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Arrest guidelines by Supreme Court of India in JOGINDER KUMAR VS STATE OF U.P.

THE SUPREME COURT OF INDIA

JOGINDER KUMAR

Vs.

STATE OF U.P.

DATE OF JUDGMENT: 25/04/1994

BENCH:

VENKATACHALLIAH, M.N.(CJ)

MOHAN, S. (J)

ANAND, A.S. (J)

CITATION:

1994 AIR 1349 1994 SCC (4) 260

JT 1994 (3) 423 1994 SCALE (2) 662

JUDGMENT:

ORDER

1. This is a petition under Article 32 of the Constitution of India. The petitioner is a young man of 28 years of age who has completed his LL.B. and has enrolled himself as an advocate. The Senior Superintendent of Police, Ghaziabad, Respondent 4 called the petitioner in his office for making enquiries in some case. The petitioner on 7-1-1994 at about 10 o’clock appeared personally along with his brothers Shri Mangeram Choudhary, Nahar Singh Yadav, Harinder Singh Tewatia, Amar Singh and others before Respondent 4. Respondent 4 kept the petitioner in his custody. When the brother of the petitioner made enquiries about the petitioner, lie was told that the petitioner will be set free in the evening after making some enquiries in connection with a case.

2. On 7-1-1994 at about 12.55 p.m., the brother of the petitioner being apprehensive of the intentions of Respondent 4, sent a telegram to the Chief Minister of U.P. apprehending his brother’s implication in some criminal case and also further apprehending the petitioner being shot dead in fake encounter.

3. In spite of the frequent enquiries, the whereabouts of the petitioner could not be located. On the evening of 7-1-1994, it came to be known that petitioner is detained in illegal custody of 5th respondent, SHO, P.S. Mussoorie.

4. On 8-1-1994, it was informed that the 5th respondent was keeping the petitioner in detention to make further enquiries in some case. So far the petitioner has not been produced before the Magistrate concerned. Instead the 5th respondent directed the relatives of the petitioner to approach the 4th respondent SSP, Ghaziabad, for release of the petitioner.

5. On 9-1-1994, in the evening when the brother of petitioner along with relatives went to P.S. Mussoorie to enquire about the well being of his brother, it was found that the petitioner had been taken to some undisclosed destination. Under these circumstances, the present petition has been preferred for the release of Joginder Kumar, the petitioner herein.

6. This Court on 11-1-1994 ordered notice to State of U.P. as well as SSP, Ghaziabad.

7. The said Senior Superintendent of Police along with petitioner appeared before this Court on 14-1-1994. According to him, the petitioner has been released. To question as to why the petitioner was detained for a period of five days, he would submit that the petitioner was not in detention at all. His help was taken for detecting some cases relating to abduction and the petitioner was helpful in cooperating with the police. Therefore, there is no question of detaining him. Though, as on today the relief in habeas corpus petition cannot be granted yet this Court cannot put an end to the writ petition on this score. Where was the need to detain the petitioner for five days; if really the petitioner was not in detention, why was not this Court informed are some questions which remain unanswered. If really, there was a detention for five days, for what reason was he detained? These matters require to be enquired into. Therefore, we direct the learned District Judge, Ghaziabad to make a detailed enquiry and submit his report within four weeks from the date of receipt of this order.

8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?

9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violator or the law abider; of meeting the challenge which Mr Justice Cardozo so forthrightly met when he wrestled with a similar task of balancing individual rights against society’s rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered.

In People v. Defore Justice Cardozo observed:

“The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Aclams case (People v. Adams) strikes a balance between opposing interests. We must hold it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass.”

10. To the same effect is the statement by Judge Learned Hand, in Fried Re3:

“The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten. Perfection is impossible; like other human institutions criminal proceedings must be a compromise.”

The quality of a nation’s civilisation can be largely measured by the methods it uses in the enforcement of criminal law.

11. This Court in Nandini Satpathy v. P.L. Dani4 (AIR at p.1032) quoting Lewis Mayers stated: (SCC p. 433, para 15)

“The paradox has been put sharply by Lewis Mayers:

‘To strike the balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and injustice at the hands of the law-enforcement machinery on the other is a perennial problem of statecraft. The pendulum over the years has swung to the right.’ ”

Again (in AIR para 2 1, at p. 1033) it was observed: (SCC p. 436, para 23)

“We have earlier spoken of the conflicting claims requiring reconciliation. Speaking pragmatically, there exists a rivalry between societal interest in effecting crime detection and constitutional rights which accused individuals possess. Emphasis may shift, depending on circumstances, in balancing these interests as has been happening in America. Since Miranda there has been retreat from stress on protection of the accused and gravitation towards society’s interest in convicting law-breakers. Currently, the trend in the American jurisdiction according to legal journals, is that ‘respect for (constitutional) principles is eroded when they leap their proper bounds to interfere with the legitimate interests of society in enforcement of its laws…’. (Couch v. United State). Our constitutional perspective has, therefore, to be relative and cannot afford to be absolutist, especially when torture technology, crime escalation and other social variables affect the application of principles in producing humane justice.”

12. The National Police Commission in its Third Report referring to the quality of arrests by the police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails. The said Commission in its Third Report at p. 31 observed thus:

“It is obvious that a major portion of the arrests were connected with very minor prosecutions and cannot, therefore, be regarded as quite necessary from the point of view of crime prevention. Continued detention in jail of the persons so arrested has also meant avoidable expenditure on their maintenance. In the above period it was estimated that 43.2 per cent of the expenditure in the connected jails was over such prisoners only who in the ultimate analysis need not have been arrested at all.”

As on today, arrest with or without warrant depending upon the circumstances of a particular case is governed by the Code of Criminal Procedure.

13. Whenever a public servant is arrested that matter should be intimated to the superior officers, if possible, before the arrest and in any case, immediately after the arrest. In cases of members of Armed Forces, Army, Navy or Air Force, intimation should be sent to the Officer commanding the unit to which the member belongs. It should be done immediately after the arrest is effected.

14. Under Rule 229 of the Procedure and Conduct of Business in Lok Sabha, when a member is arrested on a criminal charge or is detained under an executive order of the Magistrate, the executive authority must inform without delay such fact to the Speaker. As soon as any arrest, detention, conviction or release is effected intimation should invariably be sent to the Government concerned concurrently with the intimation sent to the Speaker/Chairman of the Legislative Assembly/Council/Lok Sabha/Rajya Sabha. This should be sent through telegrams and also by post and the intimation should not be on the ground of holiday.

15. With regard to the apprehension of juvenile offenders Section 58 of the Code of Criminal Procedure lays down as under:

“Officers in charge of police stations shall report to the District Magistrate, or, if he so directs, to the Sub-Divisional Magistrate, the cases of all persons arrested without warrant, within the limits of their respective stations, whether such persons have been admitted to bail or otherwise.”

16. Section 19(a) of the Children Act makes the following provision:

“The parent or guardian of the child, if he can be found, of such arrest and direct him to be present at the Children’s Court before which the child will appear;”

17. In England, the police powers of arrest, detention and interrogation have been streamlined by the Police and Criminal Evidence Act,’ 1984 based on the report of Sir Cyril Philips Committee (Report of a Royal Commission on Criminal Procedure, Command-papers 8092 1981 1).

18. It is worth quoting the following passage from Police Powers and Accountability by John L. Lambert, p. 93:

“More recently, the Royal Commission on Criminal Procedure recognized that ‘there is a critically important relationship between the police and the public in the detection and investigation of crime’ and suggested that public confidence in police powers required that these conform to three principal standards: fairness, openness and workability.” (emphasis supplied)

19. The Royal Commission suggested restrictions on the power of arrest on the basis of the “necessity of (sic) principle”. The two main objectives of this principle are that police can exercise powers only in those cases in which it was genuinely necessary to enable them to execute their duty to prevent the commission of offences, to investigate crime. The Royal Commission was of the view that such restrictions would diminish the use of arrest and produce more uniform use of powers. The Royal Commission Report on Criminal Procedure Sir Cyril Philips at p. 45 said:

“… we recommend that detention upon arrest for an offence should continue only on one or more of the following criteria:

(a) the person’s unwillingness to identify himself so that a summons may be served upon him;

(b) the need to prevent the continuation or repetition of that offence;

(c) the need to protect the arrested person himself or other persons or property;

(d) the need to secure or preserve evidence of or relating to that offence or to obtain such evidence from the suspect by questioning him; and

(e) the likelihood of the person failing to appear at court to answer any charge made against him.”

The Royal Commission in the above said report at p. 46 also suggested:

“To help to reduce the use of arrest we would also propose the introduction here of a scheme that is used in Ontario enabling a police officer to issue what is called an appearance notice. That procedure can be used to obtain attendance at the police station without resorting to arrest provided a power to arrest exists, for example to be fingerprinted or to participate in an identification parade. It could also be extended to attendance for interview at a time convenient both to the suspect and to the police officer investigating the case……

20. In India, Third Report of the National Police Commission at p. 32 also suggested:

“An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances:

(i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.

(ii) The accused is likely to abscond and evade the processes of law.

(iii) The accused is given to violent behavior and is likely to commit further offences unless his movements are brought under restraint.

(iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.

It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines……”

The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India.

No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.

21. Then, there is the right to have someone informed. That right of the arrested person, upon request, to have someone informed and to consult privately with a lawyer was recognized by Section 56(1) of the Police and Criminal Evidence Act, 1984 in England (Civil Actions Against the Police Richard Clayton and Hugh Tomlinson; p. 313). That section provides:

“Where a person has been arrested and is being held in custody in a police station or other premises, he shall be entitled, if he so requests, to have one friend or relative or other person who is known to him or who is likely to take an interest in his welfare told, as soon as is practicable except to the extent that delay is permitted by this section, that he has been arrested and is being detained there.”

These rights are inherent in Articles 21 and 22(1) of the Constitution and require to be recognized and scrupulously protected. For effective enforcement of these fundamental rights, we issue the following requirements:

1. An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained.

2. The police officer shall inform the arrested person when he is brought to the police station of this right.

3. An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.

It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with.

22. The above requirements shall be followed in all cases of arrest till legal provisions are made in this behalf. These requirements shall be in addition to the rights of the arrested persons found in the various police manuals.

23. These requirements are not exhaustive. The Directors General of Police of all the States in India shall issue necessary instructions requiring due observance of these requirements. In addition, departmental instruction shall also be issued that a police officer making an arrest should also record in the case diary, the reasons for making the arrest.

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Hyderabad Police Commissioner – No arrest, without DCP permission

Delhi Police Commissioner – Circular Regarding Dowry Cases

http://ipc498a.files.wordpress.com/2008/06/mh-498a-circular.pdf

No.                         Issue Date           Issued By            Issuing Unit                       Issuing Branch
07/07                    23/03/2007        DCP/HQ              Police Head Quarters     C&T BR/PHQ

Subject: HIGH COURT INSTRUCTIONS REG. DOWRY CASES

 

Contents

 

OFFICE OF THE COMMISSIONER – OF POLICE

 

CIRCULAR No. 7/2007

The Hon’ble High Court of Delhi while dealing with Criminal Misc. Nos. 7108 and 7262 of 2006 under Section 482 CrP.C., has laid down guidelines to be followed for investigation and trial of cases under section 498/A IPC, dowry, cases etc. The main -guidelines to be followed are as follows :-
1. Where allegations, are made that dowry has been given as a consideration for marriage, the list in terms of Rule 2 of the Dowry Prohibition (Maintenance of lists of Presents to the Bride and Bridegroom) Rules, 1985 must be insisted upon by the Investigating Officer.
2. Where there is expenditure of a huge amount of money without disclosing the source of income, police should insist upon compliance of Rule 2 of Dowry Prohibition (Maintenance of lists of Presents to the Bride and Bridegroom) Rules, 1985 (photocopy enclosed) and should not entertain any complaint if the rules have not been complied with.
3. In case a grown up and well educated women gets married to a person despite a demand for dowry, she and her family members also become accomplices under section 3 of the Dowry Prohitiion Act, 1961. Appropriate action should be taken against them.
4. If the compliant is against every member of the family of husband, the allegations cannot be taken at their face value and need to be scrutinized carefully.
All the investigating Officers and supervising officers must ensure strict compliance of the above mentioned instructions.
-Sd-
[ H.M.MEENA] DCPIHDQRS.
For Commissioner of Police:
Delhi.
No 20298/C&T(AC-II)/PHQ., dated 23/3/07
Copy. forwarded to the :-
1. – All Special Commissioners of Police, Delhi.
2. All Joint Commissioners of Police, Delhi.
3. All Additional Commissioners of Police, Delhi.
4. SO to Commissioner of Police, Delhi.
5. All Districts Units DCsP including P/PTC & FRRO, Delhi.
6. LA, So to CP/Delhi, All Insprs./PHQ, HAR/PHQ etc.

Delhi Police Commissioner Standing ORDER – Standing Order – GUIDELINES FOR ARREST

http://ipc498a.files.wordpress.com/2008/06/ys-dadwal-498a-standing-order-330_2007.pdf

Standing Order

No.

 

Issue Date 

Issued By 

Issuing Unit 

Issuing Branch 

330/2007 

08/11/2007 

Commissioner of Police 

Police Head Quarters 

C&T (Ac-5) 

Subject :GUIDELINES FOR ARREST

Contents 

Standing Order No 330/2007 

Subject : GUIDELINES FOR ARREST
Contents
Standing Order No 330/2007
GUIDELINES FOR ARREST
The Hon’ble Supreme Court of India in the matter of Joginder Kumar Vs. State of UP
(Crl.WP No 9 of 1994) made the following observation :-
1. No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest a part from his power to do so.
2. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person …….no arrest should be made with out a reasonable satisfaction reached after some investigation as to the genuineness and bonafides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest.
3. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the Officer effecting the arrest that such arrest is necessary and justified.
The following requirements also prescribed in the judgment:-
1. An arrest person being held in custody is entitled , if he so requests to have one friend relative or other person who is knowing to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where is being detained.
2. The police Officer shall inform the arrested person when he is brought to the police station of this right.
3. An entry shall be required to be made in the Diary as to who was informed of the arrest. These protections from power must be held to flow from Article 21 and 22 (1) and enforced strictly.
The Hon’ble Supreme Court of India in the case of D.K. Basu Vs. State of West Bengal issued the following requirement to be followed in all cases of arrest or detention.
1. The police personal carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designation of the arrestee must be recorded in a register and the case diary.
2. The police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.
3. A person who has been arrested or detained and is being held in custody in a police
station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being detained at the particular place unless the arresting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside of District or town through the legal Aid Organization in the District and the police station of the area concerned telephonically with in a period of 8to12 hours after the arrest.
5. The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
7. The arrestee should where he so requests be also examined at the time of his arrest and major and minor injuries, if any present on his /her body must be recorded at the time. The Inspection Memo must be signed both by the arrestee and police officer affecting the arrest and its copy provided to the arrestee.
8. The arrestee should be subjected to medical examination by a trained doctor after every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by director, health Services should prepare such a panel for all Tehsils and Districts as well.
9. Copies of all the documents including the memo of arrest, referred to above should be sent to the Illaqa Magistrate for his record.
10. The arrestee may be permitted to meet his lawyer during interrogation though not through out the interrogation.
11. A Police control room should be provided at all district and state headquarters where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, with in 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.
The Supreme Court of India also directed that failure to comply with the said requirement shall apart from rendering the concerned official, liable for departmental action; also render him liable to be punished for contempt of Court and the proceedings for contempt of Court may be instituted in any High Court of the country, having territorial jurisdiction over the matter. These instructions are to be notified at every police station at a conspicuous place.
The Delhi High Court in Crl. M (M) 3875/2003 in ‘Court On its Own Motion Vs CBI’ made the following observations /directions regarding arrests under section 498A/406 IPC. The Court observed that Sections 498A/406 IPC which “are much abused provisions and exploited by the police and the victims to the level of absurdity………..every relative of the husband, close or distant old or minor is arrested by the police …………….unless the allegations are very serious nature and highest magnitude arrest should always be avoided”.
In a recent judgment in criminal appeal Nos 696/2004,748/2004,787/2004 and 749/2004 pronounced on 1/11/2007, the Delhi High Court observed that “………..In all these cases in the name of investigation , except recording statement of complainant and her few relatives nothing is done by police. The police does not verify any circumstantial evidence nor collect any other evidence about the claims made by the complainant’s family claiming spending of huge amounts is collected by the police. This all is resulting into gross misuse of the provision of law……………”.
Arrest of accused should be an exception and not a rule /routine from the allegations set out on FIR and other subsequent allegation or material collected during investigation ,
if necessary , only the prime /main accused whose primary role on commission of the offence has been established , should be arested , and that too after the prior written approval of the DCP.
In a nutsheel , the IOs/SHOs shall mandatorily comply the above directions in dealing with cases u/s 498A/406 IPC.
The earlier Standing Order issued vide No. 72967-730/C&T (AC-5)/PHQ dated 8/11/2007 is hereby withdrawn.
(Yudhbir Singh Dadwal)
Commissioner of Police,
Delhi
No.80033-132/C&T (Ac-5)/PHQ Dated New Delhi, the 21/12/2007
Copy to:-
1. All Spl CPs Delhi.
2. All Joint CPs Delhi
3. All Addl. CPs Delhi
4. All District/ Units including Princiopal /PTS and FRRO, Delhi
5. SO to CP Delhi
6. LA to CP, Delhi
7. All ACPs PHQ.
8. HAR/PHQwith 10 spare copies.
9. I/C Central Library/PHQ.

THE HON’BLE MR. JUSTICE R.REGUPATHI order and DGP-TN compliance report

IN THE HIGH COURT OF JUDICATURE AT MADRAS

 

DATED: 04.08.2008

 

CORAM

 

THE HON’BLE MR. JUSTICE R.REGUPATHI

 

M.P. No.1 of 2008

in

Crl.O.P. No.10896 of 2008

 

ORDER

            Pursuant to the direction of this Court dated 07.07.2008 to file compliance report, the Director General of Police in consultation with the Government, has issued the following Circular Memorandum:-

” Circular Memorandum

Sub-     Filing of cases registered under                                        Dowry Death  / Suicide  in  All

                                    Women P.S. – Instructions issued.

      *****

            The Honorable High Court has issued the following observation in M.P. No.1/2008 in Criminal Original Petition No.10896/2008 filed by Tr.Romaiah.

             i) Except in cases of Dowry Death/suicide and offences of serious nature, the Station House Officers of the All Women Police Stations are to register F.I.R. only on approval of the Dowry Prohibition Officer concerned.

             ii) Social workers/mediators with experience may be nominated  and housed in the same premises of All Women Police Stations along with Dowry Prohibition Officers.

            iii) Arrest in matrimonial disputes, in particular arrest of aged, infirm, sick persons and minors, shall not be made by the Station House Officers of the All Women Police Stations.

            iv) If arrest is necessary during investigation, sanction must be obtained from the Superintendent of Police concerned by forwarding  the reasons recorded in writing.

            v) Arrest can be made after filing of the final report before the Magistrate concerned if there is non-cooperation and abscondance of accused persons, and after receipt of appropriate order (Non-Bailable Warrant).

            vi) Charge sheet must be filed within a period of 30 days from the date of registration of the F.I.R. and in case of failure, extension of time shall be sought for from the jurisdiction Magistrate indicating the reasons for the failure.

            vii) No weapon including Lathis/physical force be used while handling cases at the All Women Police Stations.

            viii) Complainants/victims should be provided with adequate security/accommodation at Government Home and interest of the children must be taken care of.

            ix) Sridana properties/movables and immovable to be restored at the earliest to the victims/complainants and legal aid may be arranged for them through Legal Services Authority for immediate redressal of their grievances.

            2) The Commissioners of Police in cities and Superintendents of Police in Districts are requested to strictly follow the above instructions without any deviations.

            3) Receipt of the same should be acknowledged.

                                                              Sd/- (29.07.2008)

                                                For Director General of Police.”

            2. In respect of suggestion Nos.8 and 11 made by this Court; in the letter, dated 01.08.2008, of the Director General of Police, it has been stated as follows:-

            ” 2) With regard to the suggestion No.8, i.e., “A different Uniform other than the regular one may be recommended for these police officers” – the matter requires deliberations at length with Senior Police Officers in the State.  All the Senior Officers have been addressed to send their view on the subject.  After obtaining their views the matter will be discussed at State Headquarters and a report in this regard will be sent.

                        3) With regard to suggestion No.11 – Director General of Police, Training has been addressed to initiate action to conduct Education programme for Police Officers on the objects of the legislation, judicial pronouncements and development of law.  Further progress report will be sent. ”

            3. Learned Government Advocate (Crl. Side) submits that, by virtue of the above Circular Memorandum, all the Commissioners of Police and the Superintendents of Police in the State have been instructed to scrupulously follow the suggestions, enumerated in the form of instructions, and therefore, in effect, the order of this Court has been complied with.

            4. The complaisant reaction to the suggestions made by this Court and issuance of the aforesaid Circular Memorandum with suitable instructions by the Director General of Police deserves deep appreciation of this Court. It must  also be pointed out that though several such suggestions and instructions were earlier made/issued in that perspective by the Honourable Supreme Court as well as this Court, there was no expected progress or outcome since, in course of time, the system started trailing with the same deviation and anomalies to reform/correct which the instructions were issued.  At least now, this Court is anxious to see that the directives are strictly followed perpetually with letter and spirit by the Investigating Officers of the Department in particular the officers posted at the All Women Police Stations. 

            5. Before parting, having regard to the directions issued to the Police Department, this Court deems it necessary to  outline certain aspects with regard to the role of the Judicial Magistrates and their effective functioning in deriving a positive outcome.

            As could be seen, though suitable directions have been given to the police, in particular to the Station House Officers, still there may be scope for misuse of power. The directions/instructions are only illustrative and not exhaustive. When the investigating officers seek for remand of the accused, the Magistrates must examine the necessity for the same and only where there are valid grounds for believing that the accusation or information is well-founded and it appears that the investigation cannot be completed within a period of 24 hours, remand may be ordered. Violation of human rights and infringement of personal liberties must be viewed seriously.  Except in cases of grave nature viz., dowry death, murder, suicide, hurt, etc., in other matters like matrimonial disputes between spouses where it may not take much time for the police officer to interrogate/investigate, remand should not be ordered mechanically, for, remand of an accused by a Magistrate is not automatic one on the mere request of the investigating officer and sufficient grounds must exist for the Magistrate to exercise the power of remand. To put it clear, a requisition of remand by the police must accompany the Case Diary, whereupon, the Magistrate must satisfy himself as to the adequacy and genuineness of the grounds necessitating judicial custody and while passing orders for remand or extension of remand, he must be alert to see that the liberty of the citizen is not violated by the police due to arbitrary exercise of power.  Though a detailed speaking order is not required for remand, application of judicial mind is absolutely necessary.

            Of course, it is provided in the Code that remand should not exceed 15 days at a time, but, it does not mean that in all cases, remand for 15 days should be ordered invariably. At the time of production of the accused before the Magistrates, they should examine the necessity and even at the time of initial remand, if it appears that remand is not necessary, bail application can be entertained provided the accused is prepared to furnish necessary surety or security as may be directed by the court.  Likewise, in cases where remand is required to be ordered, the period must be circumscribed depending upon the nature of the case, the materials produced by the prosecution and the actual requirement.  Though the law is manifestly clear, plain and patent, in many cases, it is witnessed that, on the mere request of the investigating officers, remand is ordered mechanically without application of mind and such illegal practice must be avoided.

            It must also be borne in mind that the object behind the enactment of Section 498-A IPC and the Dowry Prohibition Act is to check and curb the menace of dowry and at the same time, to save the matrimonial homes from destruction.  Our experience shows that, apart from the husband, all family members are implicated and dragged to the police stations. Though arrest of those persons is not at all necessary, in a number of cases, such harassment is made simply to satisfy the ego and anger of the complainant.  By suitably dealing with such matters, the injury to innocents could be avoided to a considerable extent by the Magistrates, but, if the Magistrates themselves accede to the bare requests of the police without examining the actual state of affairs, it would create negative effects thereby, the very purpose of the legislation would be defeated and the doors of conciliation would be closed forever. The husband and his family members may have difference of opinion in the dispute, for which, arrest and judicial remand are not the answers.  The ultimate object of every legal system is to punish the guilty and protect the innocents.

            It is only before the jurisdiction Magistrate concerned, on conclusion of the investigation, final report is filed, whereupon, trial of the case is taken up and, in matters relating to serious offences, committal proceedings are initiated. It is the learned Magistrates who are empowered to order maintenance under Section 125 Cr.P.C. and award  compensation in appropriate cases. Pending investigation, for grant of instant relief viz., to award interim maintenance, interim compensation, entrust custody of minor, forward the victims to Govt. Homes, issue search warrant, order bailable or non-bailable warrant, restore sridana properties, send the injured to the Hospital, provide security, etc., to the complainant/wife/victim, the learned Magistrates can be approached and at such point of time, the Magistrates must see to it that orders are passed without any delay.  The preliminary job of an Investigating Officer including that of the Officers posted at the All Women Police Stations is only to collect the materials in respect of the dispute  they are investigating and place the same before the court/Magistrate.  For adjudicating any issue, the dispute must be forwarded only to the learned Magistrate or the Family court.  In this type of fragile matters, in the name of ‘petition enquiry’ or investigation after registration of  F.I.R., the police should not be allowed to conduct lengthy panchayats in police stations. If the dispute could not be resolved within a period of one week, a conclusion must be reached one way or the other and the matter must be forwarded to the learned Magistrate concerned.

            Therefore, while considering such cases, the learned Magistrates are directed to apply their judicial mind having regard to the propounded principles and procedure and the various aspects pointed out in the course of this order and also to monitor scrupulous adherence to the instructions referred to above by the police officers concerned.

            6. With the above observations and direction, the petition is closed.

            7. Registry is directed to immediately circulate copy of this order as well as the earlier order dated 07.07.2008 to the Director General of Police, Tamil Nadu, and all the Judicial Magistrates for compliance.

CHANDER KANTA LAMBA & ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.REV. P. NO.267/2008 Reserved on : 30.7.2009

Date of Decision : 21.12.2009

CHANDER KANTA LAMBA & ORS. Petitioners Through: Ms.Geeta Luthra, Sr.Adv. with Mr.Jatin Sehgal,

Advocate.

Versus

STATE & ORS. Respondents Through: Mr.Jaideep Malik, APP for

the State.

Mr.Tiger Singh, Adv. for

the respondent no.2.

CORAM :

HON’BLE MR. JUSTICE V.K. SHALI

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 the judgment should be reported in the Digest ? YES V.K. SHALI, J.

1. This is a revision petition filed by Chander Kanta Lamba, Suman Bhardwaj, Manju Mal and Neeru Behl-sisters in law of the complainant Ms.Namrata Behl against the order dated 04.03.2008 by virtue of which the learned MM, Patiala House Courts directed the framing of charge under Section 498A/34 IPC against the petitioners.

2. Briefly stated the facts of the case are that the complainant got married with one Sh.Naresh Behl according to Hindu rites and ceremonies on 17.1.2000 in Delhi. It seems that Crl.Rev. P.No.267/2008 Page 1 of 12 the marriage did not last long and resulted in breakdown, as a consequence of which the complainant, Ms.Namrata Behl lodged a complaint on 11.9.2001 with the Crime Against Women Cell to take action against her husband Naresh Behl and his other family members for allegedly making illegal demand of dowry and treating her with cruelty. On the basis of the said complaint, an FIR No.111/2002 was registered at P.S. Malviya Nagar by the police against Naresh Behl (husband), Mohini (mother in law)(since deceased), Chander Kanta Lamba, Suman Bhardwaj, Manju Mal, Poonam Behl and Neeru Behl-sisters in law and one Rajiv Behl, brother in law of the complainant.

3. After investigation, the charge sheet was filed. While as all the accused persons were sent for trial the name of Poonam Trehan was shown in column No.2 in the charge sheet. She was residing out of India. Column No.2 deals with the persons who are not sent for trial for lack of evidence.

4. It has been stated in the impugned order that so far as the mother in law of the deceased is concerned, she has expired during the pendency of the proceedings and accordingly, the proceedings vide order dated 20.6.2006 against her are deemed to have abated.

5. In the complaint, the main allegation made by the complainant against the accused persons and their brother Naresh Behl was that they had demanded a sum of Rs.5 Crl.Rev. P.No.267/2008 Page 2 of 12 lacs and her articles were retained which are alleged to have been returned to her during the pendency of the investigation. So far as the present petitioners are concerned, the allegations made in the complaint are that Chander Kanta Lamba, Suman Bhardwaj and Manju Mal use to plant false stories about the complainant and Manju Mal and Neeru Behl had also deliberately and intentionally removed the money from the purse of their mother, Mohini and accused the complainant of stealing her money. There are general allegations that all the sisters in law namely the present petitioners had subjected her to demand of dowry and consequent cruelty on the basis of which they deserves to be dealt with in accordance with law.

6. The learned Magistrate after hearing arguments discharged Rajesh brother in law of the complainant while as it directed framing of charge against the present petitioners for an offence u/s 498A IPC only.

7. The learned counsel for the petitioners had cited six judgments, which are detailed below:

” i) Neera Singh Vs. State (Govt. of NCT of Delhi) & Ors. 138 (2007) DLT 152

ii) Anu Gill Vs. State & Anr. 2001 (2) JCC (Delhi) 86

iii) Ramandeep Kaur Vs. State of Punjab 2001 (4) RCR (Criminal) 394

iv) Mukesh Rani Vs. State of Haryana 2002 (1) RCR (Criminal) 163

v) Ujjal Maitra & Ors. Vs. Kanchan Maitra 1998 Cri.L.J. 1002

vi) Ramesh & Ors. Vs. State of Tamil Nadu AIR 2005 SC 1989″

Crl.Rev. P.No.267/2008 Page 3 of 12

8. But the learned MM has distinguished cases of Anu Gill, Ramandeep Kaur, Ramesh and Ujjal Mitra and observed that the facts of these cases are totally different and there are allegations against the present petitioners which constitutes subjecting the complainant to cruelty, if not physical at least the mental which falls within the ambit of Section 498A IPC and therefore, directed the framing of charge u/s 498A of the IPC.

9. As regards, the offence u/s 406 of IPC all the accused persons were discharged from the aforesaid offence.

10. The petitioners feeling aggrieved by the aforesaid impugned order have preferred the present revision petition.

11. I have heard the learned counsel for the petitioners and the complainant as well as the learned APP.

12. The main contention of the learned Senior counsel for the petitioners is that the learned MM has grossly erred and committed illegality by directing framing of charge against the present petitioners, who were admittedly married much prior to the marriage of the complainant with the brother of the petitioners. It is contended that they were living in their matrimonial homes separately and peacefully. They had obviously no reason to make suggestions to the complainant to get the dowry from her parents or subject her to cruelty. The learned Senior counsel has referred to the authorities which were cited before the learned Magistrate in order to urge the point that invariably in a Crl.Rev. P.No.267/2008 Page 4 of 12 matrimonial dispute there is a tendency on the part of the complainant to enrope almost all the relatives once the relations get strained between the parties and this is precisely what has been done in the instant case.

13. Secondly on merits also, it has been contended by the learned Senior counsel that the allegations which are made against the present petitioners are too generic in nature which are highly improbable to be believed. No date, time or place has been given by the complainant in her complaint and moreover an impression is sought to be created as if all the petitioners had made the demand for dowry around the same time and simultaneously subjected her to cruelty.

14. The learned counsel for the complainant has refuted the contention of the learned Senior counsel for the petitioners and contended that at the stage of framing of the charge only a prima facie case has to be made out and since the learned MM has formed an opinion that a prima facie case is made out against the present petitioners this revisionist Court should not sit as a Court of Appeal and substitute its own view in place of view expressed by the learned Magistrate. The learned counsel has relied upon the following judgments of the Apex Court in this regard :

15. So far as the learned APP for the State is concerned, he has left it to the Court to decide the question as to whether the Crl.Rev. P.No.267/2008 Page 5 of 12 charge can be framed against the present petitioners or not.

16. I have carefully considered the respective submissions of the learned counsel for the parties and gone through the record as well as the impugned order. At the outset, I must say that the learned Magistrate has grossly fallen into a serious of error and committed a grave illegality by directing the framing of charge against the present petitioners by distinguishing the authorities referred to by the petitioner.

17. There is no dispute about the fact that no two different cases are similar. It has also been observed by the Apex Court in Haryana Financial Corporation Vs. Jagdamba Oil Mills AIR 2002 SC 834 that while applying the principles of law laid down in a case, the Court should not apply the law blindly or mathematically. It must analyze the facts of the case in which such a law is laid down and co-relate the same with the facts of the case where the proposition of law is sought to be made applicable.

18. In the light of the aforesaid proposition if one examines the authorities cited by the learned Senior Counsel one cannot but agree that the proposition of law which is enunciated in all these cases is that invariably whenever matrimonial relations have turned sour there is a tendency on the part of the complainant whether it is done by her of her own free will or at the instigation of her parents, brothers, sisters or Crl.Rev. P.No.267/2008 Page 6 of 12 even legal advice to make all kinds of wild and reckless allegations against the entire family of the husband.

19. By such a conduct not only the gravity of the offence against the husband who is the main accused gets diluted, even the parents in law or other relative who are not ordinarily living in a joint family are enroped and weakened because she loses on her credibility. It is in this background that in Mukesh Ranis case (supra), the learned Single Judge of Punjab and Haryana High Court has observed that

“whenever there is a matrimonial dispute

between the husband and wife for the fault of husband other relations of the husband

that is the brothers, sisters, parents are also roped in the litigation on the allegation of demand of dowry, whether they are living

jointly or separate and sometimes even the parents who are aged 80 to 90 years and are unable to walk or talk and the sisters living at far off places in the matrimonial house are involved.”

20. The learned Judge had shown the concern of the Court that the provisions of Section 498A/304B IPC and the presumptions which are permitted u/s 113A and 113B of the Evidence Act, 1872 by the legislature in its wisdom, for the protection of women, have been put to greater misuse by the girls side than to the actual use.

21. Similar is the observation in Anu Gill’s case by the learned Single Judge of our own High Court wherein the proceedings against the sisters in law themselves were quashed by the High Court. It is not correct on the part of Crl.Rev. P.No.267/2008 Page 7 of 12 the learned Magistrate to observe that there were no allegations against the sister in laws in Anu Gills case and therefore, the case was distinguishable. On the contrary, admittedly there were allegations against the sister in law which was considered to be totally vague, unworthy of credence by the Court. The allegations which were made by the complainant in Anu Gill’s case was that the in-laws of the complainant had demanded various gold items apart from a sum of Rs.11 lacs from the complainant to meet the requirement of the cash expenses for the “chuchak” ceremony of Anu Gill by the parents of the husband.

22. The nature of allegations in the two cases are bound to be different and merely because a generic term of in-laws was used, it did not mean that the complainant in the reported case did not make allegations against Anu Gill who would also form part of inlaws.

23. Another learned Single Judge of our own High Court in case titled Savitri Devi Vs. Ramesh Chand 2003 (11) DMC 328 has again echoed the same sentiments of the Court that though the provision in question has been made by the good intentions of the legislature but implementation has left a very bad taste and it has become counter productive as there is a growing tendency amongst women to perpetuate an action against the parents in law, relatives irrespective of the fact whether they are minor school going children, distant relatives. Because of the FIR having been Crl.Rev. P.No.267/2008 Page 8 of 12 registered against them, they are made to run for protection of their liberty.

24. In the light of the aforesaid concern which the different Judges of different High Courts have shown from time to time, one thing is very clear that as and when the relations between husband and wife get strained, then allegations are levelled not only against the husband but all his relatives with a view to teach him a lesson.

25. I have purposely not referred to all the authorities cited by the learned counsel for the petitioner because they are also echoing almost the same sentiments.

26. Coming back to the facts of the present case, I feel that this is precisely what has happened in the instant case also that although the marriage had taken place in the month of June, 2000, but the relations got strained may be on account of alleged illegal demands having been made by the husband or the relatives who were ordinarily living with him in a joint family but certainly it is highly improbable to assume that the married sisters of the husband of the complainant who got married much prior to the marriage of the complainant and were living in their own matrimonial homes would come down simultaneously to the matrimonial home of the complainant and subject her to demand of dowry and the consequent cruelty. Therefore, on this ground itself, I feel that the charge against the present petitioners is not prima facie made out nor is any Crl.Rev. P.No.267/2008 Page 9 of 12 grave suspicion to have summoned such an offence available on record to put them to trial.

27. Even if it is assumed that the allegations as have been made by the complainant are true on its face value even then they do not fall within the mischief of Section 498A of the IPC. A perusal of the impugned order shows that the complainant had alleged against the petitioners that they planted false stories or that they took out money from the purse of the mother in law of the complainant and accused complainant probably of stealing of the said money or that the petitioners and her husband tied her twice in May in order to compel her to bring Rs.5 lacs. So far as these two allegations are concerned, they do not fall within the mischief of cruelty as is enunciated in the explanation to Section 498A of IPC. So far as explanation a is concerned, it is willful conduct of such a nature which is likely to drive a women to commit suicide or cause grave injury or danger to her life whether mentally or physically which will tentamount to cruelty and certainly this does not fall within the said parameters. In explanation b, there must be harassment of the women with a view to coerce her and her relations to unlawful demand and obviously a plain reading of explanation b would show that there should be more than one act, only then it will constitute harassment while as in the instant case, there is no such allegations that there were series of action to which the complainant was Crl.Rev. P.No.267/2008 Page 10 of 12 subjected with a view to extract dowry either from her or her parents or relations. On the contrary, the allegations made in the complaint are vague, unspecified and improbable as no date, time or place of any incident is given. The same would be the fate of the allegation that the petitioners along with the husband of the complainant had tied her in May, 2000 in order to compel her to bring Rs.5 lacs from her father.

28. It is understandable or believable prima facie that her husband might have tied her subjecting her to cruelty with a view to demand dowry of Rs.5 lacs but extending the said allegations qua the present petitioners who are admittedly married sisters living separately in their own matrimonial homes is absurd, unbelievable and not worthy of credence and accordingly on merits also, I feel that the trial Magistrate has fallen into a serious error which will result in great mis-carriage of justice by directing the petitioners to face the trial for an offence u/s 498A IPC.

29. I cannot refrain from mentioning that in a case of this nature, the Court has to be very sensitive and it should not get swayed by emotions which the complainant may be suffering from with a view to put persons or relatives who are totally unconnected with the incident to the facing of the trial in itself in present times is a great deal of punishment especially in the light of the fact that the same Crl.Rev. P.No.267/2008 Page 11 of 12 continues endlessly for years together on account of heavy load on the learned MM.

30. For the reasons mentioned above, I feel that the order dated 4.3.2008 passed by the learned Magistrate is not only improper, illegal but also incorrect on appreciation of facts as well as the application of law so as to warrant framing of charge against the present petitioners for an offence u/s 498A IPC.

31. Accordingly, all the four petitioners are discharged.

32. Copy of this order be sent to the learned Trial Court for the purpose of information.

V.K. SHALI, J.

DECEMBER 21, 2009

RN

Crl.Rev. P.No.267/2008 Page 12 of 12

IN THE HIGH COURT OF UTTARAKHAND

IN THE HIGH COURT OF UTTARAKHAND

AT NAINITAL

Government Appeal No. 1452 of 2001

Old Number

Government Appeal No. 2333 of 1996

State of U.P.

Now State of Uttarakhand. ..Appellant.

Versus.

Nishikant .Respondent

Present:

Mr. Nandan Arya, learned AGA for the State of Uttarakhand/ appellant. Mr. Vivek Shukla, learned counsel for the respondent.

Hon’ble Nirmal Yadav, J.

This appeal has been preferred by the State of Uttarakhand challenging the judgment dated 30.08.1996 vide which accused respondent Nishikant has been acquitted of the charges under section 304-B, 306 and 498A of Indian Penal Code (hereinafter referred to as “IPC”).

Facts, in brief, are that marriage between Nishikant and Pushp Lata (since deceased) was performed on 14/15.04.1988 in a hotel at Amritsar. According to PW2 Lokman Das Agarwal, father of Pushp Lata, Nishikant as well as his mother Prakashwati started harassing his daughter and making demand of dowry immediately after the marriage. According to the complainant, he had been 2

fulfilling their demands as per his capacity. Even one year prior to the present occurrence, Prakashwati had tried to set Pushp Lata on fire but somehow she escaped. Pushp Lata was not even provided with proper meals and other basic necessities. On 29.03.1991, she was given beatings by the accused and thereafter, she was set on fire by pouring kerosene oil on her. The complainant came to know about the incident on 30.03.1991. On reaching Dehradun, he found that Pushp Lata had received hundred percent burn injuries and was not conscious. Complainant submitted a written complaint (exhibit Ka 11) before Kotwali Incharge, Dehradun and on the basis of the said complaint, chick First Information Report (exhibit Ka 27) was recorded on 30.03.1991 at 07.30 p.m. According to the complainant, as per understanding between the parties prior to the marriage, all the articles and cash, as demanded by them, were given at the time of marriage. He had given a draft of Rs. 30,000/- before marriage to Hari Gopal Gupta, father of accused Nishikant. On the date of marriage, FDR of Rs. 20,000/- in the name of Nishikant and Pushp Lata, was given by complainant. However, the said FDR was encashed by Nishikant before the maturity date. This amount of FDR was initially deposited in the saving account of Pushp Lata but later on, the said account was closed and the entire amount was withdrawn by Nishikant. In spite of the articles and cash having been given as per the demand made by Nishikant and his family, they were not satisfied. Both 3

Nishikant and his mother wanted to purchase a plot measuring 850 sq. yard at Dehradun and for the said purpose they demanded a sum of Rs. 75,000/- from the father of deceased. Nishikant along with Pushp Lata came to the house of complainant at Meerut asking to give a sum of Rs. 75,000/- to him. However, complainant expressed his inability to pay the said amount. The said plot was purchased by Nishikant by arranging the money from some other source but Nishikant started harassing Pushp Lata thereafter. Pushp Lata informed her father about his behaviour. Complainant had visited the office of Nishikant i.e. ONGC, Dehradun and also his house and advised him not to harass his daughter but there was no improvement in the situation. Pushp Lata informed her father vide letter exhibit Ka-7 that Nishikant had decided to perform second marriage and on receiving the said letter PW2 Lokman Das Agarwal again went to Dehradun to advise Nishikant and his mother. During the said visit, he found one ‘can’ containing kerosene oil lying in the bedroom of Pushp Lata. He inquired from Nishikant as to why kerosene oil was lying in their bed room when they are having gas cylinder, on this Nishikant explained that they use kerosene oil whenever there is no electricity in the house. Accused Nishikant had given one written estimate (exhibit 1) to the complainant stating as to how much amount has been spent in marriage and how much amount is yet to be paid. According to this estimate Rs. 75,000/- was shown as balance towards 4

complainant. Complainant also produced letters (exhibit Ka 6, Ka 7 and Ka 8) written by Pushp Lata to the complainant and his son Yogesh Agarwal.

On 29.03.1991 at 08.20 a.m. Pushp Lata was admitted in ONGC Hospital, Dehradun where she was attended by Dr. S.L. Gupta, who sent information to the police at 08.55 a.m. which is exhibit Ka 3. He prepared treatment summary Exhibit Ka 2 with regard to patient Pushp Lata. On the request made by Nishikant vide application exhibit Ka 4 to the effect that he wanted to get his wife treated at Safdarjung Hospital, the patient was referred to Safdarjung Hospital and was removed along with medical attendant. Dr. S.L. Gupta is stated to have got recorded the statement of Pushp Lata through attendant Kanta Mohan Rawat, which is exhibit Ka-1 on the record. On 30.03.1991, Pushp Lata was admitted in Safdarjung Hospital at 12.40 a.m. and was attended by Dr. C.L. Thakaral, Neurosurgeon. As per the summary prepared by Dr. Thakaral, Pushp Lata had received hundred percent deep burn injuries all over the body. She was conscious but she could not survive even after treatment. She died on 31.03.1991 at 03.20 a.m.

Complainant PW2 Lokman Das Agarwal reached Safdarjung Hospital on 30.03.1991 and thereafter, he went to the office of Mr. B.K. Sehgal, Sub Divisional Magistrate, South Delhi at 10.25 a.m. on 30.03.1991 and disclosed that his daughter has been set on fire by Nishikant and his mother Prakashwati. His 5

daughter Pushp Lata wanted to make her statement. SDM vide letter exhibit Ka 18 inquired from the concerned police official and the doctor who, was treating Pushp Lata, – as to whether patient was in a fit condition to make statement. However, doctor reported that patient was not fit to make statement. Complainant also made statement before SHO, police station Vinay Nagar and also before the Magistrate, which were attested by Mr. B.K. Sehgal. Statement of Yogesh Agarwal was also recorded which is exhibit Ka-14. After the death of Pushp Lata, SDM sent letter (exhibit Ka 15) for conducting autopsy on the dead body of Pushp Lata. SHO prepared the inquest report (exhibit Ka 16). After the death of the deceased all the papers were sent by the police official of police station Vinay Nagar to SP, Dehradun. Initially, the investigation was conducted by Sub Inspector Anilekh and later on it was handed over to Circle Officer Shyam Singh Yadav. Thereafter, it was entrusted over to Additional Superintendent of Police Shailendra Pati Tripathi (PW8). He recorded the statement of Dr. S.L. Gupta and Dr. A.S. Anand of ONGC Hospital, Dehradun and arrested the accused. He also recorded the statement of PW2 Lokman Das Agarwal on 02.07.1991 and took into possession the letters handed over by PW2 Lokman Das Agarwal. Thereafter, the Investigating Officer recorded the statement of other witnesses. The Investigating Officer moved an application (exhibit Ka 25) before the Magistrate for 6

taking specimen hand writing of accused but he refused to give his specimen writing.

On completion of the investigation challan was presented against the accused and he was chargesheeted under section 304B, 306, 498A IPC to which he pleaded not guilty and claimed trial.

The prosecution in order to prove its case examined PW1 Dr. S.L. Gupta; PW2 Lokman Das Agarwal, father of the deceased; PW3 Dr. Ashok Kumar Sharma, Medical Officer at Safdarjung Hospital; PW4 B.K. Sehgal, SDM, South Delhi; PW5 Yogesh Agarwal, brother of deceased; PW6 Sharad Chand Sharma, Branch Manager, Cooperative Bank, Meerut; PW7 Hukum Singh, ASI at Police Chowki Safdarjung Hospital; PW8 Shailendra Pati Tripathi; PW9 Constable Jai Bhagwan.

Accused when examined under section 313 Cr.P.C. denied the allegations put to him by the prosecution. According to him, in the year 1986 he was working as Inspector in Custom and Central Excise Department. His marriage was settled through advertisement in the year 1988 without any demand of dowry. The marriage was performed on 15.04.1988 during day time as those were days of terrorism. He further stated that his wife remained with his parents for few days in Tarantaaran. Thereafter, she went to Meerut to appear in MA Part I examination on 01.05.1988. She came back to Dehradun after her MA 7

examination on 22.05.1988. According to him since his wife was feeling lonely he brought his brother’s daughter Vandana from Tarantaaran and got her admitted in class V. He further stated that when his wife returned from her parent’s house at Meerut, she told him that Vandana should be sent back to Tarantaaran on which he told her that she could not be sent back to Tarantaaran as situation in Punjab was not congenial due to terrorism. In the month of October 1988, PW2 Lokman Das Agarwal also came to Dehradun and asked him that Vandana should be sent back to Tarantaaran, but on his refusal he got angry. PW2 Lokman Das Agarwal, complainant, wrote a letter to brother of accused Nishikant that Vandana should be taken back from Dehradun but Nishikant informed his father-in-law that Vandana will not go back from Dehradun thereafter, Pushp Lata started harassing his niece Vandana. He further stated that Pushp Lata gave birth to a baby boy on 04.02.1989.

Pushp Lata wanted to continue her studies and accused Nishikant always supported and cooperated with her. In the month of April 1989 she went to Meerut to appear in MA Final year examination. After completing MA, Pushp Lata took admission for B.Ed. in Maharishi Dayanand University, classes which were held in Saharanpur in November, 1989 and Pushp Lata used to commute everyday from Dehradun to Saharanpur to attend the classes. According to accused, Pushp Lata along with her entire family went 8

to Jwala Devi, Chintpurni, Vaishno Devi etc. and from there they went to Tarantaaran and thereafter, Pushp Lata came back to Dehradun on 26.10.1989. In the month of September, 1990 Pushp Lata was to be operated at Dehradun and therefore, Nishikant called his mother to look after her. Meanwhile, in the month of October 1990 Pushp Lata was selected for the post of Assistant Post Master. She joined training in Postal Department on 31.12.1990 at Saharanpur. She applied for AAO in LIC, IAS and PCS, competitive examinations which were to be conducted from the month of April, 1991 upto July, 1991. From Saharanpur sometime she used to visit Meerut and sometime she would come to Dehradun. The training continued upto 15.03.1991. During this time their son was living at Tarantaaran with his mother. However, Pushp Lata had asked her mother-in-law to come to Dehradun along with her son and therefore, she came to Dehradun. Since 28 29 March, 1991 were holidays, therefore, in the morning of 29.03.1991 accused along with his wife had made a programme for going to Mussorie. Vandana also expressed her desire to accompany them. While Vandana was getting ready Pushp Lata inquired as to where was she going. On this Nishikant told Pushp Lata that Vandana was also accompanying them to Mussorie. However, Pushp Lata flared up and refused to take Vandana along with them Nishikant’s mother requested Pushp Lata to take Vandana with her stating that she is also like her own child. On this Pushp Lata got enraged and threw a 9

slipper on the face of her mother-in-law. Nishikant felt very bad and advised Pushp Lata not to behave in this manner in front of children. Thereafter, he went out but after some time on hearing cries of children, he came inside the house and found his wife engulfed in fire. He inquired from his wife as to why did she put herself on fire. Pushp Lata told him that out of remorse she had set herself on fire and requested Nishikant to save her. He immediately removed Pushp Lata to ONGC Hospital. He further stated that doctor informed the police about the incident. Some police official had also came to the hospital and made inquiries from Pushp Lata. On the same day, Nishikant requested the doctors at ONGC Hospital to provide him ambulance so that he could remove his wife to Safdarjung Hospital for better treatment. He also informed his father-in-law through telegram, who had reached Safdarjung Hospital in the morning of 30.03.1991. However, Pushp Lata died on 31.03.1991. Her last rites were performed on 01.04.1991 at Nigam Bodh Ghat, New Delhi by the accused.

After taking into consideration the entire evidence on record, the learned trial court acquitted accused Nishikant of the charges alleged against him.

The grounds highlighted by the trial court for acquitting the accused are that firstly that it was not a dowry death but deceased had herself committed suicide out of remorse. Second, the testimony of PW2 Lokman Das Agarwal and PW5 Yogesh Agarwal, 10

father and brother of decased are not reliable. Third, the letters exhibit Kha-3, Kha-6, Kha-7, Kha-9, Kha-10, Kha-12, Kha-13, Kha-14 and Kha-15 had been written by Pushp Lata and these letters indicate that Pushp Lata was very happy with her mother-in-law as she looked after her after the delivery of child and thereafter also. None of these letters proved that any demand of dowry was made by the accused or that Pushp Lata was ever harassed for the demand of dowry. Fourthly, the trial court relied upon the alleged dying declaration exhibit Ka1 made by Pushp Lata before Dr. S.L. Gupta wherein she has stated that she herself has committed suicide out of anger. Learned trial court has then relied upon the testimony of DW 1 Vandana and DW2 Anil Kumar, niece and brother of the accused Nishikant, who have proved that Pushp Lata committed the suicide out of anger and remorse.

I have heard learned counsel for the parties and perused the entire evidence and documents on record.

Learned AGA argued that learned trial court has erred in relying upon the alleged statement made by Pushp Lata in the hospital before Dr. S.L. Gupta. It is submitted that statement was recorded in the presence of Nishikant, who was working with ONGC and therefore, he must be have influenced over the doctor, who was working in the ONGC Hospital. It is further argued that testimony of PW2 Lokman Das Agarwal and PW5 Yogesh Agarwal, father and brother of 11

deceased, has been brushed aside by the learned court below on flimsy grounds. It is argued that from the testimony of PW2 Lokman Das Agarwal, it is well proved that accused and his mother were not satisfied with the dowry given at the time of marriage of Pushp Lata and PW2 Lokman Das Agarwal has categorically stated that just after marriage Nishikant and his mother started harassing his daughter. He also stated that Nishikant had complained on the date of marriage itself that the jewellry given by him is not pure and it contained more copper than gold and the clothes given for his relatives are of inferior quality. According to him, he had given a bank draft of Rs. 30,000/- in the name of father of Nishikant prior to the marriage and he had also given FDR of Rs. 20,000/- in the name of Nishikant and his daughter Pushp Lata. He also stated that Nishikant and his mother made a demand of Rs. 75,000/- for purchasing a plot in Dehradun and when he expressed his inability, his daughter was harassed for non-fulfillment of their demand. She was kept without meals for many days. According to him, his daughter had informed him about her harassment and maltreatment meted out to her through letters. He further stated that Nishikant had given an estimate mentioning therein the estimated expenditure of marriage and the actual expenditure incurred during the marriage. As per this estimate Rs. 75,000/- remained balance out of the estimated amount of expenditure and the said amount was being demanded by the accused from the complainant.

12

Learned AGA submitted that similar is the statement of PW5 Yogesh Agarwal. Both of them have referred to the letters written by Pushp Lata exhibit Ka-7 and exhibit Ka-8. In the First Information Report the complainant has mentioned that one year prior to the incident, Nishikant and his mother had tried to set Pushp Lata on fire. Even on the date of occurrence, Pushp Lata was given beatings, thereafter, she was burnt to death.

Learned AGA further pointed out that learned trial court has failed to appreciate the testimony of trustworthy and reliable PWs and has placed undue reliance on the testimony of DW1 Vandana and DW2 Anil Kumar. Learned AGA further argued that the testimony of PW 3 Dr. Ashok Kumar Sharma has been misread and not been interpreted in proper perspective.

Learned AGA argued that since Pushp Lata received hundred percent burn injuries so it was not possible for Pushp Lata to give statement (exhibit Ka- 1) prior to her death. He further pointed out that even there is no certificate of the doctor that patient was in a fit condition to make statement, therefore, statement exhibit Ka-1 cannot be relied to suggest that Pushp Lata had herself committed the suicide due to anger.

On the other hand, learned counsel for the accused respondent argued that there is not iota of evidence with regard to demand of Rs. 75,000/- having 13

ever made by him. Learned counsel for the respondent pointed out that even PW2 Lokman Das Agarwal has admitted in his cross examination that marriage was settled through advertisement. He also admitted that he has not mentioned in the First Information Report with regard to demand of dowry before marriage. He admitted in the cross examination that he has not made any expenditure from his own account and the marriage was performed from the account of Pushp Lata, which was about rupees two lakhs. However, he failed to disclose any reasonable source of income of Pushp Lata.

Learned counsel further argued that marriage of Nishikant and Pushp Lata took place in the month of April, 1988, however, demand of Rs. 75,000/- and estimate is alleged to have given after 4-5 months of marriage. Learned counsel further pointed out that prosecution has failed to produce the original copy of the estimate and only carbon copy of the alleged estimate has been produced. According to PW2 Lokman Das Agarwal the said estimate was sent by his daughter Pushp Lata whereas PW5 Yogesh Agarwal stated that his sister had given the said estimate to his father in his presence but he could not disclose the year or month in which the said estimate having been given by his sister. Learned counsel argued that there is nothing on record to show that any list with regard to dowry articles had been given or prepared at the time of marriage. Learned counsel further argued that 14

there is no proximate link between the alleged cruelty based on the demand of dowry and death in question. None of the witnesses stated that soon before death any demand was made by accused Nishikant or by his mother or any other family members. Rather it is well proved from the letters written by Pushp Lata, PW2 Lokman Das Agarwal and other letters produced by the defence that Pushp Lata was leading a normal happy life with her husband and in-laws and she never complained about any harassment having been caused to her on account of demand of dowry. He referred to the letter exhibit ka-7 wherein only one stray sentence is mentioned that her husband has decided to perform second marriage. The said letter is dated 28.09.1989 but thereafter several letters in the years 1989 and 1990 have been exchanged between Pushp Lata and her father and other family members wherein there is no mention about the second marriage or any demand having made by the accused or any of his family members. Learned counsel for the respondent vehemently argued that accused Nishikant had always been supportive and encouraged his wife for further studies. She passed B.Ed and M.A. examinations and also appeared in other competitive examinations. She had filled the form for competitive examinations of AAO LIC, IAS and PCS. She had been looked after by her mother-in- law Prakashwati after delivery of her child as well as when she was being operated for fibroids. Learned counsel further argued that deceased Pushp Lata had 15

been selected for the post of Assistant Postmaster and was undergoing training at Saharanpur and during that period her son was with mother of accused Nishikant. She had been visiting her parents as well as Dehradun during the period of her training. Pushp Lata had written letters in this regard to her father. In case, Pushp Lata was being harassed or treated with cruelty for demand of dowry accused would not have allowed her to work in independent manner and to pursue higher studies or to appear in the competitive examinations. Learned counsel argued that the only circumstance which emerges out from the letters is that Pushp Lata did not like that Vandana, daughter of Nishikant’s elder brother, who lived and pursued her studies with them at Dehradun. This has been depicted in various letters of Pushp Lata and her father PW2 Lokman Das Agarwal written to accused Nishikant and his brother. On account of Vandana only, got enraged on the date of occurrence and threw slipper towards her mother-in-law and when Nishikant advised her not to behave in this manner, out of remorse or out of anger, she herself committed suicide. Learned counsel pointed out that in case, Nishikant had set her on fire he would not have removed her to the hospital immediately nor he would have taken her to Safdarjung Hospital for better treatment. Learned counsel for the accused respondent further submitted that even the last rites of Pushp Lata were performed by Nishikant at Nigam Bodh Ghat, Delhi. Learned counsel argued that there is nothing on 16

record to prove that there was any demand of dowry and the trial court has rightly come to the conclusion that Nishikant had no role to play in the unnatural death of his wife Pushp Lata.

On careful consideration of rival submissions and scrutinizing the evidence on record, I endorse the view taken by the learned trial court, as prosecution case mainly rests on the testimony of PW2 Lokman Das Agarwal and his son Yogesh Agarwal (PW5), letters exhibit Ka-7 and exhibit Ka-8, alleged estimate exhibit 1. However, on the careful scrutiny of the testimony of PW2 Lokman Das Agarwal and PW5 Yogesh Agarwal, I find that their testimony is full of contradictions and discrepancies. Their testimony is also not corroborated by any independent witness or documentary evidence. It has been well established from the evidence on record that there was no demand of dowry at the time of marriage or thereafter. Even from the letters exhibit Ka-7 and exhibit Ka-8 it is not at all proved that Pushp Lata had complained to her parents with regard to demand of dowry made by accused Nishikant or his mother. In letter exhibit Ka-7 she simply stated she would like to continue her studies and in case, she has to go through some bad time she would at least able to make her both ends meet. She further stated that she does not have any faith in anyone as he (it appears that she is mentioning about her husband) has decided to perform second marriage. No other letter written after this letter has 17

mention about second marriage or any harassment being meted out to her. Learned counsel referred to letters exhibit Kha-3, Kha-6, Kha-7, Kha-9, Kha-10, Kha-12, Kha-13, Kha-14 and Kha-15. As far as letter exhibit Ka-8 is concerned, as there is no proof with regard to the delivery of this letter to PW2 Lokman Das Agarwal. As per PW2 Lokman Das Agarwal, this letter was sent by his daughter to him through Kedar Nath, Sub Postmaster. However, this fact has neither been disclosed in his statement made under section 161 Cr.P.C. nor in the statement recorded before the Magistrate Mr. B.K. Sehgal. Kedar Nath has not been produced in the witness box, therefore, veracity of this letter is not at all proved. The prosecution has also failed to prove that FDR which was given by the complainant at the time of marriage in the name of Nishikant and his daughter Pushp Lata was encashed by Nishikant or that he had withdrawn the said amount. There is no mention about this fact in any of the letters written by Pushp Lata. Even PW5 Yogesh Agarwal admitted in his statement that before marriage no settlement with regard dowry was made. It is worth mentioning that Pushp Lata passed her B.Ed. and M.A. examination after marriage. She had applied to appear for many competitive examinations. She was selected for the post of Assistant Postmaster and had undertaken training at Saharanpur. After the training she had joined the service in the Postal Department in the month of March, 1991. It appears that accused Nishikant and Pushp Lata had very 18

cordial relations with each other. The only point of conflict appears to be that Pushp Lata did not want Vandana, daughter of elder brother of Nishikant to live with them. On this account only they had some controversy between them.

As per statement of accused, on 28 29 March, 1991 he was having holiday. He had planned to go to Mussorie along with his wife on 29.03.1991. Even Vandana wanted to accompany them. Nishikant agreed to her request, however, when Pushp Lata came to know that Vandana would also accompany them she objected about Vandana accompanying them. At that time, mother of Nishikant requested Pushp Lata to take Vandana along with them, as she is like her own child. On this Pushp Lata threw slipper on the face of her mother-in-law. On this Nishikant advised Pushp Lata not to behave in such a manner in front of children as it would show her in poor light before children. It may be possible that Nishikant had given beating with slipper to his wife, as he must not have liked the way she treated his mother and on this Pushp Lata got infuriated and in a fit of anger she set herself on fire. This fact is further corroborated by the statement of Dr. S.L. Gupta, who stated that Pushp Lata was brought to the casualty unit on 29.03.1991 at 08.20 a.m. as medico legal case. On inquiry stated that she had put herself on fire and thereafter, she ran towards the room of her husband. He further stated that Pushp Lata had made statement (exhibit Ka-1) at 19

08.45 a.m. This statement was written by Kanta Mohan Rawat, Attendant, in his presence and Pushp Lata had put her thumb impression and signature underneath the said statement and the said statement was attested by him. Learned AGA has challenged the statement exhibit Ka-1 on the ground that there is no certificate given by doctor that patient was fit to make statement and as per the statement of PW3 Dr. Ashok Kumar Sharma, Pushp Lata was having hundred percent burn and in such a situation her general condition must be very poor and it was not possible for her to make any statement.

I have gone through the statement (exhibit Ka-1) recorded by Dr. S.L. Gupta and do not find any ground to disbelieve his statement. He is an independent witness. A perusal of his statement reveals that he had no bias either in favour of accused or against the patient or her family members. He categorically stated that he had informed the police immediately after the admission of Pushp Lata. The police had reached the hospital and he had told them that patient had made a dying declaration and in case, police wanted to make any inquiry from her they can do so. He categorically stated that patient was talking while she was admitted. In reply to a question he replied a patient having hundred percent burn injuries can speak for 5-6 hours or 8-9 hours as it depends on the condition of the patient. PW3 Dr. Ashok Kumar Sharma also admitted in cross examination that a 20

patient having hundred percent burn injuries can speak upto 3-4 hours. Thus, in the circumstance referred above, there is nothing to disbelieve the statement of Dr. S.L. Gupta and statement (exhibit Ka- 1) in which Pushp Lata has stated that out of anger she threw slipper towards his mother-in-law Prakashwati which fell on her foot, thereafter, her husband gave 3-4 slippers beatings to her, thus, out of anger she enclosed herself in the room and poured kerosene oil on her and set herself on fire and thereafter she open door and went towards her husband room, however, thereafter, she did not know what happened to her.

The legislature enacted the provision of section 304-B IPC and section 113-B of the Indian Evidence Act, to deal with social evil of dowry, however, sometimes it is seen that these provisions are more pronounced in their misuse and there is general tendency to implicate husband or his relatives after death of the wife takes place. The present case is also one of such cases. There is no convincing evidence against the respondent that he had treated Pushp Lata with cruelty or harassed her for demand of dowry. Rather it has been culled out from the entire evidence on record that Pushp Lata pursued higher studies after marriage and she was also successful in getting her career secured, as she was selected for the post of Assistant Postmaster and had joined the service in the earlier part of March, 1991. All these achievements 21

could not be possible without the support of her husband.

From the above discussion, I am of the view that prosecution could not prove the essential ingredients of section 304B or 498 A as well as 306 IPC. I do not find any ground to interfere with the conclusion arrived at by the trial court acquitting the respondent for the offence punishable under section 304B, 498A and 306 IPC. Thus, there is no merit in the appeal and the same is dismissed.

(Nirmal Yadav, J)

16.07.2010

SKS