepting the affidavit of Shri Sashank Kumar Lal, Advocate and to swallow his solemn averment that he had no knowledge of either the order dated 30.09.2010 or the order dated 05.04.2011 passed in the guardianship proceedings when he prepared, presented and pursued the D.V. Act proceedings.
61. The two orders dated 30.09.2010 and 05.04.2011 were highly relevant and material, and ought to have been placed before the learned M.M and learned ASJ dealing with the D.V. Act proceedings. A material fact would mean a fact which is material for the purpose of determination of the lis. The logical corollary of this is, whether , the same was material for grant or denial of the relief (See Arunima Baruah vs. UOI: (2007)6 SCC 120). Had the learned M.M and the learned ASJ dealing with the D.V. Act proceedings been made aware of the aforesaid two orders passed by the learned CONT.CAS(C) 815/2011 Page 42 of 57 Guardianship Judge there, obviously, would have been no occasion for either of them to have passed any orders restraining the petitioner from removing the child Liam from within the jurisdiction of the Court, or directing that the custody of the child Liam (falsely claimed to be with the respondent) shall not be disturbed except by due process of law. A perusal of the orders passed by the learned M.M. and the learned ASJ dealing with the D.V. Act proceedings clearly shows that by calculatedly producing the statement made by the respondent before the learned Guardianship Judge on 09.09.2010 – to the effect that she shall not remove the child from within the jurisdiction of the Guardianship Court without the permission of the Court, she sought to mislead the learned M.M as well as the learned ASJ that she had actual custody of the child Liam. This is clearly recorded in the order passed by the learned ASJ on 19.10.2011. As noticed hereinabove, he observes as under:-
“……………In the proceedings before the Guardian Judge the applicant/appellant Jhilmil Breckenridge has already given statement that she will not remove the child Master Liam Dorge Breckenridge from the territorial jurisdiction of this court without the permission of this court. These facts prima facie show that the custody of the minor child namely Liam Dorge Breckenridge is with the applicant/appellant. ……………………………..
Since the minor child Master Liam Dorge Breckenridge is already in the custody of the applicant/appellant Jhilmil CONT.CAS(C) 815/2011 Page 43 of 57 Breckenridge, so it is directed that till the next date of hearing fixed in the Appeal the custody of the minor child Master Liam Dorge Breckenridge with the applicant/appellant Jhilmil Breckenridge (mother) shall not be disturbed except by due process of law and of course subject to the order, if any passed by the Guardian Judge on this issue in the petition under section 7 and 10 of Guardian and Ward Act, because the applicant/appellant has not conveyed any order passed by the Guardian Judge in this regard to this court.” (emphasis supplied).
62. As aforesaid, it is not explained by the respondent or her counsel as to why, despite the learned M.M requiring the production of the orders passed in the guardianship proceedings, and despite a statement being made that the respondent shall produce the orders passed by the Guardianship Court, the same were not produced. Even the order passed by the learned ASJ discloses that he was not satisfied with the conduct of the respondent in not producing the orders passed by the Guardianship Court, and that is why he specifically observed in his order dated 19.10.2011 that the order passed by him is subject to orders, if any, passed by the Guardianship Judge “because the applicant/appellant has not conveyed any order passed by the Guardianship Judge in this regard to this Court”.
63. From the above discussion it is clear that the respondent has deliberately and willfully sought to breach and disobey the orders dated 30.09.2010 and 05.04.2011 by concealing the said orders while filing the CONT.CAS(C) 815/2011 Page 44 of 57 proceedings under the D.V. Act before the learned M.M. and the appeal proceedings before the learned ASJ, with a view to legitimize her conduct of taking away the custody of the child Liam from the petitioner under the garb of the orders obtained in those proceedings by sheer concealment and deliberate and calculated mis-statements made by her.
64. I had occasion to deal with another case involving suppression of relevant and material facts by a party while preferring a writ petition in Ayodhya Devi vs. DDA & Anr., 156(2009) DLT 346. Unfortunately, like in the present case, in that case too, the conduct of the counsels was not completely above board, and they appeared to have played a role in the suppression and concealment of relevant facts. In the course of that decision, I had occasion to consider the judgment of the Division Bench of this Court in Satish Khosla vs. M/s. Eli Lilly Ranbaxy Ltd. & Anr.: Vol.71 (1998) DLT 1 (Division Bench) which in turn deals with other relevant judgments including those of the Supreme Court. I consider it apposite to quote relevant extracts from the said decision:-
“21. In Satish Khosla v. M/s Eli Lilly Ranbaxy Ltd. & Anr. 71 (1998) DLT 1 (DB), a Division Bench of this Court dealt with a similar situation. The respondent preferred an earlier suit being Suit No.3064/1996. It sought ex parte interim orders to restrain the appellant from giving on hire the lawns, adjoining the cottage in the tenancy of the respondent, for CONT.CAS(C) 815/2011 Page 45 of 57 marriages and private parties. The respondent failed to obtain any ex parte orders. Thereafter, the respondent preferred a subsequent suit, being Suit No.261/1997 making a similar prayer for interim relief. On 06.02.1997 the learned Single Judge passed an ex parte ad interim order of injunction against the appellant. The appellant preferred an appeal before the Division Bench and also filed a contempt petition for initiating criminal contempt proceedings against the respondents for having intentionally and deliberately filing the proceedings and application being Suit No.261/1997 and I.A. No.1124/1997. After comparing the various averments made in the two suits, the Court considered the issue whether it was obligatory for the respondent to have disclosed to the Court in the subsequent suit, the earlier suit filed by it and the factum that the Court had not granted any stay in favour of the respondent in the earlier suit. The Court referred to S.P. Chengalvaraya Naidu v. Jagannath & Ors. AIR 1994 SC 853, wherein the Supreme Court held that the Courts of Law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. “It can be said without hesitation that a person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. A litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the opposite party.”
22. The Division Bench held that:
“……………..by withholding the plaint and the application in the earlier suit from the court and by not disclosing to the Court about the
proceedings in the earlier suit and the stay having not been granted to it, the plaintiff/respondent had tried to get an advantage from the Court and was, therefore, guilty of playing fraud on the Court as well as on the respondent.”
CONT.CAS(C) 815/2011 Page 46 of 57
23. The Division Bench relied upon the following passage from S.P. Chengalvaraya Naidu (supra):
“……………………… We do not agree with the High Court that there is no legal duty cast upon the plaintiff to come to Court with a true case and
prove it by true evidence”. The principle of “finality of litigation” cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of Law are meant for imparting justice between the parties. One who comes to the Court, must come with clean
hands. We are constrained to say that more often
than not, process of the Court is being abused.
Property-grabbers, tax-evaders, bank- loan-
dodgers and other unscrupulous persons from all
walks of life find the Court process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person whose case is based on false- hood, has no right to approach the Court. He can be summarily thrown out at any
stage of the litigation. A litigant, who approaches the Court, is bound to produce all the documents
executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side than he would be guilty of playing fraud on the Court as well as on the
opposite party.”
24. The Division Bench further observed that:
“………………… A party must come to the Court with clean hands and must disclose all the relevant facts which may result in appreciating the rival
contentions of the parties. In our view, a litigant, who approaches the Court, must produce all the
documents which are relevant to the litigation and he must also disclose to the court about the
CONT.CAS(C) 815/2011 Page 47 of 57 pendency of any earlier litigation between the part is and the result thereof. …………..It was only after 20th January, 1997 when the case was
adjourned to May, 1997 that the respondent filed
the second suit and though in one of the
paragraphs it is mentioned that it had filed an
earlier suit for injunction, however, it did not
disclose to the Court either in the plaint or in the application as to what had transpired in the Court on the dates when the said suit was fixed nor it was disclosed to the Court that injunction has not been granted in its favor by the Court and the relief
claimed in the application in the earlier suit was almost similar to the relief which had been claimed in the subsequent suit. In our opinion, it was
obligatory upon the respondent to disclose to the Court that in the application filed in the earlier suit a similar relief had been claimed, however, the Court had not granted the said relief. In our view, if these facts were before the Court on February 6, 1997 when the second suit came up for hearing
before it, may be Hon’ble the Single Judge was
persuaded not to grant any exparte stay in favor of the respondent. ……………… We are, therefore, of the opinion that the respondent has not come to the Court with clean hands and has also suppressed
material facts from the Court with a view to gain advantage in the second suit. This in our view is clearly over-reaching the Court.”
25. On the aspect of role of the counsel for the respondent, the Division Bench held that:
“As held by the Supreme Court in T.
Arivandandam Vs. T.V. Satyapat and Another,
AIR 1977 SC 2421, the pathology of litigative
addiction ruins the poor of this country and the Bar has a role to cure this deleterious tendency of
parties to launch frivolous and vexatious cases. “It CONT.CAS(C) 815/2011 Page 48 of 57 may be a valuable contribution to the cause of
justice if Counsel screen wholly fraudulent and
frivolous litigation refusing to be beguiled by
dubious clients. And remembering that an Advocate is an officer of justice he owes it to society not to collaborate in shady actions. The Bar Council of
India, we hope will activate this obligation. We are constrained to make these observations and hope
that the co-operation of the Bar will be readily
forthcoming to the beach for spending judicial time on worthwhile disputes and avoiding the distraction of sham litigation such as the one we are disposing of. Another moral of this unrighteous chain
litigation is the gullible grant of ex-parte orders tempts gamblers in litigation into easy Courts. A Judge who succumbs to ex-parte pressure in
unmerited cases helps devalue the judicial
process.” 20. We are of the opinion that the above noted passage of the aforesaid judgment in T.
Arivandandam Vs. T.V. Satyapal’s case is fully
applicable to the facts and circumstances of the
present case. Having not succeeded in getting stay in Suit No. 3064/96, in our view, the Lawyer should have refused to move an application for stay in the second suit.”
26. The Division Bench held that the respondents were guilty of contempt and that they had made an attempt to overreach the Court by playing a fraud upon the Court and the opposite party. The respondent was, therefore, non suited in respect of the subsequent suit and was warned to be more careful in future. To the same effect is the decision of this Court in Holy Health and Educational Society (Regd.) v. Delhi Development Authority 80 (1999) DLT 207.
Xx xx xx xx xx xx
CONT.CAS(C) 815/2011 Page 49 of 57
32. In T. Arivandandan v. T.V. Satyapal (1977) 4 SCC 467, the Supreme Court cautioned lawyers by observing that “It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients. And remembering that an advocate is an officer of justice he owes it to society not to collaborate in shady actions.” Unfortunately, I regret to observe that the counsels for the petitioners have not heeded to the aforesaid advice of the Supreme Court.
33. The facts of this case compel me to take note of what the Supreme Court had the occasion to observe in Sanjiv Datta, Dy. Secretary, Ministry of Information & Broadcasting, In re v. (1995) 3 SCC 619:
“20. The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by the its members by their exemplary conduct both in and outside the court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligential of the society and as a responsible citizen, the lawyer has to conduct himself as a
model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behavior. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life. The regard for the legal and judicial systems in this country is in no small measure due to the tiredness role played by the
stalwarts in the profession to strengthen them. They took their profession seriously and practised it with CONT.CAS(C) 815/2011 Page 50 of 57 dignity, deference and devotion. If the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible. The casualness and indifference with which some members practise the profession are certainly not calculated to achieve that purpose or to enhance the prestige either of the profession or of the institution they are serving. If people lose confidence in the profession on account of the deviant ways of some of its members, it is not only the profession which will suffer but also the administration of justice as a whole. The present trend unless checked is likely to lead to a stage when the system will be found wrecked from within before it is wrecked from outside. It is for the
members of the profession to introspect and take
the corrective steps in time and also spare the
courts the unpleasant duty. We say no more.
Need I say more?”.
65. The Supreme Court in A.V. Pappaya Sastry & Anr. Vs. Govt. of A.P & Ors., (2007) 4 SCC 221 has held that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Such a judgment, decree or order which is obtained by playing a fraud on court or on Tribunal or authority is a nullity and non-est in the eyes of law. The Court observed that fraud and justice cannot dwell together, and fraud and deceit ought to benefit none. In Para 26 the Supreme Court observed as under:-
CONT.CAS(C) 815/2011 Page 51 of 57 “26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of “finality of litigation” cannot be stretched to the extent of an absurdity that it can be utilized as an engine of oppression by dishonest and fraudulent litigants”.
66. It is evident that the respondent, seemingly with the aid and advice of her counsel had sought to mislead the courts dealing with the D.V. Act proceedings by suppressing material facts and orders passed by the learned Guardianship Judge with a view to gain advantage in the proceedings under the D.V. Act. It is clear that the respondent sought to overreach the Guardianship Court, and the orders passed by the said Court. The conduct of the respondent, seemingly aided and supported by conduct of her counsel, clearly tantamounted to playing a fraud upon the Court dealing with the D.V. Act proceedings as well as upon the petitioner. The respondent had abused the process of the Court by filing the D.V. Act proceedings with concealment of the orders, and proceedings already passed and undertaken before the learned Guardianship Judge. This concealment was calculated to hamper the due course of justice i.e to interfere with the order dated 30.09.2010 passed by the learned Guardianship Judge. CONT.CAS(C) 815/2011 Page 52 of 57
67. The respondent has made a mockery of the judicial process that undermines the dignity of the Court and the majesty of law. The conduct of the respondent tends to bring the authority and administration of law into disrespect and disregard. It seriously interferes with the rights of the petitioner. Abuse of the process of Court calculated to hamper the due course of judicial proceedings or the orderly administration of justice tantamount to contempt of Court (see Advocate General, State of Bihar V. Madhya Pradesh Khair Industries, (1980) 3 SCC 311 and Delhi Development Authority V. Skipper Construction & Anr, JT 1995(2) SC 391). Accordingly, the respondent is clearly guilty of contempt of Court.
68. The respondent cannot be heard in these proceedings unless she purges herself of the contempt so committed by her by forthwith placing the child Liam in the custody of the petitioner. As aforesaid, the proceedings launched under the D.V. Act are tainted by fraud, suppression and concealment and the orders passed therein by the learned M.M and learned ASJ are therefore a nullity.
69. So far as the conduct of the respondent’s counsel is concerned, the same is highly suspicious. If he is given the benefit of the doubt, his conduct is highly negligent and unprofessional, and the same deserves to be CONT.CAS(C) 815/2011 Page 53 of 57 deprecated in the strongest terms. It is such conduct of counsel which brings the noble legal profession into disrepute and erodes the confidence of the litigating public and the courts in the professionals practicing the legal profession. The administration of judicial process and dispensation of justice by the Courts would become extremely difficult, if the members of the Bar do not maintain the highest standards of integrity and professionalism in pleading their cases before the Courts. Justice would become a casualty, even if temporarily. Though the law provides remedies to tackle such conduct on the part of litigants and their lawyers, and such myopic street smartness invariably eventually fails, it consumes a tremendous amount of material and other resources of the litigant who is a victim of such fraud, and also leads to immense waste of productive time of the Court which would otherwise be utilized in dealing with more deserving cases.
70. Now I may deal with two other decisions relied upon by the respondent. The reliance placed on the decision in Dinesh Kumar Gupta (supra) by the respondent is wholly misplaced. In this case, upon examination of facts the Court came to the conclusion that no case of contempt of court was made out. It was in this background that the Court observed that if an order is capable of more than one interpretation giving CONT.CAS(C) 815/2011 Page 54 of 57 rise to variety of consequences, non-compliance of the same cannot be held to be willful disobedience of the order so as to make out a case of contempt entailing serious consequences. In the present case, it is evident that the orders dated 30.09.2010 and 05.04.2011 were unambiguous and clearly brought out the fact that the defacto custody of the child Liam was with the petitioner. There was no question of there being any ambiguity in those orders, or of their being interpreted in any other manner.
71. For the same reason, reliance placed on the decision in Anshuman (supra) is also of no avail to the respondents. The decision in Dr. Ashsih Ranjan (supra) has absolutely no relevance to the facts of the present case. That was a case where the visitation rights of the father had been frustrated by the respondent-mother who had the custody of the child. The Supreme Court held that on account of the denial of the visitation rights and the tutoring of the minor child, and in the light of the changed circumstances, the petitioner-father could seek review/modification of the orders regarding custody before the appropriate Court. The decision in the aforesaid case does not mean that in every case where there is willful and deliberate breach of the orders of the Court, or orders are obtained by playing a fraud upon the Court and the opposite party, the party guilty of committing contempt of CONT.CAS(C) 815/2011 Page 55 of 57 Court can be allowed to get away with such contempt without being suitably dealt with by the Court.
72. In the light of the aforesaid discussion, I allow this petition. The respondent is found guilty of committing contempt of Court.
73. The respondent is guilty of disobeying the orders dated 30.09.2010 and 05.04.2011 passed by the leaned Guardianship Judge by removing the child Liam from the custody of the petitioner and by taking the said child into her own custody. The respondent is guilty of contempt of Court as she has abused the process of the Court, calculated to hamper the due course of judicial proceedings or the orderly administration of justice. She has made mockery of the judicial process.
74. I direct the respondent to purge the contempt by forthwith restoring the custody of the child Liam with the petitioner. I hold the orders passed by the learned Metropolitan Magistrate and learned ASJ in the proceedings initiated by the respondent under the D.V Act, in so far as they deal with the aspect of custody of the minor child Liam, to be null and void. I call upon the respondent to show cause as to why she should not be punished for contempt of Court. Let the requisite notice issue to her for this purpose. CONT.CAS(C) 815/2011 Page 56 of 57
75. The counsel for the respondent, Mr. Sashank Kumar Lal is cautioned for minding his conduct in future. He is advised to adhere to the highest standards of professionalism, ethics and integrity as an Advocate.
76. I subject the respondent to costs of Rs. 2,00,000/-, out of which Rs.1,00,000/- be paid to the Delhi Legal Services Committee and the remaining amount be paid to the petitioner within four weeks from today. (VIPIN SANGHI)
JUDGE
FEBRUARY 21, 2012
sr/ms
CONT.CAS(C) 815/2011 Page 57 of 5
http://indiankanoon.org/doc/127422124/
The High Court of Karnataka has granted bail to a 27-year-old sous-chef working for a star hotel in the city who is accused of raping and cheating his ex-colleague.
Anup, who had to spend 21 days in jail after his arrest, was granted bail on February 23 on the basis of the hotel’s electronic attendance log which showed that he was on duty at the time when he was accused of having raped 25-year-old Roopika (both names changed to protect identity).
In her complaint filed at Jalahalli police station last month, Roopika stated that she first met Anup six years ago when both of them were working at Hotel Lalit Ashok. After Roopika left the job, the duo came in contact with each other on Facebook in September last year. Meanwhile, Anup joined MoveNPick Hotel and both of them continued to be in touch with each other through SMS, Facebook and Google Talk.
Roopika alleged that Anup proposed to her and she accepted. They met a few times and Anup asked her to join him to celebrate his birthday at his home on October 19, 2011. She met him between 3 pm and 4 pm and he forced her to have sex with him, she stated in the complaint.
They continued to chat about sex and he told her that he wanted to have sex with her without protection. Though she refused, Anup forced her to have sex with him on several occasions till January 25, 2012, promising to marry her. After that, Anup told her that he was using her only to satisfy his physical needs and had no intention of marrying her, Roopika alleged.
A case of rape and cheating was filed against Anup and he was arrested on February 1, 2012. He was sent to judicial custody after a fast track sessions court rejected his bail application.
LIVE-IN PARTNERSHIP
While the hotel’s attendance records show that Anup was at work at the time when he was accused of raping Roopika at his home, there were also allegations that the two were live-in partners for some time.
Anup’s advocate RLN Murthy said, “There is misuse of old provisions of law these days. Society has changed a lot and we live in what can be termed e-society. However, men continue to be made victims of old laws which were instituted to protect women.”
http://bangaloremirror.com/article/10/2012022720120227034941242e66a6e77/HC-grants-bail-to-chef-in-rape-case.html
Child Access & Custody Guidelines- Approved by Bombay High Court
:
N.J. Jamadar,
Registrar (Inspection-II),
High Court (A.S.),
Bombay.
To :
Shri Jatin Katira,
Child Rights Foundation,
B-3-13-04, Sector 3,
Vashi, Navi Mumbai-400 703.
Subject : Child Access & Custody
Sir,
With reference to aforementioned subject, I am directed to inform
you that the Hon’ble Guardian Judges of the Family Courts in the State of
Maharashtra, have been pleased to direct the circulation of the Guidelines
amongst the Family Court Judges and the Marriage Counsellors in the
Family Courts across the State of Maharashtra.
I convey my gratitude for your kind gesture in preparing a detail
guidelines which may prove beneficial to the Judges of the Family Courts as
well as the Marriage Counsellors in determining Child access and custody
matters.
With regards,
Yours faithfully,
Registrar (Inspection – II)
An attempt to get even with her estranged husband boomeranged on the wife. Saurav Chowdhary, 31, and Sangeetha, 28, tied the knot a few years ago, but are now involved in a messy divorce case.
If you’ve ever nursed an ambition to be photographed with the prime minister, today’s your chance. Gurmeet Singh, who is in Bangalore to promote his debut movie The Wedding Gift, looks so much like Manmohan Singh that even Sonia Gandhi ends up being muddled.
In fact, it was an episode with Sonia that made film director Suhaib Ilyasi cast Gurmeet as the prime minister in his film. “At a public function in New Delhi, I saw Sonia Gandhi get up to welcome prime minister Manmohan Singh. To everyone’s surprise, it turned out to be Gurmeet Singh. I immediately knew I had the actor for my film. He is not only Manmohan’s lookalike, but even his voice is similar,” Ilyasi said.
Gurmeet loves the confusion that he leaves in his wake and does nothing to set it right. On the contrary, he wears Manmohan’s trademark blue turban and white kurta-pyjama in public, leaving security personnel at their wits’ end. He even flummoxed staff at the hospital where Manmohan underwent a heart surgery by walking around.
Gurmeet is an All India Congress Committee (AICC) media co-ordinator and knows the PM. “I have met the prime minister on a few occasions. He calls me by my name. I have met his family members also,” says the 67-year-old,” he said.
He was into the family’s cold storage business in Delhi until 2004 when Manmohan became the prime minister. Leaving the business to his brother, Gurmeet joined the Congress.
“I was a close friend of Ajit Jogi. It was because of him that I joined. I have worked as a campaign organiser for Manmohan Singhji. I can go on about the many funny incidents that take place because of my resemblance to him,” says Singh.
The latest confusion happened two days ago when Gurmeet went to watch India play against Italy in the Olympics Hockey qualifiers. The television commentator announced that the prime minister was watching the match and it was only later that he realised his mistake and revealed that it was Gurmeet the lookalike.
PM’s press meet
Gurmeet Singh will be answering questions about the Indian Penal Code and other laws allegedly misused by women to harass their husbands. No, he’s no activist. But, his film ‘The Wedding Gift’ is about the misuse of Section 498(A) of the IPC.
http://bangaloremirror.com/article/10/2012022320120223050947479894d9c5c/%E2%80%98PM%E2%80%99-comes-to-soothe-harassed-husbands.html
1 / 1
SATTUPALLY (KHAMMAM): A junior civil judge from Khammam district was booked for allegedly trying to outrage the modesty of his domestic help here on Wednesday. Following a complaint by the 24-year-old woman, a case under Section 354 ( attempt to rape) of IPC was registered against additional first class judicial magistrate Kuravath Balachander.
Town deputy superintendent of police K Rangan Goud told TOI that the complainant alleged that the magistrate attempted to outrage her modesty while she was working in his house on the morning of February 17.
The DSP said they will investigate the matter from all angles.
The woman, who had been working at the magistrate’s residence for some time, said Balachander called her to his room and asked her to fulfill his carnal desire. When she refused, Balachander allegedly dragged her into his bedroom.
The woman, however, managed to flee from the house.
Mustering courage after her relatives and villagers convinced her to file a complaint, the woman, a resident of Langapally village in Pinabelly mandal, approached the town police on Tuesday.
Sources said some police officials tried to convince the woman and her relatives to take back her complaint but in vain. Meanwhile, Balachander has gone on leave from Wednesday afternoon.
http://timesofindia.indiatimes.com/city/hyderabad/Judge-booked-for-attempt-to-rape/articleshow/12002131.cms
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 17th February, 2012
+ FAO 448/2011
% ASHWANI MEHTA ….Appellant Through: Mr. Vikas Arora, Adv.
Versus
MRS. VIBHA MEHTA ….. Respondent Through: Mr. K.K. Manan, Adv. with Mr. Mustafa Arif & Mr. Nipun Bhardwaj,
Advs.
AND
+ FAO 521/2011
% MRS. VIBHA MEHTA ….. Appellant Through: Mr. K.K. Manan, Adv. with Mr. Mustafa Arif & Mr. Nipun Bhardwaj,
Advs.
Versus
ASHWANI MEHTA ….Respondent Through: Mr. Vikas Arora, Adv.
CORAM :-
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
JUDGMENT
RAJIV SAHAI ENDLAW, J.
1. Both parties, being husband and wife, are dissatisfied with the order dated 09.09.2011 of the Family Court in exercise of powers under Section 125 of the Cr.P.C. awarding a sum of `60,000/- per month as maintenance FAO Nos.448/2011 & 521/2011 Page 1 of 9 to be paid by the husband to the wife from the date of filing of the petition i.e. 09.08.2005. When the appeal preferred by the husband came up before this Court, on the objection of the Registry as to the maintainability of the appeal, vide order dated 19.10.2011 the appeal was held to be maintainable and notice thereof was issued and the order of the Family Court in so far as qua the payment of arrears, was stayed.
2. The counsels have been heard. After hearing arguments on 03.01.2012, the husband was given an opportunity to sort out certain matters. Thereafter again on 18.01.2012, the counsels were heard.
3. The wife had claimed maintenance at the rate of `1,50,000/- per month. She is aggrieved from the grant of maintenance at the rate of `60,000/- per month only and in her appeal seeks maintenance at the rate of `1,50,000/- as claimed.
4. The Family Court has in the impugned order noticed/observed held:
(i) that the parties were married on 19.01.1981 and have two children from the wedlock;
(ii) they have been living separately in the same house;
(iii) that the matter regarding maintenance was settled on 01.02.2002 when the husband had agreed to pay maintenance of `1,50,000/- per month to the wife;
(iv) that the maintenance in fact was so paid at the said rate for four months but subsequent payments were stopped;
FAO Nos.448/2011 & 521/2011 Page 2 of 9 (v) the wife is not working and has no source of income;
(vi) the husband is a well qualified Doctor running Kolmet Hospital at Pusa Road, New Delhi and earning `35/- lakhs per annum as per income tax record and also holds several other properties;
(vii) it was the case of the husband that he was looking after all the financial needs of the wife and as such she did not require any maintenance;
(viii) that the wife was an active partner of hotel Marina and had 8% profit sharing in the said partnership;
(ix) that in a dispute relating to the partnership of hotel Marina, a sum of `2/- crores had been deposited in the Court to be withdrawn by the wife;
(x) that the wife also owned a 1000 sq. yards plot at Faridabad and an Opel Astra car;
(xi) that though the wife had led evidence but no evidence was led by the husband;
(xii) that the needs of the wife like food, electricity, residence etc. were being looked after by the husband since she was staying in the same house;
The Learned Family Judge arrived at the figure of `60,000/- per month as maintenance.
FAO Nos.448/2011 & 521/2011 Page 3 of 9
5. We will first deal with the argument of the need of the wife for maintenance when she is residing in the matrimonial house and when admittedly she has not to spend any amount on her food, residence and residential amenities. We are unable to accept the contention of the husband that, the husband if provides food and residence, owes nothing further to the wife. Attention of the counsel for the respondent is invited to age old concept of “Kharcha-i-Pandan” as also noticed by privy council in Nawab Husaini Begam v. Nawab Khwaja Muhammad Khan MANU/PR/0007/1910. The women, even when rarely going out of the house and when the entire expense of the household was met by the husband, were still found entitled to an amount for their own spending. In certain regions, the said amount also went by the name of “Hath Kharch”. The expression used in the English system was “Pin Money”. Even otherwise, it is unbelievable that if the relations had been good, the husband if had been providing boarding and lodging, would not have provided anything further to the wife. The Supreme Court recently in Vinny Parmvir Parmar v. Parmvir Parmar (2011) 7 SCALE 741 has reiterated that the test to be applied in adjudication of maintenance is, to place the wife in the same position as she would have been if the relationship had continued. It has come on record that the wife has a car which she states is thirteen years old, however money is required for running the car. Similarly, money is required to fulfill the other day-to-day needs including of clothing, personal effects etc. of the wife. Similarly money is required for entertainment. A life on alimony is not to be a life different from what the wife would have led if the relationship had not gone sour. The quantum of maintenance inter alia depends upon the status of the husband.
FAO Nos.448/2011 & 521/2011 Page 4 of 9
6. During the hearing before us also, it was admitted that the wife is not working. It was further admitted that she was a partner in hotel Marina. However, it is further admitted that disputes and differences had arisen with respect to the said partnership in which the father of the husband and certain other persons are other partners. While the father of the husband claims that the „wife‟ in a litigation with respect to the said partnership had agreed to dissolution thereof on receipt of `2/- crores and which was deposited, the wife controverts the same. The fact remains that the said sum of `2/- crores has not come into her hands and the dispute relating to partnership is still pending. It is also a fact that owing to the said dispute, the wife is not getting any share of profits of the said partnership. Thus the wife has no source of income.
7. The wife, as aforesaid is the owner of a plot of land ad-measuring 1000 sq. yards at Faridabad. However the said plot also is not earning her any income. The argument is that she can sell the same and would get enough sale consideration, to be not entitled to any maintenance. On the contrary, the wife contends that neither she is in possession of the documents of title of the said plot and nor she is in a position to immediately sale the same owing to her husband and his family members having allowed some other persons to encroach thereon. After the hearing on 03.01.2012, we had adjourned the matter to explore the possibility of sale of the said plot. However, no possibilities thereof emerged. The ownership of the said plot thus cannot be a factor influencing the quantum of maintenance.
8. That leaves us with the question of quantum of maintenance. The wife has predicated her claim at `1,50,000/- per month on the basis of FAO Nos.448/2011 & 521/2011 Page 5 of 9 agreement of the year 2002. The said agreement was proved by the wife in her evidence before the Family Court. The said agreement is as under:-
“We, Ashwini and Vibha are married and we
confirm that we would like to continue loving and living with each other.
We also confirm that we will like to live our lives in absolute harmony and perform all the responsibilities of a husband and wife.
We, commit to be faithful in our married life,
provide financial, emotional and mental support in all times.
In case of any breach of trust on account of being unfaithful, Ashwini would provide his wife, Vibha Mehta.
i) Continue to live on the 2 nd Floor of D- 196/D-197, Defence Colony, New Delhi, freely.
ii) Provide financial monthly support of `1,50,000/- (Rupees One Lakh Fifty Thousand
Only) to Vibha.
He will be responsible in bringing up the children and provide for them.
FAO Nos.448/2011 & 521/2011 Page 6 of 9 This document cannot be used in any form or forum without the consent of Anil Taneja, the arbitrator for this document.
This entire document has been written by arbitrator Anil Taneja, in his own handwriting.
This document is signed on 18 th Feb’ 2002 in New Delhi at D-196/197, Defence Colony.”
9. We have asked the counsel for the husband as to why the husband should not be held bound by the same.
10. He contends (i) that the said agreement is forged, (ii) that the same was not to be used before any fora, (iii) that the husband had thereunder agreed to provide financial support of `1,50,000/- only in the event of being unfaithful and it has not been proved that he was unfaithful.
11. We have perused the cross examination of the wife by the counsel for the husband on the aspect of the said agreement. Therefrom, we are unable to hold that there is any challenge to the genuineness of the same. It has not been so contended strenuously either. The husband did not step into the witness box to deny the said argument. Once the agreement is established, mention therein of the condition of being unfaithful, for such financial support or not to use the same in any Court are meaningless and not found to be relevant as far as the quantum of maintenance is concerned. The financial support of `1,50,000/- per month which the husband in the said agreement had agreed to pay cannot be said to be a compensation for being unfaithful which in any case is an offence in law. The word unfaithful in FAO Nos.448/2011 & 521/2011 Page 7 of 9 the said agreement connoted the parties being unable to stay as husband and wife and which admittedly they are not. The term therein of non use thereof in Court without permission of Mr. Anil Taneja also has not been established. As aforesaid, the husband has chosen not to come in the witness box. The husband has not established that Mr. Anil Taneja has any objection to the use of the said document in the Court. Moreover, it is quite evident that the document was created to bind the husband and hence the clause therein to the effect that it cannot be used in Court without the consent of Mr. Anil Taneja is found to be not preventing the wife from relying thereon.
12. The husband as aforesaid has failed to appear in the witness box. The only inference which can be drawn is that had he so appeared, he would have been forced to admit his income and assets to be enough to justify what he had agreed to pay i.e. `1,50,000/- p.m.
13. The Family Court however in the judgment impugned in these appeals has not given any reason to not bind the husband to the rate of maintenance which he had agreed in the said agreement.
14. We do not see any reason to differ from the quantum of maintenance agreed by the parties themselves specially when we have nothing before us to show that there is any reduction in the income of the husband since the year 2002 when he had agreed to the said quantum. Rather with the passage of time in the normal course, the income of the husband would have gone up.
FAO Nos.448/2011 & 521/2011 Page 8 of 9
15. However, since maintenance is in the form of subsistence, we are of the view that while the arrears in terms of order of the Family Court should be confined to maintenance at the rate of `60,000/- per month, the future maintenance should be in terms of the agreement at the rate of `1,50,000/- per month.
16. Accordingly, the husband is directed to pay the arrears of maintenance at the rate of `60,000/- per month within six weeks hereof and if has not paid maintenance since then @ ` 1.50 lac p.m. to pay difference between `60,000/- and `1,50,000/- with effect from the date of the order of the Family Court and till the end of February, 2012 within four weeks hereof and to with effect from the month of March, 2012 pay maintenance at the rate of `1,50,000/- per month, to the wife.
17. FAO 448/2011 preferred by the husband is accordingly dismissed and FAO 521/2011 preferred by the wife is partly allowed. The matters having been disposed of expeditiously, no order as to costs.
RAJIV SAHAI ENDLAW, J
ACTING CHIEF JUSTICE
FEBRUARY 17, 2012
„gsr‟..
FAO Nos.448/2011 & 521/2011 Page 9 of
Supreme Court of India
Aslam Babalal Desai vs State Of Maharashtra on 15 September, 1992
Equivalent citations: AIR 1993 SC 1, 1993 (1) ALT Cri 265, 1993 (41) BLJR 75
Author: A Ahmadi
Bench: A Ahmadi, M Punchhi, K Ramaswamy
ORDER
A.M. Ahmadi, J.
1. Special leave granted.
2. Can bail granted under the proviso to Sub-section (2) of Section 167 of the CrPC, 1973 (hereafter called ‘the Code’) for failure to complete the investigation within the period prescribed thereunder be cancelled on the mere presentation of the challan (charge-sheet) at any time thereafter? This is the question which we are called upon to answer in the backdrop of the following facts.
3. A complaint was lodged against the appellant and 8 others at Miraj City Police Station, District Sangli alleging commission of offences punishable under Sections 147, 148, 302 and 323 read with Section 149 IPC, in regard to an incident which took place at about 11 p.m. on 8th September, 1990. The appellant was arrested in that connection on the next day i.e. 9th September, 1990. The appellant thereafter made an application before the Sessions Judge, Sangli for being enlarged on bail That application was rejected. The appellant approached the High Court but later withdrew the application and then once again moved the Sessions Judge, Sangli for bail under the proviso to Section 167(2) of the Code on the ground that the investigation had not been completed within 90 days. The learned Sessions Judge by his order dated 11th March, 1991 directed the release of the appellant on bail. After the charge-sheet was submitted and the documents were tendered subsequent thereto, the State of Maharashtra moved an application under Section 439(2) of the Code in the High Court for cancellation of bail granted by the Sessions Judge. The High Court by the impugned Order dated 31st March, 1992 cancelled the bail. The High Court was of the view that since the learned Sessions Judge had granted bail on a technical ground, namely, failure to file the charge-sheet within the time allowed and since the investigation revealed the commission of a serious offence of murder, on the ratio of this Court’s decision in Rajnikant Jeevanlal Patel v. Intelligence Officer NCB, New Delhi it was open to the High Court to direct cancellation of the bail. On this line of reasoning the High Court cancelled the bail and directed the appellant to surrender to the bail. In obedience to that order the appellant has surrendered to his bail. These, in brief, are the facts which have a bearing on the question under consideration.
4. Sub-section (1) of Section 167 insofar as it is relevant for our purpose provides that whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within 24 hours and there are grounds for believing that the accusation or information is well founded, the officer-in-charge of the police station or the investigating officer not below the rank of Sub Inspector shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary and forward the accused to such Magistrate. Sub-section (2) of Section 167 which has bearing on the question under consideration may be extracted at this stage:
167(2) : The Magistrate to whom and accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that-
(a) the Magistrate may authorise the detention of the accused persons, otherwise than in the custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter:
At this stage we may mention that the State of Maharashtra has not made any amendment in the aforesaid provision. On a plain reading of this sub-section it becomes clear that the Magistrate to whom the accused is forwarded may authorise his detention in such custody as he may think fit for a term not exceeding 15 days in the whole. If the Magistrate has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he is required to order the accused to be forwarded to a Magistrate having jurisdiction. Such Magistrate may authorise his detention beyond the period of 15 days if adequate grounds exist but no Magistrate can authorise the detention of the accused persons in custody for a total period exceeding 90 days or 60 days as the case may be depending on the nature of the crime alleged to have been committed. The proviso, therefore, fixes the outer limit within which the investigation must be completed and if the same is not completed within the said prescribed period, the accused has a right to be released on bail if he is prepared to and does furnish bail. Where a person in released on bail in such circumstances under the said sub-section, such release must be deemed to be one under the provisions of Chapter XXXIII of the Code which contains provisions in regard to bail and bonds. In the present case, as stated earlier, the appellant had applied for bail before the expiry of the period of 90 days which was refused by the learned Sessions Judge since the offence allegedly committed was of a serious nature. However, unfortunately the investigating agency did not show urgency and did not complete the investigation within the maximum period allowed by the proviso to Section 167(2) and hence on the appellant making an application for release on bail, the learned Sessions Judge had no alternative but to direct that he be released on bail on his executing a bond for Rs. 5,000 with one surety for like amount. Undoubtedly this release was solely on account of the fact that the investigating agency had failed to complete the investigation within the maximum period allowed by the proviso to Section 167(2) i.e. 90 days. This default on the part of the investigating agency enabled the appellant to seek and secure his release on bail. The investigating agency submitted the charge-sheet at a later date and appended the documents subsequent thereto. On the completion of the charge-sheet the investigating agency moved the High Court for cancellation of the bail under Section 439(2) of the Code. The High Court for reasons already stated earlier cancelled the bail and directed that the appellant be taken into custody.
5. Chapter XXXIII of the Code comprises Sections 436 to 450; of these Sections 437 and 439 have relevance so far as the question at issue is concerned. Sub-sections (1) & (2) of Section 437 insofar as relevant provide as under:
437-When bail may be taken in case of non-bailable offence.-(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-
(i) Such person shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) Such person shall not be released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of Section 446-A and pending such inquiry, be released on bail or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
Sub-section (5) of Section 437 empowers the Court which has released the person on bail under Sub-sections (1) or (2) to cause his arrest and commit him to custody, if it considers it necessary so to do. Section 439 empowers a High Court or a Court of Session to release any person accused of an offence and in custody on bail. Sub-section (2) next provides that a High Court or a Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. It will thus be seen from the aforesaid two Sections that while power has been conferred on courts for grant of bail, power has also been conferred for cancellation of bail in fit cases. The language of the proviso of Sub-section (2) of Section 167 specifically states that when an accused person is released on bail for failure to complete the investigation within the time prescribed, every person so released on bail ‘shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of this Chapter’.
6. Now before we proceed to deal with the submissions made before us it is necessary to bear in mind the scheme of the Code insofar as it relates to investigation on the criminal law having been set in motion by the filing of a First Information Report. Section 41 empowers any police officer to arrest any person without an order from the Magistrate or without a warrant in the cases catalogued at Clauses (a) to (i) of Sub-section (1) thereof. Section 57 next provides that the person arrested shall not be detained in custody by the police officer for a period longer than that which is reasonable but such period shall not exceed 24 hours exclusive of the time necessary for journey from the place of arrest to the Magistrate’s court in the absence of a special order under Section 167 of the Code. Article 22(2) of the Constitution also provides that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a person of 24 hours of such arrest excluding the time necessary for journey from the place of arrest to the court of Magistrate and no such person shall be detained in custody beyond the said period without the authority of the Magistrate. Sections 154 and 155 enjoin on an officer-in-charge of a police station to record every information relating to a cognizable or a non-cognizable offence. Section 156 empowers an officer-in-charge of a police station to investigate any cognizable offence without a formal order of a Magistrate. Such an investigation can also be undertaken, if empowered by a Magistrate under Section 190 of the Code. Section 157 prescribes the procedure for investigation with which we are not concerned. It is in this backdrop that we must consider the scope and ambit of Section 167 of the Code. It will be seen from the above scheme that the Code expects that once a person is arrested and detained in custody, the investigation must be completed as far as possible within 24 hours. If that is not possible, the arrested or detained person must be produced before the nearest Magistrate before the expiry of 24 hours excluding the time consumed during journey to the Magistrate’s court. If the investigation cannot be completed within the said period of 24 hours, the Magistrate before whom the accused person is produced, whether he has or has not jurisdiction to try the case, can authorise his further detention in custody from time to time for a period not exceeding 15 days in the whole. If he has no jurisdiction to try the case or commit for trial and considers his further detention unnecessary, he must forward the accused to the Magistrate having jurisdiction. Such Magistrate may authorise the further detention of the accused person otherwise than in the custody of the police, beyond the period of 15 days if he is satisfied that adequate grounds exist for so doing. But even he cannot authorise the detention of the accused person in custody for a period exceeding 90 days, if the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, or 60 days where the investigation relates to any other offence, if the accused person is prepared to furnish bail. In other words if on the expiry of the aforesaid period of 90/60 days, the accused person offers to furnish bail, the Magistrate is bound to release him on bail and such released shall be deemed to be under Chapter XXXIII of the Code. As pointed out earlier Chapter XXXIII which includes Sections 437 and 439 relevant for our purpose empowers the court to release an accused person on bail and at the same time also provides for cancellation of bail in certain eventualities. The legislative history of Section 167 shows that under the Code of 1898 the detention of an accused person in custody was not permitted for a term exceeding 15 days in the whole. This provision was breached by the convenient practice, albeit of doubtful legality, of filing a ‘preliminary’ charge-sheet and then seeking remand under Section 344 (Section 309 under the Code) which really did not come into play during investigation. But it was at the same time realised that in genuine and complex cases the investigation may not be completed within the short period of 15 days even if the investigating agency proceeds with the utmost sense of urgency. The Law Commission had recommended that the period be increased to 60 days but it was apprehended that while this increase would become a rule, yet the practice of doubtful legality of filing a preliminary charge-sheet and seeking remand may not be curbed. The Joint Select Committee, therefore, felt that the maximum period within which the investigation must be completed must be provided in the statute and a right should be conferred on the accused for being released on bail if within the prescribed period the investigation is not completed. It, therefore, while retaining Sub-section (2) of Section 167 in the same language introduced the proviso extracted earlier prescribing the outer limit within which the investigation must be completed. While conferring a right on the accused to be released on bail it stated that the release so granted shall be deemed to be one under the provisions of Chapter XXXIII of the Code. So far as Chapter XXXIII is concerned, Section 437 has since undergone an amendment w.e.f. 23rd September, 1980, vide Criminal Procedure (Amendment) Act, 1980. It is not necessary to note the background of the amendment but it is sufficient to state that once bail has been granted under that provision it can be cancelled and the accused person can be arrested and committed to custody if the court considers it necessary so to do. That is the import of Sub-section (5) of Section 437 of the Code. The circumstances in which the court will exercise the power of the cancellation of bail have been set out in a number of judgments of this Court to which we will have an occasion to refer a little later. At this stage it is sufficient to state that the Legislature has conferred on the court the power to grant bail as well as to cancel the same. Similarly Sub-section (1) of Section 439 empowers the High Court as well as the Court of Session to direct any accused person to be released on bail. Sub-section (2) thereof provides that the High Court or the Court of Session may cancel bail and direct that the person released on bail under Sub-section (1) be re-arrested and re-committed to custody. Here again the circumstances under which the court will exercise the power conferred by Section 439(2) will have to be noticed later. This in brief is the scheme of the Code. In the backdrop of this scheme we have to consider the question whether bail once granted under Sub-section (2) of Section 167 of the Code for failure to complete the investigation within the prescribed time can be cancelled on the mere ground that subsequently a charge-sheet has been produced which discloses that the accused person has committed a serious crime punishable with death or imprisonment for life or imprisonment for a term exceeding 10 years.
7. We may now notice the case law on the subject. In Bashir and Ors. v. State of Haryana the FIR lodged against eleven
persons disclosed the commission of an offence punishable under Sections 302/149 IPC. Eight of the eleven accused persons were released on bail but the bail application of the remaining three persons were rejected on the ground that they were the authors of the fatal injuries. The High Court too declined to grant them bail. However, as the challan was not filed within the time prescribed the remaining three accused were also released on bail under Section 167(2) of the Code. Subsequently the police filed the challan and thereupon all the eleven accused were committed to stand trial before the Session Court. An application for cancellation of the bail of the three accused persons whose bail was earlier rejected was moved on the ground that they were released under Section 167(2) for failure to file the challans within the prescribed time and since the challans were filed, the Court should cancel their bail. The Sessions Judge allowed the application and ordered cancellation of the bail on the ground that on the filing of the challans the court had jurisdiction to do so. The High Court dismissed the appeal. Thereupon this Court was moved by special leave on the plea that once the bail is granted under Section 167(2) of the Code it cannot be cancelled on the mere filing of a challan but could be cancelled only under Section 437(5) of the Code. This Court after examining the relevant provisions to which we have adverted hereinabove concluded as under:
The power of the Court to cancel bail if it considers it necessary is preserved in cases where a person has been released on bail under Section 437(1) or (2) and these provisions are applicable to a person who has been released under Section 167(2). Under Section 437(2) when a person is released pending inquiry on the ground that there are not sufficient grounds to believe that he had committed a non-bailable offence may be committed to custody by court which released him on bail if it is satisfied that there are sufficient grounds for so doing after inquiry is completed. As the provisions of Section 437(1), (2) and (5) are applicable to a person who has been released under Section 167(2) the mere fact that subsequent to his release a challan has been filed is not sufficient to commit him to custody. In this case the bail was cancelled and the appellants were ordered to be arrested and committed to custody on the ground that subsequently a chargesheet had been filed and that before the appellants were directed to be released under Section 167(2) their bail petitions were dismissed on merits by the Sessions Court and the High Court. The fact that before an order was passed under Section 167(2) the bail petitions of the accused were dismissed on merits is not relevant for the purpose of taking action under Section 437(5). Neither is it a valid ground that subsequent to release of the appellants a challan was filed by the police. The court before directing the arrest of the accused and committing them to custody should consider it necessary to do so under Section 437(5). This may be done by the court coming to the conclusion that after the challan had been filed there are sufficient grounds that the accused had committed a non-bailable offence and that it is necessary that he should be arrested and committed to custody. It may also order arrest and committal to custody on other grounds such as tampering of the evidence or that his being at large is not in the interests of justice. But it is necessary that the court should proceed on the basis that he has been deemed to have been released under Sections 437(1) and (2).
(emphasis supplied)
It will thus be seen that once an accused person has been released on bail by the thrust of the proviso to Section 167(2), the mere fact that subsequent to his release a challan has been filed is not sufficient to cancel his bail. In such a situation his bail can be cancelled only if considerations germane to cancellation of bail under Section 437(5) or for that matter Section 439(2) exist. That is because the release of a person under Section 167(2) is equated to his release under Chapter XXXIII of the Code.
8. In Raghubir Singh and Ors. etc. v. State of Bihar a similar question came up for consideration. In that case on the night between 29th/30th November, 1984 the Security Police Patrol on duty near Jogbani Check Post on the Indo Nepal Border intercepted a speeding jeep with five occupants, one of them being a dismissed IPS officer. He was wanted. A detention order under the National Security Act was passed against him but could not be executed as he had gone underground. On being questioned they initially refused to disclose their identity and the manner in which they behaved aroused suspicion. One of the security officers however identified the IPS officer and on search of their baggage a substantial cash was found with one of the occupants. A number of documents and other articles were also seized which established the identity of the fleeing IPS officer. On the basis of the information derived from the seizure of various documents, cash, etc., an FIR was registered for offences under Sections 121A, 123, 124A, 153A, 165A, 505 and 120B IPC and Section 5(3) of the Prevention of Corruption Act. However, before the submission of the charge-sheet the preventive detention order was served on the IPS officer and he was removed to Bhagalpur jail. The other four persons were also similarly detained in the same jail. These persons applied for bail under the proviso to Section 167(2) of the Code. The learned Magistrate granted bail but imposed a condition that the surety should be residents of Araria town. Ultimately these persons could secure sureties from Araria but could not be released as the preventive detention orders were in force. Subsequently the surety of all the five persons appeared in court and prayed to be discharged, whereupon the learned Magistrate passed an order discharging him and issued formal warrants of arrest under Section 444(2) of the Code. At this stage the detention order against the IPS officer came to be quashed. Subsequently the charge-sheet was filed in the court of the learned Magistrate by the police. The bail application of four of the accused was rejected and the High Court confirmed the same. The case was thereafter transferred to the Special Judge (Vigilance), Patna. The IPS officer moved an application offering cash security but it was rejected on the ground that the High Court had already rejected the application of the other four accused persons. The case was later transferred to the Special Judge, Bhagalpur. When the matter came to this Court one of the grounds urged was that the High Court as well as the Special Judge were wrong in holding that the order of the Magistrate directing them to be released on bail under Section 167(2) had come to an end by the passage of time particularly after cognizance of the case was taken. Dealing with this contention this Court examined the scope of Section 167 read with Sections 437 and 439 of the Code and the ratio of the decision in Bashir’s case and proceeded to observe as under:
The order for release on bail may however be cancelled under Section 437(5) or Section 439(2). Generally the grounds for cancellation of bail, broadly, are, interference or attempt to interefere with the due course of administration of Justice, or evasion or attempt to evade the course of justice or abuse of the liberty granted to him…. Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in sixty days after the defect is cured by the filing of a chargesheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed.
Proceeding further while dealing with the facts on hand this Court observed:
The order for release on bail was not an order on merits but was what one may call an order-on-default, an order that could be rectified for special reasons after the defect was cured. The order was made long ago but for one reason or the other, the accused failed to take advantage of the order for several months. Probably for that reason, the prosecuting agency did not move in the matter and seems to have proceeded on the assumption that the order had lapsed with the filing of the chargesheet. The question is should we now send the matter down to the High Court to give an opportunity to the prosecution to move that court for cancellation of bail? Having regard to the entirety of the circumstances, the long lapse of time since the original order for bail was made, the consequent change in circumstances and situation, and the directions that we have now given for the expeditious disposal of the case, we do not think that we will be justified in exercising our discretion to interfere under Article 136 of the Constitution in these matters at this stage.
It will thus be seen that this Court came to the conclusion that once an order for release on bail is made under the proviso to Section 167(2) it is not defeated by lapse of time and on the mere filing of the charge-sheet at a subsequent date. The order for release on bail can no doubt be cancelled for special reasons germane to cancellation of bail under Sections 437(5) or 439(2). This Court then set out the grounds on which generally bail once granted could be cancelled and then proceeded to state that in the peculiar facts and circumstances of the case it would not be justified in interfering with the impugned order. Therefore, the final order which the court made was in the backdrop of the special facts and circumstances of the case.
9. In Rajinikant’s case (supra), Shetty, J. sitting singly during vacation was concerned with a case in which the accused persons were arrested on 23rd March, 1988 by the officers of the Narcotic Control Bureau at Bombay. They were produced before the Additional Chief Metropolitan Magistrate, New Delhi and were remanded to judicial custody till 12th April, 1988. The remand order was subsequently renewed from time to time. On 10th May, 1988 the accused moved for bail and while the said application was pending, a charge-sheet was submitted on 23rd June, 1988 for the commission of offences under Sections 21, 23 and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985. On 22nd July, 1988 the accused filed an application for bail under Section 167(2) of the Code on the ground that the charge-sheet had been filed after the expiry of the period of 90 days. The learned Magistrate by his order dated 29th July, 1988 enlarged them on bail. The prosecution sought cancellation of the bail but the learned Magistrate did not accede to that request whereupon the High Court of Delhi was moved under Section 439(2) read with Section 482 of the Code. In that application the nature of offence committed, the part played by the accused, the gravity of the offence, etc., were set out. It was also mentioned that two of the accused persons had earlier absconded and as such the investigation could not be completed within the time prescribed by the proviso to Section 167(2) of the Code. The High Court following the dicta of Raghubir Singh’s case cancelled the bail. It was against this order that the accused approached this Court by special leave under Article 136 of the Constitution. Shetty, J. after considering the provisions of Section 167(2) read with Chapter XXXIII of the Code and in particular Sections 437(5) and 439(2) came to the following conclusion:
An order for release on bail under proviso (a) to Section 167(2) may appropriately be termed as an order-on-default. Indeed, it is a release on bail on the default of the prosecution in filing charge-sheet within the prescribed period. The right to bail under Section 167(2) proviso (a) thereto is absolute. It is a legislative command and not court’s discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that stage, merits of the case are not to be examined. Not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds. The accused cannot, therefore, claim any special right to remain on bail. If the investigation reveals that the accused has committed a serious offence and charge-sheet is filed, the bail granted under proviso (a) to Section 167(2) could be cancelled.
10. On this line of reasoning the learned Judge upheld the order of the High Court and refused to interfere. It may here be mentioned that this Court’s decision in Bashir’s case was not placed before the learned Judge.
11. On a conjoint reading of Sections 57 and 167 of the Code it is clear that the legislative object was to ensure speedy investigation after a person has been taken in custody. It expects that the investigation should be completed within 24 hours and if this is not possible within 15 days and failing that within the time stipulated in Clause (a) of the proviso to Section 167(2) of the Code. The law expects that the investigation must be completed with despatch and the role of the Magistrate is to over-see the course of investigation and to prevent abuse of the law by the investigating agency. As stated earlier, the legislative history shows that before the introduction of the proviso to Section 167(2) the maximum time allowed to the investigating agency was 15 days under Sub-section (2) of Section 167 failing which the accused could be enlarged on bail. From experience this was found to be insufficient particularly in complex cases and hence the proviso was added to enable the Magistrate to detain the accused in custody for a period exceeding 15 days but not exceeding the outer limit fixed under the proviso (a) to that sub-section. We may here mention that the period prescribed by the proviso has been enlarged by State amendments and wherever there is such enlargement, the proviso will have to be read accordingly. The purpose and object of providing for the release of the accused under Sub-section (2) of Section 167 on the failure of the investigating agency completing the investigation within the extended time allowed by the proviso was to instill a sense of urgency in the invest ting agency to complete the investigation promptly and within the statutory time-frame. The deeming fiction of correlating the release on bail under Sub-section (2) of Section 167 with Chapter XXXIII, i.e. Sections 437 and 439 of the Code, was to treat the order as one passed under the latter provisions. Once the order of release is by fiction of law an order passed under Sections 437(1) or (2) or 439(1) it follows as a natural consequence that the said order can be cancelled under Sub-section (5) of Section 437 or Sub-section (2) of Section 439 on considerations relevant for cancellation of an order thereunder. As stated in Raghubir Singh’s case the grounds for cancellation under Sections 437(5) and 439(2) are identical, namely, bail granted under Sections 437(1) or (2) or 439(1) can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of invistigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to.
12. In State (Delhi Admn.) v. Sanjay Gandhi this
Court observed rejection of bail when bail is applied for is one thing; cancellation of a bail already granted is quite another. It is easier to reject a bail application in a non-bailable case then to cancel a bail once granted. That is because cancellation of bail interferes with the. liberty already secured by the accused either on the exercise of discretion by the court or by the thrust of law. This Court, therefore, observed that the power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. That does not mean that the power though extraordinary in character must not be exercised even if the ends of justice so demand.
13. In Bhagirathsinha S/o Mahipat Singh Judeja v. State of Gujarat this Court observed that very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. Even where a prima facie case is established the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily-available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence. It is wrong to think that bails secured by virtue of the proviso (a) to Section 167 is an underserved one. To so think is to doubt the legislative wisdom in prescribing the outer limit for filing the charge-sheet and to ignore the legislative history. As pointed out earlier the legislative history of Section 167 shows that by proviso (a) the detention period was enhanced to a maximum of 90 days from 15 days earlier allowed. When the Legislature made it obligatory that the accused shall be released on bail if the charge-sheet is not filed within the outer limit provided by proviso (a), it manifested concern for individual liberty notwithstanding the gravity of the allegation against the accused. It would not be permissible to interfere with the legislative mandate on imaginary apprehensions, e.g., an obliging investigation officer deliberately not filing the charge sheet in time, as such misconduct can be dealt with departmentally. To permit the prosecution to have the bail cancelled on the mere filing of the charge-sheet is to permit the-police to trifle with individual liberty at its sweet will and set at naught the purpose and object of the legislative mandate. The paramount consideration must be to balance the need to safeguard individual liberty and to protect the interest of administration of justice so as to prevent its failure. In the present case the High Court cancelled the bail solely on the ground that the bail was granted on technical grounds and the investigation revealed that there was eye-witness account disclosing the commission of a serious offence of murder. In its view the ratio of Rajnikant Jeevanlal Patel’s case applies to the case with full vigour. We find it difficult to agree.
14. We sum up as under:
The provisions of the Code, in particular Sections 57 and 167, manifest the legislative anxiety that once a persons’ liberty has been interfered with by the police arresting him without a court’s order or a warrant, the investigation must be carried out with utmost urgency and completed within the maximum period allowed by the proviso (a) to Section 167(2) of the Code. It must be realised that the said proviso was introduced in the Code by way of enlargement of time for which the arrested accused could be kept in custody. Therefore, the prosecuting agency must realise that if it fails to show a sense of urgency in the investigation of the case and omits or defaults to file a charge sheet within the time prescribed, the accused would be entitled to be released on bail and the order passed to that effect under Section 167(2) would be an order under Sections 437(1) or (2) or 439(1) of the Code. Since Section 167 does not empower cancellation of the bail, the power to cancel the bail can only be traced to Section 437(5) or 439(2) of the Code. The bail can then be cancelled on considerations which are valid for cancellation of bail granted under Section 437(1) or (2) or 439(1) of the Code. The fact that the bail was earlier rejected or that it was secured by the thrust of proviso (a) to Section 167(2) of the Code then recedes in the background. Once the accused has been released on bail his liberty cannot be interfered with lightly i.e. on the ground that the prosecution has subsequently submitted a charge-sheet. Such a view would introduce a sense of complacency in the investigating agency and would destroy the very purpose of instilling a sense of urgency expected by Sections 57 and 167(2) of the Code. We are, therefore, of the view that once an accused is released on bail under Section 167(2) he cannot be taken back in custody merely on the filing of a charge-sheet but there must exist special reasons for so doing besides the fact that the charge-sheet reveals the commission of a non-bailable crime. The ratio of Rajnikant’s case to the extent it is inconsistent herewith does not, with respect, state the law correctly.
15. Even where two views are possible, this being a matter belonging to the field of criminal justice involving the liberty of an individual, the provision must be construed strictly in favour of individual liberty since even the law expects early completion of the investigation. The delay in completion of the investigation can be on pain of the accused being released on bail. The prosecution cannot be allowed to trifle with individual liberty if it does not take its task seriously and does not complete it within the time allowed by law. It would also result in avoidable difficulty to the accused if the latter is asked to secure a surety and a few days later be placed behind the bars at the sweet will of the prosecution on production of a charge-sheet. We are, therefore, of the view that unless there are strong grounds for cancellation of the bail, the bail once granted cannot be cancelled on mere production of the charge-sheet. The view we are taking is consistent with this Court’s view in the case of Bashir & Raghubir (supra) but if any ambiguity has arisen on account of certain observations in Rajnikant’s case our endeavour is to clear the same and set the controversy at rest.
16. For the above reasons this appeal is allowed and the impugned order of the High Court is set aside. The matter is remitted to the High Court for reconsideration and disposal on merits in the light of the legal position hereinabove stated.
M.M. Punchhi, J.
17. I have read with admiration the neat analysis and exposition of law in the judgment prepared by my learned brother Ahmadi, J. but respectfully, though regretfully, I have opted to differ.
18. The question, as it appears to me, which requires determination in this appeal rather is (in contrast to the one posed by brother Ahmadi, J.) whether an order granting bail under the proviso to Sub-section (2) of Section 167 of the CrPC, 1973 (hereafter called the Code) for failure to complete the investigation within the period prescribed thereunder, after the presentation of the challan (charge-sheet) can be recalled or reviewed and on what grounds?
19. The facts giving rise to the instant appeal appear in detail in the judgment prepared by my learned brother Ahmadi, J. and those need not bear repetition. The culled out provisions of the Code too, so far relevant to the facts of the instant case figuring in the said judgment would also bear no reproduction. It is to the case law developed by this Court that I venture to give an explanation which differs with the views thereon expressed by my learned brother Ahmadi, J.
20. A three-member Bench of this Court in State (Delhi Administration) v. Sanjay Gandhi made the following elemental
distinction in defining the nature of exercise while cancelling bail:
Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another, It is easier to reject a bail application in a non-bailable case than to cancel a bail already granted in such a case. Cancellation of bail Necessarily involves the review of a decision already made and can by and large by permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial.
(emphasis supplied)
21. The view of this Court ever since has been that when a decision of bail already made on merit, after due deliberation, is required to be reviewed on prayer for cancellation of bail, it would require the exercise to be undertaken with the necessary care and circumspection. Sanjay Gandhi’s case arose in the backdrop of Section 439(2) of the Code whereunder the High Court or Court of Session can direct that any person who has been released on bail under Chapter XXXIII be arrested and committed to custody. The power of the High Court or Court of Session to cancel bail is exercisable vis-a-vis an order passed by the High Court or the Court of Session under Sub-section (1) of Section 439, as the case may be, as also to an order of bail passed by a Court other than the High Court or the Court of Session under Sub-sections (1) & (2) of Section 437 of the Code. Bail orders under the aforesaid provisions by the very nature are decisions on merit and if a review is attempted a strong case has to be made out so as to secure cancellation of bail. Hence the apparent distinction in the approach of the Court while granting bail and cancelling bail. This field is covered entirely by judge-made law.
22. The Code designedly classifies offences bailable as well as non-bailable. Whereas bail is the rule in the case of bailable offences, in non-bailable offences it is left to the discretion of the Court. Designedly, serving a purpose, is the power of arrest and detention as an integral part of the investigating process and that of the trail. This is because a civilized society has to preserve on the one hand an individual’s personal dignity and on the other the general interests of the society at large and the concept of bail is an inter-position between the two, seeing through both without under-mining one or the other. The Constitution and our laws are so designed so as to safeguard and protect personal liberty from Governmental power and to authorise the collective use of State power permitting arrest and detention of an individual to ensure amongst others, domestic tranquillity and security of public and State. Hence the see-saw for and against bail witnessed in courts. The tests to be applied by courts in granting bail is by reference to many considerations, such as the nature of the accusation, the evidence in support thereof, the severity of punishment on conviction which would entail; the character, behaviour, means and standing of the accused etc. etc. But alongside is the larger interest of the State to be kept in view in granting or refusing bail. By no means are the afore-mentioned factors exhaustive. There may be ether considerations which may be determinative for taking one view or the other. The Court is obligated, all the same, to strike a balance. The decision of the Court after consideration of the afore factors and other of the like conceivable results in a verdict judicial in character capable of being reviewed or altered again by a judicial exercise within judicially set out parameters. A bail order-on-default is, as goes the coined expression, a specie apart which involves no such deliberation and so cannot, in my understanding, be equated with bail orders passed on merit by a Court, other than a High Court or a Court of Session, under Sub-sections (1) & (2) of Section 437 or such a bail order passed by the High Court or Court of Session under Sub-section (1) of Section 439 of the Criminal Procedure Code. Such a Compulsive bail by the thrust of Section 167(2) can in no event be termed as a decision on merit to which the distinctive approach as given in Sanjay Gandhi’s case is to play its significant part when effort to cancel bail is attempted.
23. The mere circumstance that Section 167(2) ordains that every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter does not ipso facto mean that the bail order assumes the content and character of bail orders on merit, of the-kind conceived of in Sub-sections (1) and (2) of Section 437 or Sub-section (1) of Section 439 of the Code. The deeming requirement of Section 167(2) puts the release on bail of such person as if under the provisions of Chapter XXXIII but only for the purposes of that Chapter. In other words, it means that by this fiction the provision is to be read as a part of Chapter XXXIII so that it invites the purposes of that Chapter such as filling of bonds, provision of sureties etc., as also permitting cancellation of bail. It is on the thrust of such inclusion that cancellation under Section 437(5) can be attempted as if fictionally the bail order had been passed under Sub-sections (1) and (2) of Section 437 but not on considerations as if the bail order was on merit. Fiction of this kind cannot be permitted to go to the length of converting an order of bail not on merit as if passed on merit.
24. A seeming diverse view for what I have expressed above is available in a decision of a two-member Bench of this Court in Bashir and Ors. v. State of Haryana . The Bench observed at page 589 as follows:
…As under Section 167(2) a person who has been released on the ground that he had been in custody for a period of over sixty days is deemed to be released under the provisions of Chapter XXXIII, his release should be considered as one under Section 437(1) or (2). Section 437(5) empowers the court to direct that the person so released may be arrested if it considers it necessary to do so.
25. Yet the Bench further went on to observe at page 590 as follows:
The fact that before an order was passed under Section 167(2) the bail petitions of the accused were dismissed on merits is not relevant for the purpose of taking acting under Section 437(5). Neither is it a valid ground that subsequent to release of the appellants a challan was filed by the police. The court before directing the arrest of the accused and committing them to custody should consider it necessary to do so under Section 437(5). This may be done by the court coming to the conclusion that after the challan had been filed there are sufficient grounds that the accused had committed a non-bailable offence and that it is necessary that he should be arrested and committed to custody. It may also order arrest and committal to custody on other grounds such as tampering of the evidence or that his being at large is not in the interests of justice. But it necessary that the court should proceed on the basis that he has been deemed to have been released under Section 437(1) & (2).
(emphasis supplied)
26. The emphasised words are reflective of the view that the court could at that stage after the challan is filed be of the opinion that there appear sufficient grounds for entertaining the view that the accused had committed a non-bailable offences and that it was necessary that he should be arrested and committed to custody. Besides the afore-mentioned ground for cancellation, a ground singularly sufficient and special to an order-on-default, the court may also arrest and commit to custody such person on other grounds judicially noted and others relevant; such as tampering of evidence etc. The later hinted grounds are those grounds which normally weigh with a court while cancelling a merited bail under Section 437(5) when the bail in strict sensu has been granted on merit under Sub-sections (1) & (2) of Section
437. But a deemed bail under Chapter XXXIII, under the thrust of Section 167(2), as is discernible, appears to me on a different footing, permitting cancellation of bail not only on the well known grounds for cancellation of bail but also on the special singular ground on the Court’s entertaining the view that there are sufficient grounds that the accused had committed a non-bailable offence and that it was necessary that he should be arrested and committed to custody. The seeming diversity in Bashir’s case crops up only if it is understood that it takes a bail order under Section 167(2), as if an order on merit under Sub-sections (1) & (2) of Section 437. But if the fiction, as it appears to me, extends to the extent of the bail order being treated as if passed under Chapter XXXIII and that too under Sub-sections (1) and (2) of Section 437 read with the provisions of Section 167(2) as part and parcel of that chapter so that the bail order remains an order passed on default and not on merit, the tangency disappears. And even if this aspect is ignored, Bashir’s case goes on to add a singular and special ground for cancellation of bail granted under Section 167(2) over and above the other well known grounds for cancellation of bail granted under Sub-sections (1) & (2) of Section 437 of the Code. The provision employable in that event again in Section 437(5) of the Code, notwithstanding the text of the provision, for besides that there is no other provision with the Court.
27. The existence of such special ground for cancellation of bail, over and above the well known grounds for cancellation of bail, granted under Section 167(2) of the Code was re-affirmed and repeated in a decision of this Court by a two-member Bench in Raghubir Singh and Ors. etc. v. State of Bihar by stating as follows:
Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution is not completing the investigation in sixty days, after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed.
28. The strong grounds referred in the context obviously are grounds on merits of the case, which are reflective from the formal accusation put in the challan which the accused has to face at the trial.
29. Reghubir Singh’s case was followed by a decision of a Vacation Judge of this Court in Rajnikant Jivanlal and Anr. v. Intelligence Officer, Narcotic Control Bureau, New Delhi . It was observed at page 536 as follows:
An order for release on bail under proviso (a) to Section 167(2) may appropriately be termed as an order-on-default. Indeed, it is a release on bail on the default of the prosecution in filing charge-sheet within the prescribed period. The right to bail under Section 167(2) proviso (a) thereto is absolute. It is a legislative command and not court’s discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that stage, merits of the case are not to be examined. Not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds.
30. The accused cannot, therefore, claim any special right to remain on bail. If the investigation reveals that the accused has committed a serious offence and charge-sheet is filed, the bail granted under proviso (a) to Section 167(2) could be cancelled.
(emphasis supplied)
31. On the analysis of the case law above discussed I have rather come to the conclusion that a compulsive bail order made by a Court under Section 167(2) of the Code being one not on merit, when required to be cancelled after the filing of the challan, would not involve any review of a decision made on merit. Such bail is cancellable if the court has reason to entertain the belief that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. The occasion to grant or refuse bail on merit becomes available to the Court after the filing of the challan because earlier thereto merit of bail could not figure at the time to the grant of compulsive bail. The goal of the court in any event is to strike a judicial balance depending on the exigencies of the situation keeping in view amongst others the claims of personal liberty and the larger interests of the State. It cannot be overlooked that a bail order under Section 167(2) of the Code could even be managed through a convenient investigating officer, however henious be the crime. The Court would have to grant bail under the mandate of law, debarred as it is to see to the merits of the case at that stage. To say that thenceforth the Court is for ever shut to see to the merits of the case, though it otherwise has power to cancel bail, is to deprive it of its elementary function to administer justice and weigh the claims on merit inter se. I would rather loathe for such an interpretation as that would frustrate justice, and would on the other hand let the Court have the power to cancel bail, for once examining the merits of the case in such a situation.
32. The High Court in the instant case when approached for cancellation of bail applied its mind on the merits of the case and had relied in Rajnikant Jeevan Lal’s case (supra). In my view the High Court rightly relied on this decision when Raghubir Singh’s case (supra) was the basis thereof. These two cases have summed up and have drawn the demarcation between bail orders granted on merit and bail granted under the compulsion and thrust of Section 167(2) of the Code and the parameters of cancellation. Challan for prosecution has been filed. I have seen the imputation against the appellant. He is described to be a gang leader who had arrived at the scene of the occurrence along with some others and committed the murder of a man on account of gang rivalry. He is accused of having taken part in it by inflicting wounds on the deceased. The allegations have supportive eye-witnesses. The accusation against the appellant is pointedly there. His role in the crime as an active participant could lead the High Court to entertain the view that the appellant has committed a non-bailable offence which may invite capital punishment or imprisonment for life and that there were sufficient grounds to arrest him and commit him into custody. And on coming to that view. The strong ground for cancellation of bail was made out. The view of the High Court thus seems to me right. For the aforesaid reasons this appeal must fail and is accordingly dismissed.
K. Ramaswamy, J.
33. The illuminating and weighty, but with mutually discordant opinions of my esteemed brethren Ahmadi and Punchhi, JJ., have given me an occasion to have insight into the operational zone of custodial law of the accused during investigation, his entitlement to bail and the resultant consequences. Since the facts in nutshell were narrated by my brother Ahmadi, J. in his judgment, the need to reiterate them is obviated.
34. As prefaced by my brother Ahmadi, the only question in this appeal is whether the liberty had by the accused by statutory operation of the proviso to Section 167(2) of the CrPC, 1973, for short ‘the Code’ ipso facto is co-terminus with the filing of the charge-sheet (challan) under Section 173 of the Code.
35. The laying of the information under Section 154 either orally or in writing of the commission of a cognizable offence sets the Criminal Law in motion and the investigating officer under Section 156 acquires power to investigate into those offences together with non-cognizable offence, if any. As a part of the process of investigation under Section 157, he shall proceed to the spot to ascertain the facts and if necessary, to take measures for the discovery and arrest of the offender. In State of M.P. v. Mubarak Ali , this Court held that “investigation starts after the police officer receives information in regard to an offence under the Code. Investigation consists generally of the following steps (a) proceeding to the spot; (b) ascertainment of the facts and circumstances of the case; and (c) discovery and arrest of the suspected offender. Section 41 empowers, him without an order from a Magistrate and without a warrant, to arrest any person concerning the said cognizable offence or when entertained reasonable suspicion, a reasonable complaint or on having credible information, in the circumstances enumerated thereunder. Section 57(61 of the old Code) entitles the investigation officer to detain the arrested person in custody, but within imposed statutory limit, namely he shall not detain the arrested person in custody for more than 24 hours excluding the requisite time necessary for the journey from the place of arrest to the Magistrate Court.
36. Section 57, is supplemental to and effectuates the constitutional mandate of Article 22(2) that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of the arrest to the Court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. Clause (3)(b) lifts the rigour when the person is arrested under the provision of the Code or preventive detention law providing for preventive detention. In other words the precious personal liberty would be deprived only according to law. The intendment of Section 57 appears to be that investigation needs completion without 24 hours, but in practice and invariably it is difficult to complete the investigation within 24 hours. As its supplement Section 167(1) arms the investigating officer, when there are grounds to believe that the information is well founded, he shall forthwith transmit to the nearest Judicial Magistrate, a copy of the entries in the diary of the case and shall also forward the accused to such Magistrate and seek an order extending the custody. Sub-section (2) thereto empowers the Magistrate whether he has or has not jurisdiction to try the case, if he thinks fit to extend the detention of the accused from time to time and authorise the detention of the accused in the custody. So, however, it shall not exceeding 15 days as a whole. If he has no jurisdiction to try the case or committing it for trail and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. The proviso thereto further enjoins that the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police beyond the period of 15 days only, if he is satisfied that adequate grounds exist for doing so. But, however, he is enjoined that no Magistrate shall authorise the detention of the accused person in custody for a total period exceeding (i) 90 days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years; (ii) 60 days, where the investigation relates to any other offence. On his satisfying that the period of 90 or 60 days, as the case may be, has been expired the accused shall be released on bail if he is prepared to and does furnish the bail. Every person, so released on bail, shall be deemed to be released under the provisions of Chapter XXXIII for the purposes of that Chapter. Under Clause (b) of Sub-section (2) of Section 167 production of the accused before the Magistrate is mandatory before authorising detention of the accused in custody under that section.
37. It is thus clear that during the investigation the police officer without a warrant from the Magistrate is entitled to keep the accused in police custody for 24 hours from the time of such arrest excluding the time necessary to produce him before a Magistrate. An additional 15 days detention in police custody is allowed by operation of Sub-section (2) of Section 167. However, the proviso enables the investigating officer to continue in an appropriate case, the investigation and also obtain detention (police custody or judicial custody) to a maximum of 90/60 days based on the nature of offences. On its failure to complete the investigation and filing the charge-sheet under Section 173, the law mandates the Magistrate to have the accused relased, if he is prepared to and does furnish the bail. The expression “the accused person shall be released on bail” indicates the legislative mandatory duty of the Magistrate to release the accused on bail. By operation of explanation 1 to Section 167(2), notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody ‘so long as he does not furnish bail’. The object underlying the proviso is to prevent the police of the laxity in investigation and detention of the accused in the police or judicial custody, during the investigation. The law obviously disfavours the detention of the accused in the custody of the police and if further detention within the outer limit is necessary, the reason for such detention in writing shall be laid before the Magistrate concerned and the detention is not a matter of course. Whenever the further detention was asked for and is necessary, the Magistrate shall be satisfied from the report of the investigation in the diary, which is the source. The power of remand during investigation was an integral part of process which is meant to be exercised to aid collection of evidence. However, the proviso puts an embargo on the power of the magistrate to extend remand on expiry of 90/60 days.
38. Proviso to Section 167(2) was introduced for the first time under the Code. The reason appears to be, as stated by the Law Commission’s report and statement of objects and reasons that Section 167(2) was honoured more in breach than in observance and that the police investigation takes a much longer time. A practice of doubtful legality had grown whereby police filed a preliminary charge-sheet and moved the court for remand under Section 309(344 of old code), which he is not entitled to apply to such remand during investigation. The power for completion of the investigation with police or judicial custody of the accused after 15 days was thus extended up to 90/60 days, as the case may be under Clauses (i) and (ii) of the Clause (a) of the provision to Sub-section (2) of Section 167. This was meant to expedite investigation and to inculcate the sense of its urgency. The proviso enjoins the Magistrate that the accused shall be released from detention on bail. Such a release is by fiction of law as if one under Chapter XXXIII which includes Section 437 and Section 439 which empowers the Court of Session and the High Court to release the accused on bail and also power to cancel the bail so granted. Brother Ahmadi, J. extracted the relevant provisions of cancellation of bail and considered the subject with which I agree. So there is no need for my separate discussion in that behalf as well.
39. In Natabar Parida and Ors. v. State of Orissa [1975] Crl. L.J. 1212 a two judge Bench, at the earliest considered, the scope of the proviso and held thus:
The command of the Legislature in proviso (a) is that the accused person has got to be released on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days even if the investigation may still be proceeding. In serious offences of criminal conspiracy-murders, dacoities, robberies by inter-state gangs or the like, it may not be possible for the police, in the circumstances as they do exist in the various parts of our country, the complete the investigation within the period of 60 days. Yet the intention of the Legislature seems to be to grant no discretion to the court and to make it obligatory for it to release the accused on bail. Of course, it has been provided in proviso (a) that the accused released on bail under Section 167 will be deemed to be so released under the provisions of Chapter XXXIII and for the purposes of that Chapter. That may empower of that Chapter. That may empower the court releasing him on bail, if it considers necessary so to do, to direct that such person be arrested and committed to custody as provided in Sub-section (5) of Section 437 occurring in Chapter XXXIII. It is also clear that after the taking of the cognizance the power of remand is to be exercised under Section 309 of the New Code. But if it is not possible to complete, the investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail. Such a law may be “paradise for the criminals” but surely it would not be so, as sometimes it is supposed to be, because of the courts, it would be so under the command of the Legislature.
40. The same view was reiterated in a recent judgment of this Court by another Bench consisting of one of us (Ahmadi, J.) and K.J. Reddy, J. in Central Bureau of Investigation v. Anupam J. Kulkarni and it was stated in the context of construing
whether the accused would be kept in the police or judicial custody after the expiry of 15 days under Sub-section (2) of Section 167 thus : “Now coming to the object and scope of Section 167, it is well settled that it is supplementary to Section 57, It is clear from Section 57 that the investigation should be completed in the first instance within 24 hours, if not the arrested person should be brought by the police before a Magistrate as provided under Sub-section 167. The law does not authorise the police officer to detain and arrest person for more than 24 hours exclusive of time necessary for the journey from the place of area to the Magistrate court.
41. In Bashir and Ors. v. State of Haryana , a case
directly on the point had arisen. Therein also 8 accused were prosecuted for the offence under Section 302 read with Section 149 I.P.C. for causing the death of one Sangroo. Investigation was not completed within 90 days. As a result the accused (though bail was refused on merit earlier) released on bail by operation of the proviso to Section 167(2) of the Code. On filing the charge-sheet (challan), the Magistrate cancelled the bail and committed the accused to the Sessions Court. Cancellation of bail was questioned. Ultimately in the appeal this Court held that:
A person accused of a non-bailable offence may be released by a court but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. The two provisos to Sub-section (1) are not material and need not be considered. Sub-section (2) to Section 437 provides that if the investigating officer or the court at any stage of the investigation, inquiry or trial, as the case may be, is of opinion that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but there are sufficient grounds for further inquiry into his guilt, pending such inquiry, the accused shall be released on bail. Sub-section (5) to Section 437 is important. It provides that any court which has released a person on bail under Sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
xxx xxx xxx
The fact that before an order was passed under Section 167(2), the bail petitions of the accused were dismissed on merits is not relevant for the purpose of taking action under Section 437(5). Neither is it a valid ground that subsequent to release of the appellants a challan was filed by the police. The court before directing the arrest of the accused any committing them to custody should consider it necessary to do so under Section 437(5).
(emphasis supplied)
42. In Raghubir Singh and Ors. v. State of Bihar , in similar circumstances, this Court held at p.826 thus:
The result of our discussion and the case-law in this : An order for release on bail made under the proviso to Section 167(2) is not defeated by lapse of time, the filing to the charge-sheet or by remand to custody under Section 309(2). The order for release on bail may however be cancelled under Section 437(5) or Section 439(2). Generally the grounds for cancellation of bail, broadly, are, interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts. Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in not completing the investigation in 60 days, after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed.
43. In Rajnikant Jivanlal and Anr. v. Intelligence Officer, Narcotic Control Bureau , the Vacation Judge, K.J. Shetty, J. upheld cancellation of the bail on filing the charge-sheet for an offence under Narcotic Drugs Psychotropic Substances Act, 1985. Following this judgment the impugned order was passed by the High Court of Bombay cancelling the bail.
44. Undoubtedly, by operation of the proviso to Section 167(2) of the Code, the accused is entitled to bail due to default by the investigating officer in completing the investigation and laying the charge-sheet within the prescribed period of 90/60 days and not on merits. The fiction of law under the proviso applying the provisions in Chapter XXXIII is to serve the purpose of law, namely not only the release of the accused on taking the requisite bond and conditions to be incorporated therein as envisaged in the said Chapter, but also the power of the court to cancel the bail and to take the accused into detention for the grounds mentioned under the relevant provisions in Sections 437(5) and 439(2) of the Code. The Legislature is aware of the pre-existing practice of not filing the charge-sheet within 15 days as envisaged under Sub-section (2) of Section 167 of the old code and the consequences as well. The doubtful procedure of seeking further detention on securing order of remand under Section 344 of the Old Code and Section 309 of the present Code was to be put to an end to, while preserving the power to the court to cancel the bail, if circumstances warrant to take the accused into custody. At the earliest this Court in Natabar Parida’s case also took note of the fact that even under Section 167(2) proviso, it might not be possible to complete the investigation into grave crimes within the outer limit of the time set out in the proviso. In the light of the statutory animation to have the accused released from detention on expiry of 90/60 days if the accused shall be prepared to and does furnish bail, the consequences are inevitable and the release is a statutory paradise to the criminals not by judicial fiat but legislative mandate.
45. The purpose of interpretation is to sustain the law. The court must interpret the words or the language in the statute to promote public good and misuse of power is interdicted. Criminal law primarily concerns with social protection and prescribes rules of behaviour to be observed by all. Law punishes for deviance, transgression, violation or omission. Liberty of the individual and security and order in the society or public order are delicate and yet paramount considerations. Undue emphasis on either would impede harmony and hampers public good as well as distrub social weal and peace. To keep the weal balanced, must be the prime duty of the Judiciary. The purpose of the proviso to Section 167(2) read with Chapter XXXIII of the Code is to impress upon the need for expeditious completion of the investigation by the police officer within the prescribed limitation and to prevent Taxity in that behalf. Orr its default the Magistrate shall release the accused on bail if the accused is ready and does furnish the bail. At the same time during investigation or trial the power of the court to have the bail cancelled and have the accused taken into custody are preserved. But as interpreted by this Court on the happening of the catalyst act i.e. expiry of 90/60 days the hammer of release on default would fall. Later filing of the charge-sheet (challan) is not by itself relevant to have the bail cancelled on committing the accused for trial or taking cognizance of the offence. As emphasised by this Court in Bashir’s and Raghubir’s cases, on curing the defect by filing the charge-sheet (challan) if the prosecution seeks to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest and commit him into the custody, prima facie at that stage, strong grounds indeed are necessary. For cancellation of the bail after filing of the charge-sheet the factum of dismissal of the bail on the earlier occasion is not relevant. But during investigation some strong prima facie evidence and gravity and magnitude of the crime or the manner in which the crime was committed and other attending circumstances may be relevant as prima facie grounds to have a fresh look to cancel the bail. The grounds for cancellation of the bail in Chapter XXXIII are, de hors the merits in the matter, namely, necessity due to the conduct of the accused and abuse of liberty i.e. obstruction of the smooth investigation or suborning witnesses or attempting to tamper the evidence, threatening the witnesses with dire consequences or making or attempting to remove himself beyond the reach of the court to hamper the smooth trial, etc. are independent of the merits in the matter. Cancellation of the bail would be necessitated by the conduct of the accused himself after the release. I agree with brother Punchhi, J. that it might be possible to abuse the proviso by deliberate delay in completing the investigation to facilitate the release of the accused on bail. I also agree that merits brought out in the charge-sheet and attending circumstances are relevant, as the bail, was granted due to default of the investigating officer without court’s adverting to the merits but strong grounds are necessary to cancel the bail. To that extent brother Ahmadi, J. also laid emphasis, namely, strong grounds are to be made out in the charge-sheet. With respect I agree with brother Ahmadi’s emphasis that filing the charge-sheet (challan) itself is not sufficient. However, I lay emphasis that the High Court or the Court of Sessions should consider the merits of the case. With respect, K.J. Shetty, J., laid emphasis on the subsequent filing of the charge-sheet and the power for cancellation under Sections 437 and 439 of the Code. Unfortunately, the ratio in Parida’s and Bashir’s cases was not brought to the notice of the learned Judge, which was directly on the point and for the reasons stated I find it difficult to agree with the learned Judge in that respect. I am in full agreement with the view expressed by brother Ahmadi, J. and the order proposed by him.
http://indiankanoon.org/doc/862701/
A Sessions Court at Rohini here has overturned a Magistrate’s order granting bail to a woman accused of involvement in the dowry death of her daughter-in-law despite three successive orders, two by a Sessions court and one by the Delhi High Court, denying her anticipatory bail.
“The order may not per-se be illegal, but is certainly improper [of] the Metropolitan Magistrate [for] not having taken into consideration two successive orders of the Sessions Courts and also the order of the High Court, and the impugned order being a non-speaking order not reflecting proper application of mind or an effective hearing given to the prosecution, but I may add that no mala fide can be attribute to the Judge, though the Subordinate Court ought to be much more vigilant. The order of the Magistrate dated December 5, 2011, is hereby set aside being an abuse of process of law,” Additional Sessions Judge Kamini Lau said.
The prosecution said the Magistrate did not grant sufficient opportunity to the prosecution to argue the matter as the bail application of accused Krishna Devi Sharma was moved by her counsel on December 5, and the order passed on the same day without the court calling for a report from the Investigating Officer.
The prosecution also contended that the MM failed to consider that the accused avoided her arrest intentionally, that the bail order was passed in haste without going through the case records and that the accused had concealed that fact that non-bailable warrants were issued against her. It was also pleaded that the case pertains to dowry death, exclusively triable by a Sessions Court and therefore, the Magistrate’s Court should refrain from entertaining bail applications in such cases wherein the punishment provided is death or life imprisonment.
The prosecution also pointed out that the Magistrate’s order was not a speaking order as it does not show any grounds or reason for which bail was granted for the accused. While cancelling bail, Dr. Lau took note of one of the earlier reasons given by a Sessions Court for not granting bail: the victim in a suicide note had said her husband had married her only for the “service of his mother, cleaning and cooking and treating her like a maid”.
http://www.thehindu.com/todays-paper/tp-national/tp-newdelhi/article2887240.ece
Delhi High Court
Rakesh Kanojia vs State Govt Of Nct Of Delhi & Anr on 7 February, 2012
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REV.P. 782/2010 & Crl. M.A. No. 18672/2010 (Stay)
% Reserved on: 27th January, 2012 Decided on: 7th February, 2012
RAKESH KANOJIA ….. Petitioner Through: Mr. Anurag Ahluwalia and Mr. Rahul
Dhankar, Advocates.
versus
STATE GOVT OF NCT OF DELHI & ANR ….. Respondents Through: Mr. Manoj Ohri, APP for the State
with SI Ranjeev, PS Dabri.
Coram:
HON’BLE MS. JUSTICE MUKTA GUPTA
1. The Petitioner in the present petition is aggrieved by the order dated
20th November, 2010 passed by the learned Additional Sessions Judge in
Sessions Case No. 2/2009 summoning the Petitioner as an accused in the
case under Section 319 Cr.P.C.
2. The contention of the learned counsel for the Petitioner is that an order
under Section 319 Cr.P.C. can be passed only during the pendency of the
trial. Once the judgment is dictated/pronounced the trial comes to an end
and the Court has no jurisdiction to summon an additional accused under
Section 319 Cr.P.C. It is contended that the impugned order dated 20th
November, 2010 summoning the Petitioner was passed after the learned
Crl. Rev. P. 782 of 2010 Page 1 of 10 Additional Sessions Judge dictated and pronounced the judgment in the
abovementioned Sessions Case convicting the other family members of the
Petitioner, that is, Munni Devi, Archana and Rajesh for offences under
Sections 307/498A/34 IPC. In this regard reference is made to Section 353
Cr.P.C. which states that the judgment in every trial shall be pronounced by
the Presiding Officer immediately after the termination of the trial or at some
subsequent time of which notice shall be given to the parties or their pleader.
Reliance in this regard is placed on Michael Machado and another vs.
Central Bureau of Investigation and another, AIR 2000 SC 1127; Prasanna
Das and another vs. State of Orissa, 2004 (13) SCC 30; Gopal Krishna vs.
State of Bihar, 1987 CRI. L.J. 1487; and Samartha Ram vs. State of
Rajasthan and others, 2002 (2) Crimes 536.
3. It is further stated that the statement of the Complainant completely
exonerates the Petitioner who is the husband and hence the Petitioner could
not have been summoned even on merits. The Complainant had filed
another FIR under Sections 498A/406 IPC at PS Patel Nagar, Dehradun. The
proceedings therein have been stayed by the Hon’ble High Court of
Uttaranchal at Nainital.
Crl. Rev. P. 782 of 2010 Page 2 of 10
4. Learned APP for the State on the other hand contends that the
application for summoning the Petitioner under Section 319 Cr.P.C. was
filed by the public prosecutor on 21st October, 2010 when the trial was going
on. However, the learned Magistrate directed that this application will be
decided along with the main case. The learned Trial Court thus while
pronouncing the judgment of conviction of the other family members of the
Petitioner on the same day passed the order summoning the Petitioner under
Section 319 Cr.P.C. Since the two orders were passed simultaneously it
cannot be said that the impugned order passed after the trial was concluded.
It is thus contended that there is no merit in the petition and the petition be
dismissed.
5. I have heard learned counsel for the parties.
6. The impugned order dated 20th November, 2010 reads as under: -
“Vide separate judgment dictated and announced in Open Court, all the four accused Bishan Lal, Munni Devi, Archna and Rajesh are convicted U/s 498-A read with Section 34 IPC. Besides that, accused Munni Devi, Archna and Rajesh are also convicted u/s 307/34 IPC.
Accused Archna and Rajesh be taken into custody. Since accused Munni Devi is also liable to the taken in to custody, but keeping in view her age and ill health, she is not taken into custody at present.
Crl. Rev. P. 782 of 2010 Page 3 of 10 I have also considered the application filed by Ld. APP on 21.10.10 U/s 319 Cr.P.C. with the prayer for summoning Rakesh, husband of Complainant Renu as accused in this case. While dictating the judgment against the aforesaid accused, I have found that there is sufficient evidence again the husband of the Complainant Sh. Rakesh also. Therefore, summons be issued to Sh. Rakesh, son of Sh. Bishan Lal, R/o 1134, Gali No. 5/6, Main Sagarpur, New Delhi, for the next date of hearing.”
7. Thus it is evident that this order on the application was passed after
the pronouncement of judgment in Sessions Case No. 2/2009 convicting
Munni Devi, Archna and Rajesh, though the application had been filed on
21st October, 2010 by the Public Prosecutor when the trial was still pending.
In Michael Machado (Supra) their Lordships held that:
“10. Powers under Section 319 of the Code can be invoked in appropriate situations. This section is extracted below:
“319. Power to proceed against other persons appearing to be guilty of offence. – (1) Where, in the course of any inquiry Into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
Crl. Rev. P. 782 of 2010 Page 4 of 10 (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under Sub- section (1) then -
(a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard;
(b) subject to the provisions of Clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.
11. The basic requirements for invoking the above section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, had committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused.
12. But even then, what is conferred on the Court is only a discretion as could be discerned from the words “the Court may proceed against such person”. The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for keeping a conspectus of the case, including the stage at which
Crl. Rev. P. 782 of 2010 Page 5 of 10 the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. It must be remembered that there is no compelling duty in the Court to proceed against other persons.
13. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi, (1983) 1 SCC 1: (AIR 1983 SC 67: 1983 Cri L J 159) this Court has struck a note of caution, while considering whether prosecution can produce evidence to satisfy the Court that other accused against whom proceedings have been quashed or those who have not been arrayed as accused, have also committed an offence in order to enable the Court to take cognizance against them and try them along with the other accused. This was how learned Judges then cautioned: “But we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.”
14. The Court while deciding whether to invoke the power under Section 319 of the Code, must address itself about the other constraints imposed by the first limb of Sub-section (4), that proceedings in respect of newly added persons shall be commenced afresh and the witnesses re-examined. The whole proceedings must be re-commenced from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage where It had reached earlier. If the witnesses already examined are quite a large in number the Court must seriously consider whether the objects sought to be achieved by such exercise is worth wasting the whole labour already undertaken. Unless the Court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned we would say that the Court should refrain from adopting such a course of action.”
Crl. Rev. P. 782 of 2010 Page 6 of 10
8. Further Section 353 Cr.P.C. states that after the arguments are heard
the trial comes to an end and pronouncement of judgment is a post
culmination trial procedure. Though the application was filed prior to the
conclusion of the trial, there is no doubt that the impugned order was passed
after the pronouncement of the judgment of conviction of the other family
members of the Petitioner though on the same day. In any case the judgment
having been pronounced, the trial had come to an end and the trial Court had
become functus officio. The trial Court could not have passed order on the
application under Section 319 Cr.P.C. after pronouncing the judgment.
9. In the present case the Complainant in her statement to the SDM
clearly exonerated the Petitioner. To reproduce the words of the
Complainant it was stated “in all this there was no hand of my husband
Rakesh, he used to remain quite. My husband Rakesh never troubled me for
anything”. Thus the SDM directed registration of FIR only against Munni
Devi, Rajesh and Archna, that is, the mother, brother and sister of the
Petitioner. When the Complainant appeared in the witness box on 28th
August, 2009 she implicated the Petitioner also stating that on the first day
her husband, sister-in-law, brothers-in-law, father-in-law and mother-in-law
commented that car and cash of Rs. 1 lakh had not been given though all the
Crl. Rev. P. 782 of 2010 Page 7 of 10 articles were given as per their choice. The further allegations in the
statement against the Petitioner are that in the second week of December her
husband had gone to Dehradun when he told her father that they have to sell
the old house and purchase a new one and asked him to give Rs.5 lakhs for
the purchase of new house, which the father of the Complainant refused. It
is further stated that when they reached Delhi, her husband, father-in- law,
mother-in-law, brothers-in-law and unmarried sister-in-law stated that the
Complainant had not brought car and cash. The Complainant further stated
that her husband, that is, the Petitioner did not utter any word and kept mum
though he had told her father that she would not be harassed. On 13th March,
2003 the Complainant’s father-in-law, mother-in-law, husband, brothers-in-
law and sister-in-law created an atmosphere of lawlessness and her father-in-
law after directing her to get the demand fulfilled from her father left the
house to attend his duties. Thereafter her other in-laws excluding her father-
in-law in the presence of her husband gave beatings to her and taunted her.
At about 9.00-9.30 P.M. on 13th March her mother-in-law, sister-in-law
caught hold of her hand forcibly and Rajesh, the brother-in-law forcibly
administered her the bottle and forced her to drink harpic. Her husband, the
Petitioner herein instead of saving her started closing the doors and
Crl. Rev. P. 782 of 2010 Page 8 of 10 windows. She fell unconscious and regained consciousness in the hospital
where her husband and brother-in-law Rajesh were present who extended
threats that on arrival of SDM she should not name them or otherwise they
will kill her.
10. A perusal of the allegations before the Court also shows that the
grievance of the Complainant was that the Petitioner was a silent spectator
and did nothing. This is what she stated to the SDM in her first statement.
There is no overt act of the Petitioner in causing injury to the Complainant.
Further the demand of a loan of Rs. 5 lakhs for purchasing the new house, as
held in catena of judgments, is not demand of dowry. I find that the
evidence on record against the Petitioner in view of improvements would not
entail conviction of the Petitioner. A perusal of the impugned order dated
20th November, 2010 does not even spell out the offence for which the
Petitioner has been summoned.
11. In view of the law laid down by the Hon’ble Supreme Court, since the
proceedings before the learned Trial Court had come to an end and even on
the merits no case for summoning is made out, I find merit in the contention
of the learned counsel for the Petitioner.
Crl. Rev. P. 782 of 2010 Page 9 of 10 12 In view of the aforesaid discussion, the impugned order dated 20 th
November, 2010 summoning the Petitioner is hereby quashed. The petition
and the application are disposed of accordingly.
(MUKTA GUPTA)
JUDGE
FEBRUARY 07, 2012
http://indiankanoon.org/doc/49621430/
A 29-year-old woman, her boyfriend and two contract killers were arrested for allegedly shooting her husband dead at the Mayur Vihar Metro station a week ago.
Other than the woman, the three arrested have been identified as Deepak (22), and Sanjeev (28) and Rahul(20) — alleged contract killers. On February 4, the woman’s husband Shiv Prasad was shot at the Mayur Vihar Metro station. He later succumbed to injuries at a government hospital.
According to police, the woman was being abused by her husband over the last 15 years and this had prompted her to murder him in connivance with her boyfriend Deepak and two contract killers. The woman reportedly told police that she had been forced into marrying Shiv Prasad after he kidnapped her brother. Shiv Prasad, she alleged, went on to murder her brother after their marriage and then forced her into prostitution.
Deputy Commissioner of Police (East), Prabhakar said, “In 1996, Prasad alias Shibu had married the woman forcibly when she was only 14 years old. Shibu was then a resident of Dakshinpuri and used to visit a friend named Rocky who lived in the same area. During one of his visits, he saw the woman and fell in love with her. However, her family opposed the match and her brother, Vinod, severely beat up Shibu. To avenge this, Shibu kidnapped Vinod and assaulted him. Shibu said that he would release Vinod only if the family married off the girl to him.”
“Left with no other option, the family agreed to get them married. However, the next day, Vinod reportedly ‘died’ due to injuries. The case was not reported by the family as, by then, Shibu had married her.
“Shibu, meanwhile, got involved in many criminal activities and had ten criminal cases registered against him between 1997 and 2001. He served several jail sentences as well. After his release, Shibu started torturing his wife mentally and physically. A son was born to them, but considering Shibu’s behaviour, she gave the boy away to her mother,” Prabhakar said.
In 2001, Shibu allegedly murdered one of his sons by electrocuting him in an inebriated state. However, this case was also not reported by the family as they feared Shibu would be arrested, police said.
In August 2003, Shibu forced his wife into prostitution, police said. Last year, in May, she came in contact with Deepak, who was one of her clients. Deepak fell in love with her and the two eloped to her parental home in Dichaon Kalan. The police said the couple feared Shibu and wanted to eliminate him to lead a peaceful life.
“Rahul, who used to live in the woman’s neighborhood and was sympathetic towards her, introduced them to a contract killer, Sanjeev. For Rs 2 lakh, Rahul and Sanjeev agreed to kill Shibu. The woman arranged for the money from her father’s retirement fund,” said Prabhakar.
On the day of the incident, Deepak lured Shibu to come to Mayur Vihar Metro station on the pretext that he will get to see his wife and son. “It was planned that while Deepak diverted Shibu’s attention by making a call to his cellphone, Rahul and Sanjeev will shoot him. The three reached the station in an Indica,” said Prabhakar.
When Shibu reached the station, Deepak called him up. Shibu received the call and just then, Sanjeev, who had covered himself with a shawl to escape identification, shot Shibu in the back. The trio fled from the spot in the Indica and later abandoned it near Meerut, police said.
The four accused have been sent to three days’ police custody.
Two countrymade weapons of .315 bore, Rs 75,000 in cash and a mobile phone have been recovered.
The reporter is a student of EXIMS, New Delhi
http://www.indianexpress.com/news/wife-3-others-held-for-killing-man/911004/0
Punjab-Haryana High Court
Harjinder Kaur vs Narinder Singh Mangat on 4 January, 2012
TA No.601 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
TA No.601 of 2011
Date of decision: 4.1.2012
Harjinder Kaur
….Applicant
Versus
Narinder Singh Mangat
…Respondent
CORAM: HON’BLE MR.JUSTICE JITENDRA CHAUHAN
Present: Mr.Gopal Sharma, Advocate for the applicant. Mr.Arvind Kashyap, Advocate for the respondent *****
Jitendra Chauhan, J.(Oral)
The present application under Section 24 of the Code of Civil Procedure has been filed by the applicant/wife, seeking transfer of the petition titled as `Narinder Singh Mangat vs. Harjinder Kaur’, filed by the respondent/husband under Section 11 of the Hindu Marriage Act, 1955, (for short `the Act’) from the court of learned Additional District Judge, Fatehgarh Sahib, to any other court of competent jurisdiction at Mohali. I have heard the learned counsel for the parties and perused the case file.
There is no force in the arguments of the learned counsel for the applicant. She has not lodged any complaint regarding demand of dowry etc. As per the reply filed on behalf of the respondent, the applicant has filed a civil suit, which is pending at Fatehgarh Sahib. She has filed a petition under Section 125 Cr.P.C. at Fategarh Sahib as well as a complaint TA No.601 of 2011 2 under the Protection of Women from Domestic Violence Act, which are pending at Fatehgarh Sahib. Apart from this, the daughter of the applicant is studying at Sanghol, District Fatehgarh Sahib. The averment of the applicant that the brother of the respondent is a lawyer at Fatehgarh Sahib, has no force as it has not been pointed out as to how the brother of the respondent can influence the administration of justice, nor any instance of any attempt on his part to influence the court, has been cited. Mere presumption or apprehension is not sufficient for a case to be transferred. A transfer should not readily be granted for any fancied notion of a litigant. The yardstick is “in the interest of justice”. The applicants should repose confidence in judicial process. The apprehension of the applicant is baseless and deserves to be rejected. Moreover, the distance between Fatehgarh Sahib and Mohali is merely 35 Kms. No sufficient ground is made out to transfer the case. In view of the above, the present application is dismissed. However, the respondent is directed to pay the travelling expenses to the applicant, which is quantified at `15,00/- per visit, only in the petition titled as ‘Narinder Singh Mangat vs. Harjinder Kaur’, filed by the respondent/husband under Section 11 of the Hindu Marriage Act, 1955, (for short `the Act’) pending in court of learned Additional District Judge, Fatehgarh Sahib.
4.01.2012 (JITENDRA CHAUHAN) gsv JUDGE
http://indiankanoon.org/doc/198803983/
Uttaranchal High Court
Rafat Araa vs Kamar Mirja on 4 January, 2012
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
CRIMINAL MISC. APPLICATION (C-482) No. 600 of 2011
Rafat Araa
W/o Jafar Khan @ Darban Singh
R/o Mohalla Katortal Nai Basti
Near Lashkhar Kashipur
District Udham Singh Nagar
………………..Applicant
Versus
Kamar Mirja
S/o Kaishar Mirja
R/o Mohalla Katortal Nai Basti
Near Lashkhar Kashipur
District Udham Singh Nagar
………………Respondent
Shri D.C.S.Rawat, Advocate, present for the petitioner. Shri Abhishek Verma, Advocate, present for the respondent.
Hon’ble Prafulla C. Pant, J.
Heard.
(2) By means of this petition, moved under section 2
482 of Code of Criminal Procedure, 1973, the petitioner has quashing of the judgment and order dated 16.05.2011, passed by Additional Sessions Judge, Kashipur, in Criminal Appeal No. 133 of 2010, Qamar Mirja vs. Rafat Araa, filed under section 29 of Protection of Women from Domestic Violence Act, 2005.
(3) Brief facts of the case, are that, the petitioner Rafat Araa is real aunt (BUA) of the respondent Qamar Mirja. She moved an application under Protection of Women from Domestic Violence Act, 2005, against the respondent pleading that she was being subjected to physical cruelty by the respondent to oust her from the house, they are living together. It is also pleaded by the petitioner Smt. Rafat Araa that the house was purchased by her husband through a registered sale deed from Kaisar Mirja (father of the present respondent), and allowed Qamar Mirja (nephew of the petitioner) to stay in the house as a goodwill gesture. On the other hand, the respondent pleaded before the trial court that where abouts of his father are not 3
known, and the alleged sale deed is a forged document. The respondent further pleaded that it was he who allowed the petitioner Smt Rafat Araa as she was his aunt to stay in the house.
(4) In the above circumstances, the pleading of the parties suggest that it is a dispute of ownership of the house in question. However, what is to be seen for the purposes of this case, is whether the property is a shared household, or not.
(5) The definition of “shared household” is mentioned in clause (s) of section 2 of Protection of Women from Domestic Violence Act, 2005. It reads as under:-
” shared household ” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of 4
them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.
The above definition makes it clear that the aggrieved must have lived in a domestic relationship with the respondent. The definition of “domestic relationship” is given in clause (f) of section 2 of the Act. Said definition reads as under :-
“domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;
5
From the above definition of domestic relationship it appears that it is necessary that the aggrieved person should have related to the respondent by consanguinity, marriage or through the relationship in the nature of marriage, adoption or as a member of joint family. It is nobody’s case that there was a joint family of the petitioner and her brother Kaisar Mirja (father of the respondent). Nor, the petitioner and respondent are related by consanguinity, marriage, or relationship in the nature of marriage, or adoption.
(6) ” Aggrieved person” is defined in clause (a) of section 2 of the Act. The same reads as under:-
” aggrieved person” means any woman who is , or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.;
(7) In the above circumstances, having gone through the definition of ” aggrieved person” 6
given in clause (a) of section 2, and that of “domestic relationship” and ” shared household”, quoted above, this court comes to the conclusion that the aunt (BUA), and her nephew can not be said to be the persons living together in a shared household, under the domestic relationship. That being so, the appellate court has committed no illegality in allowing the appeal, and setting aside the order passed by the Magistrate in favour of the petitioner.
(8) Accordingly, this petition filed under section 482 of Cr.P.C., is dismissed.
(Prafulla C. Pant, J.)
Dt.04.01.2012
N.P
http://indiankanoon.org/doc/168447031/
Kolkata High Court (Appellete Side)
60/2012 on 30 January, 2012
Author: Tapan Kumar Dutt
1.2012
C.O. 60 of 2012
Mr. Shyamal Kr. Das,
Mr. Somnath Banerjee … for the Petitioner
The wife-petitioner is a resident of Howrah District and the husband- opposite party is a resident of Hooghly District and the said Districts are very near to each other.
The wife-petitioner has filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 in the Court of the learned Judicial Magistrate at Howrah which is pending. The husband-opposite party has filed a Matrimonial Suit in the Court of the learned District Judge at Hooghly which is also pending. The wife-petitioner has sought for transfer of the said Matrimonial Suit to the Court of the learned District Judge at Howrah. This Court does not find any sufficient reason to pass any order of transfer of the Matrimonial Suit considering the fact that the wife-petitioner will not be put to any serious inconvenience for attending the Matrimonial Suit in the learned Court at Hooghly. There is no merit in the application under Section 24 of the Code of Civil Procedure which is dismissed. Urgent certified xerox copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities. ( Tapan Kumar Dutt, J. )
AKD
http://indiankanoon.org/doc/136468997/
Delhi High Court
Poonam Khanna vs V P Sharma & Anr on 30 January, 2012
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. No.2602/2010
% Judgment reserved on : 06th January, 2012 Judgment delivered on:30th January, 2012
POONAM KHANNA ….. Petitioner Through : Petitioner in person.
versus
V P SHARMA & ANR …. Respondents Through : Respondent No.1in person.
Mr.Navin Sharma, APP for State/R-2.
CORAM:
HON’BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. Instant petition is being filed under Section 482 Cr.P.C. against the impugned order dated 29.07.2010 passed by learned Additional Sessions Judge, whereby the revision petition of respondent No.1 was allowed and the order dated 23.01.2010 passed by learned Magistrate granting interim maintenance to the tune of ` 5,000/- per month to the petitioner was set aside.
2. Being aggrieved, on 24.02.2010, respondent No.1 filed Revision Petition No.19/2010 under Section 397 Cr. P.C. seeking dismissal of interim order of maintenance. The same was disposed of vide impugned order dated 29.07.2010 while setting aside the interim Crl.M.C.No.2602/2010 Page 1 of 12 maintenance and allowed the revision petition of respondent.
3. It is pertinent to mention that petitioner and respondent No.1 both are appearing in person.
4. Petitioner has raised the issue that as per the settled law, the interlocutory order being the interim maintenance order cannot be challenged by way of revision petition under Section 397 Cr. P.C. Secondly, she has raised the issue that learned Additional Sessions Judge, while setting aside the order passed by learned Magistrate has ignored the fact that on the presumption that respondent may be able to prove the means of petitioner in future by placing additional material on record, which is against settled law that the interim maintenance must be decided on the material available on record and not on the hypothecation that the material likely to be adduced at the time of evidence.
5. Further petitioner has submitted that in Revision Petition No.19/2010, learned Additional Sessions Judge, has not considered this fact that petitioner being the wife of respondent is unemployed and is not earning her livelihood. Learned Additional Sessions Judge, has ignored the submission made by petitioner that the respondent / husband is having rental income from the properties.
6. Vide order dated 23.01.2010, interim maintenance was awarded in favour of petitioner on the basis of the material placed on record by both the parties. However, vide the impugned order, learned Additional Sessions Judge, has set aside the award of interim maintenance on the
Crl.M.C.No.2602/2010 Page 2 of 12 presumptive and hypothecated ground that the respondent may placed the requisite material required to cancel the interim maintenance before learned Trial Court. She has referred to Savitri v. Govind Singh Rawat AIR 1986 SC 984 and relied upon para No.6 thereof which reads as under:-
“In view of the foregoing it is the duty of the court to interpret the provisions in Chapter IX of the Code in such a way that the construction placed on them would not defeat the very object of the legislation. In the absence of any express
prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under
section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant
pending final disposal of the application. It is quite common that applications made under section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the court. Every court must be deemed to possess by necessary
intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim ‘ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest (Where anything is conceded, there is conceded also anything without which the thing itself cannot exist.) (Vide Earl Jowitt’s Dictionary of English Law 1959 Edn. P.1797). Whenever anything is
required to be done by law and it is found
impossible to do that thing unless something not Crl.M.C.No.2602/2010 Page 3 of 12 authorised in express terms be also done then that something else will be supplied by necessary intendment. Such a construction though it may not always be admissible in the present case however would advance the object of the legislation under consideration. A contrary view is likely to result in grave hardship to the applicant, who may have no means to subsist until the final order is passed. There is no room for the apprehension that the recognition of such implied power would lead to the passing of interim orders in a large number of cases where the liability to pay maintenance may not exist. It is quite possible that such contingency may arise in a few cases but the prejudice Caused thereby to the person against whom it is made is minimal as it can be set right quickly after hearing both the parties. The magistrate, may, however, insist upon an affidavit being filed by or on behalf of the applicant concerned stating the grounds in support of the claim for interim maintenance to satisfy himself that there is a prima facie case for making such an order. Such an order may also be made in an appropriate case ex parte pending service of notice of the application subject to any modification or even an order of cancellation that may be passed after the respondent is heard. If a civil court can pass such interim orders on
affidavits, there is no reason why a magistrate should not rely on them for the purpose of issuing directions regarding payment of interim
maintenance. The affidavit may be treated as supplying prima facie proof of the case of the applicant. If the allegations in the application or the affidavit are not true, it is always open to the person against whom such an order is made to show that the order is unsustainable. Having regard to the nature of the jurisdiction exercised by a magistrate under section 125 of the Code, we feel that the said provision should be interpreted Crl.M.C.No.2602/2010 Page 4 of 12 as conferring power by necessary implication on the magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim
maintenance subject to the other conditions
referred to the pending final disposal of the application. In taking this view we have also taken note of the provisions of section 7 (2)(a) of the Family Courts Act, 1984 (Act No. 66 of 1984) passed recently by Parliament proposing to
transfer the jurisdiction exercisable by magistrates under section 125 of the Code to the Family
Courts constituted under the said Act.”
7. The instant petition is being filed on the ground that the respondent has not placed any material on record showing the earning or employment of the petitioner. By quoting the qualification of the petitioner to earn is not contemplated under Section 125 (1) (a) Cr. P.C. and a wife, who sacrifices her lucrative career for the sake of her children besides herself being ill cannot be denied maintenance by her husband/respondent as held by various Courts in the decisions; Vijay Singh Yadav v Rajesh Yadav & Anr 2009 (III) DRJ 516 wherein para No.5 reads as under:-
“5. I have carefully considered the submissions made by counsel for the petitioner. There is no doubt that no revision is permissible under Section 397(2) Cr. P.C. against an interlocutory order. However, in appropriate cases, the High Court in exercise of its powers under Section 482 is
competent enough to intervene or set aside or modify even an interlocutory order in case it has resulted in abuse of process of law or is causing grave miscarriage of justice. For this purpose, the judgments which have been relied upon by counsel for the petition in case of Krishnan & Crl.M.C.No.2602/2010 Page 5 of 12 Anr. v. Krishnaveni & Anr. & in case titled Delhi Labour v. Raj (supra) are not in dispute.”
8. She also relied upon Rakhi v. Pankaj Kumar 123 (2005) DLT 262 wherein in para No.5 this Court has held as under:- “5. Looking at the matter as it stands it appears that the judgment under challenge is erroneous and that the learned Additional Sessions ought not to have interfered at a stage when the
Metropolitan Magistrate fixed only the interim amount in the proceedings under Section 125 Cr. P.C.”
9. Petitioner has further pointed out that learned Additional Sessions Judge, vide the impugned order has cancelled the award of interim maintenance to the petitioner not on the basis of any material placed on record, but on the hypothecation that required material may be placed before the Court by respondent/husband later on in future.
10. On the other hand, respondent No.1 has filed his reply whereby he has taken preliminary objection about the maintainability of petition. He has submitted that the petitioner has concealed important / material facts from this Court because these facts render this petition to be non-maintainable. The said facts are as under:- (i) The petitioner proposed a settlement deed in the Court of Smt.R.S.Nag on 27.05.2002 which envisaged that the parties will seek divorce, petitioner will not claim any maintenance and respondent will forego his lien over the DDA flat as also a shop in property No. N-15, Malviya Nagar, and property No.C-18, Shivalik, shall be sold off and sale proceeds shall be divided equally between the parties. Crl.M.C.No.2602/2010 Page 6 of 12 (ii) The petitioner backtracked from the said settlement and continued with the litigation vigorously. Another settlement was executed on 02.04.2003 which was ultimately registered. Only difference between vis-a-vis previous settlement was that respondent reduced his share in the property C-18, Shivalik from 50 per cent to 45 per cent.
(iii) On 03.05.2003, the divorce obtained by mutual consent in terms of settlement dated 02.04.2003 and petitioner withdrew her case in the guardianship court and petition under Section 125 Cr. P.C. on behalf of his son. The joint petition for mutual consent divorce, statement on oath as well as final order expressly stipulating that the petitioner shall not claim any maintenance through rest of the life. (iv) The petitioner filed the application under The Protection of Women from Domestic Violence Act, 2005 claiming maintenance and same was dismissed by learned Trial Court as well as Sessions Court as non-maintainable in the background of settlement dated 02.04.2003.
(v) On the basis of settlement dated 02.03.2003, this Court quashed four criminal cases in Criminal M.C.No.3337/2007 a petition filed under Section 482 Cr. P.C. by respondent. The petitioner preferred to challenge the said judgment in the Supreme Court, whereupon the petitioner’s appeal was dismissed, thus adding sanctity to the settlement.
11. Respondent has further stated in the reply on question of law that learned Additional Sessions Judge cancelled the interim maintenance on the basis of material placed on record including the registered Crl.M.C.No.2602/2010 Page 7 of 12 settlement deed dated 02.04.2003 and para No.30 of the Trial Court order dated 24.07.2009 reads as under:-
“Thus, it is clear that grant of maintenance under Section 125 Cr. P.C. certain conditions are
required to be fulfilled and it would be a matter of trial whether the respondent has refused or
neglected to maintain the petitioner, whether the petitioner is unable to maintain herself and whether the respondent has sufficient means to maintain the petitioner ……”
12. It is further submitted that the question of law is not against the orders of learned Additional Sessions Judge dated 04.06.2010 as alleged and the petitioner has received most of the interim maintenance till the said order dated. Learned Additional Sessions Judge in para No.13.0 observed as under:-
“It is pertinent to mention here that there is no mode of recovery, if later on it is found that respondent / wife has sufficient means to maintain herself.”
13. Respondent has also filed additional submissions and submitted that in para No.12.2 of the impugned order, learned Additional Sessions Judge has opined as under:-
“I consider that in view of these peculiar fats and circumstances, parties are required to prove whether the settlement arrived into between them was only illusory and sufficient arrangement not made for the future maintenance of the
respondent/ wife or that whether respondent/wife is unable to maintain herself or whether the petitioner/husband has sufficient means or not. I consider that parties are required to lead
evidence in this regard.”
Crl.M.C.No.2602/2010 Page 8 of 12
14. Respondent had handed over the shop in property No.N-15, Malviya Nagar, New Delhi and DDA flat in Khirki Village at the time of settlement / divorce by mutual consent. The petitioner has sold off these properties and purchased a double story 250 yards house bearing No.758, Sector 7, Punchkula and is getting rent of around ` 40,000/- per month. Proof thereof is annexed as Annexure R-1.
15. The petitioner continuously living in the same house and is maintaining the same living standard in contrast to the respondent, who has been forced to live in an unauthorised colony and that too on rent.
16. Learned Additional Sessions Judge in para No.13.0 observed that “that there is no mode of recovery, if later on it is found that respondent / wife has sufficient means to maintain herself.”
17. During her cross-examination, in the petition under Section 125 Cr. P.C. on behalf of son, petitioner while asserting that she is living on the mercy of relatives, friends, but failed to name even a single person from whom she had taken debt or loan and this fact goes to prove that she has sufficient means to maintain herself.
18. Petitioner has filed her income tax returns till the year 2007-08. And declared her income to be ` 3.31Lacs in comparison to ` 2.40Lacs of the respondent. Annexure R-3 has been placed on record in this regard.
19. It is further stated that because she initiated litigation on her income and the income of a practicing gynaecologist is always in cash, therefore, stopped filing her tax returns. Failing in her endeavour to Crl.M.C.No.2602/2010 Page 9 of 12 fulfil her greed under Prevention of Domestic Violence against Women Act, because the case was ruled to be non-maintainable in the background of settlement dated 02.04.2003, she took the shelter of Section 125 Cr. P.C. and filed the petition, therein.
20. It is stated, the petitioner has concealed the fact that just before filing the petition mentioned above, she got admitted her adopted daughter to a prestigious, high end public school and is spending more than ` 30,000/- per month upon her.
21. The respondent has stated in the reply to the instant petition that the wife should maintain standard of living, comparable to the husband as per the provision enshrined under Section 125 Cr. P.C. In the instant case, the petitioner is living in partially self owned house, whose monthly rental is ` 80,000/- whereas respondent is living in a rented house in an unauthorised colony whose rental is ` 8,000/- per month. Moreover, she is running a nursing home in the basement of property No.C-18, Shivalik, New Delhi whose monthly rent is ` 25,000/- per month.
22. I note that the petitioner proposed a settlement deed in the Court of Smt.R.S.Nag on 27.05.2002 which envisaged that the parties will seek divorce, petitioner will not claim any maintenance and respondent will forego his lien over the DDA flat as also a shop in property No.N- 15, Malviya Nagar, and property No.C-18, Shivalik, shall be sold off and sale proceeds shall be divided equally between the parties.
23. Another settlement was executed on 02.04.2003 which was
Crl.M.C.No.2602/2010 Page 10 of 12 ultimately registered. The only difference between vis-a-vis previous settlement was that respondent reduced his share in the property C-18, Shivalik from 50 per cent to 45 per cent. On 03.05.2003, the divorce obtained by mutual consent in terms of settlement dated 02.04.2003 and petitioner withdrew her case in the guardianship court and petition under Section 125 Cr. P.C. on behalf of his son. The joint petition for mutual consent divorce, statement on oath as well as final order expressly stipulating that the petitioner shall not claim any maintenance through rest of the life.
24. Thereafter, the petitioner filed another application under The Protection of Women from Domestic Violence Act, 2005 claiming maintenance and same was dismissed by learned Trial Court as well as Sessions Court as non-maintainable in the background of settlement dated 02.04.2003.
25. It is pertinent to mention here that on the basis of the settlement dated 02.03.2003, this Court quashed four criminal cases in Criminal M.C.No.3337/2007 petition filed under Section 482 Cr. P.C. by respondent. The petitioner preferred to challenge the said judgment in the Supreme Court, whereupon the petitioner’s appeal was dismissed.
26. It is also pertinent to mention that learned Trial Court recorded in its order dated 24.07.2009 that for grant of maintenance under Section 125 Cr. P.C. certain conditions are required to be fulfilled and it would be a matter of trial whether respondent has refused or neglected to maintain the petitioner whether the petitioner is capable to maintain herself and whether the respondent has sufficient means to Crl.M.C.No.2602/2010 Page 11 of 12 maintain the petitioner.
27. Moreso, in the aforesaid order, learned Additional Sessions Judge has recorded his opinion that parties are required to prove that whether the settlement arrived at between them was only illusory and sufficient arrangements not made for the future maintenance of the wife or that whatever wife is unable to maintain herself or whether the husband has sufficient means or not. To this effect, parties are required to lead evidence. The petitioner during her cross- examination in petition under Section 125 Cr. P.C. on behalf of her son deposed that she was living on the mercy of the relatives, friends, however failed to name even a single person from whom she had taken debt or loan.
28. Moreso, annexure R-3 shows that her income tax returns till the year 2007-08 and her income was ` 3.31Lacs in comparison to ` 2.40Lacs of the respondent.
29. In view of above, I find no perversity in the impugned order passed by learned Additional Sessions Judge. I conquer with the same.
30. Keeping the above discussion into view, I find no merit in the case. Accordingly, Criminal M.C. No.2602/2010 is dismissed.
31. No order as to costs.
SURESH KAIT, J
JANUARY 30, 2012
Mk
Crl.M.C.No.2602/2010 Page 12 of 12
http://indiankanoon.org/doc/86616093/
Punjab-Haryana High Court
Parambir Singh @ Pammi And Others vs State Of Punjab And Another on 24 January, 2012
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl.Misc.No.M-14727 of 2009 (O&M)
Date of decision : 24.01.2012
Parambir Singh @ Pammi and others
….Petitioners
Versus
State of Punjab and another
…Respondents
CORAM : HON’BLE MR.JUSTICE MAHESH GROVER ….
Present: Mr.Deepinder Brar, Advocate for the petitioners.
Mr. B.B.S.Teji, Addl.A.G., Haryana
for respondent No.1.
Mr.S.P.S.Sidhu, Advocate
for respondent No.2.
…..
MAHESH GROVER, J.
This is a petition under Section 482 of the Code of Criminal Procedure praying for quashing of FIR No.25 dated 21.2.2008 under Sections 498-A, 406, 342, 295-A, 506, 34 IPC, registered at the behest of the complainant-respondent No.2 at Police Station Lambi, District Muktsar.
Originally this petition was filed for quashing of the FIR on the ground that the allegations set out therein were not sustainable and that the complainant had given an aggravated version of a grievance and given to it a colour of criminality so as to settle scores with the petitioners.
Crl.Misc.No.M-14727 of 2009 (O&M) -2- During the subsistence of these proceedings, the petitioners and the complainant have resolved their differences and have decided to put an end to the entire litigation. Broadly, the terms of the agreement envisage the dissolution of marriage by a decree of divorce which has since been effected on 28.11.2011 and further as a part of settlement an amount of Rs.82 lacs was agreed to be paid by the petitioners to the complainant. Out of a sum of Rs.82 lacs some amount was already paid to the complainant and the balance amount of Rs.38 lacs has been handed over by way of Cheque No.952392 to the complainant in Court.
Learned counsel for the parties contend that in view of the aforesaid, the FIR deserves to be quashed. The parties are present in Court and have been duly identified by their respective counsel. Both have got their statements recorded separately accepting the factum of compromise and stating that they have no objection if the FIR is quashed. Having regard to the aforesaid facts when the allegations had surfaced on account of a marital discord and also noticing the fact that the parties have since resolved their differences and have nullified their marriage by a decree of divorce and in lieu thereof an amount of Rs.82 lacs has been paid by the petitioners to the complainant on account of permanent alimony, maintenance, etc. and keeping in view the observations of the Full Bench of this Court in Kulwinder Singh v. State of Punjab and others, 2007(3) RCR (Crl.) 1052, I deem it appropriate to accept the petition and direct that the Crl.Misc.No.M-14727 of 2009 (O&M) -3- FIR in question and all consequent proceedings arising therefrom be quashed. Ordered accordingly.
Before parting with the order, it is made clear to the petitioners that in case the cheque handed over to the complainant today in Court falters for some reason, it shall be viewed by the Court to be an attempt to obstruct the course of justice and appropriate orders shall be passed upon such a breach being brought to the notice of the Court.
Petition disposed of.
24.01.2012 (MAHESH GROVER) JUDGE
http://indiankanoon.org/doc/45893095/
Kolkata High Court (Appellete Side)
3349/2010 on 24 January, 2012
Author: Dipankar Dutta
1
24.01.2012
kc. 243 C.O.3349 of 2010 Mr. Sanat Chowdhuri …for the petitioner. The impugned order allows an application under Section 24 of the Hindu Marriage Act filed by the wife/opposite party. The learned Additional District Judge directed the husband/petitioner to pay Rs.1,800/- per month with effect from January, 2010 on account of alimony pendente lite and Rs.3,000/- towards litigation cost. The only point that has been raised by Mr. Chowdhuri, learned advocate for the husband/petitioner is that the application under Section 24 of the Act filed by the wife/opposite party was not maintainable since on the date the same was presented, she was below the age of 18 years. Not only that, the date on which marriage between the parties was solemnized, the wife/opposite party had not attained the age of 18 years and, therefore, the marriage contravened provisions of Section 5(iii) of the Act. The learned Additional District Judge was of the view, on consideration of the provisions contained in Sections 5, 11, 12 and 18 of the Act, that the marriage between the parties was neither voidable nor void and that a marriage solemnized in contravention of Section 5(iii) is punishable under Section 18 of the Act and, therefore, she was entitled 2
to lay a claim for alimony pendente lite claiming to be the wife of the husband/petitioner.
I am of the view that the learned Judge was right in his approach and in granting alimony pendente lite and litigation costs to the wife/opposite party did not transgress the bounds of his authority.
There is no reason to interfere. The revisional application stands dismissed.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties as early as possible. (DIPANKAR DATTA,J.)
A panchkula court, on Thursday, acquitted Anil Kumar and his father Sheesh Pal, a resident of Hongal, Barwala on charges of dowry death under Section 304-B of the Indian Penal Code.
The defence counsel in the case, Anirudh Kush had pleaded that Anil’s wife, Sushma Devi, had committed suicide by hanging herself and the duo had no role in the incident and had never demanded a dowry.
The prosecution had in turn had pleaded that the two accused had demanded lakhs of rupees from Sushma Devi in dowry, which forced her to commit suicide .
After hearing the arguments the Sessions Judge Anita Chaudhary, acquitted the father-son duo of the charges under Section 304-B. The case dates back to May 30, 2009, when Sushma Devi was found dead at her home. On the compliant of Sushma’s family, police had registered a case against Anil and his father under Section 304-B of the Indian Penal Code. The two were later arrested by police and were presently out on a bail.
http://www.indianexpress.com/news/husband-fatherinlaw-acquitted-of-dowry-death/901877
IN THE HIGH COURT OF DELHI AT NEW DELHI
MAT APP. No.20/2011 & CM No. 5645/2011
Judgment delivered on: 02 November, 2011
Satinder Singh ……Petitioner Through: Mr. Hari Shankar, Adv.
Vs.
Bhupinder Kaur ……Respondent Through: Mr.Shailender Dahiya, Adv.
CORAM:
HON’BLE MR. JUSTICE KAILASH GAMBHIR
KAILASH GAMBHIR, J.
*
1. By this appeal filed under Section 28 of the Hindu Marriage Act, 1955 read with section 151 CPC, the Appellant seeks to challenge the Order dated 16.8.2010 passed by the learned trial court whereby a decree of divorce under Section 13(2)(iii) of the Hindu Marriage Act was passed in favour of the respondent.
2. Brief sequence of events that has led to the filing of the present appeal is that the respondent filed a petition for divorce under section 13(2)(iii) of the Hindu Marriage Act and MAT APP.20/2011 Page 1 of 11 the appellant filed an application under Order VII rule 11 for rejection of the plaint which was dismissed vide order dated 13.11.2009. A revision was filed against the said order which was dismissed by this court vide order dated 17.12.2010. Thereafter the petition for divorce was decided and the respondent was granted divorce vide order dated 16.8.2010 and feeling aggrieved by the same, the appellant has preferred the present appeal.
3. Assailing the said judgment and decree, learned counsel representing the appellant submits that the order passed under Section 125 Cr.PC was an interim order and based on the interim order the learned matrimonial court could not have exercised jurisdiction to grant a decree of divorce in terms of section 13(2) (iii) of the Hindu Marriage Act. Counsel also submits that any interim order passed in any proceedings will always remain an interim order which would ultimately be subject to passing of a final order and the final order can always vary and in a given case may be against the party in whose favour an interim order has been passed. Counsel thus submits that jurisdiction under Section 13(2) (iii) of the Hindu Marriage Act may be exercised by the matrimonial court only when a final order was passed under Section 125 Cr.PC and, therefore, the MAT APP.20/2011 Page 2 of 11 expression ‘order’ referred to under section 13(2) (iii) of the Hindu Marriage Act must be read as a final order and not as an interim order. Counsel also submits that the respondent has also misled the matrimonial Court by not disclosing the fact that she got remarried and due to such suppression of a material fact on the part of the respondent she was not entitled to the grant of decree under section 13(2) (iii) of the Hindu Marriage Act. Counsel also submits that the learned matrimonial court has also not appreciated that the earlier divorce petition filed by the respondent under section 13(1) (ia) of the HM Act was dismissed and the said finding being against the respondent and in favour of the appellant, the learned trial court ought not to have passed a decree in favour of the respondent under section 13(2) (iii) of the Hindu Marriage Act. In support of his arguments, counsel for the appellant has placed reliance on the following judgments :-
1.Gita Massant vs. Narain Dass, 27 (1985) DLT 374
2.Snehlata Seth vs. V.Kewal Krishan Seth, 27(1985) DLT 449.
3.Prem Chandra Agarwal vs. U.P. , JT 2009(8) SC 118
4. Amarjeet Singh vs. Devi Ratan, AIR 2010 SC 3676
5. Kalabharati Advertising vs. Hemant Vimalnath, AIR 2010 SC 3745
4. Opposing the present appeal, counsel for the respondent submits that the appeal filed by the appellant is a MAT APP.20/2011 Page 3 of 11 gross abuse of process of law and the appellant has suppressed from this court that he had filed an application under Order VII Rule 11 CPC before the matrimonial Court to seek rejection of the said petition filed by the respondent under section 13(2) (iii) of the HM Act and that the said application of the appellant was dismissed by the trial court. Counsel further submits that against the said order the appellant had also filed a revision petition before this Court which was also dismissed vide order dated 17.12.2010. Counsel thus submits that because of suppression of these vital facts, the appellant is not entitled to the grant of any relief by this Court in the present appeal. Counsel further submits that in the order passed by the Hon’ble High Court in the said revision petition, the finding has already been given by this Court that the interim order passed under section 125 Cr.PC would give jurisdiction to the matrimonial court to pass a decree under section 13(2) (iii) of the HM Act and the said finding not being challenged by the appellant, the same attained finality and in view of this also the appellant now cannot agitate the same grievance again before this Court. Counsel also submits that so far as the remarriage of the respondent is concerned, same has taken place after the passing of the decree of divorce in favour of the respondent.
MAT APP.20/2011 Page 4 of 11
5. I have heard counsel for the parties at considerable length and gone through the records.
6. The Law Commission in its 59th report recommended adding section 13(2)(iii) to the Act wherein it provided an additional ground of divorce to the wife. The intent of introducing the said section was to give the wife the right to seek divorce if she has been neglected or not maintained by her husband after an order of maintenance has been passed in her favour. There was discussion with regard to the said provision being made available to the husband equally but it was concluded that such right would ultimately lead to the husband misusing the provision, who in the bid to get rid of his wife would abandon her and compel the wife to move the court for the grant of maintenance and thereafter himself fully submit to the order of payment of maintenance knowing that he would be entitled to get a decree of divorce after the said period of one year has elapsed. Therefore the said provision was brought on the statute book to enable only the wife to seek a decree of divorce if after passing of the order of maintenance there has been no cohabitation for one year which would mean that the husband has ceased to value the society of the wife and their need for each others company has MAT APP.20/2011 Page 5 of 11 prima facie come to an end. Earlier it was suggested that the period under the section be of three years but later on it was reduced to one year as being appropriate. Thereafter Section 13(2)(iii) of the Hindu Marriage Act in its present form was introduced in the Act through the Marriage Laws (Amendment ) Act, 1976 (Act 68 of 1976). Hence by virtue of the said provision, an additional ground of divorce has been made available to the wife to seek dissolution of her marriage by a decree of divorce on the ground that a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife either in a suit filed by the wife under Section 18 of the Hindu Adoptions and Maintenance Act or in the proceedings under Section 125 of the Code of Criminal Procedure and since the date of passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards. For better appreciation, Section 13(2) (iii) is reproduced as under: “Section 13(2): A wife may also present a petition for dissolution of her marriage by a decree of divorce on the ground,-
(iii) that in suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 , (78 of 1956 .) or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974 .) (or under the corresponding section 488 of the Code of
Criminal Procedure, 1898 ), (5 of 1898 .) a decree or order, as the case may be, has been passed
against the husband awarding maintenance to the MAT APP.20/2011 Page 6 of 11 wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been
resumed for one year or upwards;”
7. It would be evident from a plain reading of the above provision that for a wife to claim divorce under the said provision she is required to satisfy the following conditions: (a) A decree or order has been passed in her favour and against the husband awarding maintenance to her either in a suit filed by her under Section 18 of the Hindu Adoptions and Maintenance Act or in the proceedings under Section 125 of the Code of Criminal Procedure; and
(b) That the wife has been living apart since passing of such a decree or order; and
(c) There has been no resumption of cohabitation between the parties for a period of one year or upwards. Hence, in a petition filed by the wife under the said section if she is able to satisfy the aforesaid three conditions, then she would be entitled to a decree of divorce. In the facts of the case at hand, the contention raised by the counsel for the appellant is that the order which gives a right to the wife to seek divorce under the said section is a final order and not an interim order. The appellant had urged this ground for filing an application MAT APP.20/2011 Page 7 of 11 under order 7 rule 11 for rejection of the petition for divorce filed by the wife on the basis of the interim order dated 2.3.2005 under section 125 CrPC where the court while dismissing the said application vide order dated 13.11.2009 held that the word ‘order’ would include an interim order as well and the appellant herein had then challenged the order before this court in the revision petition which was also dismissed by this court vide order dated 17.12.2010 with the following observations: “As per this Section, wife is entitled to file a petition for dissolution of marriage by a decree of divorce on the basis of proceedings under Section 125 Cr.P.C. wherein a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife. The word “order” appearing in this Section includes the interim order as well as the final order and does not speak only of the final order passed on a petition under Section 125 Cr.P.C. for seeking dissolution of marriage by a decree of divorce under the above provisions of law” Admittedly, the above said order of this court was not challenged by the appellant and thus attained finality laying the controversy to rest to whether the order under the said section would mean an interim order as well and the ground cannot be allowed to be reagitated by the appellant herein.
8. Even otherwise, a bare look at the section13(2)(iii) would manifest the intention of the legislature as two separate expressions have been used in the said Section i.e. ‘decree’ or MAT APP.20/2011 Page 8 of 11 ‘order’, which would necessarily mean either an interim or a final order. The intention of the legislature is to give a right to the wife to invoke the said provision in a case where even an interim order has been passed in either of the said proceedings, which is also clear from the language used in the said section beginning with the words “in a suit under Section 18 of the Hindu Adoption and Maintenance Act, 1956 (78 of 1956), or in a proceeding under Section 125 of the Code of Criminal Procedure , wherein the words ‘in a suit or in a proceeding’ would clearly mean that the order passed during the pendency of the proceedings either under Section 18 or under Section 125 of the Code of Criminal Procedure. There is thus no room to interpret the said provision in a manner suggested by the counsel for the petitioner which otherwise would defeat the very purpose and object of the said section.
9. The essence of the said provision is that there should be no resumption of cohabitation between the parties for a period of one year or upwards from the date of the passing of such an order, so this one year gap has to be reckoned from the date of the passing of an order under Section 125 of the Code of Criminal Procedure or under Section 18 of the Hindu Adoptions MAT APP.20/2011 Page 9 of 11 and Maintenance Act and not necessarily a final order or decree. The section does not talk about the payment or non payment of the maintenance amount but of the non resumption of cohabitation of the parties. Clearly, in the facts of the present case the appellant had admitted that there was no resumption of cohabitation for a period of more than one year after the order dated 02.03.2005 under Section 125 Cr.P.C. was passed by the court of the learned Metropolitan Magistrate.
10. It is quite pertinent to note that section 13(2)(iii) talks about section 18 under the HAMA and section 125 Cr.PC, which are both the provisions for grant of maintenance available to the wife only unlike section 24 or 25 of the HMA wherein any party can approach the court for the grant of maintenance. It is thus manifest that the order of maintenance passed in the favour of the wife in her petition under section 18 HAMA or section 125 Cr.PC would make her available the right to file for divorce under section 13(2)(iii). If the contention of the counsel for the appellant is accepted and the order in the section is meant to be only a final order then the purpose of the said provision would be negated as the wife who seeks a decree of divorce under the said section would have to wait till a final order under section 18 or MAT APP.20/2011 Page 10 of 11 section 125, as the case may be, which would certainly mean insisting on an invariably long waiting period, which is certainly not the object of the said section. The only desideratum is that the parties have ceased to live together for one year or more and to save the wife from vagrancy she has a order or decree of maintenance in her favour. The judgments relied upon the counsel for the appellant would not be applicable to the facts of the case at hand as they sought to carve a different legal proposition altogether.
11. In the light of the above discussion, this court does not find any merit in the present appeal and the same is hereby dismissed.
November 02, 2011 KAILASH GAMBHIR,J MAT APP.20/2011 Page 11 of 11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. Rev. P. 726/2010 & Crl. M.A. 17479/2011 % Reserved on: 8th August, 2011 Decided on: 4th November, 2011
ANITA ….. Petitioner Through: Mr. Ratnesh Bansal, Advocate
versus
RATI RAM CHAUHAN ….. Respondents Through: Mr. Shailender Dahiya, Advocate with Respondent in person.
Coram:
HON’BLE MS. JUSTICE MUKTA GUPTA
1. Whether the Reporters of local papers may Not Necessary be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes in the Digest?
MUKTA GUPTA, J.
1. By this petition the Petitioner seeks quashing of the Judgment dated 10th September, 2010 passed in case number 95/2010 by the learned Additional Principal Judge dismissing the application of the Petitioner seeking maintenance from the Respondent under Section 125 Cr. P. C. Crl. Rev.P. No.726/2010 Page 1 of 8
2. Briefly the facts are that the marriage between the parties was solemnized on 23rd February, 1996. The Petitioner claims that the Respondent and his family members were not satisfied with the dowry articles presented at the time of marriage. They started ill treating her and raised a demand of Rs. 1 Lac and a car. On 17th April, 1996 the Respondent, his father and sister pushed her down from the roof of the matrimonial home resulting in serious injuries to the Complainant. She was then removed by the neighbors to Gupta Nursing Home. The nursing home however did not admit her and referred her instead to Mata Chanan Devi Hospital. On 27th April, 1996 the Petitioner was discharged from Mata Chanan Devi Hospital and since then she has been staying in her parental home. After about 17-20 months, the Petitioner lodged a complaint with the police for the said incident and a case FIR No. 34/98 was registered under Section 498A/307/406/34 IPC. In the said trial the Respondent and his family members were acquitted by the learned Additional Session Judge. The Respondent in May, 1998 filed a petition for dissolution of marriage on the ground of cruelty and the marriage was dissolved by learned District Session Judge vide Judgment and decree dated 26th May, 2007. Vide this Judgment, the Petitioner was granted Rs. 3,000/- per month as alimony. There is however an appeal pending in this court filed by the Petitioner vide Mat. App. 46/2007. The Petitioner Crl. Rev.P. No.726/2010 Page 2 of 8 claims that after her injury, she is unable to move and the Respondent has not made any provision for her medical treatment or maintenance and is refusing to maintain her without any sufficient cause. Hence the present petition.
3. The learned Counsel for Petitioner contends that the learned Additional Principal Judge in the impugned Judgment has placed great reliance on the fact that the Respondent and his family members have been acquitted by the learned Additional Session Judge. According to him this acquittal was not binding on the family court and therefore the maintenance application should have been decided on its own merits de- hors the findings of the learned Additional Sessions Judge in the criminal trial.
4. It is stated that as per Section 125 Cr. P. C if a person with sufficient means neglects or refuses to maintain his wife then he is liable to pay her maintenance. Learned Counsel states that the learned Additional Principal Judge failed to appreciate the fact that during trial the Respondent admitted his liability to maintain the Petitioner but had not shown any intention to take the Petitioner back to the matrimonial home.
Crl. Rev.P. No.726/2010 Page 3 of 8
5. Learned Counsel for Petitioner further states that the Petitioner has appealed against the Judgment dated 26th May, 2007 passed by the learned Additional Session Judge dissolving her marriage which is still pending in this Court. Under these circumstances the alimony of Rs. 3,000/- per month granted to the Petitioner in the divorce proceedings should have been disregarded by the learned Additional Principal Judge while deciding the petition for maintenance.
6. Learned Counsel for Respondent on the other hand contends that the Respondent had never neglected to maintain the Petitioner. On the 17th April 1996, the Petitioner slipped from the stairs when the Petitioner and his father were not at home. The entire medical expenses were borne by the Respondent. The Respondent being a Government employee is entitled to all the facilities of medical treatment under CGHS and had repeatedly asked the Petitioner to get treated at any CGHS hospital. But all she did was demand money in lieu of medical expenses, trying to cause the Respondent wrongful loss. The Petitioner was never meted with cruelty. It is the Petitioner who has deserted the Respondent as she was not interested in maintaining the relations.
7. I have heard learned Counsels for the parties. While adjudicating any issue it is the responsibility of the Judge to consider all the facts and circumstances. Proceedings under Section 125 CrPC are summons trial Crl. Rev.P. No.726/2010 Page 4 of 8 proceedings. The Court is justified on relying upon the findings of the competent Court in a criminal trial for the offences alleged and regarding cruelty by the matrimonial Court. In Inderjit Kaur vs. Union of India (1990) 1 SCC 344 it was held that, that Section 125 CrPC provides a speedy remedy against starvation of the civil liabilities of the parties, the order made thereunder is tentative and is subject to final determination of the rights in civil court. Further in Teja Singh vs. Chhoto 1981Crl. L.J. 1467 (Punjab & Haryana) while dealing with a similar issue it was held that even if an order granting maintenance had been passed in favour of the wife and if thereafter a decision between the parties is rendered by the civil court which has a bearing on the question which came up for consideration earlier before the Court dealing with the petition under Section 125 of the Code of Criminal Procedure, it has to give effect to the civil court order by cancelling the order granting maintenance if such is the import of the judgment of the civil court. In case of Sri Jasholal Agrawala @ Jain vs. Smt. Puspabati Agrawala, 1994 Crl.LJ 185 the High Court of Orissa it was held that it has to be taken as an accepted principle that the finding of the civil court in a matrimonial proceeding is binding on the criminal court and the criminal court is not entitled to question the correctness or validity of the civil court decision. Crl. Rev.P. No.726/2010 Page 5 of 8
8. The learned Additional Principal Judge was therefore justified in relying on the fact that the learned Additional District Judge by Judgment dated 26th May, 2007 had dissolved the marriage of the parties on the ground of cruelty by the Petitioner and had the Respondent actually been harassing or neglecting the Petitioner then he would have never succeeded in the divorce petition. The fact that the Respondent allowed bed ridden Petitioner to go to her parental home so that she could be looked after by her mother was also found to be convincing since the Respondent had no female member in his family.
9. It is relevant to note that the Petitioner in her statement has admitted before doctor in the Hospital that she had slipped from the stairs on the day of incident. The Petitioner has not placed anything on record to show that there was any pressure from the side of Respondent on her to give that statement. Further, the father of the Petitioner in his statement before Court admitted that when he visited his daughter in the Hospital she did not tell him anything. From a perusal of the statements of witnesses, it is clear that the claim of the Petitioner that Respondents failed to maintain her and willfully neglected her is not substantiated.
10. As per the record the Respondent had filed the medical bills of Mata Chanan Devi Hospital as evidence of making payment of the same. The father of the Petitioner in his explanation for the bills being in Crl. Rev.P. No.726/2010 Page 6 of 8 possession of the Respondent had stated that the respondent had stolen the bills from him. But this story is completely contradictory to his other statement wherein he had said that the Respondent never visited the Petitioner in the hospital or thereafter. Thus the Respondent had no occasion to commit the theft of the bills from the Petitioner or her father. Therefore it can be safely held that the Respondent bore the expenses of the Petitioner’s treatment in the hospital and he was not negligent in his responsibilities towards the Petitioner.
11. The Petitioner has not been able to adduce any evidence to support her contention of being neglected by the Respondent. Moreover there is no explanation rendered by the Petitioner as to why she did not inform her neighbour or any other person who allegedly removed her to the nursing home that she was thrown by the Respondent or his father. Further the fact that the Complaint under Sections 498A, 406, 307 & 34 IPC was filed by the Petitioner after about 17-20 months of the incident shows that the same was an after thought. The Respondent on the other hand has adduced evidence to show that he had not neglected to maintain the Petitioner and is even paying Rs. 3,000/- per month regularly as directed by the learned Additional District Judge vide the Judgment dated 26th May, 2007.
Crl. Rev.P. No.726/2010 Page 7 of 8
12. Learned Additional Principal Judge has considered all the relevant issues and scrutinize the matter. I do not find any infirmity in the Judgment dated 10th September, 2010.
The revision petition and the application are accordingly dismissed. (MUKTA GUPTA)
JUDGE
NOVEMBER 04, 2011
vkm
Crl. Rev.P. No.726/2010 Page 8 of 8
Equivalent citations: AIR 1999 SC 536, 1999 CriLJ 466, JT 1998 (9) SC 473
Bench: S Bharucha, F Uddin
Sudeep Chaudhary vs Radha Chaudhary on 31/1/1997
JUDGMENT
S.P. Bharucha, J.
1. Special leave granted.
2. The respondent-wife has been served by substituted service but does not appear.
3. The appellant-husband and the respondent-wife are estranged. The wife filed an application under Section 125 of the Criminal Procedure Code for maintenance which was awarded at the rate of Rs. 350/- p.m. with effect from 3rd July, 1990, and was subsequently enhanced to Rs. 500/- p.m.
4. In proceedings under the Hindu Marriage Act the wife sought alimony. It was granted at the rate of Rs. 600/- p.m. on 11th August, 1987, and the amount, thereof was subsequently enhanced to Rs. 800/- p.m.
5. Since the husband failed to pay the amount of maintenance as aforesaid, the wife started recovery proceedings. The husband contended that the maintenance amounts should be adjusted against the interim alimony and the Magistrate before whom the recovery proceedings were pending upheld the contention. The High Court, in the order which is under appeal, held that the Magistrate was in error in directing adjustment of the maintenance amount awarded under Section 125 of the Cr.P.C. against the amount awarded under Section 24 of the Hindu Marriage Act.
6.We are of the view that the High Court was in error. The amount awarded under Section 125 of the Cr.P.C. for maintenance was adjustable against the amount awarded in the matrimonial proceedings and was not to be given over and above the same. In the absence of the wife, we are, however not inclined to go into any detailed discussion of the law.
7. At the same time, we feel that the claims of the husband and the wife are to be balanced. We, therefore, direct that the husband shall pay to the wife towards maintenance (which now comprehends both the amount awarded under Section 125 of the Cr.P.C. and the amount awarded in the matrimonial proceedings) the sum of Rs. 1,000/- p.m. commencing from 3rd July, 1990. The arrears, if any, shall be paid within 8 weeks.
8. This order will be subject to such orders as may be passed at the stage of final disposal of the matrimonial proceedings.
9. The appeal is disposed of accordingly.
10. No order as to costs.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR NO.4813 OF 2009 (O&M)
DECIDED ON : 25.08.2009
Raman Ahuja @ Banti …Petitioner versus
Vandana …Respondent CORAM : HON’BLE MR. JUSTICE AJAY TEWARI Present : Mr. Karan Vir Nanda, Advocate for the petitioner.
AJAY TEWARI, J. (ORAL)
This petition has been filed against the award of maintenance pendente lite of Rs.3,000/- per month. The only prayer made by the learned counsel for the petitioner is that the petitioner is already paying maintenance under Section 125 Cr.PC and Protection of Women from Domestic Violence Act, 2005 and that the petitioner should not have to pay maintenance on independent accounts. In fact what the learned counsel for the petitioner is praying for is really the law. Learned counsel further relied upon the judgment of Hon’ble Supreme Court titled as Sudeep Chaudhary versus Radha Chaudhary 1999 AIR (SC) 536.
Consequently, this petition is dismissed with the clarification that the amount awarded by the impugned order would be set off against the maintenance being paid by the petitioner to the respondent under other proceedings. August 25, 2009 (AJAY TEWARI) sonia JUDGE
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 5775 of 2008
Date of decision : January 20, 2010
Smt. Sonia
….Petitioner
versus
Om Parkash
….Respondent
Coram: Hon’ble Mr. Justice L.N. Mittal
Present : Mr. GP Singh, Advocate, for the petitioner Mr. JS Saneta, Advocate,
for the respondent
L.N. Mittal, J. (Oral)
Smt. Sonia has filed this revision petition under Article 227 of the
Constitution of India assailing order dated 18.9.2008 (Annexure P/2) passed by
learned Additional District Judge, Kaithal, whereby application moved by the
petitioner herein under section 24 of the Hindu Marriage Act, 1955 (in short,
the Act) claiming maintenance pendente-lite and litigation expenses from the
respondent-husband Om Parkash during pendency of divorce petition filed by
respondent herein against the petitioner under section 13 of the Act, has been
disposed of.
The petitioner herein claimed litigation expenses and maintenance
for herself as well as for the minor son Jonny residing with her. Civil Revision
No. 5775 of 2008 -2- The application was resisted by the respondent-husband
alleging that the petitioner had already received Rs 1,60,000/- as maintenance
for herself as well as for the minor child pursuant to compromise effected
between the parties and thereupon petition under section 13-B of the Act had
been filed but subsequently the petitioner herein withdrew her consent for
divorce by mutual consent and therefore, the said petition under section 13-B
of the Act was dismissed. Learned Additional District Judge vide impugned order
Annexure P/2 rejected the prayer of the petitioner herein for maintenance
pendente-lite on the ground that she had already received Rs 1,60,000/- as per
compromise between the parties but the respondent-husband has been directed to pay Rs 5500/- as litigation expenses to the petitioner-wife. I have heard
learned counsel for the parties and perused the case file.
Learned counsel for the petitioner vehemently contended that the
amount of Rs 1,60,000/- which was payable to the petitioner under the
compromise was given to one Jai Bhagwan alias Dayala to be paid to the
petitioner herein after passing of decree of divorce and since petition under
section 13-B of the Act was dismissed, the said amount was paid by Jai Bhagwan alias Dayal to the respondent-husband and not to the petitioner. Reference has been made to affidavit of Jai Bhagwan alias Dayala filed in the instant revision petition. It was pointed out that the husband while appearing as
witness in petition under section 125 of the Code of Criminal Procedure (in
short, Cr.P.C.) admitted that the amount of Rs 1,60,000/- had been kept with
Jai Bhagwan alias Dayala and was to be paid to the petitioner-wife after grant
of divorce.
Civil Revision No. 5775 of 2008 -3- On the other hand, learned counsel for
the respondent contended that the petitioner-wife furnished affidavit with
petition under section 13-B of the Act admitting to have received amount of Rs
1,60,000/- as per compromise. I need not to go into aforesaid contentions
raised by learned counsel for the parties because in petition under section 125
Cr.P.C. filed by the petitioner-wife and minor son Jonny, they have been
granted Rs 750/- per month each as maintenance payable by the respondent-
husband vide order dated 17.3.2009. The said order has attained finality.
Consequently, the petitioner-wife cannot be granted maintenance pendente-lite in the instant proceedings when she had already been awarded maintenance under section 125 Cr.P.C. The quantum of maintenance has also been assessed on the basis of evidence led by the parties. The petitioner cannot get double maintenance for the same period. Consequently, for this reason the impugned order cannot be set aside. As regards litigation expenses, learned Additional District Judge has already granted Rs 5500/- as litigation expenses to the petitioner- wife.
In view of the aforesaid, there is no merit in the instant revision
petition which is accordingly dismissed.
( L.N. Mittal )
January 20, 2010 Judge ‘tiwana’
Civil Revision No. 2427 of 2009 -1- ***
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No. 2427 of 2009
Date of decision : 23.2.2010
Gian Chand
….Petitioner
Versus
Dilpreet Kaur …Respondent CORAM : HON’BLE MR. JUSTICE S. D. ANAND
Present: Mr. G.P.S.Bal, Advocate for the petitioner S. D. ANAND, J.
It is apparent from the record that respondent-wife is in receipt
of two items of maintenance, one out of which had been awarded in her favour in the course of proceedings under Section 125 Cr.P.C. and the other had been
awarded in her favour in allowance of the proceedings under Section 24 of the
Hindu Marriage Act. The learned counsel, appearing on behalf of the petitioner,
states that the interest of justice would be served and the petitioner would be
content if it is ordered that the amount awarded to the respondent-wife in the
proceedings under Section 125 Cr.P.C. is ordered to be set off against the
amount awarded in her favour (for self and the only child of the parties).
There is none on behalf of the respondent to resist the presentation aforementioned.
There can be no dispute with the proposition that a wife can avail
of maintenance in the course of the proceedings under Section 125 Cr.P.C. or it can have the cake in terms of Section 24 of the Hindu Marriage Act. There also can be no dispute with the proposition that the amount awarded in the course of either of the proceedings in favour of the wife has to be set off against the amount awarded to her in the other proceedings.
There is no law which would entitle the wife to resist the indicated set off in
the matter of maintenance awarded in her favour. In the present case,
maintenance at the rate of Rs.1500/- has been awarded by the criminal Court in
Court in favour of the respondent- wife and the only child of the
parties, however, in the course of the divorce proceedings, the learned Trial
Judge awarded maintenance pendent-lite at the rate of Rs.3,000/- per month to
the respondent-wife. In the light of foregoing discussion, the petition shall
stand disposed of with a direction that the amount awarded to the respondent-
wife for self and only child of the parties shall be set off against the amount
awarded in favour of the respondent-wife in the proceedings under Section 24 of the Hindu Marriage Act..
February 23, 2010 (S. D. ANAND) Pka JUDGE
Bombay High Court
Equivalent citations: 1992 CriLJ 1845
Bench: B Wahane
Ravindra Haribhau Karmarkar vs Mrs. Shaila Ravindra Karmarkar And Another on 17/7/1991
JUDGMENT
1. In the instant application, the substantial question of law, in the public interest, has been raised and enquires decision from this Court. The substantial question of law raised is as under :
“Whether a Judicial Magistrate First Class trying an application under Section 125 of Cr.P.C., is obliged under law, to stay the proceedings, on the ground that a Civil Court of competent jurisdiction as seized the matter in a suit, in which identical pleadings are made, and same reliefs are claimed by one and the same applicant/plaintiff, in whose favour the Magistrate has already awarded interim maintenance ?”
2. The facts giving rise to the above question of law, in nutshell, are as under :
The applicant and the non-applicant are the legally married spouses. Their marriage was solmnised as per the customs and rites of Hindu Religion, some times in the year 1969 at Buldana. Out of the wed-lock, they have two issues viz. first issue is a son – Sagar who is living with the applicant while the second issue a daughter Miss Anjali is living with the non-applicant No. 1 Mrs. Shaila Karmarkar. The couple had been to Canada and U.S.A. where they stayed for 12 to 13 years along with their children. Both returned some time in the year 1984 to India and stayed at Buldana till 1986. During this period, their relations became strained and ultimately on 19/5/86, the non-applicant filed an application u/S. 125 of Cr.P.C. againstthe applicant for maintenance for her and the daughter. Along with the application for maintenance, the wife had also filed an application for interim maintenance @ Rs. 500/- p.m. for both the non-applicants, on the very day. The learned trial Court, after hearing the parties and considering the facts, awarded Rs. 250.0 p.m. to the wife and Rs. 150/- p.m. to the daughter, as interim relief. Since the day of the order, the applicant has paid Rs. 24,000/- to the non-applicants as maintenance allowance and that too in advance. Mr. Vidwanash, the learned counsel for the applicant submitted that the applicant has made the payment in advance till October 1991.
3. On 15th or 16th of October 1986, the non-applicant No. 1 wife filed a regular Civil Suit No. 227/86 or permanent alimony and also for arrears of maintenance. Along with the plaint, an application for the attachment of the property before judgment was also filed. On 28-4-1989, the Joint Civil Judge, Jr. Dn., Buldana passed the following order on the said application :
“Perused the application and say at Exh. 64. The prayer of the applicant is that Order of attachment before Judgment be passed or direct the defendants to furnish solvent surety of Rs. one lakh. By way of Exh. 64, the defendants showed their willingness to furnish surety of one lakh. Hence, the defendants are directed to furnish solvent surety of Rs. one lakh”.
In compliance with the above order, on behalf of the defendants, Shri W. Y. Godbole, resident of Nagpur has furnished the solvent surety before the Joint Civil Judge, Jr. Dn., Buldana. On 20/3/1991, the applicant has filed his written statement in the said Civil Suit,denying the claim of the non-applicants. The case is now posted for filing the documents.
4. The applicant filed an application to stay the proceedings of Misc. Criminal Case No. 114/86 before the Judicial Magistrate, First Class, Buldana, till the decision of the Regular Civil Suit No. 227/86. The application was opposed. After hearing the parties, the learned J.M.F.C., Buldana, rejected the application filed by the applicant for stay of the Misc. Criminal Case No. 114/86 vide his order dated 24-1-1991.
5. Being aggrieved by the order passed by the learned J.M.F.C. Buldana in Misc. Criminal Case No. 114/86 dated 24-1-1991, the applicant approached this Court.
6. Mr. Vidwans, the learned counsel for the applicant submitted that though the non-applicant wife instituted two proceedings, one in the Criminal Court and another in the Civil Court, but the reliefs are one and the same. The relief sought in the application u/s. 125 of Cr.P.C.is to the following effect “to direct the opponent to pay the subsistence allowance of Rs. 500/- p.m. each to both the applicants Nos. 1 and 2″. In the Reg. C.S. No. 227/86, the relief claimed as per prayer clause (i) is that “It is, therefore, prayed that this Hon’ble Court be pleased to decree the claim of the plaintiffs by passing necessary orders of maintenance against the defendant, directing him to pay arrears of Rs. 7000/- to the plaintiffs and further be ordered him to provide maintenance allowance @ Rs. 500/0 p.m. each to plaintiffs i.e. total Rs. 1000/- p.m. from the date of filing of this suit and onwards permanently”. The prayers made in the application u/s. 125 of Cr.P.C. and in the Reg. C.S. No. 227/86 are one and the same.
7. Mr. Vidwans, the learned counsel for the applicant submitted that practically pleadings are identical and verbatim in both the cases. He took me through the pleadings of both cases and demonstrated the practically the paras are identical as much as they are in verbatim. Following paras of the application u/S. 125 of Cr.P.C. are identical to the paras of the plaintiff in Reg. Civil Suit. Therefore, according to Mr. Vidwans, in both the litigations, the fate would be based on the same evidence.
8. The findings given by the Civil Court are binding on the Criminal Court. Therefore, as the matter is seized with the Civil Court i.e. in respect of the maintenance allowance and that too the similar amount which she alleged to be entitled in the application u/s. 125 of Cr.P.C., instead multiplying the litigations and to harass the applicant to lead the evidence in different two courts, in the interest of justice, the application pending in the court of J.M.F.C., Buldana be stayed till the decision in the Reg. C.S. No. 227/86. It is further submitted that any verdict given by the Criminal Court is not binding on the Civil Court but it is vice versa. The reliefs being the one and the same, the evidence will be common, so also the documents, it is the interest of both the parties to get the verdict from the Civil Court.
9. Mr. Vidwans, the learned counsel for the applicant relied upon the case of M/s. Bush India Ltd. v. Lekharaj Pohoomal Kewalramani reported in 1984 Criminal Law Journal 346 (Bombay). Their Lordships observed in para 7 as follows (at page 348) :
“I fail to understand what is the qualitative difference between the two stands. The parties are merely formulating the same propositions in the two proceedings in different words. The distinction made bythe learned Judge is without any difference, as observed by the learned Magistrate and as is also apparent from the record, the dispute in the criminal complaint also revolves on the pivot whether or not respondents are the sole agents of the petitioners for sale and export of the petitioner’s goods to the countries concerned. The learned Addl. Sessions Judge’s interpretation is clearly wrong so far as this aspect is concerned”.
In para 8, Their Lordships observed that : “The other two reasons given by the learned Magistrate and indicated in para 6 supra, are also sound and the learned Addl. Judge has not bothered himself to consider them. The learned Magistrate’s order staying the prosecution was eminently just and the learned Addl. Sessions Judge should not have interfered with it in revision”.
The reliance also been placed on the case of William J. W. Ross v. Eleanor Agnes Ross reported in AIR 1932 Sind 210 (DB) : (1933 (34) Cri LJ 548). In that case before their Lordships, the wife instituted the proceedings u/Ss. 488 and 489 of Cr.P.C. and the husband had already instituted the proceedings for divorce in the Divorce Court. Their Lordships observed that – “I am of opinion that the learned Magistrate would have exercised a better discretion on receiving an application u/s. 488 against a husband who had already instituted proceedings in the divorce Court, if he had referred the applicant for her remedy to the Civil Court. I do not think that it was the intention of the legislature in S. 489 to encourage applicants to resort to criminal Courts up to the very time when an order was passed by a competent Civil Court. As the Civil Court was seized of the matter, it seems to me clear, it is better that the Civil Court should dispose of it, and in the circumstances which have arisen in the present case, I am of opinion that a High Court would stay proceedings in a criminal Court until the conclusion of the divorce petition. We accordingly direct the learned Magistrate to stay the hearing of the application u/s. 488,Cr.P.C., by adjournment from time to time until the conclusion of the divorce petition”.
10. On behalf of the non-applicants, Mr. Khapre, the learned counsel, opposed the application and submitted that the remedies in the criminal Court and Civil Court are altogether different. According to him, the proceedings instituted in the Criminal Court u/s. 125 of Cr.P.C. are the summary proceedings for the immediate relief to the wife and other dependents. In the proceedings u/s 125 Cr.P.C. the Court has jurisdiction to grant maintenance allowance to extent of Rs. 500/0 to each claimant. If this amount is inadequate according to clainming spouse or other claimants, the only remedy available is Civil Suit or petition u/s. 25 of the Hindu Marriage Act, 1955. 11. In a case u/S. 125 of Cr.P.C. the non-applicant Smt. Shaila Karmarkar, entered in the witness box and now the case is posed for her cross-examination. He further submitted that the principles of res judicata are not applicable in the instant case because though the reliefs claimed in both the proceedings are one and the same, the effect is not one. He further submitted that this Court has no power under any statute to stay the proceedings. To substantiate his submissions, he placed reliance on the case of Mohanlal v. Sau. Kamlabai reported in 1985 II DMC 322 (Bom) (Nagpur Bench, S.B.). In the case before his Lordship, the wife instituted the proceedings u/s. 125of Cr.P.C. and also husband filed an application for Judicial Separation and alimony in the Civil Court against the applicant under the provisions of the Hindu Marriage Act. An ex parte order was passedagainst the husband and she was awarded maintenance of Rs. 300/- p.m. The Civil Court granted Rs. 100/- p.m. as permanent alimony to the wife. In that case, the issue was raised to the effect that the principle of res judicate is applicable. His Lordship held that the Section 11 of the C.P.C. as such, is not, in terms, applicable to the proceedings u/s. 125 of Cr.P.C.
12. In the instant case before me, the question of res judicata is not involved. Shri Vidwans, the learned counsel for the applicant also has not raised this issue. Therefore, the observations made in the case supra are not of any assistance to the non-applicants.
13. Reliance also been palaced on the case of In re Taralakshmi Manuprasad reported in AIR 1958 Bom 499 (DB) : (1939 (40) Cri LJ 91). In that case their Lordships observed that :
“The mere existence of a decree of a Civil Court directing a certain sum to be paid for maintenance does not oust the jurisdiction of a Magistrate in a proper case to make an order u/s. 488. Of course the existence of such a decree is relevant when the Magistrate is considering what form of order he should make u/s. 488 and the Magistrate should make it clear in his order that anything paid under the decree of the Civil Court will be taken into account against anything which he may order to be paid”.
In the instant case before me, there is no decree passed by the Civil Court. For the same relief, the non- applicant wife knocked the doors of the Civil Court as well as of Criminal Court. So, the facts of the case which was before their Lordships of the Bombay High Court are altogether different having no relation with the facts and circumstances before me and, therefore, it is also not of any assistance.
14. Reliance has also been placed on the case of A. Joseph Fernando v.Maria Navis reported in (1987) II DMC 342 (Madras, S.B.). It is held that :
“The maintenance proceeding u/s. 125, Cr.P.C. was initiated earlier though the order in the civil suit was passed earlier. In such circumstances it is manifest that a petition u/s. 125 of Cr.P.C. is perfectly maintainable notwithstanding a Civil Court’s order for maintenance. The criminal proceedings can not be quashed”.
In the instant application, the applicant has not prayed for quashing the criminal proceedings i.e. application presented u/s. 125 of Cr.P.C. The only limited prayer is that the matter being seized with the Civil Court, till the disposal of the Reg. C.S. No. 227/86, the proceedings instituted u/s. 125 of Cr.P.C. be stayed. Therefore, the facts of the case decided by the learned Court in the case supra and the facts before me, being altogether different, this case is also not of any assistance to the non-applicants.
15. In a case of Challapalli Sugars Ltd. v. Swadeshi Sugar Supply Pvt. Ltd. (DB), in respect of the same subject matter, there were two suits instituted though the relief was based on different cause of action. The subject-matter in controversy in both the suits being the same, arises out of the same contract and from the same transaction, the later suit was stayed till the decision of the earlier suit.
16. Considering the facts and circumstances and the submissions made by the learned counsel for the parties, the relief in both the cases, being one and the same, and the Civil Court being seized with thematter, in the interest of justice, the proceeding pending in the court of J.M.F.C. Buldana, be stayed till the decision of the Reg. C.S. No. 277/86.
17. The non-applicants could not be allowed to ride two horses at a time (two simultaneous proceedings in two different Courts) and could not be permitted to continue the maintenance proceedings u/s. 125 of Cr.P.C. when they had already chosen the alternative remedy in Reg. C.S. No. 227/86. It is well settled law that the judgment of Civil Court shall prevail over the judgment of Criminal Court. The natural justice demands that parallel proceedings cannot be allowed to continue in different Courts.
18. The Civil Judge, Sr. Dn. Buldana, is directed to expedite the matter. Staying the proceedings pending in the Court of J.M.F.C.,Buldana, will not cause any pre-judice to the non-applicants because they are already receiving the maintenance allowance @ Rs. 250/- p.m. for wife and Rs. 150/- p.m. for the daughter.
19. In these terms the application is allowed. Rule made absolute.
20. Ordered accordingly.
SCR.A/2080/2010 2/2 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION No. 2080 of 2010
=========================================================
HEMLATABEN MAHESHBHAI CHAUHAN – Applicant(s)
Versus
STATE OF GUJARAT & 1 – Respondent(s)
========================================================= Appearance :
MR HEMANT B RAVAL for Applicant(s) : 1, MR KARTIK PANDYA ADDL PUBLIC PROSECUTOR for Respondent(s) : 1, None for Respondent(s) : 2,
=========================================================
CORAM :
HONOURABLE MR.JUSTICE AKIL KURESHI
Date : 21/10/2010
ORAL ORDER
Petitioner is wife of the respondent No.2. She has challenged the order dated 25^th August 2010 passed by the learned Additional Sessions Judge, Ahmedabad allowing the appeal of the respondent No.2. Wife had prayed for interim maintenance before the learned Magistrate in proceedings arising out of the Protection of Women from Domestic Violence Act. Such prayer was granted. Husband challenged the said order dated 19.12.2009. Learned Additional Sessions Judge allowed the said appeal and set aside the order of the learned Magistrate.
Upon hearing the learned advocate for the petitioner and perusing the documents on record, it emerges that the wife had already instituted proceedings for maintenance under Section 125 of Code of Criminal Procedure wherein the competent Court has granted maintenance to the tune of Rs.750/- in favour of son, whereas no maintenance was granted to the wife since it was found that she was serving in a factory earning Rs.2500/- every month, she was able to maintain herself.
When initial order under Section 125 of the Cr.P.C. was already passed by the competent court which has also attended finality by way of interim arrangement, unless and until strong reasons, learned Magistrate could not have granted maintenance to the wife. In the event of change in the circumstances, it is always open to the wife to seek modification of the maintenance order under Section 127 of the Cr.P.C.. Learned Additional Sessions Judge has, therefore, committed no error in passing the impugned order.
Learned Magistrate shall, however, dispose of the pending proceedings under the Domestic Violence Act unmindful of this order since I am concerned only with the interim stage in this matter.
Petition is, therefore, dismissed.
( AKIL KURESHI, J. )
kailash
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: August 25, 2010
Date of Order: 30th August, 2010
Crl.M.C.No. 130/2010 & Crl.M.A.No. 504/2010 % 30.8.2010
Rachna Kathuria … Petitioner Through: Mr. P.Narula, Advocate
Versus
Ramesh Kathuria … Respondent Through:Mr. S.S.Saluja, Advocate
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes. 2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
JUDGMENT
By this petition under Section 482 Cr.P.C. the petitioner has assailed an order dated 22nd October 2009 of learned Additional Sessions Judge passed in appeal whereby the appeal of the petitioner was dismissed.
2. The petitioner filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short the Act) and along with it she filed an application under Section 29 of the Act seeking maintenance. The learned Court of MM observed that petitioner was living separate from her husband since 3rd January, 1996. She had filed a Civil Suit under Hindu Adoption and Maintenance Act and an application under Section 125 Cr.P.C. and she was getting a total maintenance of ` 4000/- per month from the respondent. In case the petitioner felt that maintenance awarded to her was not sufficient, the proper course for her was to approach the concerned Court for modification of the order as already observed by the High Court in a petition filed by her earlier and the application was dismissed. Against this petitioner preferred an appeal. The learned Additional District Judge dismissed the appeal and the petitioner has preferred this petition.
3. It must be understood that the Protection of Women from Domestic Violence Act, 2005 does not create any additional right to claim maintenance on the part of the aggrieved person. It only puts the enforcement of existing right of maintenance available to an aggrieved person on fast track. If a woman living separate from her husband had already filed a suit claiming maintenance and after adjudication maintenance has been determined by a competent court either in Civil Suit or by Court of MM in an application under Section 125 Cr.P.C. she does not have a right to claim additional maintenance under the Act. The Court of MM under the Act has power to grant maintenance and monetary reliefs on an interim basis in a fast track manner only in those cases where woman has not exercised her right of claiming maintenance either under Civil Court or under Section 125 Cr.P.C. If the woman has already moved Court and her right of maintenance has been adjudicated by a competent Civil Court or by a competent Court of MM under Section 125 Cr.P.C., for any enhancement of maintenance already granted, she will have to move the same Court and she cannot approach MM under the Protection of Women from Domestic Violence Act by way of an application of interim or final nature to grant additional maintenance. This petition is not maintainable and is hereby dismissed.
August 30, 2010 SHIV NARAYAN DHINGRA, J. vn
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 22nd September, 2010
Date of Order: September 27, 2010
CRL. R.P. No. 633 of 2010, CRL. M.A. NO. 15451/2010 % 27.09.2010
RENU MITTAL … Petitioner Through: Mr Shiv Charan Garg with Mr.
Imran Kha, Advs.
Versus
ANIL MITTAL & ORS. … Respondents Through: Mr O.P. Saxena, Addl. PP for the State.
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest? JUDGMENT
1. This Revision Petition has been filed by the petitioner against an order dated 20th May, 2010 whereby learned Additional Sessions Judge (ASJ) dismissed an appeal filed by the petitioner against the order of learned Metropolitan Magistrate (MM) partly allowing the application under Protection of Women from Domestic Violence Act, 2006 (‘Domestic Violence Act’ for short) and partly rejecting the application under Domestic Violence Act.
2. The petitioner had married the respondent in the year 2006 and a dispute arose between her and her husband soon after the marriage and in the year 2007 itself the petitioner filed a petition under Section 125 of Code of Criminal Procedure (Cr. P.C.) against the respondent for grant of maintenance. Learned MM awarded a maintenance of ` 6,000/- p.m. The petitioner also filed an FIR u/s 498A/406 IPC against respondent and thereafter filed an application under Section 12 of Domestic Violence Act seeking therein, apart from maintenance, compensation under various heads of ` 1.00 lakh, ` 2.00 lakh, ` 3.00 lakh and ` 5.00 lakh. She had also asked for rights of residence. The learned MM after considering the averments made by both the parties, observed that Section 12(2) of the Domestic Violence Act provides that compensation can be claimed by the parties for the injuries under civil suit as well. The petitioner had made astronomical claims for compensation without specifying grounds for different compensations in her petition. At one place the claim was of ` 1.00 lakh, at another place for ` 2.00 lakh, at third place for ` 3.00 lakh and at fourth place for ` 5.00 lakh. In support of these claims no documents etc. were filed. She also claimed Istridhan and dowry, while she had already preferred a criminal case under Section 498-A/406 of IPC against the respondent and issue of dowry demand or non return of any article was pending before the competent Court and that Court was to decide if any Istridhan/ dowry article was still with the respondent. The Court therefore allowed the application of the petitioner only partly to the extent of re-confirming the maintenance of ` 6,000/- p.m. and as awarded to her by the learned MM under Section 125 of Cr. P.C. dismissing the rest of the claim. Learned ASJ after going through the entire material upheld the order of MM.
3. The revision petitioner has argued that learned ASJ did not fix maintenance after considering the evidence of the parties and fixed the maintenance on the basis of order passed by the Court of MM under Section 125 of Cr. P.C.
4. It must be considered that for granting maintenance, a party can either approach the Court of MM under Domestic Violence Act soon after commission of Domestic Violence or under Section 125 Cr. P.C. claiming maintenance. The Jurisdiction for granting maintenance under Section 125 Cr. P.C. and Domestic Violence Act is parallel jurisdiction and if maintenance has been granted under Section 125 Cr. P.C. after taking into account the entire material placed before the Court and recording evidence, it is not necessary that another MM under Domestic Violence Act should again adjudicate the issue of maintenance. The law does not warrant that two parallel courts should adjudicate same issue separately. If adjudication has already been done by a Court of MM under Section 125 Cr. P.C., re-adjudication of the issue of maintenance cannot be done by a Court of MM under Domestic Violence Act. I, therefore, consider that learned MM was right in allowing maintenance only to the tune of ` 6,000/- p.m.
6. So far as other reliefs are concerned, the learned MM and ASJ had given liberty to the petitioner to approach the Civil Court and prove that she had suffered loss and was entitled for compensation. I find no ground to interfere with this order of learned ASJ as the order is not without jurisdiction. I also find force in the reasoning given by learned ASJ that since the matter regarding dowry articles and Istridhan was pending before another court, it was rightly not gone into by MM as it would not have been appropriate for the Court of MM under Domestic Violence Act to initiate simultaneous adjudication in respect of Istridhan and dowry articles, when another court was seized with the matter.
7. I, therefore, find no force in this petition. The petition is dismissed.
SEPTEMBER 27, 2010 SHIV NARAYAN DHINGRA, J. acm
03.04.09
C.O. No.3925 of 2008
Anutosh Datta
Versus
Manasi Datta @ Sona
Mr. Jiban Ratan Chatterjee
Mr. T. N. Halder .For the petitioner
Mr. Sanat Chowdhury For the O.P.
This application under Article 227 of the Constitution of India is filed by the petitioner/plaintiff challenging the order dated 18th December, 2006 and order dated 30th August, 2008 passed by the learned Additional District and Sessions Judge, Fast Track Court, fifth Court at Alipore, 24-Parganas (South), in Misc. Case No.19 of 2005 arising out of Mat. Suit No.83 of 2004.
It is necessary to mention relevant fact for disposing of the present application. The petitioner/plaintiff filed the above Matrimonial Suit before the learned District Judge at Alipore and subsequently the same was transferred to the learned Additional District and Sessions Judge, Fast Track Court, 5th Court at Alipore. During the pendency of the above matrimonial suit the opposite party/defendant filed an application under Section 24 of the Hindu Marriage Act for alimony Pendentilite vide Misc. Case No.19 of 2005. Learned Additional District Judge passed the order on 18.12.2006 in Misc. Case NO.19 of 2005 as ex parte and directed to pay a sum of Rs.3,500/- per month to the petitioner and further Rs.2000/- per month for the minor daughter of the petitioner towards alimony pendentilite and it is further directed to the husband to pay sum of Rs.4,000/- in lump sum towards cost. The petitioner husband filed another application under Section 151 C.P.C. with a prayer for vacating the said ex parte order dated 18.12.2006. Learned Additional District Judge after hearing of both sides rejected the said application on 30.8.2008.
Being aggrieved and dissatisfied against the order dated 18.12.2006 and 30.8.2008 the petitioner/husband filed the present application for setting aside the orders.
Mr. Jiban Ratan Chatterjee learned advocate appearing on behalf of the petitioner 3 pointed out that the learned Court below was vacant since a long time i.e., from August, 2005 to 12.10.2006. On 23.11.2006 the learned Judge joined in the Court and the said Misc. Case No.19 of 2005 was taken up for hearing but the O.P./husband was absent and as such another date was fixed on 18.12.2006 and on that date the learned Judge after taking the evidence of the petitioner/wife disposed of the case as an ex parte as the O.P. was absent. The present petitioner has filed the application under Section 151 C.P.C. for vacating the said order and on 30.8.2008 the learned Judge rejected the prayer of the petitioner after hearing of both sides. Learned Advocate also pointed out that the opposite party/wife is receiving the amount of maintenance as per order of the learned Magistrate under Section 125 Cr. P. C. but the learned Judge without adjustment the said amount passed the order for maintenance pendentilite till the disposal of the Mat. Suit. That order is bad in law and relevant order dated 18.12.2006 is liable to be set aside. In support of the contention Learned Advocate on behalf of the petitioner has cited a case law reported in AIR 1999 Supreme Court 536 (Sudeep Chaudhary v. Radha Chaudhary). Learned Advocate also pointed out that there was the sufficient ground for allowing the application under Section 151 C.P.C. but the Court did not show any liberal approach for allowing the same and as such learned Court refused the prayer on 30.8.2008. In support of the contention learned Advocate has cited a case law reported in AIR 1987 Supreme Court 1353 (Collector, Land Acquisition Anantnag and another v. Mst. Katiji and others).
Considering the above aspects the present application may be allowed for setting aside the above orders passed by the learned Additional District Judge, Fast Track Court. Learned Advocate on behalf of the O.P. has pointed out that when the order was passed by the learned Court as ex parte, the petitioner/husband might approach to the Court for setting aside the said ex parte order under Order 9 Rule 13 of the C. P. C. and in the present matter the petitioner/husband did not approach before the learned Judge for setting aside the same. As such there is no scope to interfere in the orders dated 18.12.2006 and 30.8.2008. The present application is liable to be dismissed.
In support of the contention learned Advocate cited a case law reported in AIR 1964 Supreme Court 993 (Arjun Singh v. Mohindra Kumar and others.)
Heard both sides.
From the xerox copy of the relevant day to day order sheets of the learned Court below filed on behalf of the petitioner it is clear that the learned Judge, Fast Track, 5th Court at Alipore was vacant. In the relevant order No.39 dated 23.11.2006 it states that learned Judge took up the Misc. Case for hearing but the O.P. was absent on that day and as such the learned Court fixed the date on 18.12.2006 as ex parte and on 18.12.2006 the O.P. did not appear and as such the learned Judge disposed of the Misc. Case No.19 of 2005 as ex parte after taking the evidence of the petitioner/wife and in the said order learned Judge directed to pay a sum of Rs.3,500/- per month to the petitioner and further Rs.2,000/- per month for the minor daughter of the petitioner towards alimony pendentilite. In the said order there is no observation regarding the adjustment of the amount awarded under Section 125 Cr. P. C. towards the amount awarded in the matrimonial proceeding under Section 24 of the Hindu Marriage Act. In the written objection filed on behalf of the opposite party/husband in Misc. Case No.19 of 2005, it is clear in paragraph 10 that the interim maintenance of Rs. 1,200/- per month was allowed. However, in the case Sudeep Chaudhury (supra) the Apex Court observed “the amount awarded under Section 125 of the Cr. P. C. for maintenance was adjustable against the amount awarded in the matrimonial proceeding and was not to be given over and above the same.”
There is gross irregularity in the order dated 18.12.2006 passed by the learned Judge, Fast Track Court for not adjustment of the amount awarded under Section 125 Cr. P. C. It is true that the petitioner/husband filed an application under Section 151 C. P. C. and that was dismissed on contest. The said application was filed with reference to a proceeding not in the suit and as such there is no scope to interfere in the said application as per provision order 9 Rule 13 of the C. P. C. However, the said application was filed in a belated way. The Court should adopt liberal approach to consider the matter. But the learned Judge failed to do the same.
Considering all aspects the orders dated 18.12.2006 and 30.8.2008 passed by the learned Additional District Judge Fast Track 5th Court at Alipore in Misc. Case No.19 of 2005 have some irregularities. Orders dated 18.12.2006 and 30.8.2008 are set aside. Learned Additional District and Sessions Judge, Fast Track, 5th Court at Alipore is requested to dispose of the Misc. Case 19 of 2005 afresh after giving an opportunity for hearing of both sides within two months from the date of receipt of the order.
The application is disposed of accordingly. There is no order as to costs.
C.O. No.3925 is disposed of accordingly. Urgent xerox certified copy of the order be supplied to the party, if applied for. (TAPAS KUMAR GIRI, J.)
Equivalent citations: I (2001) DMC 6
Bench: S Mishra
Sandhya Kumari vs State Of Bihar on 7/2/2000
JUDGMENT
S.N. Mishra, J.
1. In this criminal revision application the petitioner has prayed for setting aisde the order dated 9.8.1999 passed by the learned Magistrate whereby he has rejected the prayer for maintenance in terms of Section 125, Cr.P.C. It appears that petitioner Sandhya Kumari has filed an application for grant of maintenance under Section 125, Cr.P.C. before the learned Chief Judicial Magistrate, Samastipur, which was registered as Misc. Case No. 46 of 1999.
2. Shortly stated that case of the petitioner is that the petitioner was married the opposite party No. 2 Manish Kumar on 21.5.1986 according to Hindu customs and rituals at Samastipur. It is further alleged that father of the petitioner invested a lot of money on the marriage of the petitioner by giving clothes, jewellery, furniture, utensils, refrigerator, colour T.V., car etc. and cash according to his capacity. The opposite party-husband is an architect and is working in private sector. He made a demand of Rs. 4-5 lacs for starting business but the petitioner’s parents showed their inability to fulfil his demand, as a result the petitioner is being tortured and harassed for non-fulfilment of demand. Ultimately, it is alleged that the in-laws have finally turned out the petitioner of her matrimonial house. In spite of the several attempts made from the side of the petitioner’s family in order to restore the conjugal life of the petitioner and the opposite party all went in vain. It is further alleged that since the opposite party was interested for re-marriage he filed a matrimonial suit for divorce. It is alleged that the petitioner is unemployed and totally dependent on her parents since 1991 whereas the opposite party is quantified Engineer having substantial immovable property, out of which he is getting Rs. 25,000-30,000/- as per month income. The opposite party in order to get remarried, has filed a petition for divorce on 31.1.1994 which was registered as Matrimonial Case No. 2 of 1994 before the learned 2nd Additional District Judge, Sitamarhi. Ultimately, the learned Judge by his judgment and decree dated 23.8.1996 decreed the suit and directed to pay a sum of Rs. 2,500/- per month by way of monthly allowance to the petitioner. Against the said direction, the opposite party has filed an appeal before this Court being F.A. No. 478 of 1996. Similarly, the petitioner has also challenged the judgment and decree of the Court below and, accordingly, filed an appeal before this Court being F. A. No. 429 of 1996. Both these First Appeals are pending before this Court for disposal. During the pendency of the matrimonial suit, the learned Judge directed the opposite party to pay maintenance pendente lite and cost of litigation to the petitioner in terms of Section 24 of the Hindu Marriage Act retrospectively w.e.f. March 1994, by his order dated 97.1996. Against the order directing to pay the maintenance, the opposite party has challenged the order by filing Civil Revision No. 1292 of 1996 and by order dated 21.1.1996 the said order of ad interim maintenance was set aside. It is alleged that since the petitioner is not getting a single farthing from the opposite party in terms of the judgment and decree passed by the Court below, she has filed application for maintenance under Section 125, Cr.P.C for grant of maintenance as she has no source of income and totally depends upon her parents. The learned Magistrate has refused to grant maintenance mainly on two grounds; firstly, that because of the decree of divorce passed by the Civil Court she cannot be said to be the wife for grant of maintenance under Section 125, Cr.P.C. and, secondly, having regard to the fact that she has really been granted maintenance under the provisions of the Hindu Marriage Act, she cannot claim the maintenance under the provisions of the Code of Criminal Procedure.
3. The reasons assigned by the learned Magistrate cannot be accepted for the simple reason that the divorced wife is equally entitled to maintenance in terms of Section 125, Cr.P.C. The Explanation appended to Section 125, Cr.P.C. where from it appears that “wife” includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. The said Explanation appended to Section 125, Cr.P.C. reads thus :
“(a) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875), is deemed not to have attained his majority;
(b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried……”
Admitted position is that the petitioner has not remarried as yet.
4. The second reason assigned by the teamed Magistrates also seems to be misconceived one in view of the fact that the scope of Section 125, Cr.P.C. as well as Section 24 of the Hindu Marriage Act stand on different footing. It is true that the maintenance granted under the Hindu Marriage Act can be adjusted out of the amount granted under Section 125, Cr.P.C. I am supported by a decision in the case of Sudeep Chaudhary v. Radha Chaudhary, reported in AIR 1999 SC 536, wherein it has been held that when the wife is granted interim alimony both under Section 24 of the Hindu Marriage Act and under Section 125, Cr.P.C., in that event, the maintenance amount granted under Section 125, Cr.P.C. is to be adjusted against the amount awarded in matrimonial proceeding. Admittedly, not a single farthing has been paid to the petitioner as yet in terms of the decree passed by the Civil Court. In that view of the matter, the petitioner, being a wife though divorced one, is still entitled to the maintenance in terms of Section 125, Cr.P.C. However, the amount of maintenance allowed under the provisions of Hindu Marriage Act is subject to adjustment of the amount granted in terms of Section 125, Cr.P.C.
5. After having heard the learned Counsel for the parties and going through the materials on record, the order dated 9.8.1999 passed by the learned Magistrate is hereby, set aside. This application is, accordingly allowed
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8535 OF 2011
(Arising out of SLP(C) No.18439/2007) DEVENDRA KUMAR SHARMA Appellant(s) :VERSUS:
BHAVNA SHARMA Respondent(s) O R D E R
1. Leave granted.
2. We have heard the learned counsel for the parties.
3. During the pendency of this appeal, the parties have amicably settled the matter. Mr. Sushil Kumar Jain, learned counsel for the appellant has handed over four bank drafts amounting to Rs.16 lakhs, to the learned counsel for the respondent. This amount is paid in full and final settlement of the entire claim of the respondent Bhavna Sharma and her children.
4. Learned counsel for the respondent submits that he has clear instructions from the respondent Bhavna Sharma that in case Rs. 16 lakhs is paid to her, she would not pursue the criminal case filed by her against the appellant.
-2-
5. Consequently, we quash the following criminal cases filed by respondent Bhavna Sharma: (i) Case No.656/07, Protection under Domestic Violence at Court No.11 A.C.G.M., Jaipur; and (ii) Case No.353/Date 28.5.09 in Assistant Collector & Magistrate at Collectorate, Jaipur.
6. Learned counsel for the parties pray that in view of the aforesaid settlement, the parties may be granted decree of divorce by mutual consent.
7. In the peculiar facts and circumstances of this case and in the interest of justice, we deem it appropriate to grant a decree of divorce by mutual consent of the parties. All the disputes between the parties stand resolved and no action would be taken by the parties against each other.
8. This appeal is accordingly disposed of. …………………J
(DALVEER BHANDARI)
…………………J
(DEEPAK VERMA)
New Delhi;
October 10, 2011.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRL.) NO.5213 Of 2010
Deepti Bhandari … Petitioner Vs.
Nitin Bhandari & Anr. … Respondents WITH
TRANSFER PETITION (C) NO.856-857 OF 2010
O R D E R
ALTAMAS KABIR, J.
1. The Petitioner and the Respondent No.1 were married to each other according to Hindu rites at Jaipur in the State of Rajasthan on 20th February, 2007. A girl child, Mannat, 2
was born prematurely to the couple on 3rd April, 2008, and had to be kept in incubator for about three weeks. It is the Petitioner’s grievance that while they were on their honeymoon in Mauritius, the Respondent No.1, husband, began to treat her with physical and mental cruelty. Even during her pregnancy, she was ill-treated. Ultimately, being unable to withstand the physical and mental cruelty inflicted both on the Petitioner and her minor daughter, the Petitioner was compelled to leave the matrimonial home and return to her parents on 7th October, 2008.
2. On 6th December, 2008, the Respondent No.1, husband, filed an application under Section 9 of the Hindu Marriage Act, 1955 (Case No.609 of 2008) against the Petitioner, for restitution of conjugal rights. Unable to bear the shock of the incidents, which had taken place since the Petitioner’s marriage with the Respondent No.1, the Petitioner’s grandparents suffered heart and paralytic attacks, as a result of which they have become completely bed-ridden. According to the Petitioner, on account of the cruelty meted 3
out to her and the child, the Petitioner filed FIR No.7 of 2009 complaining of offences alleged to have been committed by the Respondent No.1 punishable under Sections 498-A and 406 IPC.
3. It is the Petitioner’s further case that in order to settle the matter peacefully, the Petitioner entered into a compromise with the Respondent No.1 on 25th February, 2009, so that she could start her life all over again and to acquire financial independence to provide for herself and for providing proper care to the child on her own. Pursuant to the terms of the compromise, the Petitioner withdrew her complaint under Sections 498-A and 406 IPC, but the Respondent No.1 failed to appear before the Family Court No.2 at Jaipur on 2nd December, 2010, to present a Petition for mutual divorce, as had been agreed upon in the compromise.
4. At this stage, it may be mentioned that on 5th May, 2009, the Petitioner filed a complaint against the Respondent No.1 and his family members under the provisions of the 4
Protection of Women from Domestic Violence Act, 2005, hereinafter referred to as `PWD Act’) before the Upper Civil Judge (A,B) and Judicial Magistrate Serial No.18 Jaipur City, Jaipur, being Criminal Legal Case No.13 of 2009. Soon, thereafter, on 1st June, 2009, charge-sheet was filed against the Respondent No.1 and his family members in FIR No.7 of 2009 which had been filed by the Petitioner under Sections 498-A and 406 IPC. The next day, on 2nd June, 2009, the Respondent No.1, husband, moved an application under Section 21 of the above Act for visitation rights, which was dismissed by the learned Judge, Family Court.
5. The Respondent No.1 filed Criminal Appeal No.455 of 2009 on 25th August, 2009 against the aforesaid order dated 2nd June, 2009, before the Court of Upper District Judge (Fast Track) No.9, Jaipur City, Jaipur, which dismissed the same.
6. On 18th September, 2009, the Respondent No.1 filed a Petition under Section 482 Cr.P.C. (S.B. Criminal Misc. Petition No.1977 of 2009) for quashing of the charge-sheet 5
in FIR No.7 of 2009 and further proceedings before the learned Judicial Magistrate-I, No.15, Jaipur City, Jaipur, were stayed therein. On 7th October, 2009, the Respondent No.1 filed another Petition under Section 482 Cr.P.C. (S.B. Criminal Misc. Petition No.2139 of 2009) for quashing of Criminal Legal Case No.13 of 2009 filed by the Petitioner under Section 12 of the PWD Act, 2005. The High Court also stayed the said proceedings pending before the Upper Civil Judge (A,B) and Judicial Magistrate, Serial No.18, Jaipur City, Jaipur.
7. On 22nd January, 2010, when both the matters came up before the High Court for consideration, the High Court directed the Petitioner and the Respondent No.1 to settle their disputes and to apply for divorce by mutual consent within 15 days. The order was passed in the presence of both the parties. While giving the aforesaid directions, the High Court also passed orders allowing visitation rights to the Respondent No.1, husband, in respect of the minor child.
6
8. On 17th February, 2010, the Respondent No.1 filed S.B. Criminal Revision Petition No.1 of 2010 before the Jaipur Bench of the Rajasthan High Court against the order dated 25th August, 2009 passed in Criminal Appeal No.455 of 2009 dismissing his application for visitation rights. The Respondent NO.1 also filed Application No.3051 of 2010 in S.B. Criminal Misc. Petition No.1977 of 2009 praying for similar visitation rights. On 8th April, 2010, the said application for visitation rights was allowed and the Petitioner was directed to arrange for the meeting of the Respondent No.1 with the Petitioner and their minor daughter at the office of the learned counsel for the Respondent No.1 on every Saturday between 11.00 a.m. and 1.00 p.m.
9. This is the genesis of the problem which is the subject matter of the present Special Leave Petition.
10. According to the Petitioner, on 14th April, 2010, the Petitioner’s brother got admission with I.I.P.M. in Delhi, which required him to shift to Delhi for his higher 7
education and the Petitioner also decided to come to Delhi to establish herself professionally to be able to maintain herself and her minor daughter. According to the Petitioner, since then she has been residing in Delhi and the order directing visitation rights to the Respondent No.1 to meet the minor child at Jaipur in the office of the learned counsel for the Respondent No.1 became extremely difficult for her. The Petitioner thereupon moved an application in the High Court on 30th April, 2010, for modification of the order of 8th April, 2010, and instead of Jaipur, to shift the place of visitation to Delhi. The said application was disallowed by the High Court on 5th May, 2010, resulting in the filing of the Special Leave Petition on 17th June, 2010.
11. During the pendency of these proceedings, the Petitioner also filed Transfer Petition (Civil) Nos.856-857 of 2010 for transfer of Case No.279 of 2009, which had been filed by the Respondent No.1 under Section 9 of the Hindu Marriage Act and Case No.65 of 2009 also filed by him under Section 25 of 8
the Guardians and Wards Act, 1890, from the Family Court at Jaipur to a Family Court of competent jurisdiction in Delhi. One of the grounds taken in the Transfer Petitions is that in the interest of the child, this Court had directed the Respondent No.1 to visit the child on the 2nd and 4th Saturday of each month at an address in New Delhi and the Petitioner was directed to take the child on the 1st and 3rd Saturday of each month to an address in Jaipur to enable the Respondent No.1 to meet his minor daughter. It was also submitted that the Petitioner had received threats that the case should be pursued in Jaipur instead of Delhi and that fearing for her safety and that of the minor child, she had prayed that the proceedings referred to hereinabove pending before the Court at Jaipur be transferred to a Family Court, having competent jurisdiction, to hear and try the matter in Delhi.
12. As will be seen from the narration of facts which intervened between the Petitioner and the Respondent No.1 during their brief matrimonial obligations towards each 9
other, the child has now become the source of acrimony between them.
13. Although, it was repeatedly urged on behalf of the Respondent No.1 that the Petitioner was still residing in Jaipur and not in Delhi and that the Transfer Petitions had been filed only to cause harassment to him and the other members of his family, such suggestions were strongly denied on behalf of the Petitioner. It was submitted on her behalf that on account of her minor child and the threats extended to her, it would prove extremely difficult for her to defend the case instituted against her by the Respondent No.1 or to conduct the cases which she had filed against the Respondent No.1 and his family members in FIR No.7 of 2009, in which charge-sheet had been filed, in Jaipur. In any event, considering the difficulties on either side in attending to the several cases pending between them and in order to balance the same, we are inclined to accept the submissions made on behalf of the Petitioner and to modify the order dated 8th April, 2010, whereby the Petitioner was directed to 10
arrange for the meeting of the Respondent No.1 with herself and their minor daughter in the office of the learned counsel for the Respondent No.1 on every Saturday between 11.00 a.m. and 1.00 p.m. and also the subsequent order dated 5th May, 2010, passed by the High Court rejecting her prayer to move the place of visitation from Jaipur to Delhi.
14. It is true that transfer of the several cases to Delhi is likely to cause some inconvenience to the Respondent No.1 and his family members, but it cannot be denied that it would be easier for the Respondent No.1 to attend to the proceedings in Delhi than for the Petitioner to attend to the same in Jaipur, while staying in Delhi with her minor child. We, therefore, see no substance in the persistent demand of the Respondent No.1 that he should be allowed to meet the Petitioner and their minor child at Jaipur to enable him and his family members to meet the child on a regular basis. In our view, it is the Respondent No.1 who should make an effort to meet his minor child in Delhi as and when he wishes to do so. The Petitioner can have no 11
objection whatsoever to such an arrangement and must also ensure that the child is able to meet her father in terms of the order of this Court on all weekends in New Delhi instead of the second and fourth Saturday of each month.
15. As far as the difficulty expressed on behalf of the parents of the Respondent No.1 is concerned, they will be free to apply to the Trial Court for exemption from personal appearance on the dates of the different cases and if such applications are made, the same should be considered by the Trial Court looking to the physical difficulties that may be faced by the parents of the Respondent No.1, who are both considerably aged. The visitation rights granted to the Respondent No.1 will have equal application to his parents and they too will be at liberty to visit the minor child in Delhi, as and when they wish to do so, along with the Respondent No.1.
16. The application for modification of the order dated 8th April, 2010, filed by the Petitioner before the High Court on 30th April, 2010, which was dismissed by the High 12
Court, is, accordingly allowed along with the Transfer Petitions filed by the Petitioner. The order of 8th April, 2010, is modified to the extent indicated above, whereby the Respondent No.1 and his parents will be entitled to meet the minor child, Mannat, on every Saturday in New Delhi, between 10.00 a.m. and 6.00 p.m. In the event, the child is willing, the Respondent No.1 may also take her out for the day and return her to the custody of the Petitioner within 6.00 p.m. This arrangement will continue, until further orders.
17. In addition, Transfer Petition (Civil) Nos.856-857 of 2010 filed by the Petitioner are allowed. Let Case No.279 of 2009, which had been filed by the Respondent No.1 under Section 9 of the Hindu Marriage Act and Case No.65 of 2009, also filed by him under Section 25 of the Guardians and Wards Act, 1890, be transferred from the Family Court at Jaipur to a Family Court of competent jurisdiction in Delhi. The transferor Court is directed to send the records of the aforesaid cases to the transferee Court, so that the matter 13
may be heard and disposed of by the transferee Court with the utmost expedition.
18. In view of the facts involved, the parties will each bear their own costs in these proceedings.
……………………………………………………J. (ALTAMAS KABIR)
……………………………………………………J. (SURINDER SINGH NIJJAR)
……………………………………………………J. (J. CHELAMESWAR)
New Delhi
Dated: 14.12.2011
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2232 OF 2011
(ARISING OUT OF SLP (CRIMINAL) NO.648 OF 2010) W.KALYANI ….APPELLANT VERSUS
STATE TR.INSPECTOR OF POLICE & ANR. …RESPONDENTS WITH
SPECIAL LEAVE PETITION (CRIMINAL) NO.3856 OF 2010 AND
SPECIAL LEAVE PETITION (CRIMINAL) NO.2450 OF 2010 J U D G M E N T
Aftab Alam, J.
1. Delay condoned in special leave petition (criminal) No.3856 of 2010.
2. The Andhra Pradesh High Court by its judgment and order dated November 2, 2009 quashed the proceedings arising from a criminal complaint in respect of accused nos. 5, 6 and 9 but declined to interfere in favour of 2
accused No.8 in the complaint. These three Special Leave Petitions arise from the same judgment. SLP (Crl.) Nos.2450/2010 and 3856/2010 are filed by the complainant who is aggrieved by the order insofar as it quashed the proceedings against accused Nos. 5, 6 and 9 and SLP (Crl.) No.648 of 2010 is filed by accused no. 8 whose petition for quashing was dismissed by the High Court.
3. On hearing counsel for the parties and on going through the materials on record, we find no merit in SLP (Crl.) Nos.2450 of 2010 and 3856 of 2010. These two special leave petitions are dismissed.
4. Leave granted in SLP (Crl.) No.648 of 2010 filed by accused No.8 in the complaint.
5. Gummadi Sailaja filed a complaint against nine accused under Sections 498-A, 386, 341 read with Section 34 of the Indian Penal Code. Accused no. 1 is her husband and accused no.2, her mother-in-law. Accused No.3 is the younger brother of her husband and 3
accused No.9 is his wife. Accused No.4 is the maternal uncle of the husband of the complainant. Accused No.6 and accused No.5 are husband and wife and they along with accused No.7 are said to be close friends of the complainant’s husband who actively participated in her marriage with her husband. Accused No.8, the appellant, is described in the complainant as the girl friend of the complainant’s husband with whom he had illicit sexual relations.
6. It is stated in the complaint that the complainant came in contact with accused No.1 through a matrimonial site on the internet. At that time accused No.1 was a software engineer working in the US and she had herself done M. Phil. They agreed to marry and accused No.1 promised that he would not ask for any dowry. However, when his mother, accused No.2, came to know of the proposal she demanded a sum of Rs.10,00,000/- (Rupees Ten Lacs only)and 50 sovereigns of jewellery as dowry. The complainant and her people did not wish to miss her match with accused No.1 and she also believed that 4
accused No.1 was not aware of the demand made by his mother. She, therefore, agreed to meet the demand of accused No.2 and their marriage took place in the night of February 3-4, 2007. After marriage they stayed together in his house at Visakhapatnam. After a few days she was taken to Tirupati for `darasanam’ of Lord Venkateswara. Accused No.8 also accompanied them and it is further alleged that her husband and accused No.8 moved together very freely as if they were spouses. The specific allegations against accused No.8 in the words of the complainant are as follows:
"Along with them one Kalyani also followed to Tirupathi with whom the A1 moved very freely as if she were his wife. Kalyani said to be the girl friend of A1, moved with A1 very freely as if they were wife and husband and used to sleep in one cot keeping the complainant outside the room."
The complaint goes on that her husband, accused No.1, took her to Florida, USA where she was subjected to great harassment and cruelty. In January 2008 he lost his job in the US and came back to Hyderabad. Here again there is a long narrative of the cruelty meted 5
out to the complainant in connection with the demand for further dowry and to get her consent for divorce under duress and coercion and physical assault. What is however, significant to note is that in the latter part of the complaint there is no mention of accused No.8 and she seems to figure only during the visit to Tirupathi.
7. The police after investigation submitted charge- sheet against all the accused. In the police charge sheet the different accused are charged differently. So far as the appellant is concerned, she is charged under Sections 341 and 497 of the Penal Code. Section 497 deals with the offence of adultery and provides as follows:
"Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor."
6
The provision is currently under criticism from certain quarters for showing a strong gender bias for it makes the position of a married woman almost as a property of her husband. But in terms of the law as it stands, it is evident from a plain reading of the Section that only a man can be proceeded against and punished for the offence of adultery. Indeed, the Section provides expressly that the wife cannot be punished even as an abettor. Thus, the mere fact that the appellant is a woman makes her completely immune to the charge of adultery and she cannot be proceeded against for that offence.
8. As regards Section 341 of the Penal Code, on the basis of the allegation made in the complaint, we fail to see how the charge of wrongful restraint can be made out against the appellant.
9. All the allegations in the complaint taken on their face value do not make out any case against the 7
accused. We are, therefore, satisfied that the proceedings against the appellant are equally fit to be quashed and the High Court was in error in not allowing the quashing application filed by the appellant. We, accordingly, set aside the order of the High Court and quash the proceedings of CC No.482 of 2008 on the file of the First Additional Judicial First Class Magistrate, Amalapuram, East Godavari District, arising out of Crime No.80 of 2008 of Ainavilli Police Station insofar as the appellant, accused No.8 is concerned.
10. In the result, the appeal is allowed. …………………………………………………………J. (Aftab Alam)
……………………………………………………………J. (R.M. Lodha)
New Delhi,
December 1, 2011.
http://indiankanoon.org/doc/807077/
JUDGMENT
D.H. Waghela, J.
1. Being aggrieved by the rejection of their application by order dated 15-2-2005 of the learned Additional Sessions Judge, Mehsana in Sessions Cases Nos. 77 and 78 of 2004, the petitioners, original witnesses and aggrieved parties, have approached this Court with a prayer to set aside that order and direct further investigation.
2. The factual backdrop about which there is no controversy is that, on 28-2-2002, communal riots had spread to village Umta of Taluka Visnagar where the mob of about 1500 to 2000 persons had indulged in rioting and arson and the police was required to open fire. People belonging to one community had to flee or had to be rescued even as their homes and valuable goods worth lakhs of rupees were burnt, destroyed or damaged and two members of that community were alleged to have been killed. Pursuant to the complaint being C.R. No. 1-61 of 2002 dated 1-3-2002 registered at the instance of Assistant Sub-Inspector in Visnagar Police Station, investigation was carried out and charge-sheets were submitted in the Court, resulting into Sessions Case Nos. 77 and 78 of 2004 wherein 37 and 76 persons were accused of different offences including the offence under Sections 147, 148 read with Section 149, Sections 307, 302, 436, 427 and 337 read with Section 147, Section 201 read with Section 149 and Section 295 of Indian Penal Code, 1860 and both the cases were being tried together. After examination of no less than 36 witnesses, the petitioners herein submitted the application Exh. 74, making the grievance, inter alia, that the offences were not properly investigated, that several persons who were not living at the relevant time were shown as witnesses, that the dead bodies or the remains thereof were not discovered or recovered by the investigating agency and that the household goods and articles which were alleged to have been looted or damaged were not recovered, and hence, further investigation was required to be ordered. That application Exh. 74 was heard and decided on the same day by the handwritten order which is not fully legible and of which the typewritten copy annexed to the application is admittedly incorrect. However, as far as that impugned order could be deciphered, it appears that the learned Sessions Judge doubted the locus standi of the applicants and avoided detailed discussion of the evidence under the apprehension of affecting the plea or defence of any of the parties; but recorded the finding that there were lapses in the police investigation. The impugned order was concluded with the remarks that, since new construction had come up at the place and premises where the alleged offences were committed, there was no chance of collecting or tracing out any further material. The impugned order and reproduction thereof leaves a lot to be desired.
3. Challenging the aforesaid order, the petitioners have submitted in their petition that one Sipai Motekhan Misri Khan and Sipai Babbalkhan Dosabhai whose statements were recorded by police on 4-4-2002 were expired long back on 18-1-1989 and 23-11-1993 respectively and Sipai Adalkan Bastikhan, Shaikh Valimohmad Sultanbhai and Ismalbhai Kasambhai were also not surviving when their statements were supposed to have been recorded. It is averred that the investigating agency had not tried to recover remains of the deceased victims and no weapons were recovered from the accused persons. Similarly, the material looted by the accused persons on 28-2-2002 were also not recovered as muddamal articles and no police remand was sought by the investigating agency for that purpose. It was, on that basis, submitted that the application Exh. 74 was required to be allowed and further investigation was required to be carried out by an independent and competent officer.
4. Learned Counsel Mr. M.I.A. Shaikh, appearing for the petitioners relied upon judgment of this Court (Coram : M.B. Shah, J., as His Lordship then was) in Surendrabhai Babubhai Patel v. State of Gujarat 1985 GLH 299 : 1986 (1) GLR 313 wherein, after relying upon judgments of the Supreme Court in State of Bihar v. J.A.C. Saldenna and in Tula Ram v. Kishore Singh ,
it was held that there was no reason why the Court should not have the power to direct the authority to make further report under Section 173(8) of the Code of Criminal Procedure. He also relied upon the judgment dated 12-10-2004 of this Court (Coram : C.K. Buch, J.) in Shaikh Madinabibi Mustafabhai v. State of Gujarat in Criminal Revision Application No. 94 of 2004 (), in support
of the submission that the application of the petitioners could not have been dismissed on the plea of locus standi and the present revision application, upon the applicants being aggrieved by the impugned order, was also maintainable.
5. Learned Counsel relied upon recent judgment of the Supreme Court in Hasanbhai Valibhai Qureshi v. State of Gujarat and Ors. wherein the learned Sessions Judge had already framed charge and the trial Court was held to be free to add to or alter the charge, if the exigencies of the case so warranted. On the issue of further investigation, it was observed that the hands of the investigating agency or the Court should not be tied down on the ground that further investigation may delay the trial, as the ultimate object was to arrive at the truth. It is clearly held in Para 12 of the judgment that it is open to the police to conduct proper investigation even after the Court took cognizance of any offence on the strength of a police report earlier submitted, and it is further held that, if there were necessity for further investigation, the same can certainly be done as prescribed by law and the likelihood of delay in conclusion of the trial should not stand in the way of further investigation, if that would have helped the Court in arriving at the truth and do real and substantial as well as effective justice.
6. Learned Counsel for some of the accused persons, Mr. Vijay H. Patel, vehemently argued that the application for further investigation was made with the ulterior motive of delaying the trial while more than 100 accused persons were facing the trial since several years and about 38 witnesses were already examined. He submitted that even as the statements and reports of investigation dated 14-9-2002 and 27-10-2003 were submitted in the Court and the petitioners were represented by their own Advocates, no grievance was made for three years about incorrect statements having been recorded by the investigating agency. He further submitted that the accused persons were likely to suffer prejudice and harassment, even as they were on bail, if investigation were reopened and the trial were to be delayed. He relied upon recent judgment of this Court (Coram : J.R. Vora, J.) in Miteshkumar Rameshbhai Patal v. State of Gujarat and Anr. and
cited the legal proposition laid down therein that no Court can direct further investigation under Section 173(8) of the Criminal Procedure Code after taking cognizance upon police report.
7. Learned A.P.P. appearing for the State submitted that the alleged offences were properly investigated and the Investigating Officer had taken all the necessary steps for collecting the material and evidence after which two reports of investigation as aforesaid were submitted to the Court in September, 2002 and October, 2003. Pursuant to the earlier order dated 25-7-2005 herein, the statements of the petitioners recorded by the police during the investigation along with few panchnamas and applications made to the Court as well as some reports of Forensic Science Laboratory were submitted for perusal and in support of the argument that the investigating agency had pursued the matter as far as it could in the prevailing circumstances. It was pointed out that a bone found during investigation was sent for F.S.L. report, but it was found not to be a bone of any human body; and blood samples collected from another spot where another victim was stated to have been assaulted with deadly weapons, was on analysis found to be human blood but no further evidence of killing of any person could be found. He however, fairly conceded that, if the Court were to find serious lapses in the investigation and/or further investigation, the State shall abide by the order and submit a report of further investigation as expeditiously as practicable.
8. It was seen from bare reading of the impugned order that the application of the petitioners was rejected by a perfunctory reference to the averments, without appreciating the serious grievance and mainly on the ground that new construction had come up at the places of alleged incidents. It was seen from the few papers of investigation produced and perused before this Court by learned A.P.P. that lack of serious investigation for tracing out the dead bodies or remains thereof, of the persons alleged to have been killed, as also the lack of attempt at tracing out valuable goods alleged to have been looted from the houses of victims of the offences was apparent and investigation of death of one of the victims had stopped at collecting the samples of blood and getting analysis report thereof. Learned A.P.P. had submitted in defence of the investigating agency that some of the persons named by the victims were nabbed, arrested and taken into police custody for one day for the purpose of investigation. However, the applications for remand for a further period of number of suspected accused persons were summarily rejected by the Court, and therefore, the investigation was admittedly handicapped, particularly during the period when the police force was under pressure to control the riots and restore law and order.
9. In view of the above facts and submissions, it clearly emerges from the record that there were several serious lapses and lacunae in the investigation carried out before submission of the charge-sheet and even without an application in or order of any Court, further investigation was required to be carried on, in exercise of powers entrusted to the investigating agency under the provisions of Sub-section (8) of Section 173 of the Criminal Procedure Code, 1973 (for short, “the Code”). As observed by Supreme Court in Hasanbhai Valibhai Qureshi 2004 AIR SCW 2063 the ultimate object of investigation and trial is to arrive at the truth and the prospect of delay in conclusion of the trial must not come in the way of unearthing the necessary evidence and the truth as far as it is possible and admissible. The judgment of this Court in Miteshkumar Rameshbhai Patel heavily relies upon earlier judgment of the Supreme
Court in Randhir Singh Rana v. State (Delhi Administration) as wherein it was observed that a Magistrate, after taking cognizance of an offence on the basis of police report and after appearance of the accused, cannot of his own, order further investigation in the case. In the facts of that case, the trial had reached to the stage of recording of deposition of 85 witnesses out of 96 witnesses. Relying upon that judgment in Randhir Singh Rana the Court held that after taking cognizance, the
Court cannot direct the police, on its own, to investigate further under Section 173(8) of the Code.
10. It was submitted and noticed that the Supreme Court had, while ordering investigation under Section 173(8) of the Code in Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors. observed in Para 78 as under:
78. Since, we have directed retrial, it would be desirable to the investigating agency or those supervising the investigation, to act in terms of Section 173(8) of the Code, as the circumstances seem to or may so warrant. The Director General of Police, Gujarat is directed to monitor reinvestigation, if any, to be taken up with the urgency and utmost sincerity, as the circumstances warrant.
It was further observed in Para 79 that Sub-section (8) of Section 173 of the Code permits further investigation, and even de hors any direction from the Court as such, it is open for the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted.
11. Therefore, in the peculiar facts and following the ratio of judgments of the Supreme Court in Hasanbhai v. Qureshi (supra) and Zahira H. Sheikh (supra) as discussed hereinabove, the petition is allowed, the impugned order dated 15-2-2005 below Exh. 74 is set aside and respondent No. 1 is directed to hold further investigation and submit report of such further investigation as expeditiously as practicable. It would be in the discretion of the State Government to entrust further investigation to an officer of appropriate rank. However, it was suggested and conceded at the Bar that further investigation must be carried out by an independent and competent officer under the supervision of the District Superintendent of Police and the report may be submitted to the Court, as far as practicable, on or before 15-5-2007. Such officer or the D.S.P. concerned may receive representations proposed to be made on behalf of the petitioners on particular aspect of investigation. Further proceedings of the Sessions Cases Nos. 77 and 78 of 2004 pending in the Court of learned Additional Sessions Judge, Mehsana shall have to remain stayed till the report of further investigation is submitted. Rule is made absolute accordingly with no order as to costs. Direct Service is permitted. The registry of this Court is directed to place before the Standing Committee or the Committee reviewing performance of Fast Track Courts, the impugned order with a properly typed copy thereof.
http://indiankanoon.org/doc/1023986/
JUDGMENT
J.R. Vora, J.
1. At the admission stage, since submissions made at length, the matter was heard finally and learned counsels also agreed for final hearing of the matter.
2. Learned advocate Mr. Asin Pandya for the applicants, learned APP Mr. K.C.Shah for the respondent No. 1 ” State of Gujarat and learned advocate Mr. M.A. Bukhari for the respondent No. 2 ” Shri Ismail U. Vohra, were heard at length.
3. The present applicants are amongst the accused of Sessions Case No. 199 of 2003 pending before the Court of Sessions i.e. Fast Track Court Judge, at Anand, while respondent No. 1 is the State and the respondent No. 2 herein is the witness of the said trial and filed an application at Ex.245 on 01.03.2005. It was contended by such application that the investigation was biased in favour of the accused and was defective and hence re-investigation was necessary. It was stated that the persons affected in the incident were robbed of their valuables as well as cash amount, but the said muddamal has not been attempted to be recovered in the said investigation. It was also contended that the Investigating Agency in formal manner inquired from the witnesses and no careful inquiry was made. It was also contended that the statements of witnesses were not recorded as per the say of a particular witness. The investigating agency failed to assess the damage done at the spot. It was alleged that the accused were trying to fabricate false evidence. If, the trial is allowed to proceed further, it would be in the benefit and only in the benefit of the accused. It was also contended further that the witnesses have suffered mental as well as economic loss, even though they have sustained their morale. It was, therefore, urged that the re-investigation in the crime was necessary.
4. After hearing all the concerned parties, the learned Additional Sessions Judge as well as Fast Track Court Judge, on 21.07.2005 decided application with a short observation that having considered the complaint, statements of the witnesses and investigating papers as well as evidence recorded during trial, it was in the interest of justice to order re-investigation. It was further directed that not only in respect of muddamal only, but investigating agency must report to other aspects which requires investigation.
5. The above said order passed by the learned trial Judge on 21.07.2005 is impugned in this Criminal Revision Application by the applicants ” accused.
6. As per the further facts of the case, it appears that the incident in question is an aftermath of Godhra carnage and on 01.03.2002 at about 16.30 hours, a Masjid situated at Vasad was put on fire by a mob. The said mob of persons not only damaged the Masjid, but pelted stone etc. on informant as well as upon the witnesses. Many accused were charge-sheeted in respect of this crime registered before Vasad Police Station vide C.R.No.I-49/2002. The complainant i.e. informant was a constable Harising Noparam Jaat of S.R.P., Group No. 10, Company No. D. After investigation, it appears that charge-sheet came to be filed against many accused and learned trial Judge framed the charge against 53 accused on 16.06.2004 for the offences punishable under Sections 147, 148, 149, 436, 332, 337, 153(3), 454, 457 and 380 of the Indian Penal Code and under Section 135 of the Bombay Police Act, 1951. The trial was proceeded with, it has been submitted at Bar that out of 96 witnesses cited in the charge-sheet, 85 witnesses have been examined and at that stage an application Ex.245 came to be filed by the present respondent No. 2.
7. Learned advocate Mr. Asin Pandya for the applicants submits that having regard to the stage reached by the trial, it appears that the re-investigation, as directed, would be in violation of double jeopardy principle enunciated in the Constitution of India, because the accused will have to face altogether a new case which is not permissible under the law. Contending further, it was also submitted that in any case, law would not permit re-investigation. It was contended that in certain circumstances, as envisaged by Section 173(8) of the Code of Criminal Procedure, further investigation may take place, but not re-investigation in the spirit and terms of the direction issued by the trial Judge in the order impugned. Learned advocate for the applicants relying upon the decision of the Apex Court in the matter of K. Chandrasekhar v. State of Kerala and Ors. as reported in AIR 1998 S.C. 2001, contended that literal reading of the provision of Section 173(8) of the Code of Criminal Procedure in unequivocal terms discloses that it does not authorize Magistrate or the Court concerned to direct re-investigation, but the provision enables the investigating agency to further investigate. It is submitted that it is nowhere laid down in the Code that the Magistrate is empowered to order further investigation or reinvestigation within the scope of Section 173(8) of the Code of Criminal Procedure. Then, it is contended that the order impugned is non-speaking order, as almost no reasons are assigned for passing of the order. It is submitted that when such non-speaking orders are passed and are subjected to scrutiny of higher forum, it becomes very difficult to assess that how the Court below reached to the conclusion. It is submitted that the order impugned is required to be quashed on this ground alone. With reference to this contention, learned advocate agitated that the impugned order is not sustainable even on merits, as well. It was submitted that the investigation is carried out and charge-sheet is filed, the accused are facing the trial. Now at this juncture, there is nothing on the record to deduct that the investigation was faulty and defective on certain aspects. It is, therefore, submitted that the learned trial Judge though referred to investigation papers, but could not point out any defects in investigation so as to direct reinvestigation. It is contended that therefore, the order impugned is unreasoned order and not sustainable. The learned advocate for the applicant raised contention about the merits of the order passed by the learned trial Judge by going through the investigation papers. Lastly, it was submitted that in all cases, it is required to be taken into account effects of passing of the orders and non-passing of the orders. It was submitted that almost 85 witnesses, out of 96, have already been examined and the trial is at the verge of completion. It is submitted that if, re-investigation is permitted, as directed by the learned trial Judge, the same shall affect adversely to the accused. It was contended that on account of this, the trial is certainly going to be delayed to a greater extent. It is submitted that these circumstances if viewed with the fundamental right of the accused of speedy trial, the order impugned requires to be quashed. It is submitted that the application, therefore, filed by the respondent No. 2 is frivolous and filed at very belated stage with only purpose of delaying the trial and to put the accused in greater hardship. Learned advocate contended that for the above said reasons, this Criminal Revision Application is required to be allowed and the order impugned be set aside.
8. Learned APP Mr. K.C.Shah for the respondent No. 1 ” State of Gujarat contended that while an application is filed by a witness of a trial may be at any stage and may be in any nature, but all circumstances including motive behind filing of an application must receive due consideration. It is submitted that in application itself, it is stated by the applicants that the witness suffered mental as well as the financial damage. Learned APP submitted that therefore, motive behind moving this application by the witness is obvious. It is submitted by the learned APP that the scheme of Code of Criminal Procedure as well as in pursuance of the criminal jurisprudence of this country, prosecution always comes before the Court with a definite case and version against the accused. The Courts are empowered to punish the accused against whom such definite version is proved. It is beyond the scheme of the Code and Criminal Justice System that the accused be attempted to punish for any probable version deviating from definite version which prosecution comes before the Court. It was submitted that in any case, it is not the criminal law of the country that by altering the original investigation and amending the definite case of the prosecution, accused can be pushed to face the new case. It is submitted that therefore, while no re-investigation is permitted by the Court, only further investigation under Section 173(8) of the Code of Criminal Procedure is made permissible and it is obvious by the scheme of the Code that Section 173(8) is exceptional in nature, must operate within very limited scope. It is submitted that within the definite version of the prosecution which is brought to the Court, if any Court is satisfied that any person was liable to answer the prosecution case, the proper provision is made vide Section 319 of the Code of Criminal Procedure. It is submitted that once the First Information Report is lodged, investigation starts in accordance with the said F.I.R., if that is not done, other remedies might be available to the aggrieved persons. It is submitted that despite the above clear concept of law, how a witness of a trial can substantively appreciate the circumstances of the investigation and come to a conclusion that the investigation was defective. It is submitted that virtually in this case, the witnesses of the trial appreciated the investigation and came to the conclusion that the investigation is defective and is biased on certain aspects and that appreciation of a witness has been affirmed by the trial Court and invoked the powers under Section 173(8) of the Code of Criminal Procedure. In such a situation, it was submitted that before invoking powers, the trial Court ought to have taken into account all those essential elements of the matter.
9. Learned advocate Mr. M.A. Bukhari for the respondent No. 2, vehemently supporting the order impugned, submitted that this is a fit case in which reinvestigation or further investigation whatsoever be sought, was absolutely necessitated as noticed by the learned trial Judge. My attention was drawn to two applications placed on record of the trial. Learned advocate for the respondent No. 2 submitted that vide application Ex.255 which is a report from the investigating agency, it was pointed out by the trial Court that in certain respect re-investigation in the matter was necessary and, therefore, the papers submitted before the trial Court were required to be returned to investigating agency. The investigating agency described in the said report the aspect of the reinvestigation which was necessary. Learned advocate for the respondent No. 2 drawn attention of the Court towards the order passed below this application that ultimately Ex.255 came to be withdrawn by a concerned learned APP in-charge of the case. It was, then, contended that the present respondent No. 2, thereafter, preferred an application at Ex.267 invoking powers of the trial Judge to direct the investigating agency to observe certain recognized guidelines, while investigating or re-investigating the crime. My attention was drawn to the order passed below that application. The learned trial Judge disposed of the said application stating that in view of the order passed below Ex.245 (order impugned in this Criminal Revision Application), the said application stood disposed of. Learned advocate for the respondent No. 2, therefore, submitted that this situation compelled the respondent No. 2 herein being a witness to prefer an application at Ex.245 to re-investigate the crime. It is submitted that all particulars which are necessary, are mentioned in the application. My attention was drawn to paras-2 and 3 of the application, wherein the defects and short coming of the investigation was brought out along with reasons for re-investigation of the crime. It was submitted that therefore, it cannot be said that the application itself is not explanatory. It was submitted that likewise, there is no substance in the contention that the order passed by the trial Judge, is not a speaking order. It was submitted that though the order passed is short one, but sufficiently reasoned. My attention, at this juncture, was drawn to the order passed and it was contended that the trial Judge did care to go through the papers of the investigation, statements recorded, first information report filed as well as the evidence recorded during the trial. It is submitted that going through all the papers, the trial Judge came to the conclusion that the case was fit one to direct re-investigation. Learned advocate for the respondent No. 2 submitted that in no circumstances, it could be said that the order impugned, is not sustainable because the same is without any reasons. It is submitted that the Court concerned was within its power to direct further investigation at any stage of trial to which the facts like delay of trial, hardship to the accused are irrelevant factors. Learned advocate for the respondent No. 2 placed reliance on a decision of the Apex Court in the matter of Hasanbhai Valibhai Qureshi v. State of Gujarat and Ors. as reported in 2004 (2) Crimes 145 (S.C.), wherein the Apex Court observed that the factor of delay of trial must not deter the hands of the investigating agency or the Courts where further investigation is, according to law, necessity. Learned advocate for the respondent No. 2 submitted that the order in question is perfectly legal and reasoned order and should not be interfered with in the revisional jurisdiction as the High Court should be slow in setting aside the proper orders of the trial Court in revisional jurisdiction, as aforesaid.
10. Having heard learned counsels at length and having gone through the record of the case, available with this Court, undisputed position is stage of trial. There is no dispute that against 53 persons including the present applicants, the above said charge-sheet was filed, charge was framed and trial culminated to the extent of examining 85 witnesses out of 96 witnesses, cited in the charge-sheet and at that juncture, an application Ex.245 for re-investigation came to be submitted, as aforesaid.
11. It appears that there is some confusion about the re-investigation and further investigation. What is empowered by Section 173(8) of the Code of Criminal Procedure is further investigation and not re-investigation. This is amply made clear by the Apex Court in a decision, in the matter of K. Chandrasekhar v. State of Kerala and Ors. (Supra). It has been observed by the Apex Court in para-25 as under:-
25. From a plain reading of the above Section it is evident that even after submission of police report under Sub-section (2) on completion of investigation, the police has a right of further investigation, under Sub-section (8) but not fresh investigation or re-investigation. That the Government of Kerala was also conscious of this position is evident from the fact that though initially it stated in the Explanatory Note of their notification dated June, 27, 1996 (quoted earlier) that the consent was being withdrawn in public interest to order a reinvestigation, of the case by a special team of State police officers, in the amendatory notification (quoted earlier) it made it clear that they wanted a further investigation of the case, instead of re-investigation of the case. The dictionary meaning of further (when used as an adjective) is additional, more supplemental. Further investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that Sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a further report or reports ” and not fresh report or reports ” regarding the further evidence obtained during such investigation. Once it is accepted ” and it has got to be accepted in view of the judgment in Kazi Lhendup Dorji, (1994 AIR SCW 2190) (supra) that an investigation undertaken by CBI pursuant to a consent granted under Section 6 of the Act is to be completed, notwithstanding withdrawal of the consent, and that further investigation is a continuation of such investigation which culminates in a further police report under Sub-section (8) of Section 173, it necessarily means that withdrawal of consent in the instant case would not entitle the State police, to further investigate into the case. To put it differently, if any further investigation is to be made it is the C.B.I. alone which can do so, for it was entrusted to investigate into the case by the State Government. Resultantly, the notification issued withdrawing the consent to enable the State Police to further investigate into the case is patently invalid and unsustainable in law. In view of this finding of ours we need not go into the questions, whether Section 21 of the General Clauses Act applies to the consent given under Section 6 of the Act and whether consent given for investigating into Crime No. 246/94 was redundant in view of the general consent earlier given by the State of Kerala.
12. It is necessary to state the factual background of the case before the Apex Court. The State Government had consented for entrustment of investigation in a case involving offences punishable under official Secrets Act to the CBI. CBI completed investigation and filed a final report. Subsequently, the State Government withdrew the consent and sought further investigation in the case by the State Police. In those backdrops, the Apex court held as above.
13. True it is that in the application at Ex.245 and the order passed by the learned trial Judge which is impugned, the phraseology used is reinvestigation. Any how, reinvestigation is not permissible as observed by the Apex Court in decision mentioned above. Now without dwelling further upon this issue, assuming that trial Court meant further investigation and when it is not directed that the earlier investigation made in the case is to be wiped out ab-initio, without being guided by the phraseology used as re-investigation, it may be considered that in fact, re-investigation referred to is de facto a further investigation.
14. Now the matter in controversy is to examine the order impugned within the revisional jurisdiction of this Court. Various contentions, as aforesaid, are raised on diverse aspects. In sum and substance, pivot of the matter is whether learned trial Judge could have passed order for further investigation as has been done in this case.
15. Section 173(8) of the Code of Criminal Procedure authorises amply to the investigating agency to investigate further in a crime. Placement of this provision at the bottom of Section 173 denotes that even after filing of the final report (charge-sheet) and during trial as well, the investigating agency is empowered to investigate further the crime and submit report in consonance with earlier provision of Section 173 and if such report is produced to concerned Court, it would be obliged to take that into consideration. Noteworthy it is here to refer to a decision of the Apex Court in the matter of Hasanbhai Valibhai Qureshi v. State of Gujarat and Ors.(Supra) wherein the Apex Court, while examining the powers of investigating agency came to the conclusion that if a further investigation is warranted, the hands of the investigating agency or the Court should not be tied down on the ground that further investigation may delay the trial, as ultimate object is to arrive at the truth. The Apex Court also observed that under Section 173(8) of the Code of Criminal Procedure, it is open to the police to conduct the proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted. The Apex Court further observed that such powers of the police must not be tied down by the mere fact that there may be further delay in concluding the trial because if such further investigation would have helped the Court in arriving at the truth and do real and substantial as well as effective justice, such facts should not stand on the way of further investigation.
16. Thus, in above said decision, the Apex Court propounded that without being influenced by the fact that the charge-sheet is filed, and even if the Court has taken cognizance and the trial has started, powers of police to investigate under Section 173(8) are unfettered, if such further investigation helps the Court to search the truth.
17. Thus it cannot be disputed that even after filing of the charge-sheet and taking cognizance by the Court, the police has ample power to investigate further the crime under Section 173(8) of the Code of Criminal Procedure. However, the controversy in the present matter is, not the powers of the police to further investigate under Section 173(8) of the Code of Criminal Procedure, but the controversy is whether the trial Court after taking cognizance and reaching to almost completion of the trial, can direct further investigation as envisaged by Section 173(8) of the Code of Criminal Procedure. Learned advocate for the respondent No. 2 has supported the proposition of law that powers of the Court under Section 173(8) of the Code of Criminal Procedure, which is competent to take cognizance, are unfettered and in a given case, the Court may direct police to investigate further even after taking cognizance and while conducting of the trial, if defects in the investigation are noticed. Before entertaining the merits of the case, whether on going through the investigating papers, this was a fit case for the trial Judge to order investigation under Section 173(8) of the Code of Criminal Procedure. It would be proper to examine, whether after taking cognizance, the Court has power to direct further investigation.
18. Section 173(8) of the Code of Criminal Procedure, is as under:
173(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2).
19. By virtue of Section 173 of the Code of Criminal Procedure, no powers are conferred upon the Court to direct further investigation. In this respect, two decision of this Court are brought to the notice of this Court and they are (1) In the matter of Surendrabhai Babubhai Patel v. State of Gujarat as reported in 1985 G.L.H. 299; and (2) In the matter of Mahendra P. Desai v. The State of Gujarat and Ors. as reported in 1985 G.L.H. 873. In the matter of Surendrabhai Babubhai Patel v. State of Gujarat, it is observed that by virtue of Section 173(8) of the Code of Criminal Procedure, the investigating officer is entitled to carry on further investigation with the permission of the Court, and there would be hardly any reason to hold that the Magistrate is not empowered to direct the investigating officer to make further investigation once he takes the cognizance. While in the matter of Mahendra P. Desai v. The State of Gujarat and Ors. this Court observed that as observed by the Supreme Court in the case of Rishbud v. The State of Delhi (1955) 1 SCR 1150, further investigation is not altogether ruled out merely because cognizance of the case has been taken by the Court and further investigation can be ordered even after the charge-sheet is submitted.
20. Therefore, the question is after taking the cognizance and when the trial is reached to certain stage, whether Court can direct further investigation as envisaged by virtue of Section 173(8) of the Code of Criminal Procedure. It is absolutely necessary to refer here the decision of the Apex Court, in the matter of Randhir Singh Rana v. State (Delhi Administration) as reported in 1997 (1) SCC 361, because the same issue was before the Apex Court which is at hand in this matter and while considering the provisions of Sections 156(3), 173(8), 190, 200 and 204 of the Code of Criminal Procedure, the Apex Court propounded in unequivocal terms that a Judicial Magistrate, after taking cognizance of an offence on the basis of police report and after appearance of the accused, cannot order of his own further investigation in the case. It was held in the said case that the order of the Magistrate directing further investigation was liable to be set aside with a direction to dispose of the case either by framing the charge or discharge the accused on the basis of the material already on the record. Many decisions of the Apex Court came to be discussed by the Apex Court in this decision and ultimately it has been held that it is not within the power of the Court to order further investigation under Section 173(8) of the Code of Criminal Procedure, after taking cognizance upon the police report and when accused were appeared before the Court. While in this case, the learned Judge has not only taken cognizance upon the police report, but trial has reached to the stage of recording of deposition of 85 witnesses out of 96 witnesses and at that stage, at the instance of a witness, the Court has directed further investigation that too, under Section 173(8) of the Code of Criminal Procedure. It is noticed while going through the provision of Section 173(8) that such powers are not conferred upon the Courts. By virtue of Section 156 of the Code of Criminal Procedure and the provisions thereafter before taking cognizance upon the police report, the Court is empowered to direct further investigation. However, once cognizance is taken and the trial is proceeded with, the Court is not empowered to alter the prosecution case by directing the further investigation. Therefore, by scheme of the Code, powers are vested in the Court, by virtue of Sections 319 and 311 of the Code of Criminal Procedure to the extent to call for any person to answer the prosecution case. The powers of the police to investigate further under Section 173(8) and power of the Court to direct further investigation at pre-cognizance stage must not be intermingling. The powers of the police under Section 173(8) to investigate further even when charge-sheet is filed and Court has taken cognizance are unfettered, but the Court, after taking cognizance cannot direct the police on its own to investigate further under Section 173(8) except such powers can be exercised at pre-cognizance stage by Courts. In the present case, it appears that the order passed by the trial Court is without jurisdiction as aforesaid discussed by the Apex Court in the matter of Randhir Singh Rana (Supra). Therefore, it becomes clear that the powers of the police to further investigate under Section 173(8), are unfettered and when trial is proceeding, police may inform concerned Court about further investigation, but no Court can direct such investigation under Section 173(8), after taking cognizance upon the police report.
21. This is the crux of the controversy which arises in this Criminal Revision Application and the confusion is created perhaps on account of intermingling the powers of the police to investigate further in a crime, by virtue of Section 173(8) of the Code of Criminal Procedure and the powers of the Court to direct such investigation and hence the trial Court probably passed the order impugned.
22. In this view of the matter, this Criminal Revision Application deserves to be allowed and the order for which the grievance is made is required to be set aside and the application, ultimately, filed by respondent No. 2 at Ex.245 stands rejected. Rule is made absolute to that extent. Absolutely necessary also to make it clear at this juncture that if any investigation is carried on by the police under Section 173(8) of the Code of Criminal Procedure in respect of the present crime independently of the order impugned in this revision, then the said investigation shall not at all be affected and influenced by the present order passed by this Court.
http://indiankanoon.org/doc/629979/
REPORTED
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% DATE OF RESERVE: April 22, 2009 DATE OF DECISION: May 6, 2009
+ CRL.M.C. 2525/2008 and CRL. M.A. 9326/2008
JAVA SINGH ….. Petitioner Through: Mr. Sidharth Luthra, Sr. Advocate with
Mr. Siddharth Aggarwal and Mr. Simon
Benjamin, Advocates.
versus
C.B.I. ….. Respondent Through: Mr. P.P. Malhotra, ASG with Mr. Chetan
Chawla, Advocate
CORAM:
HON’BLE MS. JUSTICE REVA KHETRAPAL
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest? : REVA KHETRAPAL, J.
1. The present petition under Section 482 of the Code of the Criminal Procedure has been filed challenging the summoning order issued by the learned Special Judge, New Delhi dated 21st July, 2008 as well as the challan under Section 173 Cr.P.C., which is alleged to be “incomplete” and in contravention of the provisions of Section 190 Cr.P.C.
2. The facts leading to the filing of the petition are that FIR bearing No.RC CRL.M.C. 2525/2008 Page No. 1 of 19 2(A)/2005 ACU (V) dated 19th March, 2005 under Sections 13(2) read with 13(1)(e) of the Prevention of Corruption Act came to be registered at P.S. C.B.I./SPE/ACU(V), New Delhi. The aforesaid FIR was initially registered against one Shri Akhand Pratap Singh (Retd. IAS), the father of the petitioner herein, and was registered on the allegation that he possessed assets disproportionate to his known sources of income almost two years after his retirement. The period of commission of the offence was set out as 01.01.1978 to 31.05.1991 in the FIR and it was alleged that the acquisition of the disproportionate assets were to the tune of Rs.21,45,872/- (Rupees Twenty One Lakhs Forty Five Thousand Eight Hundred and Seventy Two only) during the said period. The investigating agency conducted investigation and after a period of three years, on 27th / 28th March, 2008, it submitted a report under Section 173 Cr.P.C. before the Court of the learned Special Judge, New Delhi. In the said report filed by the CBI on 27th / 28th March, 2008, it was submitted that “Further investigation on certain aspects is going on” and that “The report in respect of the same will be submitted in due course”.
3. The grievance of the petitioner is that on the basis of the said report filed under Section 173 Cr.P.C., the learned Special Judge by his order dated 21st July, 2008 took cognizance of the offences under Sections 13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988 and Sections 109, 120-B, CRL.M.C. 2525/2008 Page No. 2 of 19 467 and 471 of the Penal Code and ordered issuance of summons to the accused persons, including the petitioner.
4. Aggrieved by the filing of the report dated 27th / 28th March, 2008 and the consequent taking of cognizance and issuance of summons by means of order dated July 21, 2008, the petitioner instituted the present petition seeking quashing of the impugned order and the report under Section 173 Cr.P.C. which, according to the petitioner, is an “incomplete” report irrespective of the nomenclature sought to be given to it.
5. I have heard Mr. Sidharth Luthra, the learned senior counsel for the petitioner and Mr. P.P. Malhotra, the learned Additional Solicitor General for the respondent/Central Bureau of Investigation and gone through the impugned order as well as the relevant provisions of law adverted to by the parties.
6. The principal contention of Mr. Luthra, the learned senior counsel for the petitioner is that the filing of a temporary report during the course of an on-going investigation is an act not contemplated by the legislators as evidenced by the relevant provisions of the Cr.P.C. and as such, the report dated 27th / 28th March, 2008 which is not a “police report” within the meaning of Section 173 Cr.P.C. ought to be rejected. Mr. Luthra vehemently contended that there was a vital difference between the terms “investigation”, “further investigation” and “re-investigation”. He urged that admittedly in the instant CRL.M.C. 2525/2008 Page No. 3 of 19 case, the investigation itself had not been completed on the date of the filing of the report, and that taking of cognizance and issuance of summons to the accused persons whilst the investigative process is still on-going is unknown to law and in violation of the basic jurisprudential tenents of criminal law. Thus, the cognizance taken in the instant case under Section 190(1)(b) is illegal and liable to be set aside, since the very foundation or basis of the said cognizance, being a police report, does not exist.
7. Mr. Luthra submitted that further investigation predicates the existence and discovery of fresh material and necessarily implies the exhaustion of the material already in possession of the investigating agency. While sub-section (2) of Section 173 deals with the forwarding of the police report on completion of the investigation, sub-section (8) of Section 173, which has been subsequently incorporated in the Code, deals with further investigation. Re- investigation, on the one hand, is quite different and distinct from further investigation and predicates investigation anew, which may be necessitated on account of the earlier investigation having been found to be faulty on account of one reason or the other.
8. According to Mr. Luthra, the principal requirement for invoking sub- section (8) of Section 173 is that there must be a report filed in terms of sub- section (2) of Section 173. In the instant case, Mr. Luthra submitted that the CRL.M.C. 2525/2008 Page No. 4 of 19 police report was an “incomplete” report, and, accordingly could not be taken into consideration by the learned Special Judge, CBI for the purpose of taking cognizance of the the offences alleged to have been committed by the petitioner and others.
9. Mr. Luthra, the learned senior counsel for the petitioner placed strong reliance on a Single Bench judgment of the Delhi High Court in Hari Chand & Raj Pal vs. State reported in ILR (1977) II Delhi 367 and on a judgment of a Single Judge of the Andhra Pradesh High Court rendered in T.V. Sarma vs. Smt. Turgakamala Devi and others reported in 1976 Crl. L.J. 1247 to contend that if the investigation is not complete, there is no police report, and consequently there is no question of the Court taking cognizance of the case on an incomplete challan.
10. Mr. P.P. Malhotra, the learned Additional Solicitor General urged on behalf of the respondent that the contention of the petitioner that the challan was “incomplete”, merely on account of the fact that it was incorporated in the charge-sheet that further investigation was going on, was specious. In the instant case, after three years of investigation a challan had been filed by the investigating agency, which challan, by no stretch of imagination, could be labelled as an “incomplete challan”, as was evident from a bare reading of the same. Mr. Malhotra further contended that the challan on all the aspectes CRL.M.C. 2525/2008 Page No. 5 of 19 investigated upon was in form and substance a complete challan, and the investigating agency could not be precluded from carrying on further investigation. In any case, it was not incumbent upon the investigating agency to have stated in the report that further investigation would be undertaken. It was only as a matter of courtesy to the Court that it was brought to the notice of the Court that further investigation was being carried on, though in view of the provisions of sub-section (8) of Section 173 it was neither incumbent upon the investigating agency nor from any angle necessary for the investigating agency to place on record the said fact.
11. The learned Additional Solicitor General, Mr. P.P. Malhotra also placed reliance, in the above context, upon the judgments of the Hon’ble Supreme Court in Ram Lal Narang vs. State (Delhi Administration) reported in (1979) 2 SCC 322, Upkar Singh vs. Ved Prakash and Others reported in (2004) 13 SCC 292, State of Andhra Pradesh vs. A.S. Peter reported in (2008) 2 SCC 383 and Rama Chaudhary vs. State of Bihar reported in JT 2009 (5) SC 14, to which I shall presently advert, but before I do so, a look at the relevant provisions of the Code in my view is necessary to examine the sustainability of the impugned summoning order passed by the learned Special Judge, CBI.
12. The term ‘police report’ has been defined in clause (r) of Section 2 of the Code as follows:-
CRL.M.C. 2525/2008 Page No. 6 of 19 “Police report means a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173.”
13. Sub-section (2) of Section 173 provides that as soon as investigation under Chapter XII of the Code is completed, the officer in-charge of the Police Station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government. Sub-section (2) thus envisages the dual process of the completion of the investigation and the forwarding of the police report to the Magistrate for taking cognizance of the offence.
14. A look at Sections 173(1) and 173(2)(i) is warranted at this juncture in view of the emphasis laid by Mr. Sidharth Luthra on the completion of investigation being the sine qua non for the forwarding of the report under Section 173, but before doing so, it is proposed to advert to the definition of term “investigation” as defined in Section 2(h) of the Code. The said definition reads:-
“h. ‘Investigation’ includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.”
15. Section 173 which is contained in Chapter XII of the Code under the heading “Information to the police and their power to investigate” is as follows:-
CRL.M.C. 2525/2008 Page No. 7 of 19 “173. Report of police officer on completion of
investigation.- (1) Every investigation under this Chapter shall be completed without unnecessary delay.
(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- (a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be
acquainted with the circumstances of the case;
(d) whether any offence appears to have been
committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody under
section 170.
(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any whom the information relating to the commission of the offence was first given. (3) ……………………………………………………………………. (4) ……………………………………………………………………. (5) ……………………………………………………………………. (6) ……………………………………………………………………. (7) ……………………………………………………………………. (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).”
16. It may be noticed at this juncture that there was no provision in the 1898 CRL.M.C. 2525/2008 Page No. 8 of 19 Code prescribing the procedure to be followed by the police, where, after the submission of the challan under Section 173(2) Cr.P.C. and after the Magistrate had taken cognizance of the same, fresh facts came to light which required further investigation, though, of course, there was no express provision prohibiting the police from launching upon further investigation upon fresh facts coming to light. The Law Commission in its 41st report decided to place matters beyond the pale of controversy by a statutorily affirming the right of the police to launch upon further investigation. Accordingly, in the 1973 Cr.P.C., a new provision by way of Section 173(8) was introduced as reproduced hereinabove, affirming the right of the police to make repeated investigations.
17. It is pertinent also to note at this juncture that the Hon’ble Supreme Court in the case of H.N. Rishbud vs. State of Delhi 1955 Crl. L.J. 526 held that further investigation was not ruled out merely because cognizance of the case had been taken by the Court, and that defective investigation coming to light during the course of a trial may be cured by such further investigation as the circumstances of the individual case may call for.
18. In the case of Ram Lal Narang (supra), while approving of its earlier decision in Rishbud’s case, the following pertinent observations were made by the Supreme Court:-
CRL.M.C. 2525/2008 Page No. 9 of 19 “21. ………………………………… Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the court by seeking its formal permission to make further investigation.”
19. The aforesaid decision, in my view, unequivocally upholds the statutory right of the police to further investigate the matter after submission of the report under Section 173(2) and even where the Magistrate has already taken cognizance of the offence. The scheme of the Code thus is that the registration of the FIR in the prescribed form under Section 154 is to be followed by investigation by the police under Section 156 of the Code (which invests the police with the power to investigate into cognizable offences without the order of a Court). The investigation leads to the submission of a report to the Magistrate under sub-section (2) of Section 173 of the Code and, on submission thereof the Magistrate may take cognizance of the offence under Section 190(1)(b) and issue process to the accused under Section 204 of the Code. Thereafter the police on discovery of fresh information may submit a CRL.M.C. 2525/2008 Page No. 10 of 19 further report or reports regarding the further investigation in the form prescribed under Section 173(8) of the Code. In other words, the power of the police to conduct further investigation even after laying the final report has been clearly adumbrated and statutorily recognised in the new Code [See also Sri B.S.S. V.V.V. Maharaj vs. State of Uttar Pradesh, 1999 Crl. L.J. 3661 (SC)].
20. Looked at it from another angle, unless a report is forwarded under Section 173(2) to the Magistrate, sub-section (8) cannot be pressed into service for the purpose of further investigation and submission of further report or reports. When no report is forwarded as required by the Code, there is no question of “a further report or reports”.
21. A three-Judge Bench of the Supreme Court in Upkar Singh’s case (supra), after referring with approval to its earlier decision in State of Bihar vs. J.A.C. Saldanha (1980) 1 SCC 554 wherein it had considered the width of the scope and ambit of Section 173(8) of the Code, held: (SCC, page 299, para 21)
“…………..It is clear that even in regard to a complaint arising out of a complaint on further investigation if it was found that there was a larger conspiracy than the one referred to in the previous complaint, then a further investigation under the court culminating in another complaint is permissible.”
22. In the case of A.S. Peter (supra), the following important distinction CRL.M.C. 2525/2008 Page No. 11 of 19 between further investigation and re-investigation was succinctly laid down by the Supreme Court in paragraph 9 of its judgment, which is apposite:- “9. Indisputably, the law does not mandate taking of prior permission from the Magistrate for further
investigation. Carrying out of a further investigation even after filing of the charge-sheet is a statutory right of the police. A distinction also exists between further investigation and reinvestigation. Whereas reinvestigation without prior permission is necessarily forbidden, further investigation is not.”
23. In the aforesaid case, the Supreme Court unequivocally held that it was permissible for the investigating authority to carry out and direct further investigation in the matter even without the prior permission of the Magistrate, and the High Court of Andhra Pradesh had committed a manifest error in taking the view that the investigation in question was a fresh investigation and it was an imperative on the part of the investigating agency to have obtained the express permission of the Magistrate concerned.
24. More recently, in the case of Rama Chaudhary vs. State of Bihar JT 2009 (5) SC 14, the Hon’ble Supreme Court while rejecting the contention of the counsel for the appellant, Rama Chaudhary that as the trial had commenced and 21 witnesses had already been examined, the request of the prosecution for further investigation could not be allowed in relation to the very same offence and in relation to the very same accused, more so, as it would lead to the summoning of eight new witnesses which would prejudice the defence of the CRL.M.C. 2525/2008 Page No. 12 of 19 accused in the trial, and relying upon its earlier decisions in Hasanbhai Valibhai Qureshi vs. State of Gujarat and Others 2004 (5) SCC 347, held that there was no valid ground for interference and dismissed the appeal. In paragraphs 8 to 11, the legal position was summarised as follows:- “8. A mere reading of the above provision makes it clear that irrespective of report under sub-section (2) forwarded to the Magistrate, if the officer in-charge of the police station obtains further evidence, it is incumbent on his part to forward the same to the Magistrate with a further report with regard to such evidence in the form prescribed.
9. The above said provision also makes it clear that further investigation is permissible, however, reinvestigation is prohibited. The law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out a further investigation even after filing of the charge-sheet is a statutory right of the police. Reinvestigation without prior permission is prohibited. On the other hand, further investigation is permissible.
10. From a plain reading of sub-section (2) and sub- section (8) of Section 173, it is evident that even after submission of police report under sub-section (2) on completion of investigation, the police has a right to “further” investigation under sub-section (8) of Section 173 but not “fresh investigation” or “reinvestigation”. The meaning of “Further” is additional; more; or supplemental. “Further” investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. Sub-section (8) of Section 173 clearly envisages that on completion of further
investigation, the investigating agency has to forward to the Magistrate a “further” report and not fresh report
regarding the “further” evidence obtained during such investigation.
11. As observed in Hasanbhai Valibhai Qureshi v. State CRL.M.C. 2525/2008 Page No. 13 of 19 of Gujarat and Others, [JT 2004 (4) SC 305; 2004 (5) SCC 347], the prime consideration for further investigation is to arrive at the truth and do real and substantial justice. The hands of investigating agency for further investigation should not be tied down on the ground of mere delay. In other words, the mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice.”
25. In view of the aforesaid law reiterated by the Supreme Court time and again, in my opinion, it is not possible for this Court to interfere with the summoning order passed by the learned Special Judge, CBI on the basis that an “incomplete challan” has been filed by the CBI. No basis or justification has been put forth to enable this Court to return the finding that the challan in the instant case is an “incomplete challan”. Merely because the investigating agency, in the ultimate paragraph of the challan, has reserved its right to submit a report with respect to further investigation in due course, cannot enable this Court to hold that an incomplete charge-sheet has been filed by the investigating agency. The learned senior counsel for the petitioner has not been able to demonstrate to this Court in what manner or for what reason the charge-sheet can be rejected as “incomplete”, and this Court after carefully examining the same is not inclined to hold that an incomplete charge-sheet has been filed by the respondent, nor, in view of the provisions of Section 173(8), in my view, is this Court empowered to shut out further investigation in the CRL.M.C. 2525/2008 Page No. 14 of 19 case, which has always been and will continue to be the terrain of the investigating agency. Indeed, it is not discernible as to how fresh inputs received during the pendency of the matter can be brushed aside and ignored by the investigating agency. As far as the present charge-sheet is concerned, therefore, I have no hesitation in opining it to be final and complete in every sense of the word.
26. The reliance placed by the learned senior counsel for the petitioner upon the judgment of this Court rendered in Hari Chand & Raj Pal (supra) and of a learned Single Judge of the Andhra Pradesh High Court in T.V. Sarma (supra), is also misplaced. On a careful reading of the decision rendered in Hari Chand & Raj Pal (supra), it becomes evident that the Court was dealing with the application for grant of bail to the petitioner on the ground that no police report as contemplated in sub-section (2) of Section 173 of the Criminal Procedure had been filed by the officer in-charge of the Police Station and that failure to complete the investigation within sixty days as required under sub- section (2) of Section 167 of the new Code entitled the petitioner to be released on bail. A learned Single Judge of this Court (Hon’ble Mr. Justice F.S. Gill as His Lordship then was) held that in the body of the incomplete challan filed in the Court, it had been clearly indicated that investigation was still continuing, i.e., it had not been completed. Rejecting the contention raised CRL.M.C. 2525/2008 Page No. 15 of 19 on behalf of the State that forwarding of the incomplete challan satisfied the requirement of sub-section (2) of Section 173 of the Code and, therefore, the petitioners could not derive any benefit of sub-section (2) of Section 167, the Court held that police report as defined in Section 2(r) of the Code can only be filed “as soon as the investigation is completed” and if it is not complete, no such report can be filed and consequently, no cognizance can be taken by the Magistrate nor sub-section (8) can be set in motion. It was further held that an incomplete report or incomplete challan, with whatever expression it may be called, does not meet the obligatory requirements of law, and to accept the same would tantamount to profaning the express provision engrafted in Section 167(2) of the Code.
27. Likewise, in the case of T.V. Sarma (supra), (which was relied upon in Hari Chand & Raj Pal), the Andhra Pradesh High Court taking note of the fact that only a “preliminary charge-sheet” had been filed and it had been specifically stated therein that the investigation had not yet been completed, held that the same could not be treated as a “police report” within the meaning of sub-section (2) of Section 173 Cr.P.C. and since no report under sub-section (2) had been forwarded, sub-section (8) did not come into play at all. There was also no question of the Magistrate taking cognizance of the case and for the aforesaid reasons the Magistrate was justified in releasing the accused on CRL.M.C. 2525/2008 Page No. 16 of 19 bail after the lapse of the sixty days period of detention under Section 167 sub- section (2), Criminal Procedure Code.
28. Both the aforesaid decisions, in my view, were dealing with the beneficial provision in proviso (a) of sub-section (2) of Section 167 of the New Code, designed to cure the mischief of indefinitely prolonging the investigation unmindful of its effect on the personal liberty of the citizen, and have no application to the facts of the present case where a detailed challan has been filed, after investigations spanning a period of three years, and no haste has been shown by the prosecution to file a challan with a view to short-circuit the right of the accused to bail. At all events, the instant case is not one in which there are poised on opposite sides, the conflicting interests of the right of the investigators to investigate and the right of the accused to personal liberty, in the event of the investigators proceeding with the investigation at a tardy pace or adopting a stance of procrastination.
29. Before parting with the case, I also deem it expedient to record the contention of the learned counsel for the petitioner that the petitioner having filed an application seeking “Release of un-relied upon documents before the Special Judge, CBI” and the Special Judge having rejected the same by his order dated 18.09.2008, the CBI is estopped from further investigating the matter on the basis of the aforesaid “un-relied upon documents”. This CRL.M.C. 2525/2008 Page No. 17 of 19 contention is being noted for the purpose of being rejected. The impugned order taking cognizance of the case was passed on 21st July, 2008 while the application of the petitioner for return of the documents was rejected on 18th September, 2008 and cannot, therefore, form the basis of assailing the earlier order passed on 21st July, 2008. In case the petitioner was aggrieved by the order dated 18th September, 2008, it was open to him to assail the same before the higher court, if warranted, but it is certainly not open to him to circuitously challenge the order dated 21st July, 2008, which was passed prior in point of time.
30. Then again, the ultimate test is: In case the documents which were not relied upon in the challan subsequently become relevant on account of further evidence garnered/received by the investigating agency, can it be said that the said documents cannot form the basis of a supplementary or further challan to be filed by the respondent? The answer must, in my view, be in the negative. Further investigation may unravel further facts about the existential documents (not relied upon by the prosecution so far) or may throw up further documents bearing a linkage to the earlier documents, already relied upon. The shutting out of such evidence may present a distorted or lopsided or blurred picture of the case, and may lead to total travesty of justice even in a case where the true and focussed picture with sharply etched lines can easily be placed before the CRL.M.C. 2525/2008 Page No. 18 of 19 Court to enable the Court to do complete justice to the parties. In such a situation, can any estoppel be put on the investigator’s right to investigate further, and the Court’s right to know the unmitigated truth? The answer must be a clear ‘No’.
31. In the light of the aforesaid, the prayer of the petitioner for quashing and setting aside of the order dated July 21, 2008 as well as the further prayer of the petitioner to quash and set aside the report dated 27 th / 28th March, 2008 filed by the respondent before the learned Special Judge are declined. The interim orders passed by this Court on 19.08.2008 stand vacated. CRL.M.C. 2525/2008 and CRL. M.A. 9326/2008 stand disposed of accordingly.
REVA KHETRAPAL, J.
MAY 06, 2009
km
CRL.M.C. 2525/2008 Page No. 19 of 19
http://indiankanoon.org/doc/799818/
PETITIONER:
S.N. DUBE
Vs.
RESPONDENT:
N.B. BHOIR & ORS.
DATE OF JUDGMENT: 12/01/2000
BENCH:
G.T.Nanavati, S.P.Kurdukar
JUDGMENT:
Q.T. NANAVATT. J.
1. One Suresh Dube was shot dead on a platform of Nalasopara (a suburb of Bombay) Railway Station in broad day light. Many persons saw it and many knew who were the murderers. Because of the terror of the gangs Involved none except two persons, one accompanying the deceased and the other who was at that time polishing shoes of that person, have come forward to give evidence against the murderers. One Mukesh Ratilal Shah (P.W.13), who was injured by one of the bullets fired at that time, has thought it fit not to ,r)arr)e the person who had fired the shot. initial dishonest investigation by the police, on account of close nexus between those gangs and some of the police officers of the area where the said gangs were operating, not only delayed the prosecution of the real culprits but also weakened it considerably. On these allegations 17 ^ persons (thirteen belonging to the two gangs and four police officers) were tried in the Court of the Judge, Designated Court, Pune in Terrorist Sessions Case No. 32 of 1993 and Terrorist ri Sessions Case No. I of 1996 (amalgemated with original TSC No. 32/1993), for the murder of Suresh and for commission of terrorist acts and other offences .The trial Court did not consider it safe to convict them on the basis of the prosecution evidence and, therefore, acquitted them of aH the charges. Shyam Sunder Dube, brother of Suresh Dube, feeling aggrieved by the acquittal has filed Criminal Appeal No. 678 of 1997. The State of Maharashtra has also filed Criminal Appeal Nos. 709-710 of 1997.
2. The prosecution case is as follows:
(a) Nalasopara is a suburb of the City of Bombay. Formerly it was a small and a quite place but with the expansion of the city of Bombay It also started growing. Development of lands and construction of buildings became a lucrative business. That also led to illegal activity of land grabbing, compulsory s^les and forcible taking of possession of lands. Those Illegal activities were carried on by the gangs of Pendhad, Suresh Dube and Bhal Thakur since 1980. In 1984 ManikPatil’s gang also started operating in Nalasopara area. Bhai Thakur’s gang was operating from Virar, a nearby suburb and the last station for the suburban trains running between Churchgate (Mumbai) and Virar. Often there were conflicts and fights between these gangs and because of that one Ram Naresh Chourasiya-was murdered in 1984 and Bharat Pendhari was murdered in 1989. Dube brothers having made money stopped that illegal activity one or two years prior to the date of the incident, but continued to carry on the business of land development and construction of buildings. One of the Dube brothers. Dr. 0m Prakash Dube (P.W.I) had opened a Nursing Home on the first floor of their building called ‘Dube Estates’. Naresh (P.W.3) was doing business of building materials. Another brother Jai Prakash (P.W.4) was looking after their Pandava Hotel. Shyam Sunder Dube and Suresh Dube continued to look after land development and building activity. All the brothers were residing on the second floor of ‘Dube Estates’.
(b) Dube brothers had agreed to purchase one land bearing Survey No. 110 ofViHage Achole and some other lands of nearby places. Bhai Thakur wanted those lands and had forcibly taken possession of them. Bhai Thakur wanted Dube brothers to transfer Survey No. 110 ofAchole to him and for that reason had called Suresh Dube at his office In Virar a few days prior to 9.10.1989. As the relations between Bhai Thakur’s gang and Dube brothers were Inimical Suresh Dube was not allowed to go alone to Bhai Thakur’s office. Dr. 0m Prakash had accompanied him. In his office Bhai Thakur, his brother Hitendra Thakur and other associates were present. They had told Suresh Dube to part with that land and also to pay ‘haftas” to Bhai Thakur If he and his brothers wanted to remain in Nalasopara and carry on the land development and building construction activity. Suresh Dube was even threatened and warned that if he did not comply with that demand and took any other action, then the members of his family shall have to perform ‘aarti’ of his photo within a short time. Because of this threat Suresh Dube was not moving out of his house since then. As there was no response from Suresh Dube Bhai Thakur and his associates decided to finish him. On 8.10.1989 a warning was given to him on telephone that If he did not transfer that land to Bhal Thakur he would be finished. On that day at night one Srikant Pandey, who was working with Bhai Thakur and had some contact with Suresh, went to the house of Suresh and tried to convince him that If he wanted to remain alive It was advisable for him to give up the land and go away to his native place. On account of this serious threat Surash and his brothers had decided that Suresh should leave Nalasopara and stay at his native place till there was danger to his life.
(c) Since a few days prior to 9.10.1989 Amarnath Tripathi (P.W.48), brother-in-law of Suresh, had come to Nalasopara and was staying with them. He had to go to Vilay Parle (another suburb of Bombay) to^see a boy in connection with marriage of his brother’s daughter. Suresh also wanted to go in that direction for purchasing a ticket for going to his native place Gorakhpur, in Uttar Pradesh. Both of them, therefore, left their house for going to Nalasopara Railway Station at about 10.15 A.M. They reached the station within about two minutes time. There were many passengers on the platform. As the train by which they wanted to go towards Churchgate (Mumbal) side was running late Suresh purchased a newspaper from a stall on the platform and started reading It. Amarnath Tripathi went to a shoe polish wala, who was siting near that stall, for getting his shoes poHshed. OB (d) The gang of Mamk Patll had accepted supermacy of the gang of Bhai Thakur and both the gangs were cooperating with each other i’n committing terrorist acts and In carrying on the illegal activities of land grabbing and forcible purchasing of lands. In September 1989, it was decided between the two gangs that Bhai Thakur would liquidate the person whom the gang of Manik Patil wanted to eliminate and that Manik Patil’s gang would do away with Suresh Dube. Bhai Thakur’s gang had already done their job but Manik Patii’s gang was not able to finish Suresh. Bhai Thakur was, therefore, very angry with Manik Patil’s gang and had sent messages that the work should be finished as early as possible. The members of Manik PatiTs gang were, therefore, keeping a watch over the house of Suresh Oube. On 9.10.1989 one of the members of the gang saw Suresh going towards the railway station and after locating his position immediately rushed to the nearby hotel belonging to Manik Patil and Informed other members of the gang including Narendra Bhoir (A-1) about the presence of Suresh on platform No. 2. So Narendra Bhoir and some other members of the gang who were present there rushed to the. platform. Narendra was armed with a pistol. Other members of the gang were also variously armed. Narendra found Suresh standing near the newspaper stall and then fired three shots from a close range. Suresh got injured and fell down on the platform. Narendra went near him and fired one more shot. One of the shots fired by Narendra also caused an injury to Mukesh (P.W.13). After thus killing Suresh ail those assailants ran away from that place.
(e) Someone known to Dube brothers immediately ran to their house and informed Shyam Sunder that Suresh was shot dead on the railway platform. One of the two persons who had als(9 accompanied Amarnath to the railway station went back and informed Naresh (P.W.3) about the incident. Shyam Sunder along with his brothers rushed to the platform and brought bacic his brother to their house with the help of others. Dr. OfTiv Prakash, Dr. Ajmera and Dr.Bindwani, who were present in the Nursing Home found Suresh dead.
(f) Within a very short time PI Kukdol^ar, who was in-charge of Vasai Police Station, went to the house of Dube brothers, and first talked to Dr. Dube (P.W.I) and tried to persuade him not to Involve Bhai Thakur and then threatened him by stating that if he involved Bhai Thakur, then the consequences would be serious for him. Thereafter, PSI Padekar, attached to Pa’ghar Railway Police Station had gone to the house of Dube brothers and made enquiries about the incident. Because of the threat given by PI Kukdoikar and also because they knew that the police was protecting and helping the gang of Bhai Thakur they did not lodge any complaint. A complaint (Ext. 615) was prOBared by PSI Padekar in present of PI Kukdoikar on the basis of what was stated by Shyam Sunder (P.W.2) and his signature was taken thereon. Police Inspectors Kukdoikar and Nimbalkar often used to visit the house of Dube brothers and threaten them not to disclose the name of Bhai Thakur as he was a strong man and whoever complained against him was killed by him. Investigation was not made honestly. Some of the em’pties found from thel platform were substituted or tampered with. ^ At the instance 6f Police Inspectors Kurdolkar and Nfrnbalkar and Bhai Thakur, Patric (A-4) and Anant Shankar Patil (A-11) were arrested as the persons responsible for the murder of Suresh. A revolver was recovered at the instance of A- 4 as the weapon with which Suresh was killed. Those two accused were then charge-sheeted and put up for trial before the Sessions Court, Thane in Sessions Case No. 88/91. Hearing of the said case could not proceed further as both the accused were shownlabsconc^ng after they were released on ball and no effort was made by the police for getting warrants issued for securing their presence before the court.
(g) On February 19, 1992 the police set up at the Vasai police station and Palghar railway police station, within whose jurisdiction those gangs were operating, had changed. DIG Suradkar (P.W.75) of the Railways, during his visit to Palghar railway police station, had an occasion to look into the investigation papers relating to the murder of Suresh. He became suspicious about honesty of the investigation and identity of the real assailants. He, therefore, sent for Shyam Sunder Dube to know the truth. In view of the attitude of the police till then Shyam Sunder did not personally go. but sent his mother Bhagwati (P.W.5) and Dr. Ritu, wife of Dr.Om Prakash Dube. They complained to him about the dishonest investigation made by PSI Padekar and PI Berge and the role played by Pis Kukdolkar and Nimbalkar. On being assured by Suradkar that proper investigation will be made, a written complaint (Ext. 237) was then given by Dube brothers on 18.5.1992. Suradkar forwarded it to DSP Deshmukh for further enquiry. The enquiries made by him and PI Shinde revealed that the gangs of Bhai Thakur and Manik Patil were committing terrorist acts in Nalasopara and surrounding areas, they had created a reign of terror and that Suresh was Killed by a person belonging to the gang of Manik Patil at the instance of Bhai Thakur. Deshmukh, therefore, submitted a report under Section 173(8) of the Code of Criminal Procedure to the Sessions Court at Thane and sought permission for re-investigation of the case. Permission was granted. Further investigation made by Mr. Deshkukh and his officers revealed existence of the gangs of Bhai Thakur, Bharat Pendhari, Suresh Dube and Manik Patil. It also revealed that Bhai Thakur’s brothers Hitendra Thakur (A-9) and Deepak Thakur, Prashant Rajaram Tandel (A-8), Istiyak Mukhtyar Khan (A-13) and some others were members of the Bhai Thakur’s gang. It also revealed that terrorist acts were committed by the gangs of Bhai Thakur and Manik Patil and that those two gangs were responsible for the murder of Suresh Dube. During the Investigation by Deshmukh A-1 discovered a pistol from which he had fired shots at Suresh. A-1 to A-8 and A-11 also made confessions about the terrorist acts committed by the two gangs, the motive for committing murder of Suresh Dube, the manner In which it was committed and how accused Nos. 14 to 17 had helped Bhai Thakur In concealing rea’ offenders.
3. Pi Dssai (PW 90), who took over the investigation after superannuation of Deshmukh on 30.6.1993, submitted a charge-sheet to the Designated Court on 27.8.1993 against A-l to A-ll and deceased accused Narayan Gauda. Thereafter, supplementary charge-sheets were filed against A-12 to A-17 on different dates. The Designated Court, however, took cognizance against A-l to A13 only as no sanction to prosecute A-14 to A-17 was obtained under the TADA Act. Their case was, therefore, forwarded to the Sessions Court at Thane. Later on sanction was obtained to prosecute those police officers also under the TADA Act and their case was amalgamated with the original T.S.C. No. 32/1993 and the charge was suitably amended.
4. The charge against A-l to A-13 was that between January 1984 and December 1989, they had entered into continued crimirval conspiracy to commit terrorist acts by use and/or show of criminal force, fire arms and other lethal weapons to extort mone-y, to illegally grab lands belonging to others and to create terror amongst the people to achieve the objects of their conspiracy. It was also alleged that in pursuance of the said objects they had committed various illegal and terrorist acts, the last or which was the murder of Suresh Dube and causing hurt to Mukesh Shah. A-l was speaflcaHy charged for the murder of Suresh Dube and causing injuries to Mukesh Shah. Accused Nos. 1-5, II, 12, 13, deceased accused Narayan and absconding accused Sanjay were also charged for having committed the murder of Suresh in prosecution of the object of their unlawful assembly. It was alleged against A-14 to A-17 that as a part of the criminal conspiracy they had caused evidence of commission of those offences to disappear and by that dishonest investigation they had tried to screen the real offender^ from legal punishment. A-l to A-13 were slso charged for commission of offences punishable under Sections 120B, 201, 217, 218, 302 read with 149, 307 read with 149 of Indian Penal Code, Sections 3, 3(3) and 3(4) of TADA Act an<i Section 25(l)(a) of the Arms Act. A-14 to A-17 were charged under Sections 201, 217, 218 read with Section 120B of the Indian Penal Code. They were also charged under Sections 3(3) and 3(4) of the TADA Act read with Section 120B of the Indian Penal Code.
5. All the accused pleaded not guilty to the charge and their defence was of total denial. A-14 had raised the defence that on the day of the incident he had gone to Bareilley in connection with investigation of a theft case and had returned to Palghar on 12.10.1989. A-15 had also raised the defence that he was at the Vasai police station till 11.00 A.M. on the date of the incident and had reached the place of offence after about 11.30 A.M. He had merely taken steps for keeping ‘bandobasf and was not involved with the investigation of the case.
6. The prosecution, in order to prove its case regarding existence of the two gangs of Bhai Thakur and Manik Patil and the- terrorist acts committed by them and the help rendered to them by the police/had oxarnined OrnPrakash (P.W.I), Shyam Sunder (P.W.2), Naresh (P.W.3), Pushpa Pondhari (P.W.19), Sitaram Yadan (P.W.25), Balaram (P.W.34),Kanhiya Lal Misra (P.W.35), Jafar (P.W.40), Waman (P.W.41), Sakharam (P.W.42), Jagganath (P.W.45), Mohammad (P.W.52), Subhash (P.W.67), Rubab (P.W.68), Madhukar (P.W.69), Rarnkishan (P.W.70), Vasant (P.W.90), Naaz Asif Patel (P.W.97) and the police officers connected with the subsequent investigation as witnesses. The prosecution had also heavily relied upon the confessions state^ to have been made by A-1 to A-8 and A-11. In order to prove the murder of Suresh Dube the prosecution had mainly relied^ uponOOhe evidence of the two eye witnesses Amsmath Tripathi (P.W.48) and 0m Prakash Brahamania (P.W.49). Evidence was also led to prove that the investigation made by the police prior to September 1992 was not honest. Evidence regarding discovery of pistol by A-1 and the evidence of a Ballistic Expert and medical officers and other formal witnesses was also led.
7. The trial Court found many faults with the confessions and also held them inadmissible in evidence. It also held that they were not voluqtarily made. The trial Court disbelieved the witnesses examined to prove the terrorist acts on the ground that their evidence was too general and vague and they were not independent anc<HR>responsible members of the locality. The evidence of two eye witnesses was dis-belleved on the ground that there were material improvements and contradictions in their evidence ^nd their version was also not believable. Identification of the accused in the court by these two eye witnesses was not believed because it was after a long time and no previous test identification parade was held. For all these reasons it further held that the prosecution case against A- 1 to A-13 was not proved. As regards A-14 toA-17 the trial Court held that the sanction given for their prosecution under Section 3(1) o* the TADA Act was vitiated on account of non- application of mind. It also held that the reinvestigation was done with an oblique motive as most of the terrorist activities fell outside the jurisdiction of the railway police and yet they were investigated by them and the regular police having jurisdiction over the areas was not associated with it. Thus the case against A-14 to A-17 was also held not proved.
8. Whether the eartiar investigation was dishonest or the subsequent re-investigation by Deshmukh and his officers was done with some oblique motive wilt have to be considered first as acceptability of the evidence of the witnesses and the confessions would depend upon the answer to that question. If the earlier Investigation was honest as held by the learned trial Judge, then the contradictions and Improvements found in the evidence of the two eye witnesses will assume importance. But if the earlier investigation is found to be not honest, then the major ground on which the evidence of the eye witnesses has been disbelieved will disappear. If we confirm the finding of the learned trial Judge that the re-investigation was made with some oblique motive then that would certainly affect evidentiary value of the confessions. The trial Court held the investigation by Mr. Deshmukh and his officers motivated for the following reasons: (1) in the application (Ext. 237) made for re-investigation it was not stated that the earlier investigation was faulty and that A-4 and A-11 were wrongly shown as murderers of Suresh Dube.
(2) there was no material before Deshmukh on the baste of which he could have stated that the earlier investigation was faulty and for that reason no good ground was mentioned in the application for re-investigation. (3) there was no reason for Deshmukh to take possession of the Mudemmal articles on the very day on which application for re-investigation was made as there was no material before him to show that an unconnocted weapon was seized by the earUer investigating officer. (4) after obtaining the sealed packet of Muddamal empties and bullets from the court for getting them examined by a ballistic expert the Court, he first opened it and then again resealed it for no .reason except for tampering with the Mudammal articles, particularly the three bullets recovered from the body of Suresh Dube. (5) even though there was no material before Dehmukh on the basis of which he could have lawfully invoked the provisions ofTADA on 28.9.1992 very probably he did so with a view to defeat the anticipatory bail application filed by some of the accused. (6) even though in the first FIR Shyam Sunder Dube (P.W.2) had stated that he was suspecting none for the murder of his brother, the entire theory got changed during the subsequent re-investigation.
9. Suradakar (P.W.75) who took over as DIG, Railways, Bombay in August 1991 had been to Palghar Railway Police Station in February 1992. While examining case papers relating to the murder of Suresh Dube he felt some doubt about the investigation. Therefore, he had directed his subordinate officers to send a message to Shyam Sunder Dube to meet him. Pursuant thereto Bhagwati (P.W.5) and Dr. Rijuta Dube (P.W.37) had met him within about 8 to 10 days. Suradkar has deposed that they had orally complained to him about the honesty of the police officers who had investigated the case. On his assurance that he would look Into the matter and take appropriate action they again met him after about 15 days and gave further details regarding the murder of Suresh. He had, therefore, advised -them to give a complaint in writing and pursuant thereto a complaint (^xt. 237) dated 18.5.1992 was given to him. This part of his evidence has almost remained unchallenged in cross- examination. Only suggestion made to the witness was that after Dubes had met him-he got the investigation of the case re- opened in ordar to help Dube brothers. No material has been brought on record to infer that Suradakar was m any manner interested in Dubes or had any other reason to help Dubes by falsely involving Bhai ThakLir or Manik Pat’l or their men. The doubt feit by him regarding honesty of the inve-stfgation was justified because even though five empties were recovered from the place of offence a revolver was seized as the weapon of offence A poUce officer even With little experience would have realised that the murder was committed not by using a revolver but with a pistol. The learned trial Judge was, therefore, wrong in holding that there was no material before Suradakar for entertaining any doubt and re-opening the investigation and that he had done so with some oblique motive.
10. .Thetricri Court was also not right in holding that Suradakar, got re-investigation done with some oblique motive because in the complaint (Ext.237) it was not specifically stated that the investigation made by the police officers till then was not honest. The complaint does indicate that the Investigation made till then was not honest. It should have been appreciated that Dube brothers, in the position in which they were placed at that time, could not have specifically alleged that the previous investigation was dis-honest. So also from the fact that in the application made to the Court for permission to re-investigate it was not statp^ that the previous investigation was not honest, no inference of oblique motive could have been legitimately inferred. The application din refer to the complaint made by Dube brothers. Without ^”::h<ar investigation no charqe of dis- honesty could have been levelled against the police officers associated with earlier investigation at that stage. Therefore, Deshmukh could not have mentioned In the application that permission to re-investigate was sought as the previous investigation was not honest.
II. The adverse Inference drawn by the learned trial Judge from the circumstance that Deshmukhhad takon back Mudemmal articles from the Court on the same day on which permission to reinvestigate was granted and that he had opened the sedsd packet containing bullets and empties and agalrv sealed them, is wholly unjustified. For ascertaining from which type of weapon – pistol or revolver – the bullets which were found from the body of Suresh Dube were fired, It was really necessary for Deshmukh to obtain possession of those bu^ets and also the empties and get an opinion of a ballistfc expert, particularly when no clear opinion on that point was given by him in his earner report. As the said Mudemmal artides were lying in the Court in a pealed packet he had to obtain them from the Court and without opening the packet he could not have given a receipt as to which articles were taken possession of by him. It was necessary for him to open that packet and verify the contents. Al? those steps were regular and necessary and it is difficult to appreciate how the learned trial Judge could infer from them that ail that was done by Deshmukh with a view to tamper with those Muddemal articles and particularly the three. bullets ^ound from the body ofSuresh.
12 The trial Court also grievously erred in holding that the TADA Act was wrongly invoked. The complaint made by Dube brothers and inquiries made by Deshmukh and his officers disclosed some of the illegal activities committed by the gangs of Bhai Thakur and Manik Patil and the terror created by them in Nalasopara and surrounding areas. Deshmukh was handed over the complaint of Dube brothers for further enquiry on 18.5.1992. On 31.7.1992 he had interrogated Mukesh Shah and on 18.8.1992 he had interrogated Amarnath Tripathi. He had also made some discreet enquiries through his subordinates and gathered some information regarding involvement of accused other than A4 and All. .On 22.9.1992 he had interrogated accused Dnyaneshwar Pati) (A-3). It was thereafter that he had submitted a report to the Sessions Court, Thane under Section 173(8) of the Code of Criminal Procedure for further investigation. Afterobtaining that permission he was able to obtain custody of OiHp Waghchoure (A-7) and interrogate him. On 25.9.1992 he, had recorded statements of MiraDube, Bhagwati Dube and Jayprakash Dube. It was on .the basis of this material that he was satisfied that the accused had committed offences punishable under the TADA Act. Disposing aii this material he had made a report to the Superintendent of Pouce,- Railways on 28.9.1992 for invoking the provisions of the TADA Act. It Is, therefore, not correct to say that without any justifiable reason provisions of TADA were invoked by Deshmukh and that he had done so ^ for frustrating the bail applications which were to come up for hearing on 13.9.1992.
13. The last reason given by the trial Court is also not sound. It wrongly assume.d that the first complaint was correct and tha FIR was recorded at the time stated therein. If the evidence of Shridhar Thakur (P.W.30), Rajendra Panjwani (P.W.79) and Gosa’Mar (p.w.66} had been analysed more carefully it would have become apparent that the FIR could not have been recorded at Paighar railway station at 12.30 p.m. as mentioned Iff the FIR. The teamed trial Judge also faiied So appreciate that some days prior to 9.10.1989 Suresh was called by Bhai Thakur and was threatened that If he did not part with the lands wanted by Bhai Thakur, then his family members shail have to perform Aarti of his photograp’h-and on 8.10.1989 one Srikant Pandey, who was a man of Bhai Thakur, had met Suresh and advised him to leave Nrdasopara if he wanted to remain alive. Because of this threat a decision was taken by Dube brothers that Suresh should goto his native place and remain there till the danger to his life continues. Pursuant to that decis’on Suresh had left his house wIthAmarnath Tripathi on 9.10.1989 for going to Mumbai for purchasing a railway ticket for Gorakhpur. This conduct of Suresh corroborated the evidence of the prosecution witnesses on that point. It Is, therefore, difficult to appreciate how in view of this evidence the (earned Judge could pe”suade himself to hold that the first complaint was correct and during the re-investigation the whole version was charged deliberately, ‘he r.tatement in the complaint that ths complainant did not suspect anyone as the more careful whUe appreciating the relevant evidence.
14. As regards the earHar investigation by PSI Padekar and PI Berge, It was contended by the learned counset for the appellants that it was not honest, it was submitted that PI Kukdotkar, PI Nimbalkar ^n^ the police^ officers attached to the Vasai and Virar police stations and even higher officers were supporting and protecting Bhai Thakur, Manik Patil and their men by helping them in tampering with the evidence or by “ot taking action against them. There is sufficient evidence on record to hold that the gangs of Bhai Thakur and Manik PatU were operating in Vasai and Nalaropara areas since 1980 and 1984 respectively. There is also evidence to show that in order to achieve their objects or extorting money and grabbing land they used to indulge in violence and other criminal activities. Whether those two gangs were committing terrorist acts or not is a separate point and we shall deal with it later. For the present we are examining the evidence to find out whether investigation in respect of murder of. Suresh Dube was honestly done. The evidence of the family members of Suresh Dube is consistent on the point that PI Kukdolar and PI Nimbalkar had pressurised thern not to mention the name of Bhai Thakur or his men as the murderers of Suresh and had even threatened therr. that if they did so they -would have to suffer serious consequences. P.W.I, Dr. 0m PraKssh has deposed that within about 10-15 minutes after Suresh was brouight home and examined by the doctors, PI Kukdoikar had come to thss’r house and toid that as he had not personaUy seen who had committed ‘ the murder he should not name Bhai Thakur as a suspect. PI Kukdoikar had further toid them that even if Bhai Thakur was named as the murderer nothing would happen to him and on the contrary he and all his brothers wouid have to d’e. PI KLikdoiksr had theroafter gone awayand had returned wit.hPSI Padekar and had remained wfth him when the complaint was written down by PSI Padekarand Ccn.stable Sridhar Thakur (P.W.80). Dr. 0m prakash has 3^0 deposed, that .PI Kukdolkar used to come. to their house even thereafter and on. some occasions he had come with PI Nimbalkar and that both of them had tried to impress upon him and his family-members that Bhai Thakur being a strong mar) end whoever filed a complaint against him was killed and that it was enough .that .one of the Dube brothers was ‘kiiied. P.W.2, Shyam Sunder has also stated that within about 10 minutes after Suresh was declared dead PI Kukdolkar had come to thefr house and had a tafk with his brother Dr. 0m Prakash. He has further stated that after talking with his brother PI Kukefolkar had told him and other members of the family that they should not name Bhai Thakur as the murderer of Suresh. PI Kukdolkar had specifically told him that he was the eldest member of the family ahd should understand the consequences otherwise all the brothers would meet the same fate as that of Suresh. He has further stated that PI Kukdolar had also told them that whatever property BhaiThakur was demanding should be handed over to him and that they should leave Nalasopara and go away to their native place. Us has aiso stated that PI Kukdolkar had again come back with P51 Padekarand told them that they should cooperate with him and that they should act according to what he had told them. P.W.3 Naresh Dube, P.W.4 Jalprakash, P.W.5 Bhagwati and P.W.6 Meera Dube have also supported the evidence of Dr. 0m Prakash and Shyam Sunder. All this evidence has been disbelived by the trial Court on the ground the Dubes had not complained about the conduct of PI Kukdolkar and PI Nimbaikar to Mr. Zarekar, who was then working as SDPO Vasai nor to any other higher officer. It is not qu’te cor”ect to say that these witnesses had not complained obcL-t the conduct of PI Kukdofkar and P! N.’mbalkar to anyone. He had complained to Pi Rathod who used to go to them for investigation. All these witnesses have further stated that it was because of this attitude of the police officers connected with the investigation or interrogation that they had not complamed to higher police officers or taken any other action. The-learned counsel for the appellants submitted that the learned trial Court was not right in brushing aside this evidence and it shcuid have appreciated that there was no particular reason for the members of Dube family to make false allegations against the four police officers (A-14 to A-17) and PSI Padekar. It was submitted that the learned trial judge failed to appreciate that for some years Suresh Dube was also involved in similar illegal activities and was, therefore, likely to know about the relations of police with the gangs of BhaiThakurand^anikPatil. .
15. . The learned counset for the appellants also submitted that the time of recording the FIR was not correctly mentionee and that is a circumstance Indicating dishonesty of the previous investigation. Undisputedly murder of Suresh took place on the Nalasopiars railway platform at about 10.30 A.M. P.W.80, Sridhar Thakur who was working as a writer constable under PI Berge at the Peighar railway police station,
27
has stated PI Berge was absent on 9.10.1989 ard PSi Padekar was in-charge of the poUce station. On receive information regarding murder of Suresh he had accompanied ‘PSI Padekar to platform No. 2 of Naiasopara railway station and thereafter to the residence of Dube brothers. PSI Padekar had questioned Shyam Sunder and the reply given by him was written down by him and that writing was taken as the complaint of Shyam Sunder.’-’ The said complaint was then sent to the Palghar railway police station for registration. ‘In his cross-examination however he denied this version and stated that on 9.10.1989 he was cailed by PSI- Padekar at Natasopara bysending a wireless message. It is proved that in his police ‘statement dated 15.5.1993 he had stated that after receiving the wireless message he had gon<3 to Naiasopara and that he had reached there at 2.00 P.M. The murder had taken place at Naiasopara railway platform at abut 10.30 A.M. PaSghar raltway police station is 6t a considerable distance and as disclosed by the evidence of police constable ‘RaJendra Panjawant (P.W.79), who was’also attached toPalghar raiiway-poHCe’statlon, that the first train available ek Palghar for going towards Mumbal si^e after 10.15 A.M. was at 12.30 P.M. It is, therefore, quite clear that writer constable Sridhar Thakur could not have taken down the complaint at Naiasopara at 10.40 A.M. Poiice.constabte Rajendra Panjwani has also stated that the message regarding murder of Suresh was received at Paighar railway police station sometirna between 11.00 and 11.15 A.M. and that he wasaiso directed to leave for Naiasopara. He caught the next available tram at 12.30 P.M., got down at Virar and then caught the suburban train for Naiasopara which took him there at about 3.00 P.M. P.W.66, Gosalkar was a police constable on duty at Palghar railway police.station on 9/10.1989. He has stated that while he was on duty at gate No. 38 situated on the western side oftha railway platform he saw s^me passengers running across the railway ime. On enquiry he.wastold thatfirmghad taken place on the railway-platform and so. he rushed to that place and found one person iytng. ;m an: injured- condition.-He then went to the station master’s room to. send a telephon call to Vasai railway station master for sending more police force. That was between 10.45 and 11.00 A.M. -Thereafter heyvent to the house ofDube .. brothers and after about 20 minutes PI Kukdolkar had come there. From this evidence also it becomes quite clear that the complaint could; not have been recorded by Sridhar Thakur at 10.40 A.M, nor..could it have reached Palg^ar railway police -station by 12.30 P.M. as deposed by P.W.72, Hanumant Jadhav. In all probability the first information was recorded atPalghar railway police station much later and after PSI Padtekarhad gone back to Palghar. No time was rrtentlohed In the register. Copy of the FIR was not sent to the Magistrate either on that day or on the next day. It had reached the Magistrate on 12.10.1989. This delay does create a suspicion regarding influence of the two gangs oyer the police. Another circumstance and a stronger one indicating that the first Investigation was not honest Is the attempt made by the previous investigating officers to connect revolver article (No. 47) with the crime. It is not in dispute and also stands proved by the spot panchnama and the entry made in the, case diary (Ext. 754) that five empties were recovered from the scene of offence. If shots had been fired from a revolver then the empties would have remained inside the chamber of the revolver and would not have fallen out on the platform. Presence of five empties on the platform clearly indicated that the weapon used for firing shots was a pistol. Yet a revolver (Article 47) was seized and shown as the weapon of offence. Obviously that was done with the object of helping the murderers as no Court could have convicted them on the basis of such evidence. Very probably two of the five empties seized from the railway platform were substituted. That becomes apparent on comparison of the description given in the Panchnama with the description mentioned in the case? di’ary.
16. Another circumstance which creates a ^cubt regarding honesty of the previous investigation is the making of a false statement in the application for taking A-4 on remand. The police had already recovered the revolver on 20.10.1989 sometime between 5.30 and 6.30 A.M. and yet in the application made to the Court at: about 12.30 P.M. on that day it was stated that the weapon of offence was yet to be recovered. One more circumstance having a bearing on the connaction of the previous investigating officers with accused A-1 to A-13 is absence of any serious attempt by the police till 1992 to secure presence of the accused before the Court and see that the trial proceeded against them. Even though A-4 and A-11 were released on bail and were not attending the court and summons were not served upon them, yet no attempt was made by the police to get any warra-nt for their arrest issued by the court. The proceedings of the Court discloses that the case was required to be adjourned from time to time on the ground that the summons could not be served^pon them.
17. in our opinion these circumstances do create a doubt regarding honesty of the first investigation. We are also of the opinion that the subsequent Investigation made by the police under the direction of Suradakar after September 1992 was not done with any oblique motive.
18. The prosecution had led evidence of P.W.I (Dr. 0m Pra^ash), P.W.2 (Shyam Sunder), P.W.3 (Naresh Dube), P.W.4 (Jaiprakash), P.W.5 (Bhagwati) and P.W.6( Meera Dube) to prove the motive for the murder of Suresh. The evidence of P.Ws. I and 2 discloses that Dube brothers had purchased certain lands of villages Achole, Mi’lemore, Manikpur, Tuiinej and other villages touching Nalasopara. Bhai Thakur and his associates had taken illegal possession thereof. Suresh was trying to take back those lands. Bhai Thakur wanted those lands to be trar^erred to him and wanted Suresh to pay ‘haftas’ for carrying on iand developing and house building activities in that area. In this connection, Suresh was called by Bhai Thakur at his office at Virar a few days before 8.10.1989. We have already referred to the discussion and the threats given by Bhai Thakur and his associates to Suresh. We have also referred to the warning given to Suresh on telephone on 6.10.1989. P.W.6 had also stated in her evidence that Suresh was much worried after he had received the threat. The evidence of P.Ws. 1, 4 and 6 further discloses that it was decided by al? the fami’y mernbfers that Suresh should leave Nalasoparaandgo to his native piacQ till the danger to his life continued. In the cross-examination of those witnesses it has been brought out that except in respect of Survey No. 110 of Achole there was no document to establish that Suresh and his brother were ever in possession of those lands pursuant to agreements of sale. The evidence of these witnesses is found trustworthy and the motive can be held proved.
19. The evidence of P.Ws. I and 2 and that of P.W.28, Amarnath Tripathi proves and that is not indispute that Suresh had left his house at about 10.15 A.M., reached platform No. 2 within about 2 minutes lime and was shot between 10.30 and 10.35 A.M. At that time Amarnath Tripathi was with him. Two other persons had also accompanied as Suresh wanted to have a talk with them in connection with his business. One of them was Mukesh Shah (P.W.53). As to what happened thereafter on platform No. 2 of the Nalasopara railway station has been deposed by Amarnath Tripathi (P.W.48) and 0m Prakash (P.W.49). Others who had seen the indctent and were examined as eye witnesses but did not support the prosecution were Ranjit Thakkar (P.W.iO), Alex Marthin (P.W.Ji), Sanjay Dube (P.W.39), Dinesh Kashyap (P.W.39) and Mukesh Shah (P.W.53). Ranjit and Sanjay were the passengers wait’no on that platform for the train to come. Both of them have deposed about firing of shots and seeing Suresh lying on the platform in an Injured condition, but they did not identify any of the accused as’ the assailants of Suresh. Sanjay stated that A-l and A4 were not the persons who were seen by him running away on the railway track. Alex Martin (P.W.31) was the person near whose book-stall the incident had happened. He has stated that he had seen the person who had fired shots at Suresh and had also seen other persons running away after the incident, but he did not identify the assailants stating that he had seen them from the back side. He specifically denied that A-l was the person who had fired the shots. Dinesh Kashyap (P.W.44) had a pan-bidi stall on the platform. He also stated in the Court that he was not able to identify the assailants. All these witnesses were, therefore, declared hostile.’ ‘Mukesh Shah (P.W.53), who new Suresh and A-l and who was also injured, did not say in the court that A-l and some of the accused were the assailants of Suresh. The learned Mat Judge doubted involvement of A-1 on the ground that Mukesh Shah being dose to Suresh would have disclosed the Identity of the real assailants If he had really seen them. This witness must have been very dose to Suresh as ha had gone on the platform to have a talk with Surssh. The fact that he was injured by one of the shots fired at Suresh also indicates that he must have been close to Suresh. This witness at first denied that he know A-1, but admitted in cross- examination by the public prosecutor that he knew A.-.1 since before the incident. It was, therefore, more probable that he did not want to identify them out of fear and not because in fact he had not identified them. His evidence, however, remains unhelpful to the prosecution.
20. , . …Amsmath Tripsthi (P.W.4S) hsd come from his native place to Nalasopara on 4.10.1989 or 5.20.1909 and was sta/i’ng with ms sister and brother-in-law Shyam Sunder (P.W.2). tie.^ad come to see his sister and also to find a match for the daughter of his younger brother. Between 5.10.1989 and 9.10.1989 he had seen two boys. On 9.10.1989 he wanted to goto Vills Parle to see one boy. As further stated by him Suresh wanted to purchase a railway ticket for going to his native place Gorakhpur and, therefore, both of them had left together at 10.15 A.M. They went to platform no. 2 and were waiting for the train to arrive. As the train by which they were to leava for Mumbal was running late he went to a shoe-polishwaia to get his shoes polished. Suresh Dube purchased a newspaper from a nearby book-stall and started reading the same. While his shoes were being polished he heard the sound of a firearm shot and when he looked in that direction he saw one person with a pistol firing further shots at Suresh. Ha has also stated that 4 to 5 persons, had encircled Suresh. Because of firing persons standtn^ on the platform started running helter skelter. The shoepolishwala also got up and ran away.. He then got a push from one of those persons who had encircled C-uresh and, therefore, foil down from the platform. He immediately got up and looked at Suresh. He saw the same person who had earlier fired shots firing one more shot at Suresh who was by then lying on the platform. He, therefore, raised shouts “Save Save”. By that time one train arrived and taking advantage thereof all the assailants ran away. He has also deposed about how Suresh was taken home and declared dead by the doctors. According to him he become giddy, fell down and on hearing that Suresh was dead he became unconscious and remained unconscious for three days. After he regained consciousness he was toid by the relatives ofSuresh that murder was committed by Bhai Thai’ur’s men and he should not say anything to the pol’ce about the incident as that could prove to be dangerous to their lives because the police was well connected with Bhai Thakur. Therefore, he refused to give a statement to the police on 12.10.1989 when they had come to record it. In the court he identified A-1 to A-4 as the persons who had encircled Suresh. He also identified A-1 as the person who had fired shots at Suresh. This witness was confronted in his cross-examination by the police statements dated 12.10.1989 and 20.10.1989 purported t6 have been recorded by PI Berge. What the defence wanted to establish was that on 12.10.1989 he had given a different version as regards the manner in which the incident h-ad happened. His version in the said statement was that Suresh was standing on his left side while he was getting his shoes polished and when the bootwala was polishing his shoes with cloth, suddenly words “Are Is Ki Ma Ki” came out of Suresh’s mouth. At that time people on the platform started shouting “Run Run”. Immediately a big sound like bursting of a cracker was heard. He received a push from somebody, lost his balance and remained standing by leaning against the’Soo”-.^a.;. He looked at Suresh. He had bent down keeping his hand on ”5 stomach. It was also brought out in thecross-exsi-nmation that this witness had not given any description of the assailants m his statement dated 18.8.1992 and that he had further stated that the person who had fired shots’ was having In his hand a weapon like pistoL He was also contradicted by his police statement dated 18.8.1992 wherein he had stated that “immediately thereafter Suresh Dube sat down with hisb’oth hands on his forehead I had fallen down on the railway track because of the push. In the meantime local train ‘from Virar side and Churchgate side arrived. Dunng ‘that ‘time people who fired on Suresh Dube ran away towards Nalasopara West. This witriess had not stated in his said statement that “after I stood up on the railway track I saw Suresh Dube lying on the platform and the person who was firing bent down and fired on the head of Suresh Dube”. It was submitted by the learned counsel appearing for the respondents-accused that these omissions and contradictions clearly disdose an attempt on the part of this witness to make improvements upon his earlier version so as to mak-2 his evidence agornst A-1 to A-4 certain and acceptable. It w&s also urged’ that this witness in his statement dated 18.8.1992 had stated that “I had given,my statement before the police during my stay of 20-25 days with^Dubes’JamHy. ^er the incident of murder”. It was urged that this witness has falsely stated white giving evidence that he had not given any statement to the police either on 12.1G.19SS or 20.10.1939. It was further urged that this witness had denied to have made any statement on 12.10.1989 and 20.10.1989 as he knew that it contained a different and an uncertain version not only as regards the manner in which the incident had happened but also with regard to his seeing this assailants. The trial Court was also much impressed by these omissions and contradictions, and taking into consideration the circumstance that the incident had happened suddenly and large number of persons who were standing on the platform had started running helter skelter after hearing the sound of firing of a shot, held that this witness could not have sufficiently seen the assailants so as to correctly identify them in the court after.many years. In arriving at this conclusion ths trial Court also rdisd upon the statement in h’s cross-examination that he did not know from which direction the .sound of the first shot hed come and from what distance it was fired. ^We have earlier held that the previous Investigation was not. honest and; therefore, no importance could have been given to these omissions and contradictions proved from the statement dated 12.10.1989. Even if we proceed on the assumption that a statement of this witness was recorded by the police on 12.10.1999 it is not possible to agree with the submissions made on behalf of the respondents that the earlier version of this witness was totally different from his version in the Court. The discrepancies were with respect to number of assailants and number of shots fired by the assailants and also on the point of his seeing the assailant firing one^mpreshot after he had neceirVcd a push and fallen down onthe.railway track. Even the omissions and contradictions with respect to the statement dated 18.8.1992 are also not such as would,lead,to an inference that this witness was deliberately making improvements before the court in order to faiseiy say something that he had not seen. What appears from the statement is that this witness had stated in his statement dated 15.8.1992 that he h^d seen the last shot fired on Suresh after he ha^ faUen dovw from-the platform. Whathehad notstatei3.wasthathe.hadseen the.assailant firing thelastshot after he ^adgot up from the railway track,. The fact that this witness had gone to Nalasoparatome^t ^5.sister and had some work has remained unchallenged., Th^ fact that on 9.10.1989 he had left the house of Dubes with Suresh at 10.15 A.M. has also remained unchallenged. The presence of this witness on the platform at the time of incident has not been questioned. His version that he was getting his shoes polished at the time of the incident has also not been disputed. Whatwa’s urged before the trial Court and what has been bdisved by ’tis that as the incident had happened suddenly and the people standing on the platform had started running better skelter immediately after fhe first shot was fi^ed^th^ witness coritd not have seen the assailants clearly foral suftideh^y ong Wneso as to correctly recognise them after a lapse of few years. It was also urged that as this witness was not abia to make out from which direction the sound of firing a shot had come and was not able to state the distance from which it was fired would also support the finding that this witness really did not know the mannet and circumstances in which the assault on’Sure^h had taken place.’ ‘^hi5 witness has said that he was at a distance of about 3 ft. from Suresh when the incident had happened. That appears to be more probable and natural also. Both of them had left the house together and were to go together in the train. Except the circumstance that people on the platform had started running helter shelter a*te” hearing the sound of firing of shots, there was nothing before the court on the basis of which it could have-^dthat Amarnath cou.’d not have seen the assailants firing shots at Suresh. and surrounding him. Though the inddent had happenecTsuddeniy, firing of five shots from a pistol must have taken some time. Thte witness in our opinion had sufficient time to^e and registsr hh^s mind what was then happening to Suresh, his- brother-in-law. In our opinion the learned trial Judge was not right in hoidng that this witness very probably did not have sufFident opportunity to see the manner In which the whole incident had happened and who were the assailants.
21, The next point to be considerad is Whether identification of the accused by this witness in the Court can be believed when no attempt was made earlier by holding a te$t trial Court has found it unsafe and it was contended by the learned counsel for the accused that such identification has ^ LWhla f(AIR 1980 SC 1382]. A-1 to A-4 who were identified by February 1993. Three years had passed by then. Perhaps th^ was the reason why test identincatjon’ parade was not held. Anyway this infirmity of not hoping a test identification parade does diminish the evidentiary value of identification of these accused by this witness in the Court. If this was the only evidence regarding identification of those accused we would have held that it was not su^dent for convicting any of those four accused. But it stands corroborated by the evidence of another eye-witness and also by ti’e confessions of A-1 to A-4, if they are held admissible and voluntary.
22. It was contended by the learned counsel for the respondents-accused that the version of this witness that he.had become unconscious on hearing .that Suresh had died and had remained unconscious for three days was not believable and th^ trial Court was right in rejecting the evidence of.this witness oh that ground. It is difficult to appreciate what this witness wo^id have gained by falsely saying so. He had seen his brother^n- r law being shot dead. Therefore it was not unlikely that h.e got a shock and became unconscious. If what he has stated was no^ correct then the police would have recorded his statement befo/e 12.10.1989. The fact .that his statement co^.’d not be record before 12.10.1989 lends support to his evidence that he had remained unconscious, though not continuously, for three days.
23. 0m Prakash Brahmania (P.W.49), another eye- witness, was earning his livelihood in Bombay by working as a boot-polisher on the platforms of Nalasopara railway station. He had been doing so since about 10 years before the date of the Incident. He usad to sit on the platform from 6.30 in the morning till 6.00 o’clock in the evening. He knew Suresh and some accused as they often used to come to the railway platform to get their shoes polished. He also knew some of the accused as he was threatened by them on some occacions as a ‘.’. part of their activity of terrorising people of the locality. He has’ deposed that on the date of incident he had seen Suresh Dub^ and one person accompanying him on the railway platform ^t about 10.30 A.M. The person who had accompanied Sur^h came to him for getting his shoes polished. While he ^as polishing his shoes Suresh was reading a newspaper near’ihe book-stall at a distance of about 2 ft. from him. He then s^/v Narendra (A-1) nephew of Ma-nik Pstil, coming there and firf^g shots G*~ Suresh. He also s^w that 3 cr < yers”"”.? were w’th A-;. Narain was one of them and he had a chopper with him. As s result of that firing people started running. He also got frightened and ran away and took shelter behind a nearby building. After waiting there for some time he went home. He identified Narendra (A-1), Dayaneshwar Patil (A-3) and Patric (A-4) in the Court. He identified Narendra (A-I) as the person who had fired shots at Suresh and Dayaneshwar (A-3) as the person who was standing with a chopper by the side of Suresh Dube. He has further deposed that because of this incident and fear of Manik Patil’s gang he left Bombay within about 2 to 3 days and went to his native place in Haryana. He stayed there for three years. When he returned to Bombay he came to know that the police was searching for him. Therefore, he met the police and his statement was recorded on 5.10.1992. In his cross-examination he stated that it was after about 8 to 10 days from his return from Haryana that his statement was recorded by the police. He also stated that his father had all the time remained in Bombay. The learned trial Judas has held this par of the evidence of this witness unbelievable. The trial Court held that there was no reason for this witness to remain away from Mumbai for a period of 3 years, particularly when his father had stayed back. The learned trial Judge also held that this witness had shifted to Bombay as he did not have enough work in Haryana and, therefore, it was not likely that he would have remained in Haryana for 3 years before returning to Bombay. The learned Judge also relied upon the circumstance that in his statement before the police he had given his Bombay address and stated that he was staying at that place since about 10 years. The reasoning of the trial Court was that if he was absent for 3 years from Bombay then he would not have stated to the police that he was staying at that address since about 10 years. In our opinion, the reasons given by the trial Court for disbelieving this part of the evidence of this witness are not at all sound. The fad: that this witness belongs to a small town in Sonepat District of Haryana State is not disputed. It is also proved that summons were served upon this witness while he was in Haryana. It was also suggested by the defence in his cross-examination that the police had arrested him from Haryana and brought him back to Bombay. The version of this witness was that he had come to Bombay on his own and he was not arrested or brought by the police. But the fact that he had gone back to Haryana and returned in 1992 has remained almost unchallenged. It is true that according to the previous investigation made by PI Padekar and PSIl Berge statements’ this witness were recorded on 11.10.1989, 13.10.1989 and 20.10.1989. This witness had denled- to have^ .given those statements and we are..inclmed to behieve this witness on this point in view of the finding recorded by us earlier that the Previous Investigation was not honest. This witness had been staying in Bombay and earning his livelihood. He had come to Bombay as he did not have any source of livelihood in Haryana. It was, therefore, not likely that without any compelling reason he would have left Bombay and gone to Haryana. Therefore, his evidence that he-had left Bombay and gone back to Haryanp because of fear of Manik Patil’s gang deserved to be accepted. He was an eye-witness to the incident. The investigation had disclosed that he was an eye-witness and that was the reason why a statement alleged to have been made by him was recorded by the police on 11.10.1989. The conduct of this witness was quite natural and there was hardly any justification for discarding his evidence on the ground that his version was not believable. This witness knew Suresh and also the accused. He stated so in his examination-in-chief. we find hardly anything in the cross-examination of this witness which would create any doubt regarding his knowing Suresh and some of the accused since before the date of the incident He had been working at Nalasopara railway station for about 10 years. He This witness has denied to have made any statement on 11.10.1939 or 13.10.1939. Wa will later on point out that naming of A-4 and A-11 as the murderers of Suresh was a manipulation done by the gangs of Bhai Thakur and Manik Pstil with the help of A- 14 to A-17. It is also not factuallyy correct to say that the witness had on 20.10.1989 identified A-4 and A-ll as the assailants of Suresh. According to the police statement this witness had only confirmed that the persons A-4 and A-ll who were in the police custody were the persons who had attacked Sunash. Therefore, the learned trial Judge was not right In rejecting his evidence on these two grounds. The trial Court also disbelieved his evidence on the ground that if he really knew the names of the accused then he should have disclosed the same not only to the poiice but to other person? with whom he had a talk. He had nelther disclosed the names to the police nor to his father with vvhom he had a talk about the incident. The evidence on this point is also not correctly read by the trial Court. What this witness has stated in his evidence is that he knew A-l by name and others by their faces According to this witness he did not have any talk with anyone with respect to the incident except with his father. It may be that he was afraid of naming any person belonging to the gang This witness has denied to havs made any statement on II.10.1989 or 13.10.1989. Wa will later on point out that naming of A-4 aid A-li as th murderers Suresh was a manipulation done by the gangs of Bhai Thakur and Manik Pstil with the help of A- 14 to A-17. It is also not factudll correct to say that the witness had on 20.10.19S9 identified A-4 and A-li as the assailants of Suresh. According to the police statement this witness had only confirmed that the persons A-4 and A-11 who were in the police custody were the persons who had attacked Suresh. Therefore, the learned trial Judge was not right in rejecting his evidence on these two grounds. The trial Court also disbelieved his evidence on the ground that if he really knew the names of the accused then he should have disclosed the same not only to the police but to other persons with whom he hed a talk. He had nether disclosed the names to the police nor to his father with whom he had a talk about the incident. The evidence on this point is also not correctly read by the trial Court. What this witness has stated in his evidence is that he knew A-l byname and others by their faces According to this witness he did not have any talk with anyone with respect to the incident except with his father. It may be that hs was afraid of naming any person belonging to tha Jang has Q’ven the reason why he knew Suresh and some of the accused. It was, therefore, more probable that he knew Suresh and also some of tha accused including A-l. This witness had no reason to falsely involve any of the accused. Moreover, being aware of the existence of Manik Patil’s gang and the terror which they had crested he would not have dared to falsely depose against them. His presenca on the railway platform on the date and time of the incident cannot be seriously disputed as that was the usual thing for him to do. There is nothing on record to show that he was close to Dube or was under any influence of the police and for that reason would depose falsely against A-l, A-3 and A-4.
24. The trial Court also has recorded a finding that possibly he knew the accused belonging to the gang of Manllc Patil. His evidence by the trial Court has been disbeliever mainly on the ground that the description of the assailants giver) by him in the earlier statements did not tally with A-l and that on 20.10.1989 he had identified A-4 and A-ll as the assailants of Suresh, while in the Court he had identified A-l, A-3, A-4 and Narain (A-10) as the real assailants of Suresh. We have already pointed out that the earlier investigaticn was not honest. of Manik Petll as the murderer and therefore had not disclosed’ the name of A-1 as the murdersr of Su’resh. A-l, A-3 and A-4 were sll Known to aim and, therefore there was no point in holding a test identification parade after this witnes had returned from Haryanac. Therefore, the learned this judge was not right in rejecting his evidence en :ne groundi that he had not disclosed names of the accused to anyone and that no test identification parade was held to test the identity of the real culprits. We are of the opinion that the trial Court was not justified in discarding the evidence of this witness on the ground that it was not believable. His evidence deserved to be accepted without any independent corroboration.
25. The prosecution has also relied upon the circumstance of discovery of a pistol by A-1 as an independent circumstance corroborating the evidence of eye-witnesses. The Panch Withnesstn^s did) not support the prosecution and it is also difficult to hold that it was really a case of discovery of pistol by A-l as contemplated by Section 27 of the Indian Evidence Act. The learned trial Judge has not relied upon the evidence relating to this circumstance and we are also of the opinion that the stated by these actused while retracting their eonfessions was: that they were obtained by giving threats.Of under undue influence. It was generally suggested to Shinde in crosses examination that he had obtained signatures of the accused on those confessions under undue Influence, coercion, fraud and mental and physical torture. It was not stated by the accused nor even suggested in the cross-examination of Shinde that particular type of physical or-mental torture or coercion was caused to the accused or in which rnanner-thay were defrauded or what undue ‘influence was exersed upon .them. Only suggestion that was made to the witneeses was that whiie recording the confessions he told them that he was Superintendent of Police and he had-stated so in order to impress the accused. In our opinion Shinde ha,ddone nothing wrong In disclosing his identity as he was really required to do so before recording the confessions. At this stage we will refer to some of the admissions and statements made by Shinde in his cross-examination. He admitted that he had felt that it was unfair on his part to record the confessions as he was supervising the investigation. He also admitted that he was not aware of the statutory requirements of Section 15 of the TADA Act and Rule 15 of the TADA Rules till he recorded the first confession. He also admitted that he had inadvertently committed a breach of the TADA Ruies while recording those confessions. He also admitted that .while recording the confessions he was not aware of the.procedure prescribed under Section 164 of the Criminal Procedure Code for recording confessions and also the provisions made by the Bombay High Court in its Criminal Manual. He also admitted that he had put. some more questions to the accused before recording their confessions in order to find out that they were willingly making those confessions but all those questions have not been recorded by him-in-the confessions. It was really on the basis of these admissions and some other reasons to be dealt with hereinafter that the trial Court held the confessions not admissible, not voluntary and not reliable. . ‘ 27. Section 15 of the TADA Act makes certain confessions made to police officers admissible in the trial of such person or co-accused, abettor or conspirator for. an offence under the Act or rules made there under. This. Court considering its constitutionaiity in Kartar Sinah v. State of Punjab [(1994) 3 SCO 569] observed that “having, regard to the legal competence of the legislature to make the law prescribing a different mode of proof, the meaningful purpose and object of the legislation, the gravity of terrorism unieashsd by the terrorists and disruptionists endangering not only the sovereignty and integrity of the country but also the normal life of the citizens, and the reluctance of even the victims as well as the public in coming forward, at the risk of their to give evidence” – held that the impugned section cannot be said to be suffering from any vice of unconstitutionality. Section 15 is thus an important departure from the ordinary law and must. receive that interpretation which would achieve the object of that provision and not frustrate or truncate it. Interpreting the said provision this Court in Statethrough Superintendent of police,CBI/SIT etc.. V. Nalini & Ors. (popularly known as Rajiv Gandhi Murder case), this Court has held that a confession recorded under Section IF of the TADA Act is to be considered as a substantive piece of evidence not only against the maker of, it but also against its co-accused. There was difference of opinion amongst the three learned Judges who decided that case regarding the evidentiary value of such a confession against the co-accused is tried in the same case. Wadhwa,J. observed that what weight snould be attached to such a confession is a matter of discretion of the Court and as a matter of prudence the Court may look for some corroboration before relying upon such confession against the co-accused. Quadri,J. held that the rule of prudence would require that the Court should examine the same with great care and should not be relied upon unless it is corroborated generally by other evidence on record. Thomas, J. held that “Thus the established position which gained ground for a very long time is that while a confession is substantive evidence against ita maker it cannot be used as substantive evidence against another person even if the latter is a co- accused, but it can beused as a piece of corroborative material to support other substantive evidence.” Relying upon the decision of this Court in Kaipnath Rai v. State [(1997) 8SCC 732], it was submitted by the learned counsel for the respondents that even a confession made admissible under Section 15 of the TADA Act can be used as against the co- accused only in the same manner and subject to the same conditions as stipulated .under Section 30 of the Evidence Act. An observation to the same effect is to be found in paragraph 75 of the judgement. In fact no such point fell for decision in that case and it appears to be a passing observation only. In view of the decision of this Court in NaUni’s case the said observation can now be regarded as correct position of law. The correct legal position Is that the confession recorded under Saction 15 of the TADA Act is a substantive piece of evidence and can be. used aoainst a co -accused also otherwise held to be admissilbie voluntary and believable.
28. The confessions have been held inadmissible mainly on two grounds. The first ground given by the learned trial Judge is that the power under Section 15 of the TADA Act was exercised either malafide or without proper application of mind. The second ground on which they are held inadmissible is that they were recorded in breach of Rules 15(2) and 15(3) of the TADA Rules and also in breach of the requirements’ of Section 164 and the High Court Criminal .Manual. The learned trial Judge held that the TADA Act was applied in -this case without any justification. The permission was granted in. that behalf without any application of mind. According to the trial Court there was material on the basis of which TADA Act could have been invoked at that stage and that most probably the said Act Was invoked in order to defeat the ball application filed by two accused in the High Court. In our opinion the trial Court.was wrong in taking this view. We have already pointed out earlier that Deshnukh) had collected enough materil on the basis or which reasonable satisfaction could have been arrived at that the acts committed by the two gangs were terrorist acts. It is no doubt true that it was wrongly reported by Deshm.mukh that Section 5 was also applicable in this case and that without proper verification sanction was granted to proceed under that section also. The applicability of Section 5 depended upon existence of a requirsite notification by the State Government. It was wrongly reported by PI Deshmukh in his report that such a notification was issued and relying upon his statement the higher officer had given the sanction. Merely on this ground it cannot be said that Shinde has exercised the power under Se-’:t’ion 15 of the TADA Act mala fide. The learned trial Judge has also held that it was not fair on the part of Shinde to record the concessions as he was also supervising the investigation. Shinde has clearly stated in his evidence that he had made attempts to find out if any other Superintendent of Police was available for recording the confessions and as others had declined to oblige him he ‘had no other option but t’o record them. We see no illegality or impropriety in Shinde recording the confessions even though he was supervising the investigation. One more flimsy reason given by the trial Court for holding that the power under Section 15 was exercised male fide is that the accused making the confessions were not told that they have been recorded under tne TADA Act. No such grievance was made by the accused in their statement under Section 313. On the other hand, it appears from the confessions themselves that the accused were made aware of the fact that those confessions were recorded under the TADA Act.
29. The learned trial Judge has held the confessions Inadmissible on the ground that they have been recorded in breach of Rules 15(2) and 15(3) of the TADA Rules. The rules read as under:
S.15(2). The police officer shall before recording any confession under sub- section. (1), explain to the person making it that he is not bound to make a confession and that, if he does so, It may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he has reason to believe that it is being made voluntarily.”
“R.15(3). Tne confession shall, if it is in writing, be – (a) signed by tha person who makes the confession; and
(b) by the police officer who shall also certify under his own hand that such confession was taken in his presence and recorded by him and that the record contains a full and true account of the confession made by the person and .such police officer shall make a memorandum at the end of the confession to the follHowing effect.’-
“I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and, I believe that this confession was voluntarily made.. lt was taken in my presence and hearing and recorded by me and was read over to the person making it and admitted by mm to be correct, and it contains a full and true account of the statement made by him.
Sd/- Police Officer.”
Relying on sub-rule 2 of Rule 15 it was contended on behalf of the respondents that: the notice officer Is required to explain to the person making confession that he is not bound to make it and that if he makes it it can be used agsinst him as evidence. The said provision also requires that he should question the person making it in order to assure him that he is making it voluntarily. It was submitted by Mr. Kotwal, learned counsel appearing for some of the respondents that both these things are required to be done ‘before recording’ any confession. When a confession is recorded in two parts – the preliminary part containing record of how and for what the person was forwarded and the questions and answers put to him for ascertaining his voluntary willingness to make a confession even after being told that the confession may be used against his as evidence and the second part which contains the actual confessional statement it is the second part which has to be regarded the confessional statement and not the preliminary part. Therefore, the obligation to explain and ascertain is to be performed .vhile recording the real confessional part and doing so earlier when the preliminary part Is recorded cannot be regarded proper compliance of the requirement of Rule 15 (2). The police officer must explain and give the statutory warning before recording the actual confessional part and it is at that point of time that he has to ascertain by questioning the person making it that he is making the confession voluntarily. He submitted that the confessional statements were recorded in this case in two parts and while recording the second part no questions were asked to the accused to ascertain whether he was making the confession voluntarily. He also submitted that while recording the second part no Warning was given to the accused that he was not bound to make the confession and that if he made it, then it can be used against him.
30. Neither Section 15 nor Rule 15 contemption recording of confessional statement in two parte or giving time. to the person making a confession to think over and reconsider whether he still wants to make it in spite of being told that ha his not bound to make it and that it can be used against him. If in order to be assured that the person concerned makes the confession willingly and voluntarily the recording officer gives him some time to think over and for that reason records the confessional statement in two parts, then they cannot be regarded as two independent and separate statements. The second part being in continuation of the first part both the parts. have to be treated as one confessional statement. If the recording police officer feels assured after giving the statutory warning that the person who wants’ to make a confession is doing so voluntarily he may not give any time for reconsideration and in that case there would be only one continuous statement Therefore, the contention that when the confession is recorded in two parts, only the second part-can be regarded as. the confession and while recording the second part the police officer should give the statutory warning ana and ascertain if the person concerned is making it voluntarily, cannot be accepted. The requirement of law is that before recording the confession the police officer should ascertain by putting questions to the maker of it that he is making the confession voluntarily and he *, should also explain to him that he is not bound to make the confession and that if he makes it that can be used against him as evidence. In this case DSP Shinde had put questions to each of the accused who was brought before him to ascertain if he was willing to make a confession voluntarily and had also given the statutory warning to him on that day. Even after the accused had shown his willingness to make a confession Shinde had given him time not exceeding 48 hours to think over his readiness to make the confession. When the accused was brought to him again he had again ascertained if he was still ready and willing to give a statement. He had also asked him if he was making it under any pressure or coercion or threat. Only after the accued had replied sn negative he had told the accused to say whatever he wanted to state about Suresh Dube’s murder. In view of these facts and circumstances it is not possible to uphold the finding recorded by the trial Court and to accept the contention raised on behalf of the respondents that while recording the confessions of the accused Shinde had committed a breach of Rule 15(2).
31. As regards the breach of Rule 15(3) it has been held that Shinde tdid not write the certificates and the memorandums “” in the same form and terms as are prescribed by that rule. It was submitted by the learned counsel for the respondents that the certificates and memorandums have not been recorded by Shinde in identical terms and as Rule 15 is held mandatory the trial Court was right in holding them inadmissible for non- compliance with that mandatory requirement. Therefore, the question to be considered is whether the certificate and ‘ memorandum are required to be written by that rule in the same form and terms. What Rule 15(3)(b) requires is that the police ” officer-should certify under his own hand that “such confession’”‘ was taken in.his presence end recorded by him and that the record contains a full and true account of the confession made by the’ person”. According to that rule the memorandum should be to the following effect:
“I have explained to (name) that he is not bound to make a confession and that; it he does so, any confession he may make may be used as evidence against him and I belleve that this confession was voluntarily made. It was taken in my presence and hearing and recorded by me and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.”
Writing the certificate and making the memorandum are thus made mandatory to prove that the accused was explained that he was not bound to make a confession and that if he made it it can ba used against him as evidence, that the confession was voluntary and that it was taken down by the police officer fully and correctly. These matters are not left to be proved by oral. evidence atone. The requirement of rule is preparation of contemporaneous record regarding the manner of recording the conf ssion in presence of the person making tt. Though giving cf the statutory warning ascertaining voluntariness of the contession and preparation of a contemporaneous record in presence of the person making the confession are mandatory requirements of that rule, we see no good reason why the form and the words of the certificate and memorandum should also be held mendatorry. What are the mandatory requirements of a provision cannot be decided by overlooking the object of that provision. They need not go beyond the purpose sought to be achieved. The purpose of the provision is to see that all frmalities are performed by the recording off:-:c-’ ^nself and by- others to ensure full compliance of the procedure and seriousness of recording a confession. We fall to appreciate how any departure from the form or the words can adversely affect the object of the provision or the person making the confession so long as the court is able to conclude that the requirements have been substantially complied with. No public . purpose is likely to be achieved by holding that the certificate and memorandum should be in the same form and also in the “same terms are to be found in Rule l5(3)(b). We fail to appreciate how sanctity of the confession would get adversely affected merely because the certificate and memorandum are not separately written but are mixed up or because different words conveying the samething as is required are used by the -recording officer. We hold that the trial Court committed an error of law in holding that because the certificates and mernorandums are not in the same form and words they must be regarded as inadmissible. Having gone through the certificates and the memorandums made by Shinde at the end of the confessions what we find Is that he had mixed up what is retired .to be stated in the certificate and what is required to be stated in the memorandum. He has stated in each of the certificates and the memorandums that he had ascertained that the accused was making the confession willingly and voluntarily and that he was under no pressure or enticement. It is further stated therein that he had recorded the confession in his own hand-writing (except in case of A-7 whose confession was recorded with the help of a writer). He has also stated that it was recorded as per the say of the accused, that it was read over to the accused completely, that the accused had personally read it, that he had ascertained thereafter that it was recorded as per his say and that the confession was taken in his presence and recorded by him. It is true that he has not specifically stated therein that the record contains ‘a full and true account of the confession made’. The very fact that he had recorded the confession in his own hand-writing would imply that it was recorded in his presence and was recorded by him. So also when he stated in the certificates and memorandums that the confession was recorded as per the say of the accused, that it was read over to him fully, that the accused himself personally read it and that he had ascertained that ‘t was recorded as per his say that would mean that it contains ‘a full and true account of the confession’ and that the contents were admitted by the accused. Thus, while writing the certificats and the memorandum what Shinde has done is to mix up the two and use his own words to state what he had done. Only thing that we find missing therein is a statement to the effect that he had explained to the accused that he was not bound to make a confession and that if he did so the confession might be used as evidence against him. Such a statement instead of appearing at the end of the confession in the memorandum appears in the earlier part of the confession in the question and answer form. Each of the accused making the confession was explained about his right not to make the confession and the danger of its being used against him as evidence. That statement appears In the body of the confession but not at the end of it. Can the confession be regarded as not in-conformity with Rule 15(3)(b) only for that reason? We find no good reason to hoid like that. We hold that the triat Court was wrong in holding that there was a breach of Rule 15(3) and, therefore, the confessions were inadmissible and bad. ,-. – /..
32. It was next submiittsd that though Section 164 Cr.P.C. does not strictly apply to confessions recorded under Section 15 of 7.^^ A”t, the provisions contained in Section 15(2) of TADA Act and 162 (2) and 164(4} of Cr.P.C. are similar and that would imply that the requirements of law regarding the procedure for recording a confession are the same. Both the provisions require that before recording confessions the accused must be told that he is not bound to make a confession and that if he makes it then it can be used as .., evidence against him. Both these provisions require that before ,- recording the confession the recording officer has to question .. the accused in order to satisfy himself that he is making the confession voluntarily and after recording it to issue a certificate and memorandum to the effect that the accused was explained about his right to be informed that he was not bound to make -;:’ -;K. –q..-.-, — – P^^ the confession and that it could be used against him, that he believed that the confession was made voluntarily, that it was , taken down in his presence and was read over to him, that it was admitted as correct by him and that it contains a full and true account of the statement made him. It was, therefore, submitted that the guidelines issued by the High Court for recording a confession under Section 164 Cr.P.C. are also required to be followed by the police officer recording a confession under the TADA Act. Otherwise a situation may arise where in the same trial there may be a confession of an accused recorder by a Magistrate without following the guidellnes contained in the High’ Court Manual and a confession made by another accused and recorded by a police officer under the TADA Act who has not followed these guidelines while the one recorded by the Magistrate may not bs recorded as evidence the ‘other one will be treated as evidence and can be used against him. in the aliternative, it was submitted that even if it is held that the guidelines issued under Section 164 Cr.P.C. by the High Court are not ‘required to ba followed while recording a confession undersection 15 of TADA Act at least the well recognised principles pointed out by this Court in Kartar Singh’s case (supra) are required to be followed. The said guidelines have been suggested by this Court as well recognised principles of fairness to be followed to ensure that the confession obtained in the pre-indictment interrogation by a police ‘officer not lower in rank than a Superintendent of Police is not’ tainted with any vice. What is missed by the learned counsel is that while recommending those guidelines it was made clear by this Court that it is really for the Court trying the offence to decide the question of admissibllity or reliability of a confession by Using its judicial wisdom, from what has been observed in the said’ decision it does not follow that if the suggested guidelines are not followed then the confession must be discarded as inadmissible or bad on that score or on the ground that it Is not in confirmity with Section 15(2) of the TADA Act and Rule 15 of the TADA Rules. The police officer recording a confession under Secion 15 is really pot bound to follow any other procedure. The rules or the guidelines framed by the Bombay High Court for recording a confession by a Magistrate under Section 164 Cr.P.C. do not by themselves apply to recording of a confession under Section 15 of the TADA Act. Therefore merely because some of those guidelines were not followed while recording the confessions it cannot for that reason be held that the said confessions have lost their evidentiary value. If while recording the confessions Shinde had followed all those guidelines also then that would have been a circumstance helpful in infering that the confessions were made after full understanding and voluntarily. In this case there is nothing on record to show, except that the confessions were recorded by Shinde in police station, that they were not recorded in free atmosphere. No other person was allowed to remain present at that time and ail the accussed were given time to reconsider their willingness. After they were produced again Shinde had ascertained whether they were still willing to make confessions. All- the accused were previously toid that they were not bound to make a confession. Each one of them was warned that if he made a confession then it could be used against him.
33. ‘ Shinde had tried to ascertain if any threat or inducement was given to them or whether they were ill treated or pressurized. Alt the accused had categorically stated that no such thing had happened. From the answers given by the accused it can be said that Shinde had good reason to believe that the accused were , making confessional statements voluntarily. In his evidence also he has stated so and nothing has been brought out in his cross examination from which It can be said that he was not so satisfied or that he did not really believe that the confessions were made by the accused voluntarily. The.. learned trial Judge held the confessions not voluntary as he was of the view that A-l to A-8 and A-ll were hardened criminals and it was not believabla that they would have one after the other shown their willingness, to make confessions. It was not even the case of the accused that they * , were nottaken to Shinde for recording their confessions. The only suggestion that was made in his cross-examination was that he had obtained those confessions after exerting influence, coercion and physical and mental torture. We have already pointed out earlier that in absence of any specific act suggested by the defence it Is not possible to accept the belated allegation made by those accused that their confessions were obtained In that manner. On careful consideration of the evidence of PI Deshmukh and DSP Shinde, we find that all those accused had made their confessions voluntarily. The confessions also receive independent corroboration on material points from the evidence of the two eye-witnesses and also from the evidence of P.Ws. I to 5. We have, therefore, no hesitation in holding that they are true and reliable and can form a iafe basis for conviction of those respondents/accused who have admitted to have taken part in the murder of Suresh and in commission of terrorist acts.
34. A-1 in his confession (Exts. 571 and 571-A) has admitted that he was a member of the gang of Manik Patil. He has further admitted therein that Manik Patil and his men were entrusted by Bhai Thakur the job of finishing Suresh and because they had not done their work quickly, Bhai Thakur was angry with them. So they were keeping a watch on Suresh Dube and on the day of the incident he was informed by one Kalidas Patil that Suresh was on platform No. 2. He immediately loaded his pistol and along with A-2 to A-5 and Narain Gouda went to the railway station. Suresh was seen reading a newspaper and another person with Him was ‘standing nearby and getting his shoes polished. He crossed him and went ahead and also did Namaskar. As there were many persons near the book-stall at that point of time he went ahead on the platform and again returned near that book-stall. He then took out the pistol from his pocket and fired seven shots at Suresh. He has also stated in his confession how he and others thereafter ran away and what he and others did thereafter. A-2, A-3 and A-4 in their confessional statements (Exts. 578 and 578-A, 563 and 563-A and 584 and 584-A respectively) have also stated that Manik Seth had given Instructions to Narendra (A-l) to finish Suresh and they were told to accompany Narendra whenever Narendra called them for help. They have admitted that on being told by A-l that “Suresh Dube has come at Nalasopara railway station. Let us all go”, they went to the railway platform along with A-l. They have all stated that Narendra fired shots and after Suresh had collapsed on the platform they had run away. A-5 has also admitted in his confession that he had gone to the railway platform running aiong with A-l to help him as decided earlier All of them have clearly admitted that the murder of Suresh was committed on instructions of Manik Patil (A-6) and Bhai Thakur. A-6 also confessed that he was the leader of the gang and that as decided by Bhaii Thakur, Don (Pendari) was to finished by the men of Bhai Thakur and they were to finish Dube. Therefore, A-l and his boys were keeping a watch upon movements of Suresh and he had instructed A-l and his boys to finish Suresh as soon as possible. So far as participation of A-l to A-4 in the murder of Suresh is concerned the confessions stand corroborated by the evidence of the two eye-witnesses. The confessions of A-5 and A-6 being substantive evidence are sufficient for considering them and they also receive corroboration from the confessions of A-l to A-4 and also receive genera’ corroboration as regards the other illegai activities committed by them from the evidence of P.Ws. I to 5 and those withness examined by the prosecution to prove that they were the victims of some of the terrorist acts committed by Thakur and Manik Patil. Therefore, relying upon the .<-..^’on of A-l to A-6 and the evidence of the two any witnesses Amanath and 0m Prakash, we hold that Suresh was k’illed by A-1.~-flring shots from his pi’stol and- that was done in prosecution of the object of the larger conspiracy hatched by Bhai Thakur, Manik Patii and some members of their gangs and the unlawful assembly consisting of A-l to A-6 and some others. We, therefore, hold A-l gulity under Section 302 I.P.C. and A-2 to A-6 under Section 302 read with Sections 120 B and 149 I.P.C. We may state that the finding recorded by tha trial Court that the death of Suresh was homicidal and that he died of the injuries caused to him by the bullets with which he was hit has not been questioned before us.
35. To prove the terrorist acts committed by the gangs of Bhai Tnakui and Manik Patil, the prosecution had examined some police officers and some others who were the victims of the to rorist acts. The police officers examined by the prosecution were PI Tadavi (P.W.68), ASI Paradkar (P. W. 6Q), PSI Ram Krishna (P.W.70), SDPO Deshmukh (P.W.71), DIG Suradaka’- (P.W.75}. DGP Baraokar (P.W.77) and ACP Vasant Pagare (P.W.90). PI Tadavi (P.W.68) was attached -o the Virar police station between 9.4.1985 and 24.1.1986. He has deposed that during that period he had found the three gangs operating in the area under the police station. They were the gangs “of Bhal Thakur. Nizam and Karu. Bhai Thakur’s gang was and stay with PI Kukdolkar and both of them used to car Prashant Tandel (A-8) to see them. He admitted that he had not taken any, action against-any of these gangs nor he had suspected anything wrong or improper because of those meetings. He denied that he was deposing falsely against the accused at the instance of Deshmukh. Ram Krishna Rengunthawar (P.W.70) was a senior PSI of Virar police station from, 17.5.1981 to 15.8.1982. He has deposed that during that period he had registered three offences against Bhai Thakur. ‘ In 1984 he was attached to CID Crime. Out of those three cases two cases were transferred to CID branch and in the third case the accused were acquitted. He stated that the said two cases were compounded out of fear. But he admitted in his cross- examination that he had not made any report to any higher officer in that behalf. Deshmukh (P.W.71) was the SDPO of the Western Railway between 1.3.1992 and 30.6.1993. He had no persona’ knowledge with respect to the illegal activities of the two gangs of Bhai Thakur and Manik Patil. But during the investigation made between 18.5.1992 and 23.9.1992 and also thereafter he had come to know about their illegal activities and the terror created by them in the area. He admitted that he had not recived any complaint against thoso two gangs for forcibly
36. The prosecution also examined Pushpa Pendhari (P.W.19), Balram (P.W.34), Kanhaya (P.W.35), Jaffar (P.VV.40),’ Waman (P.W.41), Sakharam (P.W.42), Jsjannath (P.W. 45), Subhash (P.W.67) and Naaz (P.W .97) to prove that the gangs of Bhai Thakur and Manik Patil were engaged in committing terrorist acts. Out of these witnesses P.Ws. 34, 41, 42 and 4^ have not referred to any specific terrorist act committed by those two gangs. P.W.97 has deposad about an incident which is beyond the charge period and, therefore, her evidence was rightly not considered by the trial Court. P.W.19 has deposed about some acts of the gangs of Bhai Thakur and Kanik Patil, the rivalry between Bharat Pendhari and those two gangs and the murder of Bharat Pendhari on 14.9.1989 but they at the most suggest that there were gang wars. P.W.25 has deposed that his property was demanded and threats were given to him by Bhai Thakur and therefore he had to leave Virar. P.W.26 has also stated that he was required to sell his land because of threats and terror of Bhai Thakur. P.W.35 was staying in Virar since 1966. He has deposed that he was assaulted by the men of Bhai Thakur >n 1984 and, therefore, he shifted to Vasai in January 1985 and for some time had gone to his native place in U.P. What was submitted by the learned counsel for the respondents was that the evidence of these witnesses even if it is believed it proves commission of illegsl acts involving Violence but fails short of constituting ‘terrorist acts’ as contempiated by Section 3 of the TADA Act. It is no doubt true that the evidence of these witnesses, except that of P.W.19, is not specific and by itself may not be regarded as sufficient to prove terrorist acts but they provide sufficient corroboration to the admissions made by A-1 to A-6 in their confessional statements that the gangs of Bhai Thakur and Manik Patil had created terror in the areas of their operation. We, therefore, see no reason why relying upon those confessions and the evidence of these witnesses a finding that A-1 to A-6 were engaged in committing terrorist acts, cannot be recorded. A-7 has not confessed in clear terms his involvement in commission of terrorist acts or in the murder of Suresh. A-8 and A-11 have also not admitted to have played any role in the murder of Suresh or in commission of terrorist acts by Bhai Thakur and Manik Patil, though both these accused have generally stated in their confessional statements about the illegal activities committed by those two gangs. We, therefore, hold A-1 to A-6 guilty under Section 3 (3) of the TADA Act also.
37. The charge against the police officers A-14 to A-17 was that as a part of the criminal conspiracy with Bhai Thakur and his men, they had caused evidence of commission of the offence to disappear and by that dishonest investigation have tried to screen the real offenders from legal punishment and thereby they have committed offences punishable under Sections 201, 217 and 218 read with 120-B I.P.C. They are also charged for the offences punishable under Sections 3(3) and 3(4) of the TADA Act read with 120-B I.P.C. Except the confessional statements of the co-accused there is no other independent evidence to show the involvement of A-14 to A-17 as alleged. The confessions no doubt create a strong suspicion that A-14 to A-17 were maintaining good relations with Bhai Thakur and A-8 (Prashant) and that they had possibly helped Bhai Thakur and Manik Patil in screening the real offenders. The role which they played creates a strong suspicion regarding their connection with the gangs of Bhai Thakur and Manik Patil. However, we do not think it safe to convict them only on the basis oft theConfessions of the co-accused. ‘
38. In the result, these appeals are partly allowed. The Judgment and the order of acquittal passed by the learned Judge, Dasignsted Court, Pune in Terrorist Sessions Case No. 32 of 1993 in favour of respondent Nos. I to 6 (A-1 to A-6) are set aside, Respondent NO. I Narendm Bhoir is convicted under Section -02 I.P.C. and santencad to suffer imprisonment for life. He is also cenvicted under Section 25(l)(a) of the Arms Act. and sentenced to suffer rigorous imprisonment for six months. Respondent Nos. 2 to 6 are convicted under Section 302 read with Section 120-B and Section 149 I.P.C. and sentenced to suffer imprisonment for life. Respondent Nos. I to 6 are also convicted under Section 3(3) of the TADA Act and sentenced to suffer imprisonment for 10 years. All of them are acquitted of other charges. Acquittal of the rest of the respondents 1s- confirmed andappeals against them. ace dismissed.
Recent Comments