Archive for August 25, 2010

Justice Dhingra: CrPC 125 Analysed wrt minor daughter

Crl.M.C.No. 2094/2010 Page 1 of 2
* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Reserve: July 28, 2010 Date of Order: 12th August, 2010 + Crl.M.C.No. 2094/2010 % 12.08.2010 Gulam Rashid Ali … Petitioner Through: Mr. K.M.M.Khan, Advocate Versus Kaushar Parveen & Anr. … Respondents 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, the petitioner has assailed an order dated 2nd March, 2009 passed by the learned Metropolitan Magistrate granting maintenance of Rs.2000/- per month for the minor daughter of the petitioner who is living separate from the petitioner with the mother. The sole contention raised by the petitioner before this Court is that in view of Section 3(1)(b) of Muslim Women (Protection of Rights on Divorce) Act, 1986 the right of the child to claim maintenance from father after two years of divorce of the mother does not survive. I consider that this contention is a baseless contention. Even a wife who has been divorced under Muslim Law is entitled to claim maintenance under Section 125 Cr.P.C. after Iddat period. Supreme Court in Shabana Bano v. Imran Khan Crl.Appeal No. 2309/2009 decided on 4th December, 2009 had observed that petition under Section 125 Cr.P.C would
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be maintainable (for the wife) before Family Courts so long as she does not remarry and the amount of maintenance to be awarded under Section 125 Cr.P.C. cannot be restricted for Iddat period only. The Supreme Court observed that the cumulative effect of reading of judgments of Supreme Court in Danial Latifi & Anr. v. Union of India (2001) 7 SCC 740 and Iqbal Bano v. State of UP & Anr. (2007) 6 SCC 785 makes it crystal clear that even a Muslim divorced woman would be entitled to claim maintenance from a Muslim husband till she has not married. This being a beneficial piece of legislation, the benefit must accrue to the divorced Muslim women. 2. I consider that the benefit under Section 125 Cr.P.C. cannot be denied to a minor daughter because of any restrictive provision contained in Muslim Women (Protection of Rights on Divorce) Act, 1986. The petition has no force and is hereby dismissed. August 12, 2010 SHIV NARAYAN DHINGRA, J. vn

Categories: Judgement

Justice Dhingra: Petition being frivolous is dismissed with cost of Rs. 1,00,000/-

Crl. Rev. P. No. 120 of 2010 Page 1 of 13
* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Reserve: July 29, 2010 Date of Order: 12th August, 2010 Crl. Rev. P. No. 120 of 2010 % 12.08.2010 MOHAN LAL JATIA … Petitioner Through: Mr. K.K. Sud, Sr. Advocate with Mr. Kunal Malhotra & Mr. Mahipal Ahluwalia, Advocates. Versus REGISTRAR GENERAL, SUPREME COURT OF INDIA … Respondents Through: Mr. Vikas Pahwa, Standing Counsel for CBI with Mr. Tarun Verma, 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
1. By the present petition, the petitioner has assailed the order of learned Chief Metropolitan Magistrate (CMM) dated 11th December, 2009, whereby an application of the petitioner for adopting a procedure of warrant trial as applicable to a complaint case and for recording pre-charge evidence was dismissed.
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2. Brief facts relevant for the purpose of deciding this petition are that in an SLP pending before Supreme Court, being SLP No. 1330 of 1986, challenging a detention order, an affidavit was filed by accused Ashok Jain that a representation had been made in the Secretariat of President of India on 15th April, 1986, and this representation had not been disposed of by the Central Government. This plea, taken by the petitioner before the Supreme Court, was contested by Union of India (UOI) and it was stated that no such representation was filed before the President of India and a false affidavit was sworned before the Supreme Court. The Secretariat of President of India filed an affidavit informing the Court about the procedure by which dak was received and handled at Rastrapati Bhawan. Register from the office of Rastrapati Bhawan was produced before the Supreme Court. UOI made an application under Section 340 of Code of Criminal Procedure (Cr. P.C.) before the Supreme Court for prosecuting the persons responsible for filing false affidavit through Mr. Ajay Jain before the Supreme Court. It was also informed that UOI has referred the matter to Central Bureau of Investigation (CBI) for investigation. The Supreme Court, vide its order dated 12th September, 1986, directed CBI to proceed with the inquiry and directed that the result of inquiry be communicated to UOI. On 29th
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April, 1987, Writ Petition and SLP came up for hearing before the Supreme Court and the Supreme Court dismissed the SLP and Writ Petition challenging the order of detention and observed that the detenu and his other associates had gone to deplorable lengths to create evidence favouring the detenu which aroused convulsion thoughts in the minds of Supreme Court about the efficiency and integrity of the concerned sections of President’s Secretariat. It further observed that it was a fit case where detenu, his wife, Ashok Jain and other persons responsible for fabrication of false evidence should be prosecuted for the offences committed by them. The Supreme Court deferred the passing of final order on application of UOI under Section 340 Cr. P.C. awaiting CBI report. Directions were issued for complete investigation to be taken up by CBI and the Supreme Court directed its Registrar (Judicial) to keep relevant records in safe custody in a sealed envelope till such time they are called for and when the application under Section 340 Cr. P.C. was taken up for final orders. Director of CBI was directed to get the investigation done and submit report to Ministry of Home Affairs, Government of India. Subsequent to this, CBI registered a case vide RC No. 2/87/SIU-III on 1st May, 1987. The CBI submitted its report to the Department of Personnel and Training on 31st January, 1989,
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recommending prosecution of Mohan Lal Jatia, Pushpa Devi Jatia, Ashok Jatia, Ashok Jain, Gurcharan Singh and Milap Chand under the provisions of Section 120B, 193, 218, 468, 471, 468, 420 IPC read with Section 511 of IPC. This investigation report was placed before the Supreme Court in 1994. On 20th July, 1994, Supreme Court passed a detailed order directing its Registrar General to prepare a complaint in terms of Section 195 Cr. P.C. read with Section 340 Cr. P.C. and file it before the competent Court for action. The complaint was thus filed by Registrar General of Supreme Court before the Court of CMM, Delhi, on 19th August, 1994. From 1994 till 1999, the accused persons were being summoned and ultimately on 27th November, 1999, Metropolitan Magistrate (MM) observed that compliance under Section 207 Cr. P.C. has been done. This order of learned MM was assailed by the accused persons in a Criminal Revision on 14th January, 2000. Thereafter one of the accused filed an application under Section 210 Cr. P.C., regarding procedure to be followed when there was a complaint case and police investigation in respect of the same offence. This application under Section 210 Cr. P.C. was disposed of vide order dated 15th July, 2000 by MM observing that the case instituted by the Registrar General of Supreme Court was to be dealt with as if it was instituted on a police
Crl. Rev. P. No. 120 of 2010 Page 5 of 13
report in view of Section 343 (1) of Cr. P.C. This order was assailed before this Court vide Crl. M.C. No. 2452/2000 and the accused also sought quashing of complaint pending before the Court of MM. This Court vide order dated 18th March, 2004, dismissed the Crl. M.C. No. 2452/2000. On 11th December, 2009, the petitioner again moved an application before the Trial Court, again assailing the procedure adopted by the Trial Court and stated that the Trial Court should adopt the procedure as mentioned in Chapter XIX-B of Cr. P.C. This application was dismissed by the learned CMM and this petition has been filed assailing the order of learned CMM.
3. Chapter XXVI of Cr. P.C. deals with the offences affecting administration of justice. These are those offences which are committed by the accused persons or witnesses during pendency of trial or otherwise when the matter is pending before the Court. While Section 340 of Cr.P.C. gives no details about the procedure to be adopted by a Court where an offence against administration of justice is committed, Section 343 of Cr. P.C. provides the procedure to be followed by a Magistrate to whom a complaint is made under Section 340 Cr. P.C. Section 343 (1) of Cr. P.C. specifically provides that a complaint made to the Magistrate under Section 340 or 341 Cr. P.C., notwithstanding
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anything contained in Chapter XV (Chapter dealing with complaint cases), is to be dealt with as if it was instituted on a police report. Section 344 Cr. P.C. provides for following of a summary trial procedure for trial in cases of giving false evidence, by the same Court where false evidence is given. Under Section 344 of Cr. P.C., the trial court has option to follow summary trial procedure and convict the offender who commits an offence affecting administration of justice with punishment up to 3 months imprisonment. It also provides that the Court, at its discretion, may make a complaint under Section 340 Cr. P.C. Similarly, Section 345 Cr. P.C. prescribes procedure in cases where offences as prescribed in Section 175, 178, 179 & 180 of Cr. P.C. or in Section 228 of IPC (offences of acting administration of justice) and committed by a person in view or presence of the Court. Under this provision a Court in whose presence the offence is committed can take cognizance and summarily sentence the person to a fine not exceeding Rs. 200/- and in default, simple imprisonment extending to one month can be awarded. Section 346 Cr. P.C. provides that where procedure of summary trial as given under Section 345 Cr. P.C. is not followed and the court considers that punishment of fine of Rs. 200/- was not adequate, the Court may forward the case to Magistrate, having jurisdiction to try the same.
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Section 346 (2) Cr. P.C. again emphasizes that the Magistrate to whom a case is forwarded under Section 346(1) Cr. P.C., shall proceed and deal with the case as if it was instituted on a police report. 4. The different provisions of this Chapter make it clear that intention of Legislature had been that either the offences against administration of justice should be tried summarily by the concerned Court or if the complaint is filed by the Court regarding such offences, the complaint should be treated as a police report. In view of clear mandate of the statute there can be no doubt about the procedure which has to be followed by the Courts below and the complaint filed by the Registrar General of Supreme Court has to be treated as a police report and the trial of the petitioner and the other accused persons has to be conducted in the same manner as a trial of a warrant case on police report case is done.
5. The learned counsel for the petitioner has relied upon Ajay Kumar Ghose Vs. State of Jharkhand, AIR 2009 SCC 115 to press the point that procedure to be followed by a Magistrate should be a warrant trial procedure as provided under Section 244, 245 and 246 of Cr. P.C. and submitted that since a complaint was filed by the Registrar General of
Crl. Rev. P. No. 120 of 2010 Page 8 of 13
Supreme Court, pre-charge evidence should be recorded by the Court of CMM and after recording of pre-charge evidence, it should be considered whether there was sufficient evidence to frame charge or not. I consider that this case does not help the prosecution. In Ajay Kumar Ghose case an official of High Court had filed a complaint under Section 340 Cr. P.C. The complaint was not accompanied by any material in support of complaint. The accused appeared in pursuance of summons sent to him under Section 244 Cr. P.C. and came out with an application for discharge. The learned MM dismissed the application and framed charges against the accused. The Supreme Court in para 34 of the Ajay Kumar Ghose judgment observed that there was absolutely nothing before the learned MM beyond the complaint to consider framing of charge and the learned MM could have undoubtedly proceeded under Section 245(2) of Cr. P.C. on the basis of discharge application and discharged him. In view of Section 245(2) Cr. P.C., the Court could have discharged the accused even before any evidence was recorded. Since in the case before learned MM, the complainant was High Court, no statements were recorded by the Court of MM and there was no other material before the Court of MM but the Court of MM still framed the charge. It is under these circumstances that Supreme Court
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allowed the SLP and remanded back the case for recording of complainant’s evidence.
6. In the present case, the Supreme Court had ordered holding of an inquiry by CBI before directing a complaint to be filed against the petitioner and the CBI had collected entire material which showed the commission of offence and only after the investigation was completed by the CBI, that the Supreme Court directed making of a complaint under Section 340 Cr. P.C. It is not a case where a bare complaint was available before the Magistrate and there was no other evidence available before the Magistrate. The Magistrate in this case was to decide about framing of charge on the basis of evidence available on record and to see whether charge is made out or not. Moreover, the Supreme Court in Ajay Kumar Ghose (Supra) case was not asked to consider if the warrant trial procedure as applicable to complaint cases was to be followed in all cases under Section 340 Cr. P.C. when a complaint is filed by the Court. The statute had specifically stated that a complaint sent by the Court under Section 340 Cr. P.C., notwithstanding the procedure of Chapter XV of Cr. P.C., has to be considered as a police report and the case has to proceed as if it was made on a police report. Thus, procedure as available under Section 245 and 246 of Cr. P.C. of
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recording of evidence of complainant twice over would not be the procedure to be followed. 7. The other case relied upon by the petitioner is Godrej & Boyce Mfg. Co. Pvt. Ltd. Vs. UOI, 1992 Cri.L.J. 3752 and it has urged that the Bombay High Court had held that procedure of warrant trial in complaint case is to be followed. This contention also must fail. In Godrej& Boyce Manufacturing Co. Pvt. Ltd. (Supra) case, the Court itself observed that they had not made preliminary inquiry into the case and the Court had not issued notice to summon at least to some among the prospective accused. 8. In the present case, a preliminary inquiry was got done by Supreme Court through CBI and after getting the investigation done through CBI, the Supreme Court directed its Registrar General to file a complaint against those persons who were found involved in the offence in the investigation done by the CBI. I, therefore, consider that no pre-charge evidence was required to be recorded in the present case and the procedure being advocated by petitioner, second time before this Court was not the correct procedure.
Crl. Rev. P. No. 120 of 2010 Page 11 of 13
9. Even otherwise, I consider that in view of clear mandate of the statute that the complaint under Section 340 Cr.P.C. is to be treated as a police report, the procedure to be followed by the learned CMM is that of a warrant trial case on a police report and not of a warrant trial case on a complaint.
10. The counsel for the petitioner referred to R.S. Nayak Vs. A.R. Antulay, 1984 (3) SCC 86 case to justify re-agitating the issue again before this court and stated that even Supreme Court reversed its own decision when it found that the earlier decision was contrary to procedure laid down in Code of Criminal Procedure. We must remember that A.R. Antulay’s case is not an example of civil liberty, but, is an example of as to how a judicial death can be given to a complaint. In Antulay’s case a complaint of documented corruption died an unnatural death because of multifarious Writs and SLPs, despite the fact that for every ton of cement, for which licence was granted, a fixed amount of donation was paid by the licencees in the Trusts created for this purpose and the entire payment was documented. Despite all that, the complaint against corruption got killed and nothing happened, courtesy Indian Judicial System. The judicial process is often used as a tool to see that even if there is documented proof of commission of
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crime, the accused gets scot free because of multifarious levels of appeals, writs, revisions, 482 Cr. P.C. petitions and SLPs to which the accused and petitioners have unlimited access under the present system. The real judicial reform can come in this country only when, despite the strength of money power and political power, one is not able to capture the judicial system and hold it to ransom on the strength of this power.
11. The present petition is a gross misuse of the judicial process. The accused persons have came second time before this Court assailing the procedure being adopted by the learned MM. The whole effort of the accused persons seems to be not to allow the trial to proceed further. The case is a glaring example how the trial can be stalled by adopting delaying tactics. The complaint of an offence committed in 1986 in respect of administration of justice in Supreme Court, where a false affidavit was filed, despite investigation got done from CBI by the Supreme Court followed by a complaint to CMM, Delhi through its Registrar General in the year 1994 is still at initial stage. From the year 1994, we are in 2010. For these 16 long years, the trial has not proceeded an inch. Those who talk of judicial reforms must take note of
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such numerous cases pending in Courts where the judicial process is misused to see that the trials do not proceed further. 12. The petition being frivolous is dismissed with cost of Rs. 1,00,000/- to be deposited with Delhi High Court Legal Services Committee. SHIV NARAYAN DHINGRA, J. 12th AUGUST, 2010 acm

Categories: Other news

Justice Dhingra: HC cannot do enquiry under DV Act: MM has to do the enquiry

Crl.M.C.No. 3290/2009 Page 1 of 3
* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Reserve: July 27, 2010 Date of Order: 13th August, 2010 + Crl.M.C.No. 3290/2009 & Crl.M.A.No. 11179/2009 % 13.08.2010 Smt. Raj Kapur & Anr. .. Petitioners Through:Mr. Gaurav Puri, Mr. R.K.Mishra & Ms. Gayatri Puri, Advocates Versus State & Anr. … Respondents Through:Mr. O.P.Saxena, APP for the State Ms. Deepika V. Marwaha, Advocate for R-2 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
The present petition has been filed by the petitioners, who are father-in-law and mother-in-law, for quashing a complaint under Section 12 of Protection of Women from Domestic Violence Act, 2005 qua them, made by respondent No.2. It is stated by the petitioners that respondent no.2 was married about 27 years ago. She was employed and was earning Rs. 40,000/- pm and was owner of a new car and was working in a store viz. M/s. Atmosphere. She had leveled various allegations against her husband and the only allegations against the petitioners were that the jewellery gifted to her by her family was in custody of petitioners. It is stated that the
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jewellery was gifted to her 27 years ago and was in her exclusive possession, she herself owned a locker in New Friends Colony being locker No. NFC D-1097 NFCGF), where she had kept her valuable items. She had a daughter who is 25 years old, unmarried and living with her in the same house. She was not having harmonial relations with her husband and was living separate from her husband for the last 10 years in the same house at first floor. She was not having any conjugal relations with her husband. There was no domestic relationship or shared household between petitioners and respondent no.2. Petitioner No.1 was heart patient and petitioner no.2 was suffering from eye sight problem and they had been unnecessary made parties to the application under Domestic Violence Act and therefore application qua them should be quashed. 2. I consider that it would not be proper for this Court to enter into an inquiry in respect of the application at this stage. It is the duty of Metropolitan Magistrate, where the application has been made, to ensure whether a domestic relationship existed between the applicant and the petitioners in view of judgment of this Court in Criminal M.C.No. 3878/2009 titled as Vijay Verma v. State NCT of Delhi & Anr. decided today i.e on 13th August, 2010.
3. I, therefore consider that the learned MM where the application is pending shall consider all facts and decide the existence of domestic relationship between the parties and the orders under the Act should be passed only after considering
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whether any domestic relationship existed between the petitioner and the respondent. With these directions the petition is disposed of. It is also directed that unless the petitioners’ personal appearance was very essential, the petitioners shall not be asked to appear in person and they shall be allowed to be represented before the Court by an Advocate. August 13, 2010 SHIV NARAYAN DHINGRA, J. vn

Categories: DV Judgements

Justice Dhingra: Good judgement : Cancelled bail of a fraud Builder

Crl.M.C.No. 3022/2009 Page 1 of 8
* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Reserve: July 12, 2010 Date of Order: 13th August, 2010 + Crl.M.C.No. 3022/2009 & Crl.M.A.No. 5184-5185/2010 % 13.08.2010 Dr. Raman Kumar Juneja … Petitioner Through: Mr. S.S.Gandhi, Sr. Advocate with Mr. Prag Chawla, Advocate Versus State (NCT of Delhi) … Respondent Through: Mr. V.K.Aggarwal, Advocate & Mr. Chand Zafar, Advocate for the Complainant 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 present petition under Section 482 Cr.P.C. the petitioner has assailed order dated 26th August, 2009 passed by the learned Additional Sessions Judge whereby he allowed an application of the respondent for cancellation of bail of the petitioner and set aside the bail order dated 18th February, 2009 passed by the learned Metropolitan Magistrate.
2. It is submitted that the cancellation of bail of an accused can be done by a Court only if there were supervening circumstances which render grant of bail no longer conducive to a fair trial. The law cited by the petitioner regarding cancellation of bail was ignored by the learned Session Judge. It was not a case where petitioner had attempted to interfere with the course of administration of justice or had abused the concession of bail granted by the learned Metropolitan
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Magistrate. There was no cogent and valid reason available for cancellation of bail and the learned ASJ did not pass the order for just and cogent reasons.
3. Brief facts relevant for the purpose of deciding this petition are that the petitioner claimed to be owner of property No. 20/2 Rajpur Road, Civil Lines along with ownership rights of passage. Petitioner entered into an Agreement dated 18th January, 2008 to sell this property for a sum of Rs.6.75 crore and received around Rs.80 lac at the time of signing agreement; Rs.20 lac was received in cash Rs.60 lac was received through cheque. However, a dispute arose soon after signing of agreement between petitioner and respondent about the extent of property sold, and the respondent stopped payment of the cheque. Thereafter a fresh agreement was signed between the parties on 7th July, 2008. The only difference between agreement between 18th January, 2008 and 7th July, 2008 was that while in 18th January, 2008 agreement the petitioner had given to the respondent only easementary rights over passage from Rajpur Road to the property and no right of ownership over the land underneath passage was given however, in the agreement dated 7th July, 2008, it was specifically mentioned that the respondent will have ownership rights over the passage starting from main Rajpur Road to Kailash Building. The copies of the two agreements are on record showing this difference. After signing of the second agreement dated 7th July, 2008, the petitioner received a sum of Rs.1.5 crore from the complainant and balance consideration was to be received at the time of execution of the documents. The complainant later on found that the petitioner had misrepresented about his title over the passage in order to induce the respondent to part with huge amount of Rs.1.5 crore with a mala fide intention. The contention of the complainant was that the petitioner first kept on postponing the execution of sale deed. He did not show title documents in respect of title over
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the passage from main road to Kailash Building and represented that he shall hand over the title documents at the time of receiving balance payment and execution of the sale deed. According to complainant, though the complainant was ready with the balance payment, the petitioner showed inability to execute the sale deed and to hand over the possession by due date of 18th August, 2008 and thereafter date was extended to 15th September, 2008 then to 16th October, 2008. The petitioner also failed to provide sanctioned building plan, “C” and “D” forms, completion certificate and complete set of documents. It was alleged that petitioner did not provide documents nor came forward to execute the sale deed in terms of the agreement dated 7th July, 2008. It came to the knowledge of the complainant that petitioner was not the owner of the entire property as stated in agreement dated 7th July, 2008 and the passage was not under ownership of the petitioner. Further, it also transpired that there was unauthorized construction and dispute between petitioner and municipal authorities was going on and with the result that the property was sealed. It is stated that despite petitioner not having marketable title over the property, the petitioner induced respondent to part with huge amount of money. However, after the petitioner failed to execute sale deed, the complainant met Mr. Anish Gupta, property dealer along with one Mr. Bipin Jain and requested for refund of money paid by him to petitioner. It was assured that the money shall be got refunded from the petitioner within 15 days but petitioner refused to return the money paid to him and told that the entire amount of Rs.1.5 crore had been forfeited.
4. The petitioner had applied for anticipatory bail which was rejected by the Sessions Court and also by this Court. Thereafter, the petitioner surrendered before the Court of MM and the learned MM granted bail to the petitioner observing that both the agreements were for the same consideration
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and no extra payment was stipulated for the additional stipulation made in the agreement dated 7th July, 2008 for selling extra common passage. No cheating was alleged in respect of agreement dated 18th January, 2008. The accused was not a prior convict and looking at his age the learned MM directed the accused to be released on bail of Rs.50,000/- subject to condition that accused shall not leave the territory of India without permission and will surrender his passport and shall not commit a similar offence nor shall threaten or induce the witnesses. This order of the learned MM was assailed by the respondent on the ground that the learned MM had not taken into consideration the substantial facts while granting bail and it was not a fit case for grant of bail. Looking into the fact that the accused/petitioner was involved in cheating of a huge amount and had refused to refund Rs.1.5 crore even on his failure to show title, learned Sessions Judge came to the conclusion that prima facie it was a serious case of deliberately inducing the complainant to part with this amount by making false representation about ownership of the passage from main Rajpur Road to Kailash Building. The learned ASJ observed that the petitioner had admittedly received Rs.1.5 crore from the complainant and in case the agreement did not materialize, the petitioner was entitled to forfeit only the earnest money of Rs.20 lac and he was required to return sum of Rs.1.30 crore, which he deliberately did not return. So the Court of learned ASJ observed that in this case from the facts it can be gathered that the intention of the petitioner was mala fide from the very beginning and he had no intention to honour the agreement. The learned ASJ also found that in this cheating the petitioner had main role. He (petitioner herein) was the beneficiary of Rs.1.5 crore. The co-accused who was granted bail was not the beneficiary of any amount therefore, grant of bail to co-accused could not have been a reason to allow bail to petitioner on the ground of parity. The Court of Sessions found that the learned MM had not considered the matter
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in proper prospects, did not pay heed to the difference between the two agreements, executed by the petitioner and inducement given, by making specific averment of ownership over the passage and agreeing to sell the passage on which he had no right. It further observed that a person who had duped complainant of Rs.1.5 crore cannot be treated alike to the person who had not received any benefit. The learned ASJ by a speaking order of 33 pages cancelled the bail of the accused. 5. It is contended by the Counsel for the petitioner that the learned ASJ had not taken into account the fact that cancellation of bail already granted must be considered and dealt with on different fottings and the bail could be cancelled only if there were supervening circumstances showing that it was not conducive to a fair trial to allow an accused to remain on bail or the freedom granted to the accused by way of bail was being misused. Reliance was placed on Dolat Ram & Ors. v. State of Haryana (1995) 1 SCC 349 & Ramcharan v State of M.P. (2004) 13 SCC 617. It was submitted that even if two views were possible, once the bail was granted it should not be cancelled. The respondent on the other hand relied on Dinesh M.N. (SP) v. State of Gujarat (2008) 5 SCC 66 wherein Supreme Court had observed that while cancelling the bail, the Court can consider whether the irrelevant material was taken into consideration by the Court granting bail. In Brij Nandan Jaiswal v. Munna @ Munna Jaiswal & Anr. (2009) 1 SCC 678 Supreme Court observed as under:
12. It is now a settled law that the complainant can always question the order granting bail if the said order is not validly passed. It is not as if once a bail is granted by any court, the only way is to get it cancelled on account of its misuse. The bail order can be tested on merits also. In our opinion, therefore, the complainant could question the merits of the order granting bail. However, we find from the order that no reasons were given by the learned Judge while granting the bail and it seems to have been granted almost mechanically without considering the pros and cons of the matter. While
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granting bail, particularly in serious cases like murder some reasons justifying the grant are necessary. 6. In Satish Jaggi v. State of Chhattisgarh & Ors. (2007) 11 SCC 195, Supreme Court had observed that while granting or non-granting of bail in non-bailable offences, the primary consideration should be nature and gravity of offence and question of credibility and reliability of the witnesses cannot be gone into. In Subodh Kr. Yadav v. State of Bihar & Anr. Criminal Appeal No. 1234/09 (MANU/SC/1207/2009) decided by the Apex Court on 15th July, 2009, Supreme Court again reiterated that where a Magistrate goes wrong and grants bail and acts in an arbitrary manner/oblique motive the Sessions Court was justified in setting aside the bail. The Apex Court observed that the powers of the Superior Court were not restricted in cancellation of bail in appropriate cases where the bail has not been granted on merits.
7. I consider that in the present case, the argument of the petitioner that the learned ASJ did not consider the law as laid down by Supreme Court was baseless. Even on facts, I find that the petitioner‟s conduct from the very beginning had been to swallow the money. Initially, when the dispute arose between petitioner and respondent about extent of property, the petitioner could have told the complainant that he was not the owner of the passage and he could not sell the passage and respondent was free to back out from the agreement. By that time, the respondent had paid only a small amount of Rs.20 lac cash to the petitioner and the complainant would have decided whether to go by deal or not. However, the petitioner fully knowing that he was not the owner of the passage, (as is seen from the gift deed and Will; copies of which have been placed on record by the petitioner), deliberately induced the complainant to enter into second agreement wherein he mentioned that he would transfer the
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ownership rights over the passage and after entering into this agreement the petitioner received substantial amount of Rs.1.3 crore more from the complainant. Since he was not owner of the passage, he could not have transferred the passage. He had only easementary right over the passage as was written in the first agreement dated 18th January, 2008. The sole purpose of the petitioner making false statement in second agreement was to lure complainant to part with Rs.1.5 crore and then show volte face. However, the learned MM granted bail to the petitioner on the basis of first agreement between the parties without taking into account the fact that it was the second agreement after execution of which, the petitioner had received huge amount from the complainant wherein a false representation that petitioner being owner of the passage, was made. The petitioner had not shown his title 7th July, 2008 to the complainant. Had the petitioner shown title deeds, the complainant would not have entered into the second agreement and would not have parted with the money. It is obvious that prima facie the intention of the petitioner was to play fraud and to cheat the respondent of huge amount. This fact is further fortified when petitioner refused to return the amount. The learned MM did not take these facts into consideration while granting bail. The learned Sessions Judge was therefore within its jurisdiction to cancel the bail as Learned MM had failed to consider merits while passing bail order and gave casual treatment to the matter and considered irrelevant material.
8. I consider that where a person who has admittedly received huge amounts from the complainant on misrepresentation and who refused to return this amount despite his misrepresentation having come to light, such a person is not entitled for bail. His bona fides and intentions are to be doubted and the Court must remain alive to the situation that these days „cheating‟ has become a
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profession. Builders often make false promises about the land and about the buildings and induce people to invest money in colonies, which exist only on papers when in fact they do not have land or permission to set up colonies. This menace of cheating is increasing day by day and Courts cannot take a casual approach towards those, who admittedly had received huge amount but are not prepared to refund. I, therefore find no infirmity in the order passed by the learned ASJ cancelling the bail of the petitioner. The petition is hereby dismissed. August 13, 2010 SHIV NARAYAN DHINGRA, J. vn

Categories: Bail Judgement

Justice Dhingra: Coming down heavily on CBI

Crl. M.C. No. 1436 of 2009 Page 1 of 5
* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Reserve: July 26, 2010 Date of Order: 16th August, 2010 + CRL.M.C. 1436/2009 % 16.08.2010 A.K.GUPTA ….. Petitioner Through: Mr. Ajay Burman, Advocate Versus STATE THR. C.B.I. ….. Respondent Through: Mr. Harish Gulati, Advocate for CBI 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 1. In this country a folklore goes that if you are caught taking bribe you can get scot free by giving bribe. In this case, CBI intended to prove the same.
2. The petitioner in this case was caught accepting bribe from a complainant who had official business pending with the petitioner, working as Engineer in the department where a trap was laid on the basis of a complaint lodged on 17th November, 1990. The petitioner was caught red handed on 19th November, 1990 at Room No. 22, First Floor of Hotel Maharaja, in the evening in the presence of shadow witness. The investigation was referred to
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CBI, CBI did not file result of investigation for 11 long years in a trap case where the investigation would not have taken more than few days. Ultimately, the CBI filed a closure report after 11 long years. The CBI had no explanation as to why the result of investigation was not filed for all these years. In view of this state of affairs, the only thing that comes to mind is the folklore as quoted above. 3. The closure report filed by the CBI was not accepted by the Special Judge of CBI as the Special Judge found that the reasons given in the closure report were flimsy, not convincing and vague. It was found that CBI had not investigated the case properly and had unnecessarily doubted the credibility of the complainant. The learned Special Judge passed a detailed order as to why the closure report was not being accepted and gave directions for further investigation. He also directed that an investigation should also be done into the aspect of delay of 11 years in filing the closure report. After passing of this order by the Court of Special Judge on 4th May, 2002, it took CBI approximately another 7 years to file charge-sheet and the charge-sheet was filed against the petitioner on 18th February, 2009. The Special Judge then took the cognizance of the offences vide order dated 28th February, 2009.
4. The present petition has been filed by the petitioner for quashing of charge-sheet on the ground of delay. It is alleged by the petitioner that
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investigation in this FIR had remained pending for so many years. The petitioner took voluntary retirement on 31st January, 2004 i.e. about 21 months prior to his actual date of retirement. The petitioner submitted that since the charge-sheet was filed with such an extra-ordinary delay and the delay had not been explained, the charge-sheet should be quashed. It is submitted that speedy investigation and speedy trial was right of the petitioner and delay in filing the charge-sheet would hamper the defence of the petitioner as all the witnesses whom petitioner could have examined in his defence had retired with passage of time and it would be impossible for the petitioner to locate and trace them or to find them.
5. There is an apparent connivance between the petitioner and the officials of CBI. In a trap case, where a person is caught red handed, the investigation to be done by CBI involves only recording of statements of witnesses involved in the trap, statement of complainant, seizure of the bribe money and sending of hand wash of the accused to FSL and obtaining report. This entire process does not take more than 2 months. There is no explanation given by CBI as to why this case was kept pending investigation for 11 years at first instance and for 7 years at second instance. It only seems that the CBI was not at all interested that the corrupt officials sitting in public offices should be brought to book. The petitioner was an Executive Engineer in DESU at that time and had allegedly demanded bribe. He was caught red
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handed while accepting bribe. Even if CBI had to file a closure report doubting the credibility of the complainant and other witnesses, CBI should have filed the same within a reasonable time but, perhaps, CBI wanted that the case should die a slow un-natural death that is why for 11 years CBI kept sitting on this investigation and then filed a closure report giving lame excuses. When it was asked to further investigate, for another 7 years it kept sitting on investigation and then filed a charge-sheet. The only logical conclusion is that CBI was not honest and sincere in investigation of this case. Had the CBI been honest in investigation of the case, it would not have delayed filing of the charge-sheet or the initial closure report. There is unexplained long interval of 7 years between the order rejecting closure report and charge-sheet at second instance.
6. No doubt, speedy investigation and speedier trial is the right of accused but speedy and fair investigation is also a right of the society being victim of the crime. The people of this country have a vested right to ensure that officers working in public offices should be honest and persons with integrity and those who indulge in corruption should be brought to book. If the investigating agency mixes up with the accused persons and investigation reports are not filed for such a long time as in this case, then every accused person would get investigation delayed and say that he should be let of because investigation has taken such a long time.
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7. It would be a matter of investigation as to who was responsible for such an inordinate delay in this case. I consider that instead of accused being let of, it could be appropriate that those officials of CBI, who were responsible for dereliction of duty, should be brought to book and action should be taken against them. 8. I find no force in the petition. The petition is hereby dismissed. However, Trial Court shall expedite the trial in this case. 9. Director, CBI is directed to investigate as to who were responsible for keeping the investigation of this pending. A report shall be filed before this Court, about this, within three months. The CBI director shall also intimate as to what action was being taken against those officials who were responsible for this inordinate delay. 10. The petition is being kept alive to ensure action against the erring officials. List the matter on 18th November, 2010. August 16, 2010 SHIV NARAYAN DHINGRA, J. acm

Categories: Other news

JUSTICE SHIV NARAYAN DHINGRA: Girl Mature enough and ran away with boy. Why making issue?

Crl. A. No. 715 of 2008 Page 1 of 6
* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Reserve: 28th July, 2010 Date of Order: 18th August, 2010 + Crl. A. No. 715 of 2008 % 18.08.2010 KULWANT SINGH ….. Appellant Through: Mr. Vinod Kr. Sharma, Adv. versus STATE (GOVT. OF N.C.T. OF DLEHI) ….. Respondent Through: Mr. O.P. Saxena, APP 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 1. This appeal has been preferred by the appellant who has been convicted by the trial court under Section 363, 366 and 376 IPC and sentenced to undergo RI for 7 years under Section 376 IPC with a fine of Rs. 10,000/-, RI for 5 years under Section 366 IPC and a fine of Rs. 5,000/- and RI for 3 years under Section 363 IPC and a fine of Rs. 5,000/-.
2. Brief facts relevant for the purpose of deciding this appeal are that on 21st December, 2002, mother of prosecutrix lodged the report Ex. PW2/A that her daughter, aged around 14 years had left the house on 18th December,
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2002 and had not returned back. The appellant used to visit her house and from the date her daughter was missing, appellant was also not at this house and she suspected that the appellant had enticed away her daughter.
3. The appellant and the prosecutrix had eloped together from their houses. The appellant was aged 18 years when the incident took place and the prosecutrix was aged around 16 years at the time of incident. They lived at a village in Punjab for about a month and half and it seems that the police was putting pressure on the parents of the appellant with the result that the appellant and prosecutrix came to Delhi. The appellant and the prosecutrix were taken into custody by police at Delhi. Though the story of the police is that they were walking on the road and were pointed out by the mother of appellant but from the perusal of statement of prosecutrix, it is apparent that sister of the appellant had gone to Punjab and brought them back to Delhi. After the appellant and prosecutrix were taken into custody by the police, prosecutrix was produced for her medical examination at Sanjay Gandhi Memorial Hospital, Mangol Puri on 5th February, 2003 at around 12.30 am. She gave history to the Doctor, recorded in MLC Ex. PW2/A, that she had eloped with a boy, she had married him and subsequently had physical contact with him. The boy was also produced for his medical examination on the same day and his MLC Ex. PW6/A was prepared. The age of the girl, as given to the Doctor was 17 years, and the age of the boy was 18 years. The girl
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was later on produced before the Metropolitan Magistrate on 6th February, 2003. The order dated 6th February, 2003 of learned MM shows that the girl did not want to go with her mother but the learned MM observing that the girl was minor, gave custody of the girl to her mother, vide his order dated 6th February, 2003. The prosecutrix was produced for her statement under Section 164 Cr. P.C. before the MM on 21st February, 2003. She made a statement before the learned MM under Section 164 Cr.P.C. after being brought from the custody of her mother, and exonerated the appellant completely. She denied that she had gone with the appellant at all and took a stand that during this period she had lived with her sister in UP.
4. During trial, however, the prosecutrix changed the story and a usual story, which is unique to Delhi Police, given in every such case, was put forward that the accused called her at his house, offered her tea and something was mixed in the tea and thereafter she became unconscious and she was taken to Punjab in unconscious state, she regain consciousness in Punjab. This story given by the prosecutrix is not believable in view of her statement under Section 164 Cr.P.C. made before the Magistrate. This story is belied by her testimony in her cross examination wherein she stated that they (she and the boy) had gone to Punjab at about 12 noon on the day of incident. It is obvious that she had left the house at 11 am as per her mother’s report and thereafter both of them had gone to Punjab. Her plea that she became
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unconscious was a patently false plea as is apparent from the sequence of events and the documents proved on record. During cross examination she was shown photographs of her with the boy, taken when they were in a village in Punjab. She admitted the photographs, but, she denied that she had married the accused in a temple. She admitted that all along i.e. for a period of more than one and a half month, when she lived with accused, she raised no alarm at any point of time. 5. The learned ASJ had considered that the age of prosecutrix was most important aspect and in view of the school leaving certificate showing that she was born on 2nd July, 1988, the learned ASJ came to conclusion that the age of prosecutrix, on the date of incident, was 14 years and a half year, thus, she being below 16 years of age and offences under Section 363, 366 and 376 IPC were made out against the accused.
6. The mother of prosecutrix, while appearing as PW-3, has stated that she did not remember what the date of birth of her dauther was. She gave her age as 14 years. PW-6 Dr. Naveen Bhatt, who is an independent witness, during his testimony, stated that the prosecutrix aged 17 years was brought to casualty for her medical examination. He stated on the basis of radiological opinion the boney age of the girl was between 14 and 16 years. PW-8 was Head Master of Nigam School, Sultan Puri, where prosecutrix had studied up
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to 4th class, deposed that as per school record, the date of birth was 2nd July, 1988. He further deposed that this DOB was recorded not on the basis of any birth certificate but on the basis of another school leaving certificate issued by MCD School. Thus, it is apparent that date of birth certificate or birth certificate of the prosecutrix was not available either with parents or with the school and the date of birth of the prosecutrix was given on the basis of rough idea. The mother of the prosecutrix, who gave birth to her, failed to give date of birth of the prosecutrix. It is apparent that at the time of admission of prosecutrix in school, an arbitrary date of birth was given just for her admission. Her actual date of birth was not known. Mother of prosecutrix gave her age as 14 years on the date of incident, whereas, the prosecutrix herself gave her age as 17 years when she was produced before the Doctor. The radiologist gave her age between 14 and 16 years. Under these circumstances, I consider that the conclusion drawn by learned ASJ that the girl was definitely below 16 years was not justified and the benefit of doubt should have been given to the accused. The girl was mature enough and had taken a decision to run away with a boy of almost of her own age. The appellant, at the time of incident, was only 18 years old and if the prosecutrix around 17 years of age had run away with him, I do not consider that it was a case that appellant should have been convicted under Section 363, 366 and 376 IPC.
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7. I therefore, accept this appeal. The conviction of the appellant is hereby set aside. The appellant be set free forthwith. A copy of order be sent to Jail Superintendent forthwith. August 18, 2010 SHIV NARAYAN DHINGRA, J. acm

Categories: Other news

Star astrologer behind bars after wife’s suicide

Mukesh Wakhunde claims a clientele that includes Salman Khan and the Kapoors; victim’s kin alleges dowry torture


Nazia Sayed


Posted On Monday, August 23, 2010 at 03:07:47 AM

An astrologer who claimed to have Bollywood stars and big league politicians as part of his clientele, has landed in jail on charges of driving his wife to suicide. The accused, Mukesh Wakhunde alias Girdhari, was arrested earlier this month following complaint from his Diva-based in-laws. He is lodged in Delhi’s Tihar jail.
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On May 5, Girdhari’s wife Kiran, just 20, burnt herself to death at the couple’s Paharganj residence in Delhi.

Her family registered a case saying she was killed. After two months, Girdhari, 26, was held on charges of abetment to suicide.

Investigating officer Kishan Chand from Paharganj Police Station said, “Our investigations revealed Girdhari could be involved in pushing his wife to suicide.”

Police said that Girdhari boasted of having personalities like Salman Khan and the Kapoors as his clients. Kishan Chand said, “He has an office near Mehboob Studios.” Girdhari married Kiran in December 2009. Her family said she was being harassed for dowry.

Kiran’s brother Lalit Vedanta said, “We agreed to the alliance thinking Girdhari was very well off. But soon after marriage, he started harassing Kiran for dowry.” Vedanta said the moment they heard Kiran had committed suicide, they were convinced Girdhari was involved (in her death).

Victim’s family said that the moment Kiran died, they suspected Girdhari

Categories: Other news